In Re Adoption of R.A.D.

OPINION Opinion by CAROL M. HANSEN, Presiding Judge. ¶ 1 On June 4, 1998, Appellees, Mary Catharine Collins, and William Earl Collins, Jr., filed their Petition for Adoption and Application to Determine Child Eligible for Adoption Without Consent of the Natural Father. The minor child sought to be adopted is the biological child of Appellee, Mary Catharine Collins and Appellant, Uriel Richard Dewey, II. The minor child was born in March 1990. Appellee and Appellant were divorced in 1994. The petition for adoption, filed pursuant to 10 O.S.1998 Supp. § 7505-4.2, alleged the consent of Appellant was not necessary because he willfully failed, refused, or neglected to contribute to the support of the minor child for a period of 12 consecutive months out of the last 14 months preceding the filing of the petition for adoption. ¶ 2 A hearing on the Application for Order Determining Child Eligible for Adoption Without Consent of the Natural Father was conducted wherein evidence revealed Appellant, incarcerated since December 1996, had not provided any support for the minor child for the fourteen months prior to the June 1998 filing of the petition for adoption. Appellant testified he receives $7.20 per month as gain pay for participation and enrollment in the Taft Vocational and Technical Training School. Moreover, from April 1997 (fourteen months prior to the filing of the petition for adoption) to June 1998, Appellants’ parents sent Appellant $60.00 per month. ¶ 3 The trial court found that during the fourteen months preceding the filing of the 930 petition, Appellant had income of $67.20 per month. It also found that for this same time period, Appellant “willfully failed and refused to support his child in accordance within his financial ability to contribute and that his consent to the adoption is not required or necessary to the continuation of the adoption.” Appellant appeals the March 10, 1999 order memorializing this finding. ¶ 4 Appellant contends the trial court erred in finding there was clear and convincing evidence he willfully failed, refused and neglected to support the minor child in accordance with his financial ability. In Matter of V.A.J., 1983 OK 23, 660 P.2d 139, the biological father was incarcerated. His wife divorced him and she and her new husband sought to adopt the minor child without the father’s consent. The father had an income of $25.00 per month derived completely from funds provided by his parents. In overturning the trial court’s finding the father willfully failed, refused and neglected to provide according to his financial ability, the Supreme Court held: We cannot agree that here the father’s failure to contribute any portion of his limited funds to support his son constituted “wilful, refusal and neglect to provide according to his financial ability.” The father was a beneficiary of his parents’ largesse. The meager monthly stipend— which could be granted or withdrawn at will — should not be considered as a resource in gauging the father’s ability to contribute. The record reveals the father clearly has no other source of income. In the eyes of the law he should stand before the court as a resourceless prisoner. His ability to contribute should be judged without regard to his parents’ largesse. And further: The natural father is not to be deemed wilful when, as here, incarceration prevents his making any contribution to the •child’s support. The proper inquiry to address in this case is whether the natural parent intentionally incapacitated himself for the purpose of avoiding the duty imposed by law; if so, then imprisonment may constitute justification for dispensing with his consent in the adoption proceeding. The evidence here does not support an inference that the father’s commission of a felony, and subsequent incarceration therefor, was for the purpose of avoiding his support obligation. Thus his incapacity to earn income and pay support may not be deemed “wilful.” ¶ 5 V.A.J., supra, is controlling regarding the $60.00 per month Appellant received from his parents. The trial court erred in finding the $60.00 was a resource to be considered in calculating Appellant’s ability to contribute to the minor child’s support. ¶ 6 ■ The matter is REVERSED AND REMANDED for a determination, considering Appellant’s $7.20 per month gain pay, of whether Appellant has willfully failed, refused, or neglected to contribute to the minor child’s support. CARL B. JONES, C.J., dissents with separate opinion; and ADAMS, J., concurs.