Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Delaware County, No. 350 of 1970, in re adoption of Elisa Battle.
Richard S. Packel, for appellant.
Basil C. Clare, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.
Elisa Battle was born out of wedlock to Laura Battle and George Dunn in 1960. Shortly thereafter, the child was placed in the care of Laura Battle's mentally deficient mother in Tarboro, North Carolina, where she became seriously ill from improper attention. Upon learning of Elisa's condition, George Dunn went to Laura Battle and asked her to take the child with her to New York where she was living so that the child would receive better treatment. Laura Battle told him that she did not want the child, would not provide for her and that if he wanted the child, he could have her whereupon they went to Tarboro, North Carolina, where Elisa was turned over to him. He brought the child back to Chester, Pennsylvania, where she was nursed back to good health by his wife, his mother, Vernal Dunn, and one Mrs. Outen, a friend. For the next six years, while Elisa resided with Vernal Dunn, all of her food, clothing and medical expenses were provided by George Dunn. In addition, she spent weekends with the Dunns on a regular basis. During this period Laura Battle made occasional, short visits with her daughter. Then, in 1967, without the knowledge or consent
of George Dunn, Laura Battle removed the child from Chester, Pennsylvania, and placed her with relatives in Tarboro, North Carolina. George Dunn went to North Carolina several times seeking to see Elisa and to obtain her return. In 1968, Laura Battle took Elisa from North Carolina to live with her in New York City.*fn1 Thereafter, Elisa stayed with Laura Battle until February, 1970, when she sent the child by bus back to George Dunn without any explanation. Elisa remained in her father's custody for two months when, without explanation or request, Laura Battle, in the company of several men, came to Pennsylvania, met the child as she was departing a school bus and took her back to New York against her will. In September, 1970, Elisa was again placed on a bus and sent back to George Dunn.
On October 8, 1970, George Dunn and his wife, Frances, filed a petition in the Court of Common Pleas, Orphans' Court Division, of Delaware County seeking to adopt Elisa. Hearings were held before Judge Sweney on October 19 and 29, 1970. Shortly thereafter, Laura Battle, who was objecting to the proposed adoption, brought a habeas corpus action seeking custody of the child. A hearing thereon was held on December 17, 1970, but because of the impending adoption case, the adjudication of the habeas corpus action was postponed. Following Judge Sweney's sudden and unexpected death, the notes of testimony were transcribed and by authority of counsel, approved by Judge Diggins
and filed. It was then agreed by counsel for the parties that Judge Diggins would decide the case on the record and briefs.*fn2 On March 16, 1973, he granted the adoption and decreed that Elisa Battle assume and be known by the name of Elisa Dunn. Laura Battle has taken this appeal from that decree.
Because the natural mother has not consented to this adoption, the Dunns had the burden of proving to the hearing judge that she had abandoned the child in compliance with the Act of April 4, 1925, P. L. 127, § 1, as amended, 1 P.S. § 1 et seq.*fn3 Abandonment as defined by the statute 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." When reviewing a finding of abandonment the two questions properly before this Court are: (1) was the evidence before the court below legally sufficient to justify a finding that the mother has abandoned this child, and (2) if the evidence as to abandonment was sufficient, was there legally sufficient evidence that this adoption would promote the best interests and welfare of the child. Maisels Adoption Case, 395 Pa. 329, 149 A.2d 38 (1959).
The Dunns argue that Laura Battle did abandon Elisa when she turned the child over to George Dunn back in 1960. And having shown abandonment, they contend that the best interests of the child would be served by granting the adoption. On the other ...