dissenting.
[¶ 11] I respectfully dissent. I would affirm the trial court’s denial of the petition for adoption.
[¶ 12] Although the trial court did note that it was unable to find abandonment, it is evident that the trial court was struggling with a matter that was procedurally so deficient that granting an adoption would have been error because, under the circumstances, the court could not terminate parental rights.
[¶ 13] As noted in the Order of the court:
The petition filed in this matter does not specifically request termination of parental rights, however, it is clear that parental rights would have to be terminated before the Court could grant the adoption and Ms. Doll was provided with a court-appointed attorney because of the possibility her parental rights would be terminated.
[¶ 14] The trial court attempted to alert counsel to the deficiencies:
THE COURT: I am kind of wondering as you look at your petition, you have not asked for termination of parental rights. And I’m wondering, I just — I am looking at the statutes and trying to figure out what it is you are wanting me to do in terms of the statute.
There are provisions in the adoption law that indicate that consent is not required from a parent if the parent has been — consent to adoption is not required of a parent in the custody of another if the parent for a period of at least one year has failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree.
Another provision under that section is: Consent is not required of a parent of a minor if failure of the parent to consent is excused by the Court in the best interest of the child by reason of the parent’s prolonged unexplained absence, unavailability, incapacity or significant failure without justifiable cause to establish a substantial relationship with the minor, or to manifest a significant parental interest in the minor, or by reason of inability of the Court to identify the parent.
I’m not sure what statutory provision, what it is that you are asking the Court to do.
MR. BAER: Well, I know there were two separate statutes here and they have different — as I understand it, they’ve got different requirements. But what I was asking for is — well, I guess one decides the other. If there is an adoption, then there is a termination.
THE COURT: No. No.
MR. BAER: I’m asking for both actually.
THE COURT: You didn’t ask for relinquishment or termination of the par*586ent/child relationship in your petition or anywhere in any of the documents I saw.
MR. BAER: Well, then we would amend it to do that, because I — I just assumed they go hand — one goes with the other and there would be a termination, because there were two different statutes, which the supreme court has addressed, that have different requirements for them, is the way I understood it.
THE COURT: Mr. Dyer, is there anything you wanted to say with regard — I’m just trying to figure out the statutes and what it is that—
MR. DYER: Well, I understand that, you know, there wasn’t any specific— that if consent is not given, then termination, I understand, has to be in compliance with the statutory provisions the Court—
THE COURT: Well, there are — there is. Okay. There are people who have to consent..
MR. DYER: Yes.
THE COURT: And if they don’t consent, then you have a hearing. And there are people from whom no consent is required, and that includes some categories of parents. I — maybe the two of you should be writing something for me on this, because I think that’s kind of a key to any decision I would be making here. What provisions am I going under, what — I don’t imagine that this will be the end of this case, so I think it would be good to know what the statutory provision is.
[¶ 15] Further, there is no order terminating the father’s rights. Although named in the petition, he was not personally served. He was only served by publication and that publication was of a petition that made no mention of his parental rights being terminated. The fact that this father may not have been required to consent to the termination is separate from the requirement that he be given proper notice of the action to terminate his rights. N.D.C.C. §§ 14-15-11; 27-20-45(3).
[¶ 16] A party seeking to adopt has burdens under the statutes. They were not met. Remanding for findings will not cure these problems. I would affirm the trial court.
[¶ 17] CAROL RONNING KAPSNER