In re the Termination of Parental Rights Over A.M.L.

FOSHEIM, Chief Justice. An order of adjudication found A.M.L., the daughter of G.G.L., to be a dependent and neglected child. This was followed by a decree of disposition in which parental rights of the father, G.G.L., were terminated. We affirm. L.M.L., A.M.L.’s mother, commenced a divorce action against G.G.L. in February of 1983. The court then ordered G.G.L. to restrain from harassing or interfering with L.M.L. and H.T., A.M.L.’s grandmother. The showing in support of the restraining order alleged that G.G.L. experienced fits of rage and jealousy during which he became extremely violent. It was claimed that on one occasion G.G.L. choked and [359] struck L.M.L. while she was pregnant with A.M.L. and that he later pushed and shoved her while she was holding the then two month old baby. The showing indicated that G.G.L. suffered a head injury while in Viet Nam and was exposed to Agent Orange. He experienced memory lapses involving periods of rage and violence. He refused to secure help. H.T. also deposed that G.G.L. had an unpredictable and violent temper. She stated that G.G.L. sometimes harassed L.M.L. while she was nursing the baby and that L.M.L. had called her several times to help her protect the baby for whose safety she feared. On May 1, 1983, A.M.L., then four months old, was found in the home alone with the bodies of her mother and her grandmother. The two women had been murdered. A.M.L. was placed in the temporary custody of the Department of Social Services. G.G.L. was convicted of murdering his wife and her mother and was sentenced on June 4, 1984, to life in the penitentiary on each count. Appeals from both convictions are pending. At the dependency and neglect hearing held on July 24, 1984, G.G.L. agreed that A.M.L. was a dependent and neglected child. He stated in open court that his parental rights should be terminated. He also said he wanted A.M.L. to be placed with his brother and his brother’s wife for adoption. The court explained that his brother would be considered as an adoptive resource but that it was the province of the court to decide the most appropriate adoptive home for the child. The court explained that various homes would be studied, including that of his brother, to which G.G.L. stated he understood and agreed. G.G.L. first argues that the court erred when it placed A.M.L. in the temporary custody of the Department of Social Services for two months before a petition was filed. It is settled law in this State that a temporary custody order no longer in effect is not subject to review. In re N.J.W., 273 N.W.2d 134, 137 (S.D.1978). Appellant next claims that his consent to the termination of parental rights was not knowingly and voluntarily made. He argues that his consent was conditioned upon his brother and sister-in-law being allowed to adopt the child. It appears, however, from the transcript that appellant was fully and carefully informed that there was no guarantee that his brother would be allowed to adopt A.M.L. and that appellant understood this. He then indicated no misgivings about the termination. The proceeding was commenced and processed under SDCL ch. 26-8 as an involuntary proceeding. Under this chapter the parent’s consent is not needed to find the child dependent and neglected or to terminate parental rights. It is unlike the voluntary termination procedure found at SDCL ch. 25-5A, wherein a parent’s voluntary consent is crucial. Appellant’s consent was not the sole basis for the termination of his parental rights. The evidence clearly supports the findings of the court that his parental rights should be terminated under the involuntary procedure statute. G.G.L. next contends findings IX and X of the lower court were not sustained by sufficient evidence. The test is whether the findings of the court were clearly erroneous. SDCL § 15-6-52(a). See In re N.J.W., 273 N.W.2d at 138. We find this claim to be without merit. The decision and order of the trial court are affirmed. WOLLMAN and MORGAN, JJ„ and WUEST, Circuit Court Judge Acting as a Supreme Court Justice, concur. HENDERSON, J., concurs specially.