Matter of Adoption of V.A.J.

1983 OK 23, 660 P.2d 139, 1983 Okla. LEXIS 159

Opinions

OPALA, Justice:

The principal issue for review is whether under the terms of 10 O.S.Supp.1974 § 60.-6(3)¹ life imprisonment of the natural father for murder is sufficient per se to establish the son’s eligibility for adoption without paternal consent on the grounds of wilful failure to support the child according to one’s financial ability. We answer in the negative.

The natural parents of Von Allen Justus [child] were divorced in 1976. The mother remarried. Two years before the divorce, the natural father had been convicted of first degree murder. His sentence was commuted to life imprisonment. The divorce decree imposed no support obligation upon the father. Custody of the child was awarded to the natural mother. The custodial stepfather then sought to adopt the child without consent of the natural father. The trial court granted the adoption — pursuant to 10 O.S.Supp.1974 § 60.6(3) — without the consent, and over the objection, of the father. The basis for dispensing with consent was the trial court’s finding that the father wilfully failed to provide any monetary support. The record reveals that during his incarceration, prior to the adoption proceedings, the natural father had an income of $25.00 per month. He maintained contact with his son by visits and sent the child gifts,² but never any money. This appeal by the father is from the order by which his parental rights came to be terminated.

I.

This court held in Matter of Adoption of Michelle N3 that a natural father, who had been imprisoned at least partially during the twelve-month period preceding the adoption’s commencement, had wilfully failed to comply with a divorce decree’s support obligation. Michelle is distinguishable from the case at bar. The natural father in Michelle, who had a monthly income of $308 from employment in a work-release program, failed to comply with a court order of support. Here the father is alleged to have failed to contribute according to his financial ability when his only monetary resource consisted of $25.00 per month contributed to his upkeep by his parents.⁴ In Michelle we did anticipate that a prisoner may be “financially or otherwise unable to pay child support during his period of incarceration or afterwards.”⁵

We cannot agree that here the father’s failure to contribute any portion of his limited funds to support his son constituted “wilful failure, 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.

II.

The dispositive issue to be decided here is hence whether, under the terms of 10 O.S. Supp.1974 § 60.6(3), imprisonment for life affords a legally tenable basis for allowing adoption without the natural father’s consent on the grounds of wilful failure to contribute to the support of the minor child.

It is well-settled that adoption statutes must be strictly construed.⁶ Strict construction favors the rights of natural parents when the controversy is with one who seeks to destroy the parental status. Parents have a fundamental, constitutionally-protected interest in the continuity of the legal bond between themselves and their children. The integrity of familial status is a value to be regarded with great solicitude.⁷

The statutory language of § 60.6(3) is clearly devoid of any explicit legislative intent that imprisonment for any crime or for any duration afford a ground for dispensing with a parent’s consent.⁸ The statute requires wilful failure or refusal to contribute.⁹ Imprisonment cannot be equated with wilful failure to contribute to the child’s support. The natural father is not to be deemed wilful when, as here, incarceration prevents his making any contribution to the child’s support.¹⁰ 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.¹¹ 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”.

A finding of the trial court on an issue here under review will not be disturbed on appeal unless it fails to rest on clear and convincing proof.¹² Here the record clearly discloses an erroneous reliance on the father’s incarceration as a ground for dispensing with his consent to the adoption — a reason not sanctioned by § 60.-6(3). The trial court erred in finding that the $25.00 was a resource to be considered in gauging the father’s ability to contribute to his son’s support. The order allowing adoption without the father’s consent is contrary to law and unsupported by clear and convincing proof.

The trial court’s order is reversed.

IRWIN, LAVENDER and HARGRAVE, JJ., concur. SIMMS, V.C.J., concurs specially. BARNES, C.J., and HODGES, DOOLIN and WILSON, JJ., dissent.

1

.The statute in effect at the time of this litigation was 10 O.S.Supp.1974 § 60.6(3). The pertinent terms of § 60.6(3) provide:

“A legitimate child cannot be adopted without the consent of its parents, if living ... except that consent is not necessary from a father or mother:

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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 The 1974 version of § 60.6(3) was further amended in 1981. Laws 1981, c. 107 § 1. The version in which the section appears in the 1981 compilation is different although the change does not affect the portions under consideration in this appeal.

2

. The record indicates that one such gift was a hat with a bead band that was made by the natural father. In Matter of Adoption of C.M.G., Okl., 656 P.2d 262 [1982], this court held that contributions to living expenses by a noncustodial natural parent constitute a provision of support under 10 O.S.Supp.1974 § 60.-6(3).

3

. Okl., 577 P.2d 68 [1978],

4

. In Matter of Adoption of Michelle N, supra note 3 at 70, the court stated that it was “not concerned here with a prisoner who had neither the opportunity nor the means to support.”

5

. Matter of Adoption of Michelle N., supra note 3 at 70.

6

. In Matter of Adoption of Graves, Okl., 481 P.2d 136, 138 [1971],

7

. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 [1972]; Matter of Delaney, Okl., 617 P.2d 886, 890 [1980],

8

. 10 O.S.Supp.1974 § 60.6.

9

. The terms of 10 O.S.Supp.1974 § 60.6(3) apply to a parent who “... has wilfully failed, refused or neglected to contribute to the support of his child .... ”

10

. In Jordan v. Hancock, 508 S.W.2d 878, 881 [Tex.Civ.App.1974], the court noted that it was “... conceivable that one’s involvement in crime might reflect his misdirected concern for the welfare of his child, rather than his disregard for it.”

11

. Adoption of Coffee, 59 Cal.App.3d 593, 130 Cal.Rptr. 887, 891 [1976],

12

. Matter of Adoption of Darren Todd H., Okl., 615 P.2d 287, 289 [1980],