People ex rel. M.W.

HENDERSON, Justice

(concurring in result).

Results in a ease are one thing. Precedent created by language in an opinion is quite another.

There is ample evidence to sustain findings that this child was abused and that she should be removed from the home environment. Separate and apart from hearsay evidence, circumstantial evidence all pointed toward the stepfather doing physical hurt to this child on numerous occasions and the mother either tolerating it or covering it up. This Court has, in the past, seen fit to affirm cases where a parent’s rights were terminated if that parent approved, by inaction, the physical abuse of a child.

In Matter of C.J.H., 371 N.W.2d 345, 350 (S.D.1985), we held that “[ujnder SDCL 19-9-14(7), however, the rules of evidence contained in SDCL chs. 19-9 to 19-18, inclusive, do not apply in dispositional hearings in juvenile court.”1 Therefore, if there is broad language in this opinion contrary to that statement, which I believe there to be, I repudiate it. A law-trained mind, with experience, should be able to understand why the Legislature has adopted two standards for the application of the rules of evidence. A higher degree of proof and greater degree of accuracy and reliability should be required in the proof during an adjudicatory hearing. It is understandable that strict rules of evidence should apply.2 When dispositional hearings are at hand, the rules may be relaxed to the extent of determining the best interests of the child and the various opinions that arise as to the alternatives available to a trial judge. I am extremely concerned that parents can lose their children, forever in the law, based upon strictly hearsay evidence in an adjudicatory hearing.3 *897Here, no advance warning was given, under the statute, of an intention to use hearsay evidence. Therefore, it was presented to the court without an early basic objection thereto. As the hearsay evidence came in, however, the objections to the hearsay were interposed and were, by and large, overruled. The child’s testimony was determined to be untrustworthy in a court of law. Yet, it was not deemed to be so untrustworthy or so unreliable that her statements could be used, through third parties, in a courtroom. In other words, her first-hand statements became hearsay evidence through other witnesses. The trial court’s rationale was that the six year-old could not meaningfully testify.

Lastly, the mother has not lost her child but only her immediate custody. She has a right and an opportunity to be heard again and it appears to me that the trial judge believed that it was wise to terminate the custodial ties, but not the mother-child relationship, on a permanent basis. In this, I believe that the trial judge used good judgment.

. See language in SDCL 26-8-30 prescribing that the hearings "shall be conducted under such rules and regulations as the court may prescribe and designed to inform the court fully as to the exact status of the child_” (Emphasis supplied mine.)

. Accord: Matter of V.D.D., 278 N.W.2d 194, 196 (S.D.1979).

. When hearsay evidence is adduced by the State, and received by the trial court, it cannot be a rambling, misty, groping, shrouded attempt to somehow hopefully be received by the trial court as a residual or recognized exception to the hearsay rule. Furthermore, the trial court should spread on the record the recognized exception under which the hearsay is being admitted. If this is not done, we have a loose, open-ended evidentiary proceeding likened unto a shotgun blast with the hopes that some buckshot will hit the target.