[14] The principal issue presented on appeal is whether the life imprisonment of the natural father for three felony murders is sufficient justification for failure to support his child and to preclude the application of 10 O.S.Supp. 1974 § 60.6[10-60.6](3),1 which permits adoption without parental consent for wilful refusal to support a child according to the parent's financial ability. The majority opinion holds that: 1) § 60.6(3) is clearly lacking in the expression of any legislative intent that imprisonment for any crime or for any duration is grounds for dispensing with parental consent, and 2) imprisonment cannot be equated with wilful failure to contribute to the child's support.
[15] The natural father of V.A.J. was convicted of three counts of first degree murder; and was sentenced, in at least one of them, to death. He was transported to the Oklahoma State Penitentiary for execution, but after a ruling upon the constitutionality of Oklahoma's death sentence statute, his sentences were commuted to two concurrent terms and one consecutive term for life. He has been incarcerated at McAlester since May, 1974. In March 1976, the mother was granted a divorce and custody of V.A.J. Subsequently, the mother remarried, and her husband sought to adopt the child. The trial court granted the adoption pursuant to 10 O.S.Supp. 1974 § 60.6[10-60.6](3) without the consent, and over the objection, of the father, based on his wilful failure to provide any monetary support. The trial court in its pronouncement of judgment held:
I [16] A legitimate child cannot be adopted without the consent of its parents, unless they wilfully refuse, fail, or neglect to contribute to the support of the child for a period of twelve months either in substantial compliance with a support provision contained in a decree of divorce; or if no provision is made in the decree for support, according to the parent's financial ability to pay.2 There is no real controversy concerning any payment of support by the father.3 He has paid nothing since his incarceration. The father asserts that he is unable to pay because of his imprisonment. The mother and adoptive father contend that a natural parent, with slight prospect of release, or of contributing to the support of his child, should not be relieved of his support obligation because of imprisonment and block an adoption which is in the best interest of the child. I agree. *Page 143". . . the failure [of] respondent to contribute one thin dime to the support of his son [constitutes] wilful failure, refusal and neglect to provide according to his financial ability. Obviously, respondent had limited funds and means to provide but he completely failed to do anything."
[17] Adoption statutes are in derogation of the natural rights of parents and must be strictly construed in favor of the parent.4 However, the Legislature has provided that parental rights may be subrogated to the welfare of the child under defined circumstances.5 The wilful abdication of the parental responsibility of providing support for a prescribed period of time has been declared a sufficient cause for forfeiture of parental rights; and the statute protects the right of a parent who cannot provide support for justifiable reasons.6 Even so, the welfare of the child cannot be ignored.7
[18] This case presents circumstances which require a pragmatic approach. The natural father, through his own fault, has placed himself in a position where he can provide neither financial assistance, nor a satisfactory relationship with his child, for an indeterminate number of years. He is serving two concurrent sentences and one consecutive sentence for life imprisonment as the result of his conviction in a triple murder. There is little prospect for release in the foreseeable future with miniscule chance of his ever offering parental support of any kind during the minority of the child.8 He has not sent any money for support from his admittedly limited resources of approximately $25.00 per month.
[19] I acknowledge that it would have been difficult for the father to send much money from his limited resources, but I am reminded of the "widow's mite," and it appears to me that the father was more interested in his own welfare rather than that of his son. The child is almost twelve years old, and about to enter the most sensitive period of adolescence. It is unquestioned that after the child reaches majority, he could elect to be adopted. Why should he be further burdened and punished for the crimes of the father? The adoptive father seeks to adopt the child and to provide the love, guidance, and companionship which the child needs; to give him the same name the boy's sister bears; and to prevent the stigmatization which must follow the son of a convicted murderer. To deny the child this opportunity merely to safeguard the parental rights of the natural father, whose conduct has prevented the fulfillment of his parental responsibilities, would be not only unjust, but not in keeping with the intent of the Legislature expressed in § 60.6(3).
[20] This situation is obviously within the intention of § 60.6(3). When the statute permitting adoption without consent was adopted in 1957,9 there was no need for the Legislature to provide that the consent of a person convicted of murder and sentenced to death by electrocution must be obtained before his natural child could be adopted. Until the United States Supreme Court found the death penalty, as then applied, to be unconstitutional in Furmanv. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and the imposition and execution of the death penalty under the law of Oklahoma to be cruel and unusual punishment in Justus v.Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976),10 the consent of Allen Clayburn Justus, the natural father of this child, would have become moot by operation of law. It is inconceivable to me that the majority evidently has no qualms about the adoption without consent of an habitual drunkard11 under the statute, but cannot bring itself to deprive an habitual murderer of his parental rights. The Legislature recognized that there must be a system of checks and balances and a *Page 144 weighing of the equities to protect minor children. This Court is not without power to give full viability to this legislatively instituted remedy, and it is the duty of the judiciary to supply by an appropriate pronouncement, whatever procedure which may be deemed necessary to implement an incomplete or deficient remedy.12
[21] We recognize that there can be no set rule which will resolve the question of whether incarceration for a criminal offense is justification for wilful non-support under different circumstances, and each case must be decided under its own facts.13 The issue of wilfulness is a fact question for the trial court. The evidence in this cause clearly and convincingly supports the trial judge's determination that the father's refusal to pay was wilful14 within the intent of the statute, obviating the necessity of obtaining his consent to the adoption.15
[22] We have consistently acknowledged the preciousness of the right to bear and rear one's children, but it is an awesome challenge which may be withdrawn based on one's refusal to meet the attendant responsibility.16 The necessity of zealously guarding the integrity of the natural relationship of parent and child must be equated against the best interest of the child.17
[23] I must, therefore, respectfully dissent.
[24] I am authorized to state that Chief Justice DON BARNES and Justice JOHN DOOLIN join me in this dissent.
"Where a parent has wilfully failed, refused or neglected to contribute to the support of his child, as provided in the decree of divorce, or according to his financial ability if no provision for support is provided in the decree, for a period of one (1) year next preceding the filing of a petition for adoption of such; . . ."
Mann v. Garrette, 556 P.2d 1003, 1004 (Okla. 1976). It should be noted that 10 O.S.Supp. 1974 § 60.6[10-60.6](3) was amended in 1981 to provide for substantial compliance with a support provision contained in a decree of divorce; therefore, the token payment of Mann would presumably be insufficient to prevent the adoption.