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.
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 In May 1973 the visitation provisions of the support agreement were superseded by a court ordered visitation schedule, which, inter alia, provided weekly visitation rights.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
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 ...