Appeal from decree of County Court of Philadelphia, Dec. T., 1962, No. 6662-B, in the matter of petition for adoption of Robert Anthony Gunther.
James J. McEldrew, for appellant.
Raymond L. McConemy, Jr., with him Thorn, McConemy & Ohrenstein, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell dissents.
This appeal challenges the propriety of a decree of the County Court of Philadelphia County which permitted the adoption of a four-year old male child over the objection of the child's natural mother.
The child, whose adoption is the subject of this appeal, was born out of wedlock on May 20, 1960, and remained in his natural mother's custody until October 26, 1962. On this latter date, the natural mother, through the intermediation of a third party, placed
the child in the custody of a married couple [the present appellees]. At that time, the natural mother consented, in writing, to the adoption, voluntarily waiving the right to know the names of the prospective adopting parents. The child remained in appellees' custody until April 19, 1963 -- a period of less than six months -- at which time, at the request of the natural mother, the child was returned to her. The child remained with the natural mother until August 16, 1963, at which time, again through the intervention of the same intermediary, the child was returned to appellees' custody. On December 25, 1963, the natural mother again requested the child's return, but such request was refused. Subsequent requests by the natural mother were likewise refused and she was informed that, if the child was to be returned to her, it would have to be by order of the court.
Appellees presented a petition to the County Court of Philadelphia County requesting the adoption of the child. This petition was prepared and presented upon the theory that the natural mother, an adult, had given her consent in writing to this adoption on October 26, 1962. The adoption petition was later amended, the consent theory abandoned and an adoption sought upon the theory that the natural mother had abandoned the child, the period of abandonment, as averred, being October 27, 1962 to April 19, 1963, and August 16, 1963 to December 25, 1963. It is to be noted that, while the total of both periods was in excess of six months, neither period was in excess of six months. The court below found: (1) that the natural mother had abandoned the child and (2) that the child's welfare would be promoted by the adoption.
There is no doubt, from a study of this record, that the natural mother on October 26, 1962, did voluntarily consent in writing to the eventual adoption of this child. However, it is well settled under our case law
that a natural parent's consent to an adoption may be withdrawn at any time before entry of a final decree: Hildenbrand Appeal, 405 Pa. 579, 176 A.2d 900; Stone Adoption Case, 398 Pa. 190, 156 A.2d 808; Harvey Adoption Case, 375 Pa. 1, 99 A.2d 276. In the case at bar, the natural mother withdrew her consent both by word and action before the adoption hearing; under such circumstances, an adoption could not have been predicated upon such consent. However, even though standing alone such consent may not furnish the basis for adoption, the fact such consent was given is some evidence of the natural parent's willingness to surrender and ...