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ALBEE APPEAL. (04/16/59)

April 16, 1959

ALBEE APPEAL.


Appeal, No. 136, Oct. T., 1959, from order of Municipal Court of Philadelphia County, Adoption Division, Nov. T., 1955, No. 815, in the matter of Thomas Everett Neff. Order affirmed.

COUNSEL

Herbert Somerson, for appellants.

Walter Stein, with him Berger, Stein & Kline, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 189 Pa. Super. Page 372]

OPINION BY ERVIN, J.

On November 25, 1955 Walter F. Albee and Dorothy M. Albee filed a petition for the adoption of Thomas E. Neff, who was born on October 27, 1955. The child Thomas was born out of wedlock. His mother, Marianne Neff, is a citizen of Germany and his putative father is John D. Albee, brother of Walter F. Albee, one of the petitioners. The petition averred that the child was given into the custody of the petitioners on November 23, 1955 by Marianne Neff, the natural mother. The petitioners are Lutheran and the natural mother is a Roman Catholic. Consents of John D. Albee, putative father, and of Marianne Neff, the natural mother, were attached to the petition. At the hearing it developed that Marianne Neff was in this country on a visitor's visa which was about to expire December 7, 1955 and that she returned to Germany shortly before the expiration of the visa. It also developed that shortly after her return to Germany she communicated with Mrs. Albee and asked her to "Give me my baby back." Mrs. Albee replied "I will do it." Mrs. Albee also testified that she would hand the child to the mother if she wanted to have it in her own home and bring the child up as her own. At the hearing the attorney for Mrs. Albee, Herbert Somerson, said: "She can come over and get the baby." Mr. Albee testified as follows: "Q. Is it your understanding, Mr. Albee, if Marianna comes here for the child, that the child will be turned over to her? A. If she displays that intent to raise the child herself." Of course, Mr. Albee expressed the desire to have the child stay with them. Marianne Neff, the mother, was represented at the hearing by counsel, Walter Stein, but she did not appear

[ 189 Pa. Super. Page 373]

    in person because of her absence in Germany. Mr. Stein had been retained as counsel on her behalf by the German Consulate in pursuance of a letter which the mother had written to the Consul asking for assistance in securing the return of her child. On October 6, 1958, more than three years after the filing of the petition for adoption, the attorney for the Albees moved for a continuance of the hearing on the ground that the natural mother was not present. The court refused the motion, counsel for the natural mother having objected to the continuance. Mrs. Albee then gave some testimony in which she admitted that she had corresponded with the child's mother and that she was agreeable to turning the child over to the mother if she was in fact ready to take the child in her own home and raise it. The court then dismissed the adoption petition "without prejudice."

We see no abuse of discretion in the dismissal of the adoption proceeding. Under the Act of April 4, 1925, P.L. 127, 1 PS ยง 3, it is provided: "At said hearing... all the persons whose consent is necessary hereunder must appear in person and be examined under oath by such court or judge, but the personal appearance of... persons whose consent is necessary hereunder may be dispensed with in the discretion of the court... if such persons reside without the jurisdiction of the court, or if for any other reason the said court or judge deem it unnecessary, provided the duly executed consents of such persons in writing have been filed with the petition...." The purpose of this statutory provision is to make certain that the consent is still valid. In Susko Adoption Case, 363 Pa. 78, 83, 69 A.2d 132, it is said: "Section 3 of the Act gives the trial judge discretion to require the presence of the natural parent or parents at the hearing on the petition for adoption where a formal consent has been executed.

[ 189 Pa. Super. Page 374]

This implies that it is not too late even then to withdraw a previously given consent for adoption. If there is no voluntary consent at that time, the requirements of the Adoption Act have not been met." See also Ashton Adoption Case, 374 Pa. 185, 198, 199, 200, 97 A.2d 368. It having been made clear to the court that the mother's consent to the adoption had been withdrawn, it was entirely proper for the court to dismiss the petition for adoption. A reference to the petition for adoption will reveal that it did not contain an averment of abandonment and therefore this issue was not and could not have been before the court in the present state of the pleadings.

On June 17, 1958 it was stipulated of record by counsel for the respective parties "that in addition to the disposition of the issue raised by the adoption petition, the court will also dispose of the issue of custody of the child involved in the adoption proceeding." Treating the matter as a custody proceeding, the court below, after hearing, awarded custody of the child to the natural mother and directed "that the child be ...


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