(dissenting).
I dissent.
Under statutory mandate, SDCL 26-8-22.10, evidence of child abuse constitutes prima facie evidence of dependency or neglect. Reading the trial court’s findings of fact which included:
*106XV
The December 3rd hitting incident arose out of [L.M.’s] frustration caused in large part by marriage difficulties.
XVIII
[L.M.] demonstrated the capability to care for her child on a regular basis.
XIX
[L.M.] seemed to need reinforcement and generally responded well to agency’s suggestions.
XX
[A.M.] appeared to be well-fed, appropriately clothed, clean, and normal in height, weight and development.
XXI
The [Ms’] mobile home appeared clean and adequate, except for the two times when utilities were off.
XXII
[L.M.’s] care of [A.M.] seemed to be appropriate.
XXIII
No agency personnel had ever observed any bruises or injuries to [A.M.], except for the December 3rd incident.
XXIV
None of the State’s witnesses felt concern at any time for [A.M.’s] safety or welfare.
it appears that the trial judge who heard the evidence felt that the prima facie case was overcome by the evidence as a whole. The findings above support his conclusions of law:
I
Viewing the evidence in a light most favorable to the State, the State failed to show [A.M.] to be a dependent child.
II
The care provided to [A.M.], although not perfect, meets the minimum standards the State is entitled to require.
The majority would apparently overrule the trial judge on the basis of one piece of evidence, a color photo. I think we should decide lawsuits on all the evidence. We should do more than pay lip-service to the clearly erroneous rule, especially in reversing an experienced trial judge.
I am also disturbed by the suggestion that evidence of conduct after the petition is admissible per se. In both Matter of N. J. W., 273 N.W.2d 134 (S.D.1978), and the Matter of D. T., 89 S.D. 590, 237 N.W.2d 166 (1975), we held evidence of conduct after the filing of the petition was admissible only where relevant to the parents’ continuing behavior and attitudes similar to past actions. If some new conduct arises the state can easily ask leave to amend the petition and then all parties can proceed to trial without blinders. Due process mandates that parents be advised in advance of hearing of what course of conduct they are to defend against. To this extent I think the majority opinion should be tempered.
I would affirm the judgment of the trial court.