dissenting.
The question presented for our determination is this: under the facts of this case did Edward P. willfully fail to support his children for one year preceding March 21, 1977, the date this action was filed? The answer is no, and I therefore dissent.
The majority’s observation that Cynthia, Edward’s former wife, was “not free from fault in creating a condition which encouraged [his] failure to support” is an understatement.
She kept the whereabouts of the children and herself secret from Edward for years. She admits this, but now asserts that Edward should have been sending support payments to her through her parents nevertheless. Edward’s uncontradicted testimony was that he thought of that himself and tried, but her parents consistently advised him that his support would not be accepted; advising him that they would return any money he sent because Cynthia did not want anything from him.
The majority not only agrees with Cynthia, but holds that Edward did not do enough in attempting to support his children through their maternal grandparents, because he only inquired about the acceptability of support without actually tendering it. Edward is thereby precluded, rules the majority, from relying upon the protective rule of law we set forth in In re Gregory, Okl., 495 P.2d 1275 (1972) that where the actions of mother and her current husband induce the natural father to forego making support payments, that failure, may not be utilized to deprive him of his child. There the mother had refused the father’s offers of support and led him to believe that his support was not needed or desired and would not be accepted. This was not, we held, a “willful failure” to support within the intention of the statute.
The majority’s attempt to distinguish away the application of Gregory to this case because here Edward merely inquired, whereas in Gregory the father actually offered, is a red herring. Of course Edward couldn’t tender support to Cynthia. He couldn’t find her. That’s the point. This is an even stronger case for preserving paternal rights than was Gregory. There the actions of the mother and her husband merely induced the father into foregoing future payments. Here, the mother and new husband, by their actions, prevented Edward from having even an opportunity to offer to pay.
The majority cites no authority in support of its imposition of this legal burden upon a parent to pay child support to some third party while the other parent is hiding out with the children. I am aware of no authority and the majority does not explain how far this duty extends. If Cynthia’s parents had been deceased, to whom should Edward have offered child support?
*212The legal distinction between a mere inquiry about support and a tender is indeed a legitimate factor in passing upon the conduct between parent and parent. It has no application in these circumstances, however.
Cynthia left Edward in January, 1973; she took the children and left no forwarding address. Edward’s sister later found out she was in McAlester and Edward went there to try and effect a reconciliation. Cynthia emphatically rejected his offer and told him to leave. The next time the parties saw each other, which was also the last time they met prior to this trial was at their child’s funeral on September of 1973. The majority states that Edward “failed in his promise” to pay for that funeral. Even the trial court, although ultimately holding against Edward, didn’t find he “failed” to pay those expenses. In his written decision, the trial court stated:
“[Edward’s] only contact with his former wife was at . [the] funeral in 1973 . . and [her] response was that she didn’t need any help paying for the funeral which was [his] inquiry.”
Cynthia notified Edward of the child’s death and funeral arrangements through his mother. That is also how he received notice of this action to declare his children eligible for adoption. Cynthia testified in regard to notice for this action that:
“I knew where his mother lived and I told [the attorney] if I would just send it to his mother she would be sure that he got it.”
Shortly after the funeral however, Cynthia filed a divorce action against Edward, obtaining service by publication and giving no known address at which Edward could receive notice. The divorce was granted November 15,1973. Edward had no knowledge of the divorce until he received notice of this action. Upon learning of the divorce and the county where it was obtained, Edward filed in that action a motion to modify to establish child support and visitation rights. That motion was pending at the time this action was heard.
Edward and his mother testified that Cynthia advised him at the funeral that anything he sent to the children would be given to Good Will.
Both Edward and his mother testified that the only time Cynthia’s parents granted their requests to send presents to the children was the Christmas of 1975. Through them Edward sent the children presents and $100.00, which the grandmother used to buy them clothing.
Edward subsequently learned, in a letter from Cynthia’s mother to his mother, that Cynthia had removed his name from the presents. Prior and subsequent to that Christmas, Cynthia’s parents refused all requests by Edward and his mother to send presents. At all times Cynthia’s parents advised him not to send money for the children’s support and that any money he sent would be returned. Their testimony is uncontradicted.
The majority allows Cynthia to declare, after the fact, that her parents were her “agents” but does not hold her bound by their actions.
These facts do not constitute a “willful” failure to contribute to support within the intention of 10 O.S.Supp.1974 § 60.
Additionally, I do not agree with the majority that a weight of the evidence test is sufficient in actions such as this. The effect of an order authorizing the adoption of a child without the consent of his or her natural parent is the same as a judgment terminating parental rights. Wade v. Brown, Okl, 516 P.2d 526 (1973). When the fundamental right of a parent to his or her child is at issue, a weight of the evidence test is not sufficient. The standard or quantum of proof required to support permanent deprivation of that right must be at least clear and convincing proof. See, dissenting opinion, Matter of Adoption of Michelle N., Okl. 577 P.2d 68 (1978), and cases cited therein. See, also, e. g., In re Sweet, Okl., 317 P.2d 231 (1957); In re Sego, 82 Wash.2d 736, 513 P.2d 831; In re J. Z., N.D., 190 N.W.2d 27 (1971); In re Willis, W.Va., 207 S.E.2d 129 (1974); Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179 (S.D.Texas 1977).
*213I would reverse the judgment of the trial court.
I am authorized to state that HODGES, C. J., and WILLIAMS, J., join with me in this dissent.
DAVISON, J., dissents to the majority opinion.