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May 27, 1953


Appeal, No. 149, Jan. T., 1953, from decree of Orphans' Court of Montgomery County, Adoption File No. 2, in re Adoption of Baby Boy Ashton. Decree reversed; reargument refused June 30, 1953.


G. Levering Arnhold, with him A. Benjamin Scirica, and Smillie, Bean & Scirica, for appellant.

Grover C. Ladner, with him John J. Gilbride, Jr., and H. J. Alker, Jr., for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 374 Pa. Page 187]


Richard W. Kubach and Helen R. Kubach, his wife, filed their joint petition in the Orphans' Court of Montgomery County for a decree of adoption of an infant child identified in the petition as Baby Boy Ashton. At a hearing on the petition, the child's natural mother, Mildred Elaine Ashton, who was unmarried, appeared personally and by counsel to protest the adoption. During the progress of the hearing, she filed in the Court of Common Pleas of Montgomery County a petition for a writ of habeas corpus to obtain custody of the child. After the Kubachs had filed an answer to the

[ 374 Pa. Page 188]

    petition for habeas corpus, the Court of Common Pleas transferred the proceeding to the Orphans' Court which, by virtue of Section 301 (8) of the Act of August 10, 1951, P.L. 1163, 20 PS § 2080.301 (8), Pkt. Part, had exclusive jurisdiction to determine the right to the custody of the child in connection with the proceeding for adoption.

The petition for adoption averred the written and signed consent of the child's mother which was attached to the petition was also a writing, signed and acknowledged by her, wherein she purported to assign, transfer and set over to ... "all my right, title and interest of, in and to a child about to be born to me". The places for the names of the proposed adopting parents in the written consents were likewise blank when the consents were signed by the mother; and such persons were actually unknown to her. The legal inefficacy of the incomplete consents, as well as the so-called assignment, having been properly pronounced by the court during the course of the hearing, counsel for the petitioners in the adoption proceeding sought to rest their claim to a decree of adoption on the alleged abandonment of the child by its mother for a period of over six months in which event, if proven, the mother's consent to the adoption would be unnecessary (see Act of April 4, 1925, P.L. 127, Section 2 (c), as amended by the Act of June 30, 1947, P.L. 1180, 1 PS § 2 (c), Pkt. Part). The Orphans' Court ultimately filed an opinion wherein it held that the averments of the adoption petition (treating the mother's alleged abandonment as substituted for the consent pleaded) had been sustained and therewith entered a decree adjudging the child to be the lawful child and heir of the adopting parents to whom, by decree of even date, the custody of the child was awarded. This appeal by the natural mother followed.

[ 374 Pa. Page 189]

The primary question for review is whether the evidence justifies a finding of the mother's abandonment of the child. The learned court below correctly apprehended the legal situation to be as follows: "The only question at issue is, first, whether the natural mother, the only person whose consent could be necessary, has given her consent, and second, if she has not given her consent, and persists in refusing her consent, whether she has abandoned the child, as contemplated by the act, which renders her consent unnecessary. [Paragraph] We can dispose of the consent very quickly, as hereinabove indicated. She has not consented to the adoption of the child and she not only persists in her refusal to consent but actively opposes the adoption. The purported consents appended to the petition are absolutely worthless and of no effect. The only question, therefore, is, as to whether she has abandoned the child, rendering her consent unnecessary."

For a proper appraisal of the mother's attitude toward, and her actions with regard to, the expected child (she never had possession of it in being), a recital of the material findings by the hearing judge as well as other undisputed and corroborated facts of record becomes necessary.

In the summer of 1950, Mildred Elaine Ashton, then twenty-five years old, became acquainted with a man who, representing himself as single, kept company with her. He asked her to marry him and, during what appeared to her to be a courtship, they had sexual relations in August 1950. In the exact words of the hearing judge, the man "turned out to be a deceiver,... he at that time was a married man in the process of getting a divorce, and subsequently got a divorce and married another woman." Late August or early September, Miss Ashton suspected that she was pregnant. She confided her secret to her widowed mother with whom

[ 374 Pa. Page 190]

    she lived; and, together, they consulted her married sister. The sister advised her to go to a reputable obstetrician whom she named and who had delivered her of her two children. Miss Ashton visited the suggested doctor toward the latter ...

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