dissenting:
Mr. and Mrs: Voorhies were divorced on December 23, 1965. She was awarded custody of their, son, who *494was then about 18 months old. No order of support was entered against him. The decree is not included in the record, but it apparently awarded the father the right of reasonable visitation. On March 18, 1966, Linda Voorhies married Paul W. Moody. On January 20, 1969, she and her husband filed a petition to adopt her son by the prior marriage. It alleged three grounds, namely, that the child’s father, appellant herein, was a mentally ill person, that he had willfully neglected without just and sufficient cause to provide proper care and maintenance for one year prior to the filing of the petition, and that he had willfully deserted the child for the same period of time. Because of his mental condition a guardian ad litem was appointed by the court for the appellant, pursuant to petitioners’ request.
The plarties stipulated that appellant had been institutionalized, either voluntarily or pursuant to court order, for his mental condition for the following periods:
1) Oregon State Hospital, November 19, 1964, to March 23,1965 (voluntary).
2) Morningside Hospital, July 28, 1965, to January 13,1966 (voluntary). The divorce occurred during this period.
3) P. II. Dammasch State Hospital, January 13, 1966, to March 3,1967 (court-committed).
4) He “was returned” to P. H. Dammasch State Hospital March 7, 1968, and remained there until July 30,1968.
5) On July 30,1968, he was transferred from P. II. Dammasch State Hospital to the Veterans Hospital at Roseburg, where he remained until after the petition for adoption was filed.
*495Thus for ten and one-half months next preceding the filing of the petition appellant was in fact institutionalized either at F. H. Dammasch State Hospital or at the Veterans Hospital in Roseburg because of Ms mental condition.
In addition to its finding of willful desertion “without just and sufficient cause for a period of one year next preceding the filing of the petition,” the court also found:
“That although Anthony Voorhies was committed under Court commitment in Multnomah County Circuit Court on January 13,1966 and that said commitment still stands of record in the files of Multnomah County, that Anthony Voorhies is not at the present time mentally ill, or mentally deficient.”
No cross-appeal by the respondents has been taken from that finding. No claim is therefore presented that the father’s consent can be disposed of under ORS 109.322. Nor is this a proceeding to terminate the parental rights of the father under ORS 419.523 (2). Thus there is no occasion here to apply our recent holding in State v. Blum, 90 Adv Sh 29, 1 Or App 409, 463 P2d 367 (1970), allowing termination of a mother’s parental rights because of her mental condition pursuant to the latter statute.
In Omlie v. Hunt, 211 Or 472, 316 P2d 528 (1957), the Supreme Court had occasion to consider an adoption based upon willful desertion. It said at 482-83:
“Desertion or abandonment, with respect to children is usually defined as conduct which evinces a settled purpose to forego all parental duties and to relinquish all parental claims to the child. Anno, supra, 35 ALR2d at 665; 1 Am Jur 643, Adoption § 42; 2 CJS 388, Adoption § 21.
*496“In the present ease we are unable to agree with the trial court that the evidence shows willful desertion by the natural father. While his conduct leaves much to be desired, it must be judgéd.against the background of a difficult situation * *.
“Although the outward evidence of * * *' [the father’s] interest in the children was sporadic,'and perhaps feeble, we cannot saythat.it was entirely lacking. * * *”
2 Am Jur 2d 886, Adoption § 31, points out:
“* * * Some statutes use,-the term ‘desertion’ rather than ‘abandonment’ and it has been intimated that the use of this term may indicate that the legislature intended a distinction,' since abandonment does not necessarily imply; that the parent has' deserted the child or ceased .to feel for its interest; but in general the eases- indicate little difference in result because of any supposed distinction between these two terms-: * * *”
It then continues in § 32:
“* * * [T]he most frequently approved one is that abandonment imports any . conduct on the part of the parent which evinces a settled purpose to forgo all parental duties and relinquish all parental claims to the child, and to renounce'and forsake the child entirely.”
Insanity itself does not constitute desertion or abandonment within the meaning of statutes making such offense ground for adoption. 45 ALR2d 1383, citing “Keal v. Rhydderck (1925). 317 Ill 231, 148 NE 53; Burstein v. Millikin Trust Co. (1953) 350 Ill App 462, 113 NE2d 339, revd. on other grounds 2 Ill2d 243, 118 NE2d 293; Pitzenberger v. Schnack (1932.) 215 Iowa 466, 245 NW 713.”
Assuming that the trial court, correctly concluded that the defendant was not a-mentally ill person'under *497ORS 109.322, an issue not raised here, the foregoing rule, on the facts of this case is persuasive in considering whether there has been a willful desertion by a man who was institutionalized in mental hospitals continuously for the last ten and one-half months of the twelve which elapsed prior to the filing of the adoption proceedings.
It is true that the father visited the child but once following the divorce decree, but it is admitted that the mother asked the appellant on that occasion not to tell the boy that he was his father. He contends that because of his own emotional involvement he found it too difficult to continue seeing the child under such circumstances. His continuous presence in mental institutions for the last ten and one-half months prior to the filing of the petition obviously precluded him from such efforts during that period. The court made no finding that he willfully failed to contribute to the support of the child. The mother acknowledged receipt of some present or presents at Christmas.
The many reasons for distinguishing between desertion as a ground for divorce and desertion as a ground for adoption against an objecting parent are set forth at length in Simons v. Smith, 229 Or 277, 366 P2d 875 (1961). There the court said at 285:
“Because of the differences between the issues involved in divorce cases and those involved in petitions of adoption, we hold that the reasons for terminating parental rights must be related to an objective standard required of all parents rather than to the child-oriented evaluation of competing home environments employed in divorce suits. [Citation omitted].”
I agree that under our statutes, in adoption proceedings the welfare of the child is not material until *498either consent or one of the other statutory criteria'has Been established. I would hold only that the evidence here does not show thát the defendant’s interest in his child “was entirely lacking.”' Were the test here that of the Arizona statute:,① 'i.e'., the best interest of the child, I would wholeheartedly agree -with the majority. But it is not. Simons v. Smith, supra; Omlie v. Hunt, supra; State v. Grady, 231 Or 65, 371 P2d 68 (1962). It is statutory. Strobel v. Garrison, 89 Adv Sh 455, 255 Or 16, 459 P2d 1001 (1969), reh den 90 Adv Sh 141, 255 Or 30, 464 P2d 688 (1970).
I reluctantly conclude, therefore, that the decree should be reversed.'
For a statute imposing quite a different standard see Arizona Revised Statutes § 8-104:
“An order of adoption may be entered without the consent of-the parent or legally appointed guardian when, after hearing, the court determines that the interests of the child will be. promoted thereby. In such cases, the .court shall, make written findings of all facts upon which its order is founded.”