Harvey Adoption Case

99 A.2d 276, 375 Pa. 1, 1953 Pa. LEXIS 432

• Court: Supreme Court of Pennsylvania
• Decided: January 12, 1953
• Docket: Appeals, 296 and 297
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Horace Stern,

Proceedings for the adoption of a child must be carefully differentiated from those involving merely a question of its custody; they are of far greater import and involve more serious consequences. Custody may be awarded for a more or less temporary duration, but a decree of adoption terminates forever all relations between the child and its natural parents, severs it entirely from its own family tree and engrafts it upon that of its new parentage: Schwab Adoption Case, 355 Pa. 534, 536, 50 A. 2d 504, 505. For all purposes, legal and practical, the child thenceforth is dead to the mother who gave it birth; she has lost the right ever to see her child again or even to know of its whereabouts. Because, therefore, of these direful results of an adverse adoption proceeding the rights of the natural parent should not be terminated unless the record clearly warrants such a decree: Southard Adoption Case, 358 Pa. 386, 392, 57 A. 2d 904, 907.

The facts are these: Bonnie Sue Harvey, living in a small village in West Virginia, found herself pregnant, at the age of sixteen years and while still a pupil in high school, with an illegitimate child. She and her parents made arrangements with the Roselia Foundling and Maternity Hospital in Pittsburgh for her pre-natal care and confinement. After being there for two months her child, Sharon Ann, was born on April 29, 1951. Her father paid the Hospital for Bonnie Sue’s board up to that time and also the charges for the delivery. Nine days thereafter she left in the company of her parents, returned to their home in West Virginia, and continued to reside with them until her marriage on August 18, 1951 to Kenneth Stanley; she then went to live with her husband in a small neighboring community. The child remained in the Roselia Hospital until September 27,1951 when it was placed by the Hospital with Mr. and Mrs. Arthur J. Marhoefer of Meadville, Crawford County, for adoption; they have since had custody of it and have filed the present petition for its adoption. The mother, now Bonnie Sue Stanley, has filed a petition for a writ of habeas corpus to regain the custody of her child. The two petitions being heard together, the court made an order authorizing the Marhoefers to adopt the child and awarding them its custody. Bonnie Sue Stanley appeals.

The Act of April 4, 1925, P. L. 127, as amended by the Act of June 30, 1947, P. L. 1180, provides that the consent (to the adoption) of a parent who has abandoned the child for a period of at least six months shall be unnecessary, provided such fact is proven to the satisfaction of the court or judge hearing the petition. The first question in the case, therefore, is whether Bonnie Sue abandoned her child for that length of time. If she did, the second question then arises, whether the adoption sought would be for the best interests and welfare of the child itself: Davies Adoption Case, 353 Pa. 579, 587, 46 A. 2d 252, 256; Susko Adoption Case, 363 Pa. 78, 81, 82, 69 A. 2d 132, 134, 135; Diana Adoption Case, 165 Pa. Superior Ct. 12, 17, 67 A. 2d 751, 753; Frasch Adoption Case, 165 Pa. Superior Ct. 74, 78, 67 A. 2d 830, 832; Oelberman Adoption Case, 167 Pa. Superior Ct. 407, 413, 74 A. 2d 790, 793; McNutt Appeal, 169 Pa. Superior Ct. 641, 646, 84 A. 2d 360, 362. The statute does not provide for an appeal, but, on the other hand, it does not forbid one; therefore our review by certiorari is “in the broadest sense”, including a consideration of the testimony to determine whether the findings of the court below are supported by competent evidence: Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 518, 519, 55 A. 2d 534, 536; Diana Adoption Case, 165 Pa. Superior Ct. 12, 18, 67 A. 2d 751, 753; Oelberman Adoption Case, 167 Pa. Superior Ct. 407, 413, 74 A. 2d 790, 793. While the act provides for the proof of abandonment to the satisfaction of the judge hearing the petition, the court’s finding in regard to that issue, being a deduction or inference from established facts and therefore the result of reasoning, is reviewable on appeal : Southard Adoption Case, 358 Pa. 386, 390, 391, 57. A. 2d 904, 906; Davies Adoption Case, 353 Pa. 579, 580, 581, 46 A. 2d 252, 253, 254; Schwab Adoption Case, 355 Pa. 534, 538, 50 A. 2d 504, 506.

