dissenting:
¶ 1 The majority opinion affirms the trial court in both the adoption proceeding and the divorce/guardianship proceeding. In the adoption, the Court finds that the trial court did not err in determining that Johnny Sutton’s failure to support was not wilful and therefore the adoption petition of the Combs should be dismissed. In the divorce/guardianship case, the Court finds that the record indicates no abuse of discretion by the trial court in determining that the guardianship petition of the Combs should be dismissed. I would reverse and remand both cases to the trial court, and accordingly, I must respectfully dissent.
¶ 2 RWS is now four years old, and has spent the last two and one-half years with the Combs after Jennifer Sutton, his mother, sought out the Combs and asked that they adopt RWS, and left him with them in February 1995. Jennifer had placed her older son with another family. The father of the boys, Johnny Sutton, had been in prison since May 16, 1994, after his probation had been revoked.
¶ 3 The subsequent attempts of the Combs to adopt RWS or become his legal guardian, both of which efforts were initially supported by Jennifer, have now been thwarted. My examination of the record leads me to conclude that too many questions concerning the best interests of RWS, and the fitness of either parent for his custody are left unanswered.
¶ 4 The majority opinion recites the reason given by the trial court for refusing to terminate Johnny Sutton’s parental rights. The trial court found that Johnny’s failure to support was not wilful in.light of an agreed temporary order where a different judge deferred setting child support until Johnny was out of prison. But imprisonment is not an excuse for failure to support, and neither is lack of a support order.
¶ 5 Consent of a parent for the adoption of his child is not necessary if the parent has wilfully failed, refused or neglected to contribute to the support of the child for a period'of twelve months immediately preceding the filing of a petition for adoption of that child. 10 O.S.Supp.1996, § 60.60(2).1 If there is no provision for support in a decree of divorce or an order of modification, the parent must support according to such parent’s financial ability. Matter of Adoption of J.L.H., 737 P.2d 915, 920 (Okla.1987). We have previously held that divorce and judicial imposition of support obligations are not prerequisites to adoption without parental consent under § 60.6 of title 10. Matter of Adoption of R.R.R., 763 P.2d 94, 97 (Okla.1988).2 Although his own witnesses revealed that Johnny Sutton received a total of $3,511.03 from February through April 1994, there is no evidence to show that he contributed a penny of this to the support of RWS.3 In May he was sent back to prison.
¶ 6 After requiring that a parent support a child according to such parent’s financial ability to contribute to such child’s support if the parent is not under a court order of support, 10 O.S.Supp.1993, § 60.6(2)(b) further provides: “The incarceration of a parent shall not prevent termination of parental *92rights under this section_”4 In Oklahoma, incarceration is no longer an excuse for failure to support, nor should it be a basis for the divorce court to delay child support orders.5 This Court has in the past affirmed a trial court’s finding that a child was eligible for adoption without the consent of her natural father, when that father was incarcerated for only a portion of the year preceding the filing of the petition for adoption. Matter of Adoption of Michelle N., 577 P.2d 68 (Okla.1978). Johnny Sutton’s imprisonment for nine of the twelve months should not serve to excuse his failure to support. Because the trial court improperly decided that the agreed temporary order in the divorce case excused Johnny Sutton’s failure to support, I would remand the case for a determination of whether Johnny can offer any legal cause why his failure to support should be excused.
¶ 7 Concerning the guardianship matter, the majority opinion concludes that nothing in the record indicates an abuse of discretion of the trial judge in .dismissing the Combs’ petition for guardianship. First the opinion states that the fitness of the mother had never been an issue in any of the cases, and then concludes that the trial court correctly excluded any evidence of the unfitness of the mother. Fitness of the mother was not an issue because when the adoption was filed, and when the guardianship was subsequently filed, the Combs had the consent of the mother, Jennifer Sutton. During the course of the guardianship, she withdrew her consent to the guardianship. By this time it was too late to withdraw her consent to the adoption. 10 O.S.1991, § 60.10(A),6 When the Combs tried to amend their petition alleging the unfitness of Jennifer as custodian of RWS, the court refused to allow the amendment because Jennifer had not received notice along with the other parties. Then when the Combs tried to later amend and give Jennifer notice, the court ruled that the amendment had come too late. The Combs were precluded from introducing evidence that the mother and father7 were unfit for custody of RWS. I would reverse and remand for consideration of their fitness as well as the best interest of the minor child, RWS. The best interest of the child cannot be determined if the trial court will not hear evidence of unfitness from the party who had physical custody of the minor child for a substantial period of time.
