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ADOPTION B.E.W.G. AND S-L.W.G. APPEAL HOWARD L. WEST AND KAY WEST (08/12/86)

filed: August 12, 1986.

IN RE ADOPTION OF B.E.W.G. AND S-L.W.G. APPEAL OF HOWARD L. WEST AND KAY WEST


Appeal from the Order entered on January 14, 1986, in the Court of Common Pleas of York County, Orphans Court, at No. 5979.

COUNSEL

Donald B. Hoyt, York, for appellants.

Wieand, Beck and Johnson, JJ.

Author: Beck

[ 355 Pa. Super. Page 555]

This is an appeal from an order of the York County Common Pleas Court denying without a hearing a petition to unseal and inspect adoption records and to vacate an adoption decree. The appellant-petitioners, Howard West and Kay West (the Wests), are the natural maternal grandparents of the adoptees.

The basis of the trial court's order was that the Wests lacked standing to obtain the requested relief. We find the Wests have standing and remand for a hearing as to whether the adoption records should be unsealed and inspected. We also find that the Wests have standing as to whether the adoption decree should be vacated. Since the court must determine at the initial hearing whether to unseal the adoption records, we conclude that a decision as to whether the court should hold a hearing on the petition to vacate the adoption decree is premature; and therefore we do not decide that question. The facts of this case are complex. B.E.W.G. is now three years old and S-L.W.G. is now seven years old. They are the natural children of P.J.G. (Father) and L.G. Father stabbed and killed his wife L.G. on December 4, 1983, in Ithaca, Tompkins County, New York. At that time, S-L.W.G. was visiting her paternal grandfather, in the New York City area; B.E.W.G. was present at the marital residence in a trailer park in Brooktondale, New York. After the stabbing, Father was arrested

[ 355 Pa. Super. Page 556]

    and incarcerated in the Tompkins County jail. B.E.W.G. was taken into physical custody by a neighbor at the trailer park. On December 6, 1983, the paternal grandfather apparently obtained physical custody of B.E.W.G. from the neighbor and brought him to his residence where S-L.W.G. was staying.

On December 21, 1983, the Wests, after several unsuccessful efforts at locating the children, filed a petition for custody in the Family Court, State of New York, County of Tompkins. On March 26, 1984, Judge William C. Barrett directed that custody of the children be placed with Father who had been released on bail; granted the Wests visitation privileges; and further directed "that this order will remain in effect until the disposition or resolution of the criminal charges currently pending against [Father] in Tompkins County Court, or until further order of this Court."

Approximately two months later on May 15, 1984, the Tompkins County Family Court entered an order (May 15 order) which again granted custody of the children to Father and extended the visitation privileges of the Wests. Prior to the May 15 order and pursuant to the prior agreement of the parties, the Wests delivered on May 10, 1984 the two children to Father in the presence of his attorneys in Ithaca, New York. From the time they turned over the children on May 10, 1984 until they discovered their whereabouts in York County sometime in September 1985, the Wests lost track of and had no contact with the children.

It appears that on or about May 13, 1984, Father removed the children from New York. He took them to the Tressler Lutheran Service Associates (Tressler), York County, Pennsylvania, where he reportedly relinquished the children to the Tressler agency. The record contains an affidavit by a Millie Bull of York County, who states that between May 13, 1984, and July 8, 1984, she taught B.E.W.G. and S-L.W.G. at the Christ Lutheran Church Bible School and that, at the time, the children were in a foster home in Shrewsbury with a couple named in the affidavit. The affidavit continues: "After that they were adopted by another couple."

[ 355 Pa. Super. Page 557]

Not knowing that the children had been removed from New York State, Kay West drove to Brooklyn, New York on May 21, 1984 to pick them up for a week's visitation pursuant to the May 15 order. The children were missing, and on the following day Father communicated through his attorney that he would not reveal their whereabouts. On May 22, the jury returned a guilty verdict in Father's criminal trial. Judgment of sentence was entered on June 23, 1984 on conviction of a reduced charge of first degree manslaughter, upon Father's affirmative defense of extreme emotional disturbance. Father is currently serving a sentence of 8 1/3 to 25 years in the New York state prison system.

On May 24, 1984, the Wests, still unaware of the whereabouts of the children, filed a new petition for custody in the Tompkins County, New York Family Court. In response to that petition, on May 29, 1984, (May 29 order) the Tompkins County Court entered three orders. The first ordered Father to show cause why custody should not be granted to the Wests. The second order directed that temporary custody of S-L.W.G. and B.E.W.G. be placed with the Wests. The third order provided for service of the orders on Father.

In response to the Rule to Show Cause, Father appeared at a fact-finding hearing on June 11. He refused to divulge any information concerning the whereabouts of the children; he asserted his fifth amendment rights repeatedly. On July 5, 1984, the Tompkins County Family Court issued a ...


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