Richard A. Behrens, Hollidaysburg, for appellant.
T. Dean Lower, Hollidaysburg, for appellees, Edith Ellen Malach and Arnold Malach, Jr.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., concurs in the result.
On June 7, 1972, the appellees, Edith Ellen Malach, the natural mother of the subjects of this appeal, and her husband, Arnold Malach, Jr., filed a petition for the adoption of the three minor sons of appellant, Clarence McAhren, in the Orphans' Court Division of the Court of Common Pleas of Blair County. A hearing was held shortly thereafter and the matter was continued in order to afford the appellant, a Kansas resident, an opportunity to obtain certified copies of records filed in the District Court of Pratt County, Kansas. After an additional hearing was held, in an opinion and decree dated August 2, 1973, the Blair County Court held that Mr. McAhren had abandoned his children for periods exceeding six months in accordance with Section 311 of the 1970 Adoption Act, thereby forfeiting his parental rights, and granted appellees' petition for adoption.*fn1 Following appellant's filing of exceptions to the August
ruling, the trial court reaffirmed its previous findings and confirmed its prior decree. This appeal followed.
The only question properly before this Court is whether the record clearly warrants a finding under Section 311(1) of the 1970 Adoption Act that appellant has evidenced a settled purpose to relinquish his parental claims or that appellant has refused or failed to perform his parental duties in excess of six months. We hold that the evidence does not justify the termination of appellant's parental rights under Section 311(1) and hence vacate the lower court decree.
The facts underlying this appeal are as follows: On August 17, 1959, Clarence McAhren and Edith Malach were married. Following their marriage, Mrs. Malach gave birth to three sons: Mark Clarence McAhren on March 3, 1961, in Stafford, Kansas; Scott Eric McAhren on August 30, 1963, in Pratt, Kansas; and Kent Allen McAhren on December 29, 1967, in Altoona, Pennsylvania. On January 8, 1968, the McAhrens were divorced by a decree entered by the Court of Common Pleas of Blair County and thereafter on October 26, 1968, Mr. and Mrs. Malach were married. Appellant's three sons have since resided with the Malachs in Altoona, Pennsylvania.
After the McAhrens' divorce and as a result of a proceeding initiated by Mrs. Malach in the Blair County Common Pleas Court pursuant to the Revised Uniform Reciprocal Enforcement of Support Act, (1968) as renumbered by 1972 Dec. 6, P.L. No. 291, § 42, 62 P.S. § 2043-1 et seq., the appellant was directed to pay $100.00 monthly, beginning in February 1969, for the support and maintenance of his three children. Subsequently, the monthly support was increased by order of the same court dated October 18, 1971, to the sum of $150.00.
At the adoption hearings below it was established that payments had been made beginning in February 1969 and continuing through October of 1971. However, whether payments were made after October 1971 was hotly contested. Although appellant's attorney presented certified records from the Pratt County Court indicating that payments in November and December of 1971 had been forwarded to Mrs. Malach, it was not resolved whether such payments were actually received. Appellees strenuously denied ever receiving any support checks after October of 1971, and it was established that payments had not been forwarded to the Malachs in or after January of 1972. In defense of his apparent non-compliance with the October 1971 support order, Mr. McAhren alleged that payments covering the first six months of 1972 had been impounded by the Pratt County Court. In ...