concurring in part and concurring in result in part.
[¶ 65] I concur on issue 1 because the Father had standing to challenge the order terminating parental rights.
[¶ 66] I concur in result on issue 2 because the father received due and proper notice of *103the hearing to terminate parental rights through legal publication of the summons.
[¶ 67] Since the constitutions of South Dakota and the United States guarantee the right to due process, the South Dakota legislature cannot abolish due process through a statute. In other words, what the constitutions give or guarantee cannot be taken away by statute.1
[¶ 68] Therefore, to the extent that SDCL 25-6-1.1 purports to set up conditions “as a requirement of due process,” it is unconstitutional. However, to the extent that it purports to extinguish the parental rights of a father of an illegitimate child under certain conditions, it may be reasonable and constitutional.
[¶ 69] Based on this record, W.B.L. is the natural father of the child. Therefore, he was entitled to due process as guaranteed by the South Dakota and United States constitutions. W.B.L. received due process through notice of the hearing by publication of the summons. Notice was given so that he had an opportunity to be heard. Whether he received actual notice at that time is immaterial to the holding. He received his due process rights through legal publication and the court had jurisdiction to determine his parental rights to the child under SDCL 25-6-1.1. The court terminated his parental rights under the statute and the judgment was final subject only to appeal or motion under SDCL 15-6-60(b).
[¶70] After the mother advised W.B.L. that he was the father, the court needed to and did hold a hearing to determine that he received his due process rights as indicated above in order to affirm the judgment terminating his parental rights. However, had he not received due process through legal publication, he would be able to challenge the prior termination of his parental rights and have a hearing on the merits.
[¶ 71] Legal publication of the summons is, ■in the long run, the best safeguard of the rights of the natural father, the adoptive parents and the illegitimate child because it eliminates the uncertainty and confusion of a subsequent challenge on the merits.
[¶ 72] Due process does not require a hearing or actual notice in all such instances. It requires notice and an opportunity to be heard. There is a real difference. Notice may be satisfied by legal publication, which does not guarantee actual notice.2 However, it is adequate for due process because it resists or minimizes fraud, deception and secrecy. Therefore, not unlike Democracy, it is adequate even if ineffective on occasions.
[¶ 73] Therefore, I cannot agree with the majority’s conclusion that “the trial court went beyond the minimum requirements of the law” by “ordering notice by publication.” In my view, notice of a hearing for the *104termination of parental rights is clearly set forth in the South Dakota statutes in SDCL 25-5A-9,3 25-5A-11,4 25-5A-12 5 and 26-7A-48.6 Here, the court complied with these statutes and therefore, due and proper notice of the hearing to terminate parental rights was given.
[¶ 74] Without the due process safeguards provided herein, the rights of the natural father to his child can be arbitrarily terminated. Even more important, without these safeguards, the rights of an illegitimate child to his natural father could be arbitrarily terminated just because the child is illegitimate.
[¶75] Even though it appears the trial court did not err in concluding it was in the child’s best interest not to vacate the order terminating parental rights, it is unnecessary to reach issue 3.
. I recognize that other states have also set up conditions precedent to due process rights. Some require specific conduct by the father or his registration with the State before he receives due process rights. See e.g., AlaCode §§ 26-10A-7, 26-10A-17 (1992); ArizRevStatAnn § 8-106 (1989 & Supp 1995); MinnStat §§ 259.49, 259.51 (1992 & Supp 1996). I challenge those theories as inadequate for the reasons stated herein and because, in situations similar to this, it permits the mother to deceive the court without any public notice. A better solution is represented by the Nebraska Notice statutes, which provide for notice to biological fathers, including “any other person who the agency or attorney representing the biological mother may have reason to believe may be the biological father of the child.” NebRevStat § 43-104.12(7) (Supp 1995).
Nebraska also requires notification of possible biological fathers by publication if the agency or attorney representing the mother “is unable through reasonable efforts to locate” the biological father. NebRevStat § 43-104.14. Exceptions are made if the conception is the result of sexual assault or incest or if the mother’s or child’s safety would be threatened. NebRevStat § 43-104.15. However, if the biological father is not given actual or constructive notice, the attorney or agency "shall give the adoptive parents a statement of legal risk,” which indicates the legal status of the father’s rights at the time of placement. NebRevStat § 43-104.15. The attorney or agency must file a statement that it used due diligence to give notice to the father. NebRev Stat § 43-104.16. The trial court determines whether there has been substantial compliance with the notice statutes or may appoint a guardian ad litem to represent the interests of the biological father if due diligence is lacking. NebRevStat § 43-104-18.
. I recognize the deficiencies of legal publication. Frequently, it does not give actual notice. Critics have pointed out it is expensive and time-consuming but ineffective. See Homer H. Clark, The Law of Domestic Relations in the United States, § 21.2, at 582-83 (1987). It may, however, tend to eliminate challenges on the merits in situations like the present appeal.
. SDCL 25-5A-9 provides:
If a petition for the voluntary termination of parental rights is tiled, the court shall set a date for a hearing thereon, and shall cause notice of the time, place, and purpose of the hearing to be served upon the parent or parents. No such notice is necessary if a waiver executed by the parent or parents has been filed with the petition. The court may require notice to be served upon any other person or organization and shall require notice to be served upon the Department of Social Services if the petition indicated that aid to families with dependent children benefits were ever received on behalf of the minor child in accordance with § 25-5A-6(9). Any failure to provide notice to the Department of Social Services pursuant to this section does not invalidate the proceedings.
. SDCL 25-5A-11 provides:
A notice required pursuant to § 25-5A-9, may be served by any person authorized by the laws of this state to serve a summons in a civil action. Such notice shall be personally served upon every person required to be served if such person resides within the state and may be served upon such person, if without the state, by like personal service or by publication as provided in § 25-5A-12. Such service, whether personally or by publication, shall be made at least five days prior to the time for hearing.
. SDCL 25-5A-12 provides:
If the court finds that personal service as provided in § 25-5A-11 cannot be accomplished, the court shall publish notice of the time, place and purpose of the hearing as provided in § 26-7A-48. The form and wording of notice shall be prescribed by the court.
.SDCL 26-7A-48 provides:
If the petition or an affidavit of the state’s attorney discloses that any person or party to be served with the summons is out of the state, on inquiry cannot be found, is concealed within the state, resides out of the state, whose mail at the last known address has been returned, whose location is unknown or is affected by the designation “All Whom It May Concern,” the court shall cause the summons, modified to declare the initials of the child in lieu of the name of the child, to be published once in a newspaper of general circulation published in the county where the action is pending or in a newspaper in another county designated by the court as most likely to give notice to the party to be served. Publication of the summons shall be made not less than five days before the date of the hearing on the petition. Notice given by the publication is the only required notice to the concerned persons or parties to be served who are described in this section. An affidavit or certificate of publication made by the concerned newspaper and accepted by the court is evidence of service of summons by publication.
If service of the summons by publication is authorized, the party making service may at his option, without any order of the court, personally serve the summons on any person or party out of the state or the party may admit service of the summons, and no publication of the summons for that party is necessary.