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decided: July 6, 1976.



John F. Pyfer, Jr., Lancaster, Kent H. Patterson, Harrisburg, Frank C. Chesters, Lancaster, for appellant.

John J. Krafsig, Jr., Harrisburg, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Pomeroy and Nix, JJ., concur in the result.

Author: Roberts

[ 468 Pa. Page 167]


This case involves two issues: (1) Is the natural father's consent or a finding of abandonment or neglect a necessary prerequisite for adoption of his out-of-wedlock child? and (2) Was the mailed but undelivered notice of the adoption hearing sent to the natural father adequate to cure the failure to present any evidence to support the termination of his parental rights to the child?

Appellant is the natural father of a child born out of wedlock in December 1970 while he and the mother were living together. The parents separated thereafter and a formal support agreement was executed in November 1972. In April 1973 appellant initiated a habeas corpus proceeding to enforce his visitation rights under the support agreement. In May 1973 the visitation provisions of the support agreement were superseded by a court ordered visitation schedule, which, inter alia, provided weekly visitation rights. Appellant has made all support payments as required by the agreement and has fully exercised his visitation rights.

The natural mother of appellant's child married in November 1973. On May 7, 1974, her husband filed a petition for the adoption of appellant's child. The mother joined the petition. The orphans' court directed that appellant be given notice of the hearing on the petition, scheduled for May 23, 1974, by registered or certified letter sent to his last known address. Such notice was sent May 9, 1974, to an address appellant had supplied the

[ 468 Pa. Page 168]

Domestic Relations Division of Dauphin County. The letter was returned, marked "Moved, left no address." Although it was stipulated that appellant visited his child twice during the period from May 9 to May 23, no further attempt to give him notice of the hearing was made.

At the May 23 hearing, counsel for the mother's husband introduced the envelope marked as noted above as evidence of his inability to give appellant notice of the hearing. The hearing proceeded in appellant's absence. No testimony was offered to support termination of appellant's parental rights. On June 4, 1974, the orphans' court entered the decree of adoption.

On June 8, 1974, when appellant arrived at the mother's home for his regular weekly visit with his child, she handed him an envelope which contained a copy of the decree of adoption. On July 26, 1974, in the orphans' court which decreed the adoption, he filed an application for a rule to show cause why the adoption should not be reversed and "remanded" for a new hearing. The rule was issued on the day it was filed. Following an answer to the rule, appellant, on December 12, 1974, filed a petition to reopen the decree of adoption. A hearing on both the rule and the petition was held on February 18, 1975. The facts established by the pleadings and an oral stipulation made part of the record at the hearing were: (1) appellant did not have actual notice of the May 23, 1974 hearing on the petition for adoption, (2) the only attempt made to notify appellant of the hearing was the letter mailed to the address obtained from the Domestic Relations Division, (3) appellant was visiting his child each week during this entire period as permitted by the court ordered visitation schedule, and (4) appellant had not consented to the adoption. Following the hearing, the rule to show cause was discharged.*fn1 In an opinion

[ 468 Pa. Page 169]

    filed August 4, 1975, the orphans' court held that, under Pennsylvania law, appellant was not entitled to notice of the adoption proceeding and that the mailed notice satisfied any right to notice that he may have had.

Appellant appealed the orphans' court decree directly*fn2 to this Court, challenging the procedural and substantive discrimination against unwed fathers in the Adoption Act*fn3 and the adequacy of the attempt to serve notice in this case.*fn4 Finding merit to each of appellant's arguments, we vacate the decree and remand with directions.

Section 411 of the Adoption Act provides:

"In the case of an illegitimate child, the consent [to adoption] of the mother only shall be necessary."*fn5

This consent provision has two subsidiary effects. First, as a consequence of section 421 of the Act,*fn6 notice of an adoption proceeding need only be given to those persons whose consent to adoption are needed but not yet obtained. Because the consent to adoption of the unwed father is not required by the statute, he need not be given notice of the adoption proceeding. Second, under section

[ 468 Pa. Page 170414]

of the Act,*fn7 if a parental consent to adoption is needed and has not been obtained, the adoption can proceed only if the consent is obtained or if there is a basis upon which the parental rights of the non-consenting parent can be involuntarily terminated. Because, under the statute, the unwed father's consent need not be obtained, the court may terminate his parental interest without regard to the strict standards which otherwise obtain when parental rights are to be involuntarily terminated.*fn8 Thus, section 411 of the Act, denies unwed fathers important substantive and procedural rights because his consent to adoption is not statutorily required.

This distinction between unwed mothers and unwed fathers is patently invalid under the Pennsylvania Constitution. Article I, section 28 of the Constitution provides that:

"Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual."

It is clear that, as a consequence of section 411, unwed fathers have no rights under the Adoption Act, while

[ 468 Pa. Page 171]

    unwed mothers have all the rights of married parents. The only differences between unwed fathers and unwed mothers are those based on sex. This is an impermissible basis for denying unwed fathers rights under the Act. Section 411 of the Adoption Act, which makes the impermissible distinction, violates article I, section 28 of the Constitution*fn9 and, as a result, the offending portions*fn10 thereof must be struck down.*fn11

[ 468 Pa. Page 172]

Appellee argues that the mailed notice sent appellant*fn12 cured any deficiency in the adoption proceeding insofar as appellant's rights were concerned. We disagree.

First, regardless whether appellant received notice of the hearing, the trial court was presented with no evidence upon which his parental rights could be terminated. No attempt was made to comply with section 414 of the Act.

Sending notice of an adoption proceeding to the unwed mother of the prospective adoptee does not relieve the moving party of the burden of presenting evidence sufficient to terminate her parental rights under section 311 when her consent has not been obtained. See Adoption Act, Act of July 24, 1970, P.L. 630, art. IV, § 414, P.S. § 414 (Supp.1975). There is no valid basis for imposing a lighter burden on the moving party when the person whose rights are to be terminated is an unwed father, rather than an unwed mother.

Moreover, we utterly reject the contention that the notice provided in this case was effective. The orphans' court directed appellee to mail notice of the adoption hearing to appellant. Appellee mailed the notice to

[ 468 Pa. Page 173]

    an address which appellant had given to the Domestic Relations Division. This notice, marked "Moved, left no address," was presented to the court as evidence of appellee's inability to provide appellant notice of the hearing. Appellee failed to tell the court that appellant came to his home every week to visit his child and that appellant could easily have been personally served with notice of the hearing. In fact, appellee's wife handed a copy of the final decree of adoption to appellant, just four days after it was entered, when appellant arrived at appellee's house for the regular visit with his child. There is no reason why notice of the hearing could not have been given in the same manner or why appellant could not, at least, have been told of the hearing.

Alternatively, when appellant arrived at appellee's house for his regular visit with his child, appellee could have asked him for his current address. Service by mail at the last known address implies a good faith effort to discover the correct address. See 2 Goodrich-Amran, Standard Pennsylvania Practice § 2080-10. On this record, in which appellee knew that the address he had was not current and had the means to obtain the correct address easily, we find no evidence of the required good faith.

One cannot rely on mailed notice which clearly did not reach the party to be notified when some other form of service which will be effective can easily be used or the actual address at which the party may be found is readily available.*fn13

[ 468 Pa. Page 174]

Decree of adoption vacated, case remanded for a hearing in conformity with this opinion.

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