Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Delaware County, No. 363 of 1969, in re adoption of Arthur Lucky Vaders, Jr. and Kim Louise Vaders.
Melvin E. Caine, with him Caine, DiPasqua, Edelson & Patterson, for appellants.
No oral argument was made nor brief submitted for appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Chief Justice Bell.
This is an appeal from a final decree of the Orphans' Court Division of the court below dismissing a petition for adoption. Appellee, the natural father of the two children involved, refused his consent and appeared in opposition to the petition. The trial judge below, finding no abandonment, denied the adoption petition. This appeal followed, and we affirm.
The pertinent facts are as follows: Arthur Lucky Vaders, the appellee, and Barbara Ann Vaders, one of the appellants, were divorced in 1962; both have since remarried. The appellants, Barbara Ann and Kenneth Kirby, are the childrens' natural mother and her present husband, with whom the children have been living since 1963. The children are Arthur Lucky Vaders, Jr., born October 7, 1957, and Kim Louise Vaders, born November 7, 1958.
Mr. Vaders provided support for the children pursuant to a support order entered about the time of divorce in 1962 in the amount of $20.00 a week, later increased to $25.00. In 1965 Vaders moved to New Jersey and generally maintained his support payments, although there were instances when he was in arrears. Until 1967 Vaders visited the children sporadically; from that year to the date of trial he had not seen the children, although the record discloses that he did keep in touch with them through occasional gifts and cards.
In February of 1969 Vaders notified the New Jersey court authorities that he was discontinuing support payments as of that month inasmuch as he was then involved in the establishment of a new business. The
record discloses that later in February Vaders sent Valentine greetings to his children. Although appellants testified otherwise, the father claimed also to have sent Easter cards to both children in April of 1969. Vaders was notified in August of 1969 that he was delinquent with respect to support payments to the extent of over $800, and he thereafter resumed those payments.
The adoption law of Pennsylvania applicable to this case is the Act of April 4, 1925, P. L. 127, as amended, 1 P.S. § 1.*fn* Section 2(c) of the Act provides in part: "The consent of a parent . . . who has abandoned the child, for a period of at least six months, shall be unnecessary, provided such fact is proven to the satisfaction of the court or judge hearing the petition, in which case such court or judge shall so find as a fact; . . ." The statute defines "abandonment" 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." Act of 1947, supra, § 1, as amended, 1 P.S. § 1(a).
The scope of our review involves a consideration of the testimony to determine whether the findings of the court below that no abandonment has occurred are supported by competent evidence. Hookey Adoption Case, 419 Pa. 583, 215 A.2d 860 ...