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THE PEOPLE OF THE STATE OF SOUTH DAKOTA,
IN THE INTEREST OF D.T., Jr., MINOR CHILD,
AND CONCERNING P.T AND D.T., Sr., RESPONDENTS

[2003 SD 88]

South Dakota Supreme Court
Appeal from the Circuit Court of
The Second Judicial Circuit
Minnehaha County, South Dakota

Hon. Glen A. Severson, Judge

LAWRENCE E. LONG
Attorney General

ANN M. HOLZHAUSER
Assistant Attorney General
Pierre, South Dakota
Attorneys for petitioner and appellee.

SCOTT B. CARLSON
Minnehaha County
Public Defender’s Office,
Sioux Falls, South Dakota
Attorney for respondent and appellant, D.T., Sr.

Considered on Briefs June 27, 2003
Opinion Filed 7/23/2003

#22522 PER CURIAM
[¶ 1.] Father appeals from an adjudication of abuse and neglect and a dispositional order terminating his parental rights to his infant son D.T. Jr. (D.T.). Mother’s parental rights were also terminated, but she has not appealed. We affirm.
FACTS
[¶ 2.] On August 16, 2001, Mother gave birth to D.T. by caesarean section. After the birth, Mother was prescribed Darvocet[1] for pain. Two days after D.T. was born, Mother fell asleep in her hospital bed while D.T. was lying on her chest and woke to find D.T. on the floor. The fall resulted in two skull fractures and a brain hemorrhage.[2] Father was in the hospital room when the child fell, but he was sleeping. He stated that he awoke when he heard either his wife or the child crying after the fall. One nursing report in the record noted that Father smelled of alcohol that evening, but that he did not appear intoxicated.
[¶3.] Hospital personnel informed the Department of Social Services (DSS) of the fall and a police officer was called to the hospital. Based on Parents’ history of committing child abuse and neglect, the child was taken into protective custody. DSS initiated abuse and neglect proceedings against Mother and Father.
[¶4.] The trial court found the child abused and neglected and terminated parental rights. Father appeals raising three issues:
Whether there was sufficient evidence that D.T. was abused and neglected.
Whether the trial court erred in using the clear and convincing evidentiary standard to find that termination of Father’s parental rights was in the child’s best interest.
Whether the trial court erred in finding that termination of Father’s parental rights was the least restrictive alternative.

STANDARD OF REVIEW
[¶ 5.] The State must prove a child is abused and neglected by clear and convincing evidence. Matter of J.A.H., 502 NW2d 120, 123 (SD 1993) (additional citations omitted). The trial court’s findings of fact will not be set aside unless they are clearly erroneous and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

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