Opinion
March 23, 1966.
April 19, 1966.
Adoption — Necessity of consent — Adoption Act of 1925, P. L. 127 — Words and Phrases — Abandonment.
1. Under the Adoption Act of 1925, P. L. 127, as amended, the child of a parent who has not abandoned it and does not consent to the adoption cannot be adopted. [258-9]
2. Abandonment, as defined by the statute, is conduct on the part of a parent which evidences a settled purpose of relinquishing parental claim to the child and of refusing or failing to perform parental duties which has continued uninterruptedly for a period of at least six months. [259]
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeals, Nos. 77, 78 and 79, March T., 1966, from decree of Orphans' Court of Westmoreland County, Nos. 1176, 1177 and 1178 of 1965, in re adoption of William Lee Hufford. Decree affirmed.
Adoption proceedings consolidated for hearing. Before COPELAND, P. J.
Decrees entered dismissing petitions in each case. Petitioners appealed.
Blair A. Griffith, for appellants.
Joseph M. Loughran, with him Loughran Loughran, for appellee.
On August 19, 1965, Wilbert H. Nichols and Margaret Nichols, his wife, filed petitions for the adoption of Harry Wilbert Hufford, William Lee Hufford and Robert Daniel Hufford. Petitioners are the maternal grandparents of these children, who are respectively five, seven and twelve years of age.
The respondent is Robert L. Hufford, who is the father of the children. His wife, Margaret Faye Nichols Hufford, who was the mother of the children, is dead. After hearing, the lower Court dismissed the petitions (three of which were later consolidated) for adoption, and the petitioners took this appeal.
In Maisels Adoption Case, 395 Pa. 329, 149 A.2d 38, the Court said (page 332): ". . . 'Unlike custody cases, in adoption proceedings the welfare of the child is not material until either consent or abandonment as prescribed by the Adoption Act has been established.': Susko Adoption Case, 363 Pa. 78, 81, 82, 69 A.2d 132; Bair Adoption Case, 393 Pa. 296, 299, 141 A.2d 873; Ashton Adoption Case, 374 Pa. 185, 196, 97 A.2d 368; Schwab Adoption Case, 355 Pa. 534, 50 A.2d 504.
"Adoption being a creature of statute, the statute's provisions must be strictly complied with. In the absence of consent of a living natural parent those who seek to adopt a child under the age of eighteen years must prove to the satisfaction of the hearing judge that such natural parent has abandoned the child.
" 'Abandonment', as defined by the statute, is 'conduct on the part of a parent which evidences a settled purpose of relinquishing parental claim to the child and of refusing or failing to perform parental duties' and such conduct must be shown to have continued 'for a period of at least six months' . . . ." Accord: Gunther Adoption Case, 416 Pa. 237, 206 A.2d 61. See also, Smith Adoption Case, 412 Pa. 501, 194 A.2d 919.
We have studied the record, but deem it unnecessary to detail the evidence. The father repeatedly kept in touch with his children as far as was reasonably possible, attempted repeatedly to contribute a portion of his pay to their support when he was working, and also often indicated his love and affection for them. We agree with the hearing Judge who found that the father had never consented to the adoption, and had not abandoned his children within the meaning of the Adoption Act.
Decree affirmed, each party to pay own costs.