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MAISELS ADOPTION CASE. (03/16/59)

March 16, 1959

MAISELS ADOPTION CASE.


Appeal, No. 2, Jan. T., 1959, from decree of Orphans' Court of Delaware County, No. 218 of 1957, in re adoption of Carole Ann Maisels. Decree affirmed.

COUNSEL

Edward A. Garabedian, for appellant.

Edwin E. Lippincott, II, with him Lippincott & Donaldson, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Jones

[ 395 Pa. Page 331]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

Over the objection of the natural mother and with the consent of the natural father, the Orphans' Court of Delaware County decreed the adoption of a then 6 year old female child by her uncle and paternal aunt in whose custody she had been for approximately three years. From that decree the child's mother has taken this appeal.

Stanley and Edna Maisels were married January 19, 1945 and of this marriage one child, Carole Ann Maisels, was born on October 6, 1951. This marriage terminated in divorce on May 21, 1954. The parties lived separate and apart until the early fall of 1954 when, without a remarriage, they went to live together and remained together until November or December, 1954. Carole Ann lived with her parents continuously until the divorce, then with her mother alone and then with both parents, after they resumed living together, until a final separation took place. From November or December, 1954, Carole Ann has lived with Mr. and Mrs. Alfred Carson, the adoption petitioners, Mrs. Carson being the sister of Stanley Maisels.

Two questions are before us: (1) was the evidence before the court below legally sufficient to justify a finding that the mother had abandoned this child; (2) if the evidence as to abandonment was sufficient, was there legally sufficient evidence that this adoption would promote the best interests and the welfare of the child? We reach the second question only if we find there was legally sufficient evidence on the record

[ 395 Pa. Page 332]

    of an abandonment. "Unlike custody cases, in adoption proceedings the welfare of the child is not material until either consent or abandonment as prescribed by the Adoption Act has been established.": Susko Adoption Case, 363 Pa. 78, 81, 82, 69 A.2d 132; Bair Adoption Case, 393 Pa. 296, 299, 141 A.2d 873; Ashton Adoption Case, 374 Pa. 185, 196, 97 A.2d 368; Schwab Adoption Case, 355 Pa. 534, 50 A.2d 504.

Adoption being a creature of statute, the statute's provisions must be strictly complied with. In the absence of consent of a living natural parent those who seek to adopt a child under the age of eighteen years must prove to the satisfaction*fn1 of the hearing judge that such natural parent has abandoned the child.

"Abandonment", as defined by the statute,*fn2 is "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" and such conduct must be shown to have continued "for a period of at least six months". The court below found that the conduct of Edna ...


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