¶ 1 Appellees, William Earl Collins, Jr. and Mary Catharine Collins, initiated the underlying action to adopt Mary's minor child without the consent of his natural father, Uriel Richard Dewey, II, Appellant. The petition, filed pursuant to 10 O.S. Supp. 1998 § 7505-4.2, alleged that the father had willfully failed, refused or neglected to contribute to the support of the child for the preceding twelve months, therefore his consent was unnecessary and his parental rights should cease. The trial court appointed independent counsel to represent the interests of the child in the proceedings.
¶ 2 Following a hearing, the trial court ruled the child was eligible for adoption without the father's consent. The father appealed. He asserts two propositions of error on appeal: 1) the trial court erred in finding a duty to support existed through the divorce decree although the determination of support was never ordered by any court; and 2) the trial court erred in finding that the father willfully failed, refused or neglected to support the minor child in accordance with the father's financial ability. *Page 931
¶ 3 Prior to the divorce of the natural parents, the grandparents were made guardians of the minor child. In the guardianship order, the issue of child support was reserved for a future hearing. Approximately three months later, the natural parents were divorced and the decree provided that the amount of child support was established in the guardianship matter. The divorce decree did provide that the father would be responsible for 50% of any medical and dental expenses not covered by insurance. No order was ever entered determining the amount of child support. Relying on In the Matter of the Adoption of R.W.S.,1997 OK 148, 951 P.2d 83, the father contends that because no determination of child support was established by a court in either the guardianship proceeding or the divorce proceeding, a determination of willful failure, refusal or neglect to contribute to the support of the minor child could not be shown.
¶ 4 This argument should fail because the divorce decree didrequire medical support by the father. The father concedes he has never provided any medical support for his child. In addition, 10 O.S.Supp. 1998 § 7505-4.2[10-7505-4.2](B)(2) provides that consent to adopt a minor child is not required from a parent, who for the last twelve months has willfully failed, refused, or neglected to contribute to the support of the minor child in accordance with the parent's financial ability if no provision for support isprovided in an order. Section 7505-4.2[10-7505-4.2] (B) further provides that the incarceration of a parent alone shall not prevent the adoption of a minor without consent.
¶ 5 The father's reliance on In the Matter of the Adoption ofR.W.S., supra, also is misplaced. In R.W.S., the trial court deferred payment of child support by the father until he was released from prison. There is an obvious distinction between this case and R.W.S. In R.W.S., the court's order affirmatively suspended support during the incarceration. That action had the effect of suspending the common law obligation of support, as well as the statutory obligation arising from § 7005-4.2(B)(2), supra. There is no provision in any order here refuting the existence of such an obligation. Evidence was introduced that the father had not sent money, food, medicine, or clothes to the child within the statutory period prior to the filing of the petition for adoption. The Oklahoma Supreme Court consistently holds that to avoid adoption, the parent is required to show support contributions commensurate with ability, in any form, toward the child's living expenses. Here, the father testified that he knew his duty to support his child was not released by either the guardianship proceeding or the divorce proceeding. He further testified that he only received $7.20 a month from his work while incarcerated and that his parents send him $60.00 a month. His argument on appeal is that he does not have enough money to send anything to his child. How much money a parent has is not the standard which is considered in determining whether a parent's consent is necessary before adoption proceedings. The courts look at what the parent has demonstrated, through whatever means available to him, showing the parent has not forgotten his statutory obligation to his child. In the Matter of the Adoptionof R.W.S., supra. Here, the father failed to provide any evidence that he had even attempted to contribute any item, in any form, as support for his child. The father relies upon Matter of Adoptionof V.A.J., 1983 OK 23, 660 P.2d 139, asserting gifts from his parents cannot be considered as a personal resource in figuring support. Even if this language from V.A.J. is taken literally, then there is no reason the court could not find that his total failure to provide anything whatsoever from the meager amount that remains is sufficient to uphold the judgment of the court. However, any money available to an incarcerated individual should be considered discretionary income available for fulfilling the parental obligation of support. Gifts should be correctly considered in establishing the existence of "contributions, commensurate with ability in any form," sufficient to discharge that duty. Furthermore, if the language relied upon by the majority is taken literally to mean largesse from third parties is not to be considered when measuring past failure to support, then that rule would equally apply when the court was considering a more fortunate recipient of past gifts, which is irrational. For *Page 932 instance, had this incarcerated person been given gifts of $50,000.00 in the past years by each of his parents, we would be constrained to hold that despite the fact he had $100,000.00 per year in disposable income, that sum could not be considered in deciding his obligation to support his child had been willfully neglected. Past gratuitous contributions, such as gifts, cannot be properly considered in setting future support obligations and this much should be obvious. Past gifts should be material, however, in determining ability in any form to contribute to the support of the child in the past fourteen months. For this reason, V.A.J. should not be construed so broadly, or it should be reconsidered. Now would be the appropriate time to do so.
¶ 6 The standard of proof in determining a child's eligibility for adoption without parental consent is clear and convincing evidence. The issue of wilful non-support is a question for the trier of fact. In the Matter of Adoption of J.R.M., 1995 OK 79, ¶ 1, ¶ 9, 899 P.2d 1155-56, 1158. We should have reviewed this record and found the trial court's order allowing the adoption of R.A.D. without the consent of his natural father was supported by clear and convincing evidence, even if the only support for such is the total failure to contribute anything from his meager Seven Dollars and Twenty Cents per month of discretionary income.
¶ 7 I respectfully DISSENT.
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