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ADOPTION MAHLON NICHELLE MCCRAY. APPEAL LEONARD MCCRAY (01/27/75)

decided: January 27, 1975.

IN RE ADOPTION OF MAHLON NICHELLE MCCRAY. APPEAL OF LEONARD MCCRAY


COUNSEL

William F. Donatelli, Pittsburgh (Court appointed), for appellant.

F. Peter Dixon, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, and Manderino, JJ. Pomeroy, J., concurs in the result.

Author: Jones

[ 460 Pa. Page 212]

OPINION OF THE COURT

This case is a direct appeal from the entry of a decree of the Orphans' Court Division of the Court of Common Pleas of Allegheny County allowing the adoption of Mahlon Nichelle McCray (hereinafter called Nichelle), minor child of appellant, Leonard McCray, and involuntarily terminating Mr. McCray's parental rights and duties. After the hearing below, the petition for adoption of appellee, Larue McKenzie, was denied and an order was entered directing that Mr. McKenzie and his wife, Nichelle's mother, remain in custody of the child. Shortly thereafter, following argument before the court en banc, the original decree was unanimously reversed and a decree of adoption was entered. The only question

[ 460 Pa. Page 213]

    properly before this Court*fn1 is whether the evidence clearly warrants a finding that appellant "either has evidenced a settled purpose of relinquishing parental claim . . . or has refused or failed to perform parental duties" for a period of at least six months.*fn2 We find that there was sufficient evidence of appellant's failure to perform parental duties to justify the entry of a decree of involuntary termination under Section 311(1) of the 1970 Adoption Act and therefore affirm.

The facts in this case were as follows: Appellant married Lee Olar Forrest some time prior to February 1968. On February 7, 1968, appellant's wife gave birth to Nichelle and for approximately three months following the birth the McCray family remained together in their Pittsburgh home. After May of 1968, Nichelle's parents separated and the child stayed with her mother.*fn3 During 1968, appellant was employed briefly between periods when the family went on relief. In January of 1969, Mr.

[ 460 Pa. Page 214]

McCray was sentenced to six-months' imprisonment for violating the Uniform Firearms Act and in December of the same year he was sentenced to three months for rape or fornication. A few months after being released, appellant was convicted on two counts of armed robbery and since August of 1970 has been serving a five to ten year sentence in the State Correctional Institution.

Six months after appellant's first conviction, Nichelle and her mother went to live with an aunt in Charleston, South Carolina. Nichelle's mother returned in Pittsburgh in August of 1969 and on January 30, 1970, was divorced from appellant. On December 31, 1970, Mrs. McKenzie married the appellee. Nichelle rejoined her mother in November of 1971 and has resided with the McKenzie family ever since. On March 17, 1973, Mrs. McKenzie gave birth to a second child. Mr. McKenzie is financially able to support both children and has testified that he is anxious to care for and educate his stepdaughter.

Since May of 1968, Mr. McCray has spent little or no time with his daughter. Since his first conviction, McCray's only "contact" with Nichelle consisted of a birthday card, sent on Nichelle's first birthday, and a $10.00 or $20.00 gift handed to the child's mother in August of 1969. Although appellant admitted lack of contact with Nichelle, he testified that he loved his child, thought of her constantly and did in fact make inquiries regarding her health and well-being. In defense of his alleged disinterest in Nichelle, he stated that he had not always known of Nichelle's whereabouts and that attempts to communicate with his daughter were thwarted by prison officials. McCray's testimony was ...


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