dissenting:
The evidence does not support a finding that Kenneth N. willfully failed to pay child support for the twelve month period preceding August 20, 1975, and I respectfully dissent.
Before discussing his failure to support Michelle, it is important to point out that Kenneth N. has never challenged the jurisdiction of Oklahoma’s courts over his person and his parental rights. He submitted to the jurisdiction of the district court. The question of whether Oklahoma’s jurisdiction would survive a challenge by a parent whose failure to comply with a sister state’s support order while the parties were residents of that state and subject to its laws, is not before us. The majority opinion, therefore, should not be interpreted as authority on that issue.
Appellees’ petition to adopt Michelle and application for an order to proceed without the consent of her father based upon his willful failure to pay child support for one *71year next preceding the filing,1 was filed on August 20,1975. The period of time which is material to our inquiry therefore, is August 20, 1974, to August 20, 1975.
From August, 1974, until January, 1975, Mr. N. was participating in a prison work release program. He testified that he had no income other than the wages he earned on the program and that the manner in which those wages were distributed was not within his discretion. He testified that the North Carolina correctional authorities, without his direction or consent, took from his monthly income $108.00 for his current wife’s support, $118.00 for his board and room, and, with the exception of $40.00 allowed him for personal expenses, placed the remainder in an escrow account which was for his eventual benefit but that he could not reach those funds until his release from custody. There was no evidence which controverted this testimony. Neither was there any evidence which disputed his testimony that the only reason he did not make his child support payments while he was in prison was because he had no money.
The majority’s affirmance of this judgment is based upon the failure of Kenneth N.s’ mother to make his support payments while he was in prison. Without citation of supporting authority, the majority holds that because his mother, Mrs. Meshaw, “was to have advanced the necessary funds” during his incarceration, it cannot be said that “N. was financially or otherwise unable to pay child support during his period of incarceration or afterwards.” I cannot agree. Whether his mother did or did not make those payments for him is not an issue in this action. The issue before us is whether KENNETH N. willfully failed to pay his child support for a period of twelve months. The majority’s decision is based upon an implicit finding of agency. How else could the failure of N.s’ mother to make the payments be attributable to him — so that her failure to pay became his willful failure to pay? I am not aware of any authority to support this application of agency principles to the law of domestic relations and I cannot concur in its adoption by the majority.
Whether Kenneth N. willfully failed to pay child support during his imprisonment must be determined from his actions alone. His undisputed testimony was that from August, 1974 until January, 1975, he had only $40.00 a month on which to live. I do not believe that a man who fails to make child support payments of $135.00 a month because he has an income of only $40.00 a month has “willfully failed” to make those payments within the intent of 10 O.S.1975 Supp., § 60.6.
I believe that the actions of Kenneth N.s' mother are absolutely irrelevant to the proper resolution of this action, but, since her failure to pay is the basis of the majority’s affirmance, I must add that I also do not agree with the majority’s interpretation of the evidence pertaining to her efforts to support Michelle. In my opinion, the evidence shows that Mrs. B. refused Mrs. Meshaw’s offers to pay the child support. See, In re Adoption of Gregory, Okl., 495 F.2d 1275 (1972).
It may be that after his release from custody in January, 1975, Kenneth N. did willfully fail to support his daughter; but January, 1975, to August, 1975, is not twelve (12) months.
A full year of complete nonsupport is required before consent of a natural parent is not necessary in an action to adopt a child. In Mann v. Garrette, Okl., 556 P.2d 1003 (1976) we held that only one support *72payment made less than one year next preceding the filing of the petition for adoption is sufficient to prevent the adoption without consent, even where that one payment is made only on advice of an attorney to prevent the one year period from running. In Mann we relied upon the following quotation from Heard v. Bauman, 443 S.W.2d 715 (Tex.Sup.1969), which is also relevant in this action:
“ ‘While adoption statutes are generally given a liberal construction, the rule of strict construction applies in favor of a non-consenting parent. This is especially true in cases in which it is asserted that because of the parent’s misconduct toward the child, his consent to the adoption is not required. Every intendment should be made in such case in favor of the parent’s claim; and where the statute is open to construction and interpretation, it should be construed in support of the parent’s natural rights.’ ”
Our statute requires willful nonsupport for a full year next preceding the filing of the adoption petition. Taken in its strongest light, the evidence here shows willful nonsupport for only seven (7) months.
Additionally, I do not believe that a “weight of the evidence” test is a sufficient standard of proof in this action. The effect of this action — a decree of adoption without N.’ consent — is the same as a decree terminating parental rights under 10 O.S.1971, § 1132; it deprives N. of all rights in and to his daughter. See, Wade v. Brown, Okl., 516 P.2d 526 (1973). When such fundamental rights are at issue, the standard of proof must be at least clear and convincing proof. See: Alsager v. District Court of Polk Cty., Iowa, 406 F.Supp. 10 (S.D.Iowa 1975), aff’d 545 F.2d 1137 (8th Cir. 1976); special concurring opinion, In the Matter of Christopher H. aka C., (1978); dissenting opinion, In the Matter of Keyes, Okl., 574 P.2d 1026 (1977).
I would reverse the judgment of the trial court.
I am authorized to state that HODGES, C. J., and WILLIAMS, J., join me in this dissent.
. 10 O.S.Supp.1975, § 60.6 provides in pertinent part: A legitimate child cannot be adopted without the consent of its parents, if living, nor a child born out of wedlock without the consent of its mother, if living, except that consent is not necessary from a father or mother: * * (3) 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 child; and where the above conditions exist it shall not be necessary to terminate parental rights under Section 1130 of this title prior to the adoption of said child. * * *.