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November 14, 1950



Stephen J. McEwen, Upper Darby, and Louis Wagner, Philadelphia, for appellant.

John Justin McCarthy, Michael J. O'Donnell, and Richard T. McSorley, all of Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 167 Pa. Super. Page 515]

HIRT, Judge.

The question, here on habeas corpus, is whether this appellant, the mother of a child born out of wedlock, may recover custody of her infant son after having formally surrendered the child to the respondent for adoption by persons to be selected by it.

Relatrix during her pregnancy consulted the Children's department of the respondent Bureau and was assured that a home would be found for her child. On

[ 167 Pa. Super. Page 516]

July 18, 1949, eight days after the child was born, when she again contacted the respondent she was informed, according to her testimony, that the Bureau would take the child for adoption or not at all. That was denied by a representative of the respondent who testified: '* * * we told her if she was undecided about adoption placement we would recommend a licensed boarding home, but she said she thought the adoption placement would be better'. On the above date relatrix delivered the child to the respondent and executed a so-called 'Indenture' containing this provision: '* * * the said mother Dolores Berg, for herself, her heirs, executors and administrators, does/hereby give and grant unto the said Catholic Children's Bureau, its successors and assigns, the care, custody and control of the said minor child; hereby waiving and releasing all claims and demands of any character as parent to the said child and completely surrenders the said child to the said Bureau for the purpose that the said child may be either retained as a charge of the said Bureau, or may be placed for adoption by a person or persons found suitable in the exclusive judgment of the said Bureau * * * it being the intention of the said mother to surrender completely the permanent care and custody of the said child, and to consent freely and permanently to the adoption of the said child by such person or persons so selected by the said Bureau * * *.' Immediately thereafter the child was placed by the respondent with a husband and wife for ultimate adoption by them at no cost to relatrix. The hearing judge supported the respondent in its refusal to disclose the identity of the persons who have custody of the child. There is evidence, however, that these unnamed persons are of excellent reputation and the court found from 'a careful examination of the character and circumstances of the family which has the child * * * that the child will have a good home * * *.'


[ 167 Pa. Super. Page 517]

September 1949 relatrix notified the Bureau that she wanted to get the child back and on October 21, 1949, petitioned for habeas corpus to compel the respondent to return the child to her. The court after hearing, by order dated November 30, 1949, awarded the custody of the child to relatrix. That order however was never executed. When the court in December 1949, on the application of relatrix, ordered the respondent to produce the child, the Bureau in lieu of compliance, petitioned the court for a rehearing. On that petition a rehearing was granted on January 6, 1950. Additional testimony was taken, almost all of which was wholly irrelevant, and the court on June 23, 1950, reversed its first order and dismissed the petition, in effect refusing to disturb the placement of the child by the respondent with an unidentified married couple, for adoption by them.

The present question, in every legal aspect, has been put at rest by the comprehensive opinion of the late Chief Justice in Commonwealth ex rel. Children's Aid Soc. v. Gard, 362 Pa. 85, 66 A.2d 300. We may take these principles to be settled on that authority: A child is not a chattel and therefore cannot be made the subject of a contract by a parent, with the same force and effect as a gift or conveyance, or grant of property, irrevocably or otherwise; the relationship of parent and child is a status and not a property right; the doctrine of the integrity of written instruments has no materiality and since the welfare of the child is the determining factor, the court in the exercise of its equitable powers may ignore a bargain previously made by a parent in parting with a child; regardless of any gift or contract the court at any time has the power ...

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