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AUSTIN ADOPTION CASE (09/26/67)

decided: September 26, 1967.

AUSTIN ADOPTION CASE


Appeal from decree of Orphans' Court of Delaware County, No. 293 of 1966, in re adoption of Debra Lynn Austin.

COUNSEL

Richard L. Raymond, with him Schroeder, Jenkins & Raymond, for appellant.

Basil C. Clare, for appellees.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Roberts.

Author: Musmanno

[ 426 Pa. Page 442]

Debra Lynn Austin, who was born on August 30, 1961, to Barbara Austin and James Carol Austin, lived with her natural parents in Delaware County

[ 426 Pa. Page 443]

    from the day of her birth until some time in November, 1963, when James Austin left his wife. In July, 1964, Judge Toal, with the consent of the child's mother, and Mr. and Mrs. Anthony Mingo, ordered custody of Debra to the Mingos. In December, 1964, Barbara was divorced from her husband and in February, 1966, she married Frank Gee. On September 1, 1966, Mr. and Mrs. Mingo filed a petition for adoption of Debra. A month later Barbara opposed the adoption proceedings through the filing of a petition for writ of habeas corpus to regain custody of Debra. The petitions for adoption and custody were heard at the same time, and on November 15, 1966, the court found that Barbara Austin (now Gee) had abandoned her child, dismissed her petition for custody of Debra and granted adoption to the Mingos. Mrs. Gee appealed to this Court.

Every precept of the law, as well as every instinct and rule of reason, dictate that a child of tender age should not be taken from its mother unless brute circumstances dictate that the child would fare badly with the mother. Nothing less than gross, inexcusable neglect, coupled with evidence of unconcern and irresponsibility toward meeting the duties devolving upon a mother in raising her child can take her offspring away from her. Abandonment can be proof of that type of neglect which will nullify a mother's claim to physical possession of her child.

If a mother renounces ownership over the most treasured possession that can ever come into her days on earth, if she gives up the most precious gem in the diadem of her life for a period of time which establishes conclusively her renouncement of ownership, she cannot complain if that gem appears in the crown of happiness of another person or persons able and ready to assume the responsibilities which the mother has forsworn.

[ 426 Pa. Page 444]

The abandonment, however, must not be the matter of a moment of anguish or distress, or even several repeated moments of distraction; it must continue over a period of six months. The Legislature has said that when a parent allows his or her child to remain away for six months and he or she makes no effort to reclaim it for that half year, this is proof of abandonment. Thus, the only question in this case is whether Mrs. Austin (now Gee) conducted herself for a half year in such a manner as to establish that she had failed in, or had no intention of, performing her parental duties. (Act of April 4, 1925, P. L. 127, § 1, 1 P.S. § 1).

In Harvey Adoption Case, 375 Pa. 1, this Court said: "Abandonment has been defined in the authorities as importing 'any conduct on the part of the parent which evidences a settled purpose to forego all parental duties and relinquishes all parental claim to the child.' . . . For a mother to abandon her child means to give it up absolutely with the intent of never again claiming her right to it. Mere neglect does not necessarily constitute abandonment; ordinarily, to have that effect, it must be coupled with affirmative acts or declarations on her part indicating a positive intention to abandon. Abandonment may therefore be effected, sometimes by a mere formal legal instrument, sometimes by a course of conduct. It is a matter of intention, to be ascertained by what the parent says and does, viewed in the light of the particular circumstances of the case: Hazuka's Case, 345 Pa. 432, 435, 29 A.2d 88, 89. [Emphasis that of the ...


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