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STONE ADOPTION CASE. (12/30/59)

December 30, 1959

STONE ADOPTION CASE.


Appeal, No. 285, Jan.T., 1959, from decree of Orphans' Court of Lancaster County, No. 925 1/2 of 1958, in re adoption of Baby Girl Stone. Decree reversed. Proceeding on adoption petition. Before BOWMAN, P.J. Adjudication filed refusing adoption and dismissing petition, and decree entered. Petitioners appealed.

COUNSEL

Carl G. Herr, for appellants.

No argument was made nor brief submitted for appellee.

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

Author: Jones

[ 398 Pa. Page 191]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

Baby Girl Stone, the child whose adoption is at issue, was born out of wedlock on December 9, 1957 to the then 18 year old Catherine E. Stone in Harrisburg. On October 25, 1957 - approximately seven weeks prior to the child's birth - and on December 13, 1957 - four days subsequent to the child's birth, the natural mother executed written consents to the child's adoption. On December 15, 1957 the natural mother, upon her discharge from and outside the hospital, delivered the child to a Mrs. Luft, an intermediary. On the same date Mrs. Luft delivered the child to Mr. and Mrs. Harry Weisman, the would-be adoptive parents, and the child from that date to the present - over two years - has been in the custody and care of the Weismans.

On November 13, 1958 the Weismans petitioned the Orphans' Court of Lancaster County for the adoption of this child. Hearings were held at the first of which the mother appeared, withdrew her consents and objected to the adoption of the child. The court below

[ 398 Pa. Page 192]

    held that Weismans had failed to prove that the natural mother had abandoned the child and entered a decree refusing the adoption. From this decree the present appeal was taken.

The sole question presented upon this appeal is whether or not the evidence was sufficient to prove an abandonment of this child by her mother. In Maisels Adoption Case, 395 Pa. 329, 332, 333, 149 A.2d 38, we recently stated: "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 of the hearing judge that such natural parent has abandoned the child. 'Abandonment', as defined by the statute [Act of April 4, 1925, P.L. 127, § 1, as amended, particularly by the Act of August 26, 1953, P.L. 1411, § 1, 1 PS § 1 et seq.] 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 scope of our appellate review is clear; even though this appeal is in the nature of certiorari, we must examine the record to determine whether there is legally sufficient evidence to support the court's finding of abandonment: [citing cases]. Chief Justice JONES stated in the Ashton [ Ashton Adoption Case, 374 Pa. 185, 97 A.2d 368] case: 'Whether or not a child has been abandoned is a question of fact to be determined from the evidence ... and "is a matter largely of intention" .... Actually, a finding of abandonment is an ultimate conclusion of fact deduced or inferred by reasoning from established facts ...'". Under the instant record has Catherine Stone abandoned her child?

On two occasions the natural mother executed consents in writing, once before and ...


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