(dissenting).
Findings of Fact and Conclusions of Law were entered by an able, experienced trial judge who found, essentially, the facts based upon testimony he heard after five days of dispositional hearing. The Conclusions of Law are supported by the Findings of Fact.
Attached to this writing are the trial court’s Findings of Fact and Conclusions of Law. Nowhere in the majority opinion is it reflected that these Findings were clearly erroneous. We cannot decide factual issues de novo. In re D.H., 354 N.W.2d 185 (S.D.1984). Yet, the majority reverses; this decision therefore violates SDCL 15—6—52(a) which provides that the trial court’s findings of fact will not be set aside by this Court unless they are clearly erroneous. See also In re T.H. & J.H., 396 N.W.2d 145, 148 (S.D.1986).
Majority’s footnote number two is an inferred finding-of-sorts, and it appears to be directly contrary to the trial judge’s Finding of Fact VIII. We are not the fact finders; we review “on the record.” The trial judge accepted psychological evaluations that father was “a normal individual.” He totally rejected testimony of one Dr. McGrath which tended to paint father as a pedophiliac. We should not/cannot decide that he is one — thereby substituting our judgment — or infer it.
The trial judge removed these two girls from a home where they were physically and sexually abused, and placed them with a father who has a “warm relationship” with them. See Finding of Fact X and IV.
It is noted that the trial judge did, in fact, use an alternative under SDCL 26-8-35 placing legal custody in the father and terminating no parental rights. The trial court structured visitation for the mother, counseling of the children, and supervision by the Department of Social Services; it appears to be a well thought-out decision, grounded in the immediate best interests of the little girls. These girls were interviewed by the trial judge in chambers; he saw fit not to place them with the Department of Social Services. The record contains letters from the girls imploring their counsel not to appeal.* I do not condone removal of these girls from South Dakota when considering Judge Kern’s order. However, that matter, as a legal issue, is not before us and must be addressed elsewhere.
I would affirm.
APPENDIX
STATE OF SOUTH DAKOTA ) ) ss
COUNTY OF MINNEHAHA )
In Circuit Court Second Judicial Circuit
In the Matter of N.K. and H.K., Alleged Dependent Children
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came on regularly before the Circuit Court with the Honorable Paul J. Kern presiding on the 19th day of August, 1985, and continued until concluded on the 23rd day of August, 1985 at the Courthouse in the City of Sioux Falls, Minnehaha County, South Dakota. Pamela Tiede, esquire, appeared on behalf of the State of South Dakota as Deputy States’s Attorney, *9with Rita Haverly, esquire, appearing on behalf on N.K. and H.K., with Don Breit, esquire, appearing on behalf of M.W., the mother of said children, who was also present, and N. Dean Nasser, Jr., esquire, appearing on behalf of the father of said children, namely, J.K., who was also present, and based upon the evidence presented and the arguments of counsel and the Court being fully advised in the premises, the Court does hereby make and enter the following:
FINDINGS OF FACT
I.
That the children, H.K., bom September 17, 1985, and N.K., bom November 16, 1976, the above-named alleged dependent children are the natural children of the respondents, J.K. and M.W.
II.
That said respondent parents were divorced in Minnehaha County, South Dakota, on the 19th day of June, 1978. That J.K. married his present wife, D.K., on the 6th day of June, 1981, and they have one son, E.K., age approximately 18 months.
III.
That much evidence was presented on the warmth of the relationship between the K’s and their son, E.K., and the fitness of the home as an environment for children, which evidence the Court finds credible and accepts.
IV.
In addition, much evidence was presented about the warmth of the relationship between H.K. and N.K. and their father, J.K., which evidence the Court finds credible and accepts; further, that the Court has examined the children, face to face, in chambers and has determined from such examination that the children have a warm relationship with their father, and that neither of the children possesses antipathy towards him.
V.
