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ADOPTION EDWARD MCCLELLAN ORWICK (11/26/75)

decided: November 26, 1975.

IN RE ADOPTION OF EDWARD MCCLELLAN ORWICK, JR., A MINOR. APPEAL OF EDWARD MCCLELLAN ORWICK, SR.


COUNSEL

Donald K. Joseph, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Richard A. Behrens, Patterson, Evey, Routch & Black, Hollidaysburg, for appellant.

Amos Davis, Altoona, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Jones

[ 464 Pa. Page 551]

OPINION OF THE COURT

Appellees, Louis and Leann Shank, husband and wife, petitioned the Court of Common Pleas, Orphans' Court Division, of Blair County to adopt as their heir-at-law Edward McClellan Orwick, Jr., a child born to Leann Shank, formerly Leann Orwick, when she was married to appellant, Edward McClellan Orwick, Sr. The petition filed February 21, 1974, alleged that appellant had abandoned his son within the meaning of Section 311(1) of the 1970 Adoption Act*fn1 and that, therefore, an involuntary termination of appellant's parental rights was in order. After a hearing on March 25, 1974, at which the three interested parties testified and were cross-examined, the lower court entered a decree terminating the natural father's parental rights and granting the appellees' petition for adoption. Exceptions were taken to the decree and briefs were submitted on September 26, 1974.

[ 464 Pa. Page 552]

The court in an opinion overruled the exceptions and reaffirmed the decree permitting the adoption. This direct appeal followed.*fn2

Appellant contends that the evidence is insufficient to clearly establish by a preponderance that he "has refused or failed to perform parental duties" for a period of six months and that, therefore, the granting of the petition below was erroneous.*fn3 Since we find the evidence was sufficient to establish that appellant did fail to perform his parental duties for a period in excess of six months and that the involuntary termination and adoption were warranted by a preponderance of said evidence, we must affirm.*fn4

The facts of the case follow. Appellant, Edward McClellan Orwick, Sr., and Leann Shank were married in June 1968. A son, Edward, Jr., was born of this marriage on October 17, 1968. During the latter part of 1969 the couple experienced marital difficulties and finally

[ 464 Pa. Page 553]

    separated in November 1969. At the time of separation a voluntary support agreement was entered into with the approval of the court, setting payment at $50.00 per month and granting visitation rights. The couple was divorced on July 7, 1971. Appellant's last payment under the 1969 support order was made on September 6, 1972, at which time he was $940.00 in arrears.*fn5 On December 9, 1971, Leann Shank remarried. Prior to this second marriage appellant made regular visits to his son. During that time, for the most part, appellant lived only a short walk from his son. After Leann Shank's second marriage at the end of 1971 appellant's visits with his son became less regular. The Shanks moved from the immediate area two months after their marriage to the town of Bellwood, Pennsylvania.

From February 1972 until March 25, 1974, appellant was not in his child's company. Appellant testified that after the Shanks had moved he called a "a half-dozen" times between February and May of 1972 in an attempt to take his son for the weekend.*fn6 Leann Shank refused to permit appellant to take the child from her new home although she did tell appellant that he was welcome to visit his son at her home. Leann Shank's reluctance ...


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