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ADOPTION CORNMAN. APPEAL MCNUTT. (MCNUTT APPEAL.) (11/15/51)

November 15, 1951

IN RE ADOPTION OF CORNMAN. APPEAL OF MCNUTT. (MCNUTT APPEAL.)


COUNSEL

Herman Eisenberg, Samuel F. Pepper, Philadelphia, for appellant.

Lewis Weinstock and Conlen, LaBrum & Beechwood, all of Philadelphia, for appellee.

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

Author: Rhodes

[ 169 Pa. Super. Page 642]

RHODES, President Judge.

This is an appeal by the natural mother from the decree of the Municipal Court of Philadelphia County granting the petition for adoption of her child, Margaret Elizabeth Cornman, born on September 18, 1946. The decree of adoption was entered on February 6, 1951, after hearings held on June 1, 1949, and November 3, 1950, on the petition of James A. Aiello and Mary M. Aiello, his wife. Elizabeth McNutt, the mother of the child, has appealed from the decree.

The child's mother did not consent to the adoption, but the court below found that she had abandoned her child and therefore granted the petition for adoption. The Act of April 4, 1925, P.L. 127, as amended, 1 P.S.

[ 169 Pa. Super. Page 643]

§ 1 et seq., provides for adoption and prescribes the procedure. Section 2 of the amendatory Act of June 30, 1947, P.L. 1180, 1 P.S. § 2, provides, inter alia, as follows: 'The consent of a parent * * * who has abandoned the child, for a period of at least six months, shall be unnecessary, provided such fact is proven to the satisfaction of the court or judge hearing the petition, in which case such court or judge shall so find as a fact; * * *.' Oelberman Adoption Case, 167 Pa. Super. 407, 412, 413, 74 A.2d 790. The primary question on this appeal is whether the evidence supports the finding of the hearing judge that the mother abandoned her child within the meaning of the Adoption Act.

The child was born on September 18, 1946. The parents are John Cornman and Elizabeth Cornman, who was later divorced and then married one Horace McNutt. The child was taken by the mother to the petitioners on January 6, 1947, and has remained in their custody since that time. The petitioners are the uncle and aunt of the mother of the child. The Cornmans had another child born on January 22, 1945, which has remained with appellant. Appellant has two children by her second husband.

At the first hearing, on June 1, 1949, the Aiellos, the petitioners, testified that they accepted the child on condition that appellant surrender her right to the child, and that she agreed the child should be adopted by them. As to these facts there was substantial corroboration to the effect that appellant told the petitioners they could have the child, that she did not want it, and that the petitioners could adopt it. In addition the child's father, John Cornman, testified that he favored the adoption, having executed a consent dated May 13, 1949; that appellant took the child to the Aiellos for the purpose of adoption; and that this was her intention from the time the child was four

[ 169 Pa. Super. Page 644]

    or five days old. The paternal grandparents of the child also testified that appellant did not want the child, and that in their opinion it would be for the best interests of the child ...


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