(dissenting).
Expressly so stating during the trial, the court observed that there was no suggestion at trial that the father was anything but a fit and proper parent. The trial court made an absolute finding that the mother’s conduct was “unacceptable as parental conduct.” There was a finding by the trial court that the father was a fit and proper parent. We no longer observe the “tender years doctrine,” which provided, inter alia, all things being equal, the mother was entitled to custody of a child of tender years. Our State Legislature abrogated this custodial preference based solely upon gender. Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982).
Essentially, both appeals should be reversed because there was a clear abuse of discretion in awarding actual physical custody of the minor child of these parties to the mother. A judicial discretion is not an uncontrolled one, and its exercise must have a sound and substantive basis in the testimony. Aulner v. Aulner, 296 N.W.2d 533 (S.D.1980).
A “rash” to this child was actually second-degree urine burns caused by the neglect of the mother. This was at a time when her conduct was being monitored by a court services officer due to her “immaturity.” In other words, the trial court was watching to see what kind of a mother she would be under dictates of the decree. Needless to say, not changing the child’s diapers so that the child ultimately had second-degree burns from urine, is not being a fit and proper parent for the continued custody of a child.
The record is replete of drugs, liquor, and sex, all used and displayed in the presence of this child by the mother. Such conduct is highly detrimental to this child. I would accordingly reverse and respectfully dissent.