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ADOPTION CLARK. APPEAL KUNKLE ET UX. (CLARK ADOPTION CASE.) (03/16/54)

March 16, 1954

ADOPTION OF CLARK. APPEAL OF KUNKLE ET UX. (CLARK ADOPTION CASE.)


COUNSEL

Fred B. Trescher, Kunkle & Trescher, Greensburg, for appellant.

Carroll Caruthers, Greensburg, Frank A. Rugh, Jeannette, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Wright

[ 175 Pa. Super. Page 69]

WRIGHT, Judge.

This is an appeal from a final decree of the Orphans' Court of Westmoreland County dismissing a petition for adoption. It has been stipulated that the parties submit to the jurisdiction of this court. See Oelberman Adoption Case, 167 Pa. Super. 407, 74 A.2d 790. The natural mother of the child involved refused her consent, and appeared in opposition to the petition. The appellant petitioners are an uncle and maternal aunt with whom the child has lived and by whom she has been reared and cared for exclusively since her earliest infancy. The controlling issue is whether the natural mother abandoned the child, thereby rendering her consent unnecessary.

Freda Kemerer Kunkle is the sister of Olive Kemerer Clark, who is the natural mother of a child born May 11, 1947, and named Patricia Ann. When

[ 175 Pa. Super. Page 70]

    this child was conceived, Olive was a widow. She married Walter Clark on December 6, 1946, but Walter is not the child's father. Before the marriage, both Walter and Olive said they did not want the child. It was agreed that Freda and her husband should adopt it. Freda got the child one week after its birth, but returned it immediately at the insistence of her husband. His position was that if Olive wanted them to have the baby she should 'fetch it down herself'. Olive and Walter then brought the child to the Kunkle home, and she has been with the Kunkles ever since. They have furnished her support and maintenance. The court below found that the child had in fact been left with the Kunkles for adoption, but held that this circumstance and Olive's subsequent failure to attempt to resume maternal relationship did not constitute abandonment because she 'was under pressure from her husband'. We do not agree with this conclusion.

The controlling legal principles have been recently restated: Harvey Adoption Case, 375 Pa. 1, 99 A.2d 276. See also Ashton Adoption Case, 374 Pa. 185, 97 A.2d 368. In brief, appellate review in an adoption case is by certiorari in the broadest sense. The first question for our determination is whether the mother abandoned the child for a period of at least six months within the meaning of section 2 of the Act of 1925, P.L. 127, as amended, 1 P.S. ยง 2. If that question is answered affirmatively, the second question is whether the adoption sought would be for the best interest and welfare of the child. Abandonment imports any conduct on the part of the parent which evidences a settled purpose to forego all parental duties and relinquish parental claims to the child.*fn1 The finding of

[ 175 Pa. Super. Page 71]

    the hearing judge in regard to abandonment, being a deduction or inference from established facts and therefore the result of reasoning, is reviewable on appeal.

The court below relied principally upon Susko Adoption Case, 363 Pa. 78, 69 A.2d 132. The main question in that case was whether the testimony supported a finding that the written consent of the natural mother was legally ineffective. After refusing for over seven months following the child's birth, the mother finally gave it up and signed the consent. The mother was only 18 years of age at the time. Her mother had just passed away, and she was 'subjected to reprehensible coercion upon the part of her brothers'. Within three months she withdrew her consent and attempted to reclaim the child. After holding that the consent was invalid, the Supreme Court concluded that the mother's conduct did not indicate an ...


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