Francis J. Sullivan, Jackson, Bortner & Ballow, Fairless Hills, for appellants.
William G. Klenk, II, Mark D. Seltzer, Sidkoff, Pincus, Greenberg & Golden, Philadelphia, for appellee, Tom Farabelli.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen and Pomeroy, JJ., concur in the result. Roberts, J., filed a concurring opinion in which Jones, C. J., joins.
The Orphans' Court in Bucks County, after dismissing exceptions, entered a final decree affirming a decree nisi which provided that the Petition for Adoption of a minor child, Debora Ann should be denied and that custody was to be granted to the natural father after a stated transitional period. The Hearing Court granted a supersedeas pending an appeal. The maternal grandparents have contested this decree and are the appellants in the present appeal.
The minor, Debora Ann, was born on May 30, 1965, being the only child of the union between Carolyn Frances (nee Salvatico) and Thomas Ralph Farabelli. Mrs. Farabelli died on June 4, 1965, within several days after the birth of her child, Debora. Upon Debora's release from the hospital, both she and her natural father, the instant appellee, took up residence in the home of the appellants, Lillian Elizabeth and John Steven Salvatico, Sr., the maternal grandparents of Debora. After two years, allegedly because of strained relationships between the appellee and the appellants, the appellee left the home of his in-laws and permitted them to retain custody of his young daughter.
On December 11, 1972, the appellants filed a Petition for Adoption under the new Adoption Act of 1970, July 24, P.L. 620, No. 208, art. I, § 101 et seq.; 1 P.S. § 101 et seq. (Supp.1974-75). Subsequently the appellee filed a Petition for Writ of Habeas Corpus requesting the custody of his daughter. After a hearing the Orphans' Court denied the petition of the appellants for adoption and granted the father's request for custody.
The appellants predicated their request for adoption on the theory that the parental rights of the father should have been involuntarily terminated under §
(1) of the Adoption Act, supra.*fn1 In response to this contention, the Hearing Court concluded that:
"The adopting petitioners have not borne the burden of proving the grounds they allege for the involuntary termination of the natural relationship between the child and her father, Thomas Ralph Farabelli. The Hearing Judge hereby specifically finds that said Thomas Ralph Farabelli has not, for a period of at least six months, evidenced a settled purpose of relinquishing parental claim to his child nor has he for any such period of six months in fact failed to perform parental duties toward the child."
The scope of our review on this issue is limited to consideration of the testimony and the determination as to whether the Court's findings are supported by competent evidence. Sheaffer Appeal, 452 Pa. 165, 305 A.2d 36 (1973); Vaders Adoption Case, 444 Pa. 428, 282 A.2d 359 (1971); Hookey Adoption Case, 419 Pa. 583, 215 A.2d 860 (1966); Harvey Adoption Case, 375 Pa. 1, 99 A.2d 276 (1953). Additionally, the Hearing Court was correct in determining that the burden was on the appellants to establish evidence which would justify a basis for the involuntary termination of parental rights. Adoption of McCray, 460 Pa. 210, fn 4, 331 A.2d ...