¶ 8 It should be noted in this appeal that Jennifer never filed a brief answering any of the arguments of the Combs in their two appeals. Neither did Johnny. In fact, the only party filing any brief was the Lameck-ers, the maternal grandmother and her husband, and that only in the guardianship case. In the past, this Court held that where no answer brief is filed, and the omission is unexcused, this Court is under no duty to search the record for some theory to sustain the trial court judgment. Sneed v. Sneed, 585 P.2d 1363, 1366 (Okl.1978). Where the brief-in-chief is reasonably supportive of the allegations of error, this Court has held that it will reverse the appealed judgment. Sneed, 585 P.2d at 1366, Cooper v. Cooper, 616 P.2d 1154, 1156 (Okla.1980). But in the case at bar, the Court has acted otherwise.
*93¶ 9 Custody in a third party is proper only where both parents are found to be unfit. McDonald v. Wrigley, 870 P.2d 777, 779 (Okla.1994); Haralson v. Haralson, 595 P.2d 443, 445 (Okla.1979); and State v. Lohah, 434 P.2d 928, 931 (Okla.1967). The facts and circumstances tend to present a case where the best interest of this child would be best served if the Combs were allowed to present evidence of unfitness. The guardianship case was the proper place to admit and consider evidence as to the fitness of the parents. Upon consideration of all relevant evidence, the court should determine whether the Combs’ guardianship would then serve the best interest of RWS. After admission of relevant evidence and findings by the trial court on remand, this may be a proper case for continuing custody with the Combs. This evidence was erroneously precluded and no proper findings therefore made by the court.
¶ 10 The best interest of the child test, now the law, has not been considered by either this Court or the trial courts. The trial courts’ orders should be reversed and remanded for consideration by the trial judge of proffered evidence necessary to make this adjudication. For these reasons, I dissent.
. 1993 Okla.Sess.Laws, ch. 253, § 2, eff. May 26, 1993.
. The special concurring opinion is a reiteration of the dissenting opinion in R.R.R.
. Marilyn Sutton, who is married to George Sutton, another uncle of Johnny, testified concerning whether Johnny had paid any money to Jennifer during the one-year period preceding the filing of the petition for adoption. She originally contended that she had delivered pay checks from Johnny to Jennifer for child support, but when pressed, could show only one receipt, dated January 17, 1994, for $80.00. That is before the one-year period began, February 1, 1994. She admitted that her testimony was in error, and that she had not delivered any money on behalf of Johnny to Jennifer during the months of February 1994 to the date the petition for adoption was filed in February 1995.
. While "termination of parental rights” is not before this court, the legislature has used this term clearly in reference to the statute providing for adoption without the consent of a nonsupporting parent. A finding that the parent's consent is unnecessary opens the door for termination of parental rights and adoption. The statute provides: "The incarceration of a parent shall not prevent termination of parental rights under this section." (Emphasis provided.) Accordingly, the sentence must be understood as applying to 10 O.S.Supp.1996, § 60.6, 1993 Okla.Sess.Laws, ch. 253, § 2.
. A child’s need for support is not deferred because one of its parents is incarcerated. Protection of the child requires entry of enforceable support orders.
. Title 10 O.S.1991, § 60.10(A) provides: "Withdrawal of any consent for adoption of a child pursuant to Section 60.5 of this title shall not be permitted, except that the court pursuant to the provisions of this section may, if it finds that the best interest of the child will be furthered thereby, issue a written order permitting the withdrawal of such consent if a petition for leave to withdraw consent is submitted in writing not later than thirty (30) days after consent was executed.”
. The Combs included a criminal information charging him with certain violent acts, which information was not admitted. But the trial court required that visitation of the father with his two sons be monitored.