Appeal, No. 82, March T., 1956, from decree of Orphans' Court of Indiana County, Dec. T., 1954, No. 57, in matter of the adoption of Gerald Bair. Decree reversed.
G. S. Parnell, Sr., with him G. S. Parnell, Jr., and Parnell & Parnell, for appellants.
William T. Pierce, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This appeal is from an order dismissing the petition of Andrew and Patricia Maytea for the adoption of gerald Bair, the son of George Wilson Bair and his wife, Carol Jean Bair. The petitioners are a childless couple in whose custody Gerald was placed on November 17, 1953, when he was not quite a year old, and with whom he has ever since lived at their home in Indiana, Pennsylvania.
The Mayteas instituted the adoption proceeding on December 20, 1954. They alleged in their petition that Gerald had been abandoned by his natural parents and that the abandonment had endured for more than six months, parental consent not being a prerequisite to a decree of adoption where abandonment is pleaded and proven. The applicable statute (Act of June 30, 1947, P.L. 1180, 1 PS § 1 et seq.) expressly provides in Section 2 that "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." The hearing judge, after taking testimony, found that there had been no abandonment and entered an order refusing the prayer of the petition.
Abandonment is largely a matter of intention: Hazuka's Case, 345 Pa. 432, 435, 29 A.2d 88. Whether it has actually occurred is primarily a question of fact to be determined from the evidence: Davies Adoption Case, 353 Pa. 579, 587, 46 A.2d 252. As we observed in Ashton Adoption Case, 374 Pa. 185, 195, 97 A.2d 368, "a finding of abandonment is an ultimate conclusion of fact deduced or inferred by reasoning from established facts." On appeal, an adoption case comes here as on certiorari in its broadest sense (Harvey Adoption Case, 375 Pa. 1, 5, 99 A.2d 276), and we look
to see whether the record discloses legal error and if the action of the court below is supported by the evidence (Harvey Adoption Case, supra). If the evidence "legally warrants and impels" a conclusion of abandonment, this court will so declare even though the lower court has found to the contrary: Davies Adoption Case, supra.
The basic issue, therefore, raised by the petition in this case is whether the evidence justifies a finding that the child's parents abandoned him as alleged by the petitioners. If they have, a second pertinent inquiry at once arises as to whether the proposed adoption is for the best interest of the child: Susko Adoption Case, 363 Pa. 78, 81-82, 69 A.2d 132.
As defined by the adoption statute presently in force, "'Abandonment' means conduct on the part of a parent which evidences a settled purpose of relinquishing parental claim to the child and of refusing or failing to perform parental duties": Act of August 26, 1953, P.L. 1411, 1 PS § 1; and as the abandonment must have continued for a period of at least six months in order to render parental consent to a proposed adoption unnecessary (Act of June 30, 1947, P.L. 1180), a recital of the material facts in the instant case becomes necessary.
On November 1, 1953, Carol Bair, Gerald's mother (then separated from her husband), was living with her four children at the home of her mother-in-law, Mr. Louis Bair, at Smithport, Indiana County, Pennsylvania. George Bair, Carol's husband, was then living temporarily in the State of Indiana. At that time, Mrs. Patricia Maytea (George Bair's first cousin) together with her mother, Mrs. Twila Duncan, visited the home of Mrs. Louis Bair. During the ...