Justice, concurring in result; but dissenting to the application of Davis v. Davis, 708 P.2d 1102 (Okl.1985):
I concur in result because the record discloses absolutely no evidence was presented at the trial of this case to establish that the mother of these children ever willfully refused to contribute to the support of her children. Indeed, the evidence was that this mother had never been asked for any financial support; but that she nevertheless furnished clothing, gifts and toys to her children during her visitation with them. According to the evidence alone, the trial court abused its discretion and did not act within the best interests of these minor, dependent children by forever removing from them the benefit of their mother’s love, affection, companionship and support.
This is not to say, however, that termination of parental rights is never within the best interests of minor, dependent children or that a trial court is precluded from terminating the parental rights of a non-supporting parent, under appropriate circumstances, and upon the petition of the *526child’s custodial parent. As unanimously stated by this Court in Mullins v. Mullins, 606 P.2d 573 (Okl.1980):
“A child may be receiving excellent care from the custodial parent, while the noncustodial parent refuses to obey a court order to contribute to the child’s support. It would be ludicrous and perhaps impossible to require a determination of deprivation or delinquency under these circumstances, and the irresponsible parent would not only be able to escape his responsibilities, but continue to enjoy the benefits of parenthood, including Visitation, rights of inheritance and rights to the childrens’ earning. Such a result would not only be inequitable and unconscionable, it would violate the statute.”
Title 10 O.S.1981 § 1130(A)(4), in force at the time here involved, (the viability of which presently remains unaltered), provides:
§ 1130. Termination of parental rights in certain situations
A. The finding that a child is delinquent, in need of supervision or deprived shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations:
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4. A finding that a parent who does not have custody of the child has willfully failed to contribute to the support of the child as provided in a decree of divorce or in some other court order during the preceding year or, in the absence of such order consistent with the parent’s means and earning capacity; ... [.Emphasis mine.]
Our Legislature, pursuant to paragraph 4, above, has authorized that a trial court “may”, (permissive not mandatory), in the exercise of sound judicial discretion considering all the circumstances, terminate the parental rights of a non-custodial parent who willfully fails to contribute to the support of the child. The identical paragraph 4 remains on the books unchanged. The fact that our Legislature, in its wisdom, has enacted supplementary procedural clarification in a separate paragraph serves not to defeat, but to facilitate the true substantive legislative intent. Prior to Davis v. Davis, 708 P.2d 1102 (Okl.1985), pre-existing case law declined to exclude a child’s custodial parent or guardian from invoking paragraph 4 of § 1130 on behalf of the child. Mullins v. Mullins, supra. Davis, to my view, represents an isolated departure from established procedure in this jurisdiction and therefore should not be followed. I would limit its effect to the “law of the case”, especially so considering that the Legislature has now clarified the pre-existing intent of § 1130.
The Juvenile Code was enacted to protect the best interests of the children of this state. See, 10 O.S.1984 Supp. § 1129. Enforcement of a child’s individual right to receive support from a non-custodial parent serves this objective. The child’s custodial parent or guardian is the obvious and logical party to proceed on behalf of the dependent child. While the state, under proper circumstances, may proceed as parens patriae, it is not in all cases a necessary party.