(dissenting).
I respectfully dissent.
In order for parental relations to be voluntarily terminated under SDCL ch. 25-5A, the circuit court must make a full and complete inquiry and determine that the parents are fully aware of the purpose of the proceedings and the consequences of their act. See SDCL 25-5A-16 and SDCL 25-5A-18. A partial or conditional termination of parental rights, however, is not within the purview of SDCL ch. 25-5A, Matter of J.M.J., 368 N.W.2d 602, 606 (S.D.1985), and once a condition is expressed, the circuit court should immediately terminate the proceedings because “the permanent termination of parental rights may not be conditioned in any manner.” J.M.J., id. at 608 (Wollman, J., concurring specially).1 See also, K.W.E. v. People, 31 Colo.App. 219, 500 P.2d 167 (1972).
In J.M.J., based on the mother’s (D.J.’s) testimony at the voluntary termination hearing, a small portion of which is reiterated in the majority opinion herein, it was concluded that “the mother ‘conditioned’ her consent to relinquishment of her ehild[,]” id. at 606; that the “condition imposed by the mother was the antithesis of a consent to an absolute termination of the custody of her child[,]” id; that the mother “was conditioning her consent upon the fact that the child would be adopted by her sister[,]” id. at 608 (Wollman, J., concurring specially); and that it was “obvious that her consent was part of a family plan to have her child adopted by her sister and brother-in-law, which plan fell through by no fault of the mother[.]” Id. at 608 (Morgan, J., concurring in result).
Now, however, the majority herein, less than seven months after the rendition of the decision in J.M.J., and seemingly based on the same voluntary termination testimony reviewed in J.M.J.,2 concludes that the mother’s “request to have J.M.J. placed for adoption with the Filipeks cannot in any way be characterized as a condition, the nonfulfillment of which, is fatal to [the mother's] consent to termination of her parental rights.”3
From such a determination, I dissent. At the voluntary termination hearing held in December 1982, the mother testified as follows:
Q. [by Mother’s trial counsel] And you understand that the child is going to be placed with, and is with your sister in Arizona, and they will adopt the child?
A. [by Mother] Right.
Q. And Social Services has assured you that the child will be adopted by that family, and that is one of the conditions why you are consenting to termination?
A. Yes.
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*821Q. [by Mother’s trial counsel] Do you understand that when this order is entered, it is irrevocable; that if you want to change your mind, it’s all over?
A. [by Mother] I know. But what would happen if Social Services says she is definitely going to go to my sister, and they turn around and—
Q. It’s my understanding that that will be in the order.
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[D]o you understand that the child will be placed with your sister for adoption, and that that is the only condition4 you are placing on this relinquishmen t ?
A. Yes.
[by the State] That’s the State’s understanding also.
THE COURT: It’s the Court’s understanding — I don’t believe I have the authority to order that. I would place custody with Social Services and, after that, my jurisdiction would end—
[by Mother’s trial counsel] I will put Social Services on the stand. Do you have any other questions, [D.J.]?
