dissenting.
¶ 1 Because the majority sentences the child in this case to being forever legally tied to a parent who would not give up any of his de minimis income to demonstrate any commitment to assuming responsibility for his child, I dissent. The conclusion reached by the majority is contrary to Presiding Judge Hansen’s decision in Matter of the Adoption of C.D.M., 2001 OK 103, 39 P.3d 802 and is based on an inaccurate view of the purpose of Oklahoma’s adoption statutes.
¶2 In C.D.M., in which I concurred, we reversed a trial court order determining the child eligible for adoption without the father’s consent because the trial court had improperly considered gifts of approximately $60.00 monthly in determining whether the father had wilfully refused to support the child in accordance with his ability to do so. In doing so, we followed the rule adopted by the Oklahoma Supreme Court in Matter of the Adoption of V.A.J., 1983 OK 23, 660 P.2d 139.
¶ 3 However, C.D.M.’s incarcerated father had monthly prison income of only $7.25 per month, without the considering the gifts. Rather than holding such a de minimis income could not form the basis for a finding of wilful failure to support, we remanded the ease to the trial court to consider whether the statutory criteria had been satisfied, in effect, holding that on those facts it was a question for the exercise of the trial court’s discretion. Now, based on evidence of the same level of income, the majority rejects that conclusion and determines as a matter of law that the trial court has no such discretion.
¶ 4 To support that conclusion, the majority relies primarily on then Vice Chief Justice Simms’ specially concurring opinion in V.A.J., 1983 OK 23, ¶ 1-12, 660 P.2d at 144-145. That opinion is based upon the assumption that the primary purpose of Oklahoma’s statutory approach to allowing children to be adopted without a parent’s consent, where the parent has wilfully failed to support the child in accordance with their ability to do so, is to ensure that children receive an appropriate level of support. I disagree.
¶ 5 In my opinion, the statutory language, “according to such parent’s financial ability,” contained in 10 O.S.2001 § 7505-4.2(B)(2) evinces a Legislative intent to require parents to demonstrate a willingness to accept the responsibility of being a parent by contributing to the support of the child consistent with their ability to do so no matter how small that contribution may be. This policy is not adopted for punishment of the parent, as the majority’s focus on the de minimis impact a small contribution would have had on D.L.A. seems to suggest, but it is about allowing children born to a parent who is unwilling to deprive himself or herself of even “one thin dime” for his or her child to have a parental relationship with a person who is voluntarily assuming the responsibility to nurture, love, and support that child. On this record, I do not believe Oklahoma law deprives D.L.A. of that potential.
¶ 6 The record contains abundant evidence that during the requisite statutory period, Father had the wherewithal to contribute at some level to D.L.A. He does not deny that. While incarcerated, Father’s basic physical needs were provided by the State of Oklahoma, and after his release, he testified he was saving money. The trial court observed the witnesses and was in the best position to judge whether Father’s claim that he tried to pay support but could not because he did not know D.L.A.’s location, which was unsubstantiated by any other evidence, was credible.
¶ 7 I would affirm the trial court’s order and remand the case for an appropriate hearing concerning whether this adoption is in *802D.L.A.’s best interest, including the impact of Father’s belated attempts to assume responsibility for D.L.A. I respectfully dissent.