(dissenting).
This case is a sad commentary on the justice system in South Dakota. Deeming the majority opinion to be totally without judgment as to the reality of the social and economic circumstances of a 14 year old Indian boy who impregnated a 16 year old white girl and then has a son taken away from him on the theory of “abandonment,” who he was denied the right to see, I respectfully dissent. He should not lose his son — forever. And under the majority opinion, forever and a day, he shall not see his son nor enjoy his company.
SDCL 25-6-4 permits a court to terminate parental rights if it is determined that the parent has abandoned his or her child. The South Dakota Supreme Court has determined the standard for determining if abandonment has occurred. Mastrovich v. Mavric, 66 S.D. 577, 287 N.W. 97, 97-98 (1939). In Mastrovich, we stated:
To constitute abandonment under our code it must appear by clear and convincing evidence that there has been by the parents a giving-up or total desertion of the minor child. In other words, there must be shown an absolute relinquishment of the custody and control of the minor and thus the laying aside by the parents of all care for it. (Emphasis supplied mine).
See also Adoption of Ernst, 318 N.W.2d 353 (S.D.1982); Matter of Adoption of Everett, 286 N.W.2d 810 (S.D.1979) supra; In *492re Adoption of Christofferson, 89 S.D. 287, 232 N.W.2d 832 (1975) supra.
In Christofferson, supra, we held that in order to support a finding of abandonment the evidence must establish an intent on the part of the parent to abandon and to relinquish parental obligations with respect to a child. We also held that this intent to abandon may be inferred from conduct. We further established that the factors to be considered in determining abandonment include a parent’s presence, love, care and affection, and monetary support. In Everett, supra, we held that, in determining if intent to abandon is established by the evidence, the trial court may consider the subjective statements of the parents in addition to objective factors.
In the present case, judging it on its own unique facts, subjective statements and objective factors indicate that Justin did not intend to abandon his son John. Intent to abandon is an essential element of abandonment and the conduct of the parent or parents involved must evince a settled purpose to relinquish all rights in the child. 43 C.J.S. Infants § 38. Some courts have held that mere inaction or lack of interest in a child for an extended period of time are insufficient. In re Adoption of Farabelli, 460 Pa. 423, 333 A.2d 846 (1975). In Fara-belli, the Supreme Court of Pennsylvania wrote:
We have stated, even inaction or lack of interest in a child for a period in excess of six months will not conclusively establish the required settled purpose of relinquishment. This section- has been interpreted as requiring a deliberate decision on the part of the parent to terminate the parental relationship and that parent must persist in that determination throughout the six-month period.
Therefore, I cannot conclude that there is clear and convincing evidence in the record that Justin met the “abandonment test” established in Mastrovich.
While it is true that Justin’s contacts with John were non-existent, the majority opinion completely overlooks the reasons why. First, Justin was only 14 years of age when John was born. Second, John was taken from Pierre to Rapid City within one week of his birth. Obviously, this denied this 14 year old boy’s opportunity to see his son. Third, Justin’s mother moved him halfway across the state, making it virtually impossible to establish or maintain any relationship with his son. Justin was then 400 miles from his son with no transportation, no job, no money, and totally dependent upon his own mother for support. Justin has his own natural guardian, his mother. In sum, it is my opinion that Justin is being held to a legal standard applicable to adults during a time when he was not an adult. Under SDCL 15-6-17, he was an “infant” who must be represented in law by a natural guardian or guardian ad litem. The youth and inexperience of a child of this age should be considered in assessing conduct. So it logically follows that reasonableness of conduct depends, in part, on the person’s characteristics, examples being his/her age, employability, health, economic infirmity and character. We need to recognize Justin’s immaturity of judgment and lack of ability to appreciate his very own actions in comparison to the judgment, discretion and experience of an adult. He was, after all, a boy who sired a boy. He cannot be said to be a man — and judged like a man, because he indulged in sexual intercourse one night at a teenage party, which the evidence shows.
Furthermore, Justin has continually expressed the subjective intent to establish his parental rights and gain custody of his son. He has appealed the termination of his parental rights in this case and he has expressed to others his desire to raise his son.
The record does not sustain a finding that Justin’s conduct demonstrated a conscious disregard of his parental obligations. Under SDCL 25-6-4, this is a question of fact to be decided by the trial court as to whether a parent has abandoned a child. If the finding is clearly erroneous, the finding should be overturned on appeal. Matter of Adoption of Sichmeller, 378 N.W.2d 872 (S.D.1985). In my opinion, the finding of abandonment here is clearly erroneous. Furthermore, the evidence of abandonment *493must be by “clear and convincing evidence standard”; it does not exist under this factual scenario. Claymore v. Serr, 405 N.W.2d 650 (S.D.1987).
Not once, since the birth of the child, has anyone ever permitted this young Indian boy to see his son. To me, that is inhumane. Only hatred, hostility, and prejudice can birth such conduct. The natural white ' mother made a decision, with the aid of her parents, to have her own white family adopt this child. The baby was removed from Pierre to Rapid City within one week of its birth. Within a very short time thereafter, Justin was moved to the other end of the state. Picture a 14 year old boy, living under his mother’s rule, with no car, no job, no money, and totally unemancipated under the law in South Dakota, {see SDCL 25-5-18) providing food, shelter, and clothing for his infant son. Justin did try to make contact through his mother, trying to contact the Ponton family. From the time that the young, white girl learned of her pregnancy, she decided unilaterally that her sister, Nancy Ponton, would adopt the baby. The young mother even failed to disclose to Justin that she was pregnant by him. All adoption proceedings and plans were “go,” not only during the pregnancy, but within one week after the birth of the child, for an adoption consent was presented to Justin’s mother. Later, the white community presented Justin with adoption proceedings and he emphatically said “No!” Justin tried to take his case into Tribal Court. Denied. Justin did succeed in having his son enrolled in the Sisseton-Wahpe-ton Sioux Tribe. This reflects his interest in his son and negates the conclusion of “Justin abandoned his son.”
This decision is likened unto a wind bringing the cold. It is a harsh north wind. It causes the hills of hope to be further away and the streams of fairness to sing low. Does this decision keep our nobler purpose — certain?