A. [by Mother] I want to make sure she is placed with the family.
J.M.J., id. at 604-05 (emphasis in original; footnotes omitted). To now determine the above testimony to be a mere “request” that “cannot ... be characterized as a condition” which vitiates the mother’s consent to termination of her parental rights, is a grievous misinterpretation and misreading of the record and the testimony therein. This new conclusion, this new interpretation, this new reading of the mother’s intentions and testimony appear to be solely anchored to the premise that the child had been placed with an adoptive family on August 9, 1984 (one month after notice of appeal had been filed), and the adoption was finalized on April 2, 1985 (just 55 days after this Court considered the appeal on briefs and 50 days before a formal decision thereon was rendered). I posit that such subsequent events cannot transform the conditioned assent of the mother to the termination of her parental rights into a well-considered and unequivocal decision on her part. The mother’s condition to voluntary termination, clearly and repeatedly stated and expressed at the termination hearing, was a state of mind then existing and it cannot now be changed by totally unrelated acts which have transpired nearly two and one-half years thereafter. At the time when the circuit court was required by SDCL 25-5A-16 and SDCL 25-5A-18 to make a full and complete inquiry and determine that the mother was fully aware of the purpose of the .proceedings and the consequences of her act, the mother conditioned her consent; the egregious error of the Department of Social Services, which permitted adoption while this Court was considering the mother’s appeal, does not eliminate or change that conditioned consent. Having received less than full and complete consent to the voluntary termination of the mother’s parental rights, the circuit court could not proceed to terminate those rights under SDCL ch. 25-5A.5
Parents have a fundamental right to their children. Matter of Adoption of Bellows, 366 N.W.2d 848 (S.D.1985); In re K.D.E., 87 S.D. 501, 210 N.W.2d 907 (1973). Although the majority paints a bright and happy picture of J.M.J. and her new adoptive parents, and a dark and doubtful scenario surrounding the mother, I do not believe such circumstances and the child’s best interest warrant the termination of the mother’s natural and fundamental parental rights. The record is not replete with grounds for which the mother could lose her parental rights involuntarily and thus have her child taken from her by the State. It is cardinal to observe that her rights to the child were not terminated by an involuntary proceeding below. The fact that the mother voluntarily and conditionally terminated her parental rights and that the condition did not transpire, cannot es-*822top the mother from asserting her natural and fundamental parental rights. Nor can the Department of Social Services’ error be used as a vehicle, avenue, or means by which the mother loses her child. While the Department of Social Services should most certainly not be rewarded for committing the error hereinbefore mentioned, neither should the mother be punished and emotionally traumatized because of the results occurring therefrom. When the mother’s sister and brother-in-law did not adopt the child and the child was returned to South Dakota, the mother moved expeditiously to regain the custody of her child. Furthermore, this Court has held that a parent may validly withdraw his/her consent to adoption under proper circumstance. Matter of Adoption of Everett, 286 N.W.2d 810 (S.D.1979). In Matter of D.D.D., 294 N.W.2d 423, 426 (S.D.1980), this Court remanded a case to the lower court with instructions to determine the voluntariness of a natural father’s waiver of notice and power of attorney to consent to the termination of his parental rights over an illegitimate child. As I expressed in a special concurrence in Matter of Adoption of Sichmeller, 378 N.W.2d 872, 874 (S.D.1985): “A proceeding for voluntary relinquishment, which is the way this case started out, is intended to provide only for the parental relinquishment of unwanted children, not for the relinquishment of children who are genuinely wanted by a parent.” Id. at 875. I also cited with approval, for it is a work of humanity — not technicality — , In re Romero, 73 S.D. 564, 568, 46 N.W.2d 108, 110 (1951). Id. No act of the mother thus creates error or estoppel and I would affirm the previous decision rendered in J.M.J., 368 N.W.2d 602.
I find no fault with the trial court which proceeded with the adoption and which adoption file, by order of this Court, was made a part of this appeal record. Little did the trial court realize, when it granted this ten-year-old girl to new parents, that the rights of the mother and the child were on appeal; for, this state agency filed a written document dated April 2, 1985, consenting to the adoption of the child. This agency, in a Report to the Court, dated March 18, 1985, told the adopting court that the “biological mother’s rights were terminated December 28, 1982 and the Order was filed.” Therefore, the adoption order was entered without knowing that the case was on appeal and an adoption order was entered when the rights of the mother had not been finally terminated. Thus, the adoption order was flawed. Justice Fosheim, writing for this Court in Everett, 286 N.W.2d at 816, closed by stating: “The only procedure by which the Oaklands could have adopted the child without Ms. Everett’s consent was under the provisions of SDCL 25-6-4, none of which were applicable.” SDCL 25-6-4 was cited in its entirety. I refer to subsection 4, which is particularly applicable to this case. Please note SDCL 25-6-4(4), which reads:
No child may be adopted without the consent of his parents. However, the judge may waive consent from a parent who:
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(4) Has been judicially deprived of the custody of the child, if the adjudication is final on appeal to the court of last resort or the time for an appeal has expired. (Emphasis supplied.)
. Justice Wollman is now serving on the Eighth Circuit Court of Appeals. Thus, this Court is comprised of different personnel.
. There has been no further testimony taken on the voluntary termination issue.
.The author of the majority opinion is Hertz, Circuit Judge, Acting as Supreme Court Justice. Acting Justice Hertz was not a participant in J.M.J., 368 N.W.2d 602.
. "Condition” is used in the question; the majority opinion says this cannot be "characterized as a condition."
. Mother was innocent of the Department's wrongdoing. Laches or estoppel should not be applied against her.