dissenting.
This action commenced with the filing of a petition by a mother to terminate her parental rights to a child pursuant to K.R.S. 199.601. A short time after the filing of the petition for voluntary termination, the mother notified the trial judge by letter that the petition was filed under duress and that she did not wish to voluntarily terminate her parental rights. Subsequently, an amendment was filed in which the mother sought to have the immediate possession of her child restored to her. It was originally contemplated that the child, when born, would be placed for adoption. Proceedings to terminate parental rights, proceedings for immediate possession of children, and proceedings for adoption are entirely separate proceedings; however, the majority opinion discusses the issues as if the same criteria for decision were interchangeably applicable to each of them.
Thus the issue of whether a parent can dismiss or revoke a petition for voluntary termination of parental rights is decided here in the context of what the court considers to be the best interest of the child rather than the basis of whether the parent desires to voluntarily terminate parental rights.
I dissent from that portion of the opinion which approves termination of the mother’s parental rights. There are two ways in which the parental rights of a parent to a child may be terminated. One is an involuntary termination, against the will of the parent, on the grounds of abandonment or continuous neglect and abuse. Such a petition may be instituted by the Cabinet for Human Resources, a licensed child caring agency, certain officers, or a parent. No such petition for involuntary termination of the parental rights of this mother was ever filed.
The other method is voluntary termination whereby a parent files a petition in circuit court asking that the parent be permitted to voluntarily terminate parental rights and stating the reason therefor. A person cannot terminate his parental rights, even voluntarily, until a judicial hearing *738has established that such a voluntary termination would be in the best interest of the child and an order of termination has been entered.
The point is that such a termination is voluntary on the part of the parent. To say that a proceeding is voluntary and that the parent voluntarily relinquishes and terminates parental rights, when as here, the mother made it plain that she did not want to terminate her parental rights is contradictory on its face.
There was much testimony of threats and overreaching pressure brought to bear upon this mother which allegedly caused her to file the petition against her will. Regardless of whether the filing of the petition was voluntary or involuntary, any subsequent termination of her parental rights was not voluntary if she opposed it. A voluntary termination is one which the parent willingly pursues, is desirous of obtaining, and requests the court to approve.
The majority cites C.R. 41.01 to support a holding that the mother in this case could not as a matter of right revoke her petition to terminate her parental rights. C.R. 41.01 provides:
Subject to the provisions of Rule 23.02, of Rule 66, and of any statute, an action, or any claim therein, may be dismissed by the plaintiff without order of court, by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, .... (Emphasis mine.)
This rule permits an unrestricted right to dismiss an action or any claim therein at any time before service of an answer by the adverse party or a motion for summary judgment.
Even if the filing of a petition to terminate parental rights be considered to be an adversary proceeding — no answer had been filed by any party when the revocation of the petition was attempted and no motion for summary judgment had been made. So it would seem that this mother had an absolute right to revoke, withdraw or dismiss her petition for voluntary termination of her parental rights. Having made it plain that she did not wish to proceed to voluntarily terminate her parental rights, it was error for the trial court to terminate those rights on the basis of the “so-called” voluntary petition.
STEPHENS, C.J., and GANT, J., join in this dissent.