Did Bonnie Sue abandon her child?

Abandonment has been defined in the authorities as importing “any conduct on the part of the parent which evidences a settled purpose to forego all parental duties and relinquishes all parental claim to the child.” Schwab Adoption Case, 355 Pa. 534, 538, 50 A. 2d 504, 506, 507; Southard Adoption Case, 358 Pa. 386, 391, 57 A. 2d 904, 906; Susko Adoption Case, 363 Pa. 78, 82, 69 A. 2d 132, 135. For a mother to abandon her child means to give it up absolutely with the intent of never again claiming her right to it. Mere neglect does not necessarily constitute abandonment; ordinarily, to have that effect, it must be coupled with affirmative acts or declarations on her part indicating a positive intention to abandon. Abandonment may therefore be effected, sometimes by a mere formal legal instrument, sometimes by a course of conduct.' It is a matter of intention, to be ascertained by what the parent says and does, viewed in the light of the particular circumstances of the case: Earnica’s Case, 345 Pa. 432, 435, 29 A. 2d 88, 89. Even where the natural parental right has been nullified by abandonment that right may be retrieved if its re-assertion is beneficial to the welfare of the abandoned child: Davies Adoption Case, 353 Pa. 579, 587, 46 A. 2d 252, 256.

Bonnie Sue, nine days after her confinement, signed a consent to adoption upon a form presented to her by a social worker at the Hospital. Apart from the fact of its execution at a time when she was hardly in a condition for mature deliberation on so important a matter, it was not binding upon her because the amendatory Act of June 30, 1947, P. L. 1180, section 2, inferentially provides that if the parent is a minor under the age of 18 years her consent is not sufficient without that also of her parent or guardian. Moreover, as far as a mere formal consent to adoption is concerned it may be withdrawn even as late as the time of the hearing on the petition: Susko Adoption Case, 363 Pa. 78, 83, 69 A. 2d 132, 135.

What, then, was the conduct of Bonnie Sue, apart from her signing the consent to the adoption, to justify the court’s finding that she had abandoned her child? Her only acts of commission and omission in that regard, as testified to at the hearing, were (1) declarations made by her at the Hospital that she wanted her child adopted, and (2) that she did not seek to take it from the Hospital or pay for its support there, from the time of its birth, April 29, 1951 until December 29, 1951. As to her declarations made before and immediately after the child was born of her desire to have it placed for adoption, there must be balanced against them many other declarations made by her both before she went to the Hospital and after her return therefrom — declarations made to her father, to her mother, to her uncle, to her aunt, to her brother, to another patient in the Hospital — that she wanted to keep her baby, that she intended to leave it at the Hospital for a while but would fetch and bring it back to her parents’ home, where she herself was living, as soon as possible; according to her mother’s testimony, she wanted, on returning from the Hospital, to get a job as soon as she felt able to work; her brother testified that she said she was going to try to obtain the money necessary to pay for the child’s board without calling on her father for its support.

* The court ruled out the testimony of these witnesses on the ground that such statements were self-serving declarations. This, in our opinion, was error extremely devastating to Bonnie Sue’s case. Not only was it unfair, having admitted the testimony of her alleged declarations that she wanted to have the child placed for adoption, to reject her contrary declarations made to these other witnesses, but the rules of evidence do not require the holding of such declarations inadmissible on the ground that they are self-serving. Statements of design, intent, motive, or feeling, etc. are always admissible where such design, intent, motive or feeling is the very fact to be proved, and, since such declarations are expressive of a condition of mind, the declarant’s OAvn statements as to the existence of that condition are admissible, the only limitations as to their use being that they reveal a then existing state of mind and that they be made in a natural manner and not under circumstances of suspicion: VI Wigmore on Evidence, 3rd ed. pp. 79, 80, §1725.