That the respondent, M.W., became married to D.W., the children’s current step-father on the 14th day of January, 1979; further, that the W. home has been fraught with two major catagories of difficulties as regards the children, H.K. and N.K., to wit: excessive corporal and related punishment at the hands of both M.W. and D.W., and sexual abuse at the hands of D.W.
VI.
That the children repeatedly reported to authorities that D.W. had sexually abused them and discribed [sic] the incidents in a manner the Court deems credible and accepts.
VII.
That accusations of sexual abuse against J.K. were not corroborated by any evidence the Court deems sufficiently specific and credible to permit a finding that J.K. abused the children, and on the contrary, the Court finds J.K.’s testimony that he did not abuse the children to be credible, and the other testimony which was accusatory towards J.K. not to be credible, and specifically the Court feels that those individuals providing testimony against J.K. in this regard were most probably mistaken and jumped to false conclusions; further that the Court finds that the respondent, M.W., has attempted to make it appear as though J.K. and not D.W. had performed sexual abuse upon the children by attempting to create such evidence by false accusations and by telling the girls, H.K. and N.K. that it was their natural father, J.K., and not their step-father who abused them sexually; further that this conduct on the part of M.W. accounts for some confusion the girls evidenced to social workers and psychologists as to who abused them.
VIII.
The Court accepts the psychological evaluations which showed J.K. to be a normal individual and rejects the testimony of Dr. McGrath, which tended to paint J.K. as an incurable pedophiliac.
*10IX.
That the Court finds that J.K. in his current emotional and mental state is a fit and proper parent for these children.
X.
The Court finds that the best interests of the children demands that they be taken from the W. home where they were physically and sexually abused, and that custody of these girls, both legal and physical, be transferred to their father, J.K., subject to the restrictions on custody and visitation hereinafter set forth.
XL
That the children as a result of the sexual abuse at the hands of D.W. are depen-dant [sic] children in need of supervision by the Court and the parties stipulated to de-pendancy [sic] and the evidence shows that there is a factual basis for such finding.
XII.
That the respondent, J.K. shall report to a Court Service’s Officer once per month with his daughters for family guidance.
XIII.
That the mother, M.W. and shall have visitation rights with the children as follows:
1. She shall have the right to have the children in her home once per month on a weekend, commencing at 5:00 p.m. Friday to 7:00 p.m. Sunday. She shall also have the right to visit the children for four hours on either Saturday or Sunday, during the other three weeks of the month. The Department of Social Services of the State of South Dakota shall place in effect, restrictions on D.W. and M.W. similar to the ones now in effect, designed to ensure the children’s safety.
XIV.
The children, H.K. and N.K., shall continue to receive counseling from a qualified psychiatrist or psychologist that is acceptable to the Court.
XV.
That it is in the best interests of the children that neither parent shall disparage the other to the children, and that both should cooperate in raising these children subject to the supervision of the Court, and the personnel designated by the Court to supervise the parents and the children, which supervision shall continue until further order of [t]his Court.
Based upon such Findings of Fact, the Court makes the following:
CONCLUSIONS OF LAW
I.
That the Court has both personal jurisdiction of the parties and jurisdiction of the subject matter.
II.
That the children, H.K. and N.K., are dependant [sic] children subject to supervision by this Court.
III.
That based upon the evidence when taken as a whole, the best interests of the children require that custody, both legal and physical, be transferred to their father, J.K., from their mother, M.W. forthwith, subject to the restrictions upon the respondent, J.K., hereinabove set forth concerning counseling of the dependant [sic] children by a psychiatrist or psychologist acceptable to the Court, and reporting monthly to a Court Services’s Officer and subject to the restrictions upon M.W. and D.W. herein-above set forth and referred to concerning visitation of the children.
LET JUDGMENT ENTER ACCORDINGLY.
Respectfully submitted this 28th day of October, 1985.
BY THE COURT:
/s/ Paul J. Kern Judge of the Circuit Court
A letter from the oldest girl to her lawyer, reflecting an address in the State of Washington, in childlike language, decries attempts by her lawyer to bring her back to South Dakota.