dissenting.
The issue in this case is whether the case was tried under Code § 74-405 (a) or (b) (of the same code section). If under the latter, the adopting parents must meet the requirements set forth in Code § 74-403 (a) (3) or (4) as a spouse of the other parent, or a parent, brother or sister, aunt or uncle, son or daughter of either parent. One of the petitioners here is a first cousin of the biological mother.
1. As to Code § 74-405 (a). The Supreme Court case of Glendinning v. McComas, 188 Ga. 345 (3 SE2d 562) (1939) has made clear the rigid requirements in abandonment cases and the burden of strong scrutiny that must be carried: “ Tn order to constitute abandonment, there must be an actual desertion, accompanied with an intention to entirely sever, so far as possible to do so, the parental relation, and throwoff all obligations growing outof the same.’ ’’Nonsupport alone is insufficient. This case further points out: He “ ‘has *213failed to contribute any sum whatsoever to the support and education of his son and has failed to provide any necessaries for said child’... The present case must not be confused with a habeas-corpus case. In a case of that character the welfare of the child is the paramount issue, and no question as to termination of the parental relation is involved; whereas in an adoption proceeding the question is whether all the facts, including the interest of the child, are sufficient to warrant the court in completely severing and destroying the natural relation between the parent and child and substituting an artificial status between the child and another person as parent. Manifestly, the rights of the natural parent are of more importance in the latter case than in the former.”
Beatty v. Wilkerson, 147 Ga. App. 8 (248 SE2d 24) (1978) is inapplicable as there a court order existed in that case requiring support and there was a subsequent finding of wilful and wanton failure to comply with the order of support that does not obtain in the instant case. It would appear that in an abandonment case where rights of a biological parent are involved clear and convincing evidence is required. A finding of abandonment seems to be tantamount to finding the parent unfit. Compare Patty v. Dept. of Human Resources, 154 Ga. App. 455 (269 SE2d 30) (1980); Larson v. Gambrell, 157 Ga. App. 193 (276 SE2d 686) (1981); Chanceyv. Dept. of Human Resources, 156 Ga. App. 338 (274 SE2d 728) (1980).
Although the petition to adopt contained an allegation as to abandonment, a review of the transcript reveals that the issue of abandonment was not addressed, but, on the contrary, the case was considered totally on grounds outlined in Code § 74-405 (b). After hearing all the evidence the trial judge summarized his findings and conclusions:
“BY THE COURT
“Well, of course, these are always the cases that are the hardest for Judges to decide.
“First let me say that the circumstances, if .legal, and if known by both parties ... if the circumstances under which the petitioning parties get custody... get possession of a child, if the circumstances are known to both parties and the circumstances are approved by both parties, and the circumstances under which the parties get the child are irrelevant to an adoption.
“Now, the means by which the petitioning parties retain possession of the child, if legal and if not done in such a way that it prevents the natural parent from getting custody of the child, if the possession is under circumstances that does not prevent the mother from regaining possession of the child, then the circumstances under which they retain custody or possession of the child are not relevant *214to the adoption. What I’m saying is that they say you cannot have the child back, certainly, legally, that’s not true because she could. She could have walked up there any day she wanted to and picked the child up, and there wasn’t a thing they could do about it. But, if the petitioning parties tell her, you cannot have this child and that is used by the mother as the basis for her not regaining possession of the child, unless it was done in such a way that she was prevented from pursuing whatever rights she had, then that is not relevant to the adoption.
“Then, we come next to the parental consent, and we all know that the consent of the natural parents, both, is necessary to the adoption unless there are certain facts that exist that dispense with the necessity of that. One is that the natural parent has not made any substantial contribution to the support of the child for twelve months prior to the time the petition was filed or if there has been a failure to significantly communicate with the child during that twelve-month period.
“Now, I don’t have any choice in this case, as hard as it is to have to do, I don’t have any choice but to conclude that the child was not wrongfully withheld from the natural mother during this twelve months period.
“There has been a failure both to substantially communicate with the child and a failure to substantially contribute to the welfare of the child during that twelve months period. Now, I’m of the opinion that a hundred dollar contribution to the support of that child during that twelve months period, a four hundred dollar contribution to the support of that child, does not mean that there has been a substantial contribution to support of that child. I think when you say the substantial support it is substantial support both with respect to the needs of the child and the person’s ability to pay, and I’m not even sure that ability to pay is a factor that could be considered; but I do consider it.
“Now, we come then to the failure to communicate substantially with the child. I think there has been an absolute total failure to communicate... to substantially communicate with the child during that twelve months period of time.
“The only other question that I think we have to address ourselves to is the best interest of the child, and there has not been one word of evidence that the child’s interest, whatever that interest would have been, would have been protected by the child remaining with the natural mother during this period of time between September, 1980 and now. There is evidence that the child’s welfare would have been grossly endangered, and there has been ample testimony that the petitioning parties are financially, morally, *215emotionally able to take care of this child as parents.
“There is ample evidence that the child is a healthy, happy child, whose interest is being adequately addressed; and her best interest, in my mind, would be served by granting the adoption; and you can take an order to that effect.”
The Court Order dated January 7, 1981, nunc pro tunc, December 10, 1980, attempting to place the judgment on abandonment is unsupported by the evidence: The judgment is predicated entirely on abandonment. However the case was tried on the theory that the defendant had failed to communicate with and support the child, and on a finding of what would be to the best interest of the child. The judgment of the lower court must be reversed for this reason, and for the further reason that the mother not only did not relinquish custody, abandon and sever all ties with the child but refused to sign adoption papers and signed only a limited power of attorney for a specific act of medical treatment. The mother further on occasions asked that the child be returned but was told that she had not yet straigtened her life out. “A finding of unfitness must center on the parent alone,... Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship... The ability of a parent to raise his or her child may not be compared to the superior fitness of a third person. That ability must be examined in a scrutinous, abstract light.” Carvalho v. Lewis, 247 Ga. 94 (274 SE2d 471) (1981).
2. As to Code § 74-405 (b). In the instant case one of the adopting parents is only a first cousin of the mother. The statutory requirements that permit the use of less scrutiny in the severing of parent-child ties, as in cases under this code section, is not satisfied. For this additional reason I respectfully dissent and would reverse.
I am authorized to state that Judge Birdsong and Judge Sognier join in this dissent.