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WISCHMANN ADOPTION CASE (01/09/68)

decided: January 9, 1968.

WISCHMANN ADOPTION CASE


Appeal from decree of Orphans' Court of Allegheny County, No. 547 of 1963, in re petition for adoption of Wendy Ann Wischmann, a minor.

COUNSEL

Stanley Z. Goldberg, with him Markel, Markel, Levenson & Fisher, for appellants.

Harry Bowytz, with him Bowytz & Bowytz, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts dissents from the conclusion of abandonment by the natural mother. Mr. Justice Musmanno took no part in the consideration or decision of this case.

Author: Eagen

[ 428 Pa. Page 329]

This is an appeal from a final decree of the Orphans' Court of Allegheny County granting a petition for the adoption of a child over the objection of the natural parents, and dismissing with prejudice the parents' petition for habeas corpus, seeking custody.

In approving the adoption, the hearing judge specifically found that the parents had abandoned the child for a period in excess of six months. This finding was subsequently affirmed by the court en banc.

The relevant facts are sufficiently detailed in the opinion of the court below and will not be repeated here. However, we have carefully scrutinized the record and are satisfied that the evidence, both quantitatively and qualitatively, supports the conclusion of the court below that the parents intended to give up the child involved absolutely and that this intention continued and was manifested for a period of at least six months.

Under the adoption law of Pennsylvania (Act of April 4, 1925, P. L. 127, § 2, as last amended by the Act of June 30, 1947, P. L. 1180, § 2, 1 P.S. § 2(c)), if a parent or parents abandon a child for at least six months, and this fact is established to the satisfaction of the court, then adoption by others may properly be decreed even though the parent or parents do not consent thereto. See Hookey Adoption Case, 419 Pa. 583, 215 A.2d 860 (1966), and Smith Adoption Case, 412 Pa. 501, 194 A.2d 919 (1963). "Abandonment" is defined in the statute as "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." To be effective, this conduct must be shown to have "continued for a period of at least six months." Act of April 4, 1925, P. L. 127, § 1, as amended, 1 P.S. § 1. Whether or not a child has been abandoned by its natural parents is a question of

[ 428 Pa. Page 330]

    fact to be determined from the evidence and is a "matter largely of intention." See Gunther Adoption Case, 416 Pa. 237, 206 A.2d 61 (1965), and Hunter Adoption Case, 421 Pa. 287, 218 A.2d 764 (1966). While "abandonment" should not be declared unless clearly established by the evidence (Best Adoption Case, 413 Pa. 253, 196 A.2d 342 (1964)), we are satisfied that the instant record meets this test.

Further discussion is required, however, on the particular issue of "abandonment" by the natural father.

The child involved was born on September 16, 1963, and with the acquiescence of the unwed mother was placed in the custody of the foster parents on September 23, 1963, where it has continuously remained since then. The petition for adoption was filed on March 24, 1965. On February 2, 1966, the natural mother filed a petition for habeas corpus in the court below which was rejected without prejudice for technical reasons. On February 12, 1966, the natural parents were married. On March 1, 1966, they instituted a ...


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