As to the matter of Bonnie Sue’s alleged neglect In not paying for her child’s support after she left the Hospital and, as the court found, not demanding its return to her until December 29, 1951, all the surrounding circumstances must be borne in mind and her conduct appraised in the light thereof. Bonnie Sue was only 17 years of age when her illegitimate child was born; living with her parents in a small community she must have keenly realized that gossip and censorious criticism were to be expected from her neighbors and friends. It Avas natural, therefore, that she should have gone for her confinement to a city in another State and that her initial impulse there was to have the child taken away altogether and, for that purpose, placed for adoption. But after she returned home and the early fears of disgrace had subsided, and after she found that her parents and her family generally were standing by her, and that her father and mother were themselves eager to have the child brought home to them, it was equally natural that her maternal instinct should assert itself and awaken in her the desire for re-possession of the child to which she had given birth. For a while, according to the evidence, she was nervous, shy of social contacts, and physically and emotionally upset. While the court did not credit her testimony and that of her witnesses that she had telephoned several times to the Hospital to make inquiries about the child and that she was later dismayed to learn that it had been taken away for adoption it may nevertheless be reasonably inferred — as she herself insists — that she always intended to reclaim it when she should find herself able to pay the Hospital for the child’s support. In November she consulted a Child’s Sheltering Home in Charleston, and in December a lawyer, to ascertain if she had the right to regain possession of the child in view of her having signed the consent to its adoption. In the light of these facts and circumstances, and even though we give consideration only to the testimony accepted by the court as credible, we are of opinion that Bonnie Sue did not, for a period of sis months, “evidence a settled purpose to forego all parental duties and relinquish all parental claims” to her child.

Coming, then, to the second question, we are of the further opinion that even if abandonment had been proved and the consent of the mother therefore become unnecessary, the paramount consideration of the welfare of the child itself does not warrant the granting of the petition for adoption. The Stanleys own and occupy a five room home, with bath, a yard and a small garden (apparently the same size as the Marhoefer home) and with adequate furniture; the husband earns a substantial wage. There is no reason to believe that Bonnie Sue is not living a proper, wholesome domestic life with her husband. It is true that the latter did not appear as a witness at the hearing, but it was testified that he knew of the child’s existence before he married Bonnie Sue and was entirely agreeable to its being brought into their home. As already stated, the parents of Bonnie Sue are also eager to effect that purpose and are strongly supporting her in her efforts to that end, even to the extent of having offered the Hospital money for the child’s return. In short, there is no apparent reason to believe that Sharon Ann would be any better off if adopted by the Marhoefers than if left to live with her own mother, or that the love she would there receive would be any less than that which would be given her by the persons — worthy people as they undoubtedly are — who desire to adopt her. Nor can it be said that a child of such tender years — even now less than two years old — may have formed such affectionate ties in its present home that it would be difficult for it to adjust itself to a new environment; an infant of that age easily forms new attachments. As for the Marhoefers, while, of course, it is appreciated that giving up the child will doubtless cause them sorrow, it must not be forgotten that when demand was originally made upon the Hospital for the return of Sharon Ann to her mother, a demand which from the very first they strenuously resisted, they had had possession of the child for a period of only three months, — a custody of far too short a duration for the development of any permanent deep-seated affection.

In No. 296 the decree of the court below is reversed and the petition for adoption is denied. In No. 297 the order of the court below is reversed and it is ordered that Sharon Ann be delivered into the custody of her mother. Costs in each appeal to be paid by the appellant.

The social worker testified that Bonnie Sue told her it was her intention after she left the Hospital to pay for the child’s board in installments thereafter, and to a Sister she stated that she would not be financially able to make such payments but would do the best she could, whereupon the Sister told her that they would not press her. Obviously neither of these statements by her indicated deliberate intention on her part to abandon the child, but rather the contrary.