Opinion by
Mr. Justice Allen M. Stearns,
This is an appeal from a decree of an orphans’ court permitting the adoption of a minor. The pivotal question is whether an abandonment of the child, by its mother, was proven as required by section 2 (c) of the Act of April 4, 1925, P. L. 127, sec. 2, as amended April 26, 1929, P. L. 822, sec. 2, 1 PS, section 2 (c).
In Pennsylvania a valid adoption severs the child from its natural family tree and engrafts it upon that of its new parentage. Thereafter the child attains the status, in law, of a natural child of the adopting parents:
Cave’s Estate,
326 Pa. 358, 192 A. 460. Adoption is a practice which was recognized by the civil law from its earliest date, but was unknown to the common law of England. It exists in the United States solely by virtue of statute. The first statute of adoption in this Commonwealth was the Act of May 4, 1855, P. L. 430: Chief Justice Sharswood in
Ballard v. Ward,
89 Pa. 358, 362; President Judge Rice in
Evan’s Estate,
47 Pa. Superior Ct. 196, 198. See
Carroll’s Estate,
219 Pa. 440, 68 A. 1038.
The Act of 1855, supra, conferred jurisdiction in adoption upon the common pleas courts:
Ballard v. Ward,
supra. Cf.
Thompson’s Adoption
, 290 Pa. 586, 589, 139 A. 737. The Act was subsequently amended by the Act of April 2, 1872, P. L. 31 (later repealed, providing for adoption by deed) ; by the Act of May 19, 1887, P. L. 125 (later repealed, enlarging sec. 7 of the Act). The Act of May 11, 1923, P. L. 201, sec. 1, 17 PS, section 693, conferred concurrent jurisdiction upon the municipal court in cities of the first class. The Act of 1925, supra, conferred concurrent jurisdiction upon the orphans’ court with the courts of common pleas and codified the law and procedure in adoption. The Act of 1925, supra, was amended by the Act of April 26, 1929, P. L. 822 (as to procedure) and finally by the Act of July 2, 1941, P. L. 229, Title 1 PS, sec. 1, 1945 Cumu
lative Annual Pocket Part. (This Act conferred exclusive jurisdiction upon the orphans’ court, except in cities of the first class, where the municipal court was given exclusive jurisdiction).
Where a remedy or method of procedure is provided by an Act, its provisions must be strictly pursued and exclusively applied:
Bartron v. Northampton County,
342 Pa. 163, 168, 19 A. 2d 263;
Thompson v. Morrison,
352 Pa. 616, 624, 44 A. 2d 55;
Era Company, Ltd. v. Pittsburgh Consolidation Coal Company,
355 Pa. 219.
Section 2 (c) of the Act of 1925, supra, provides that the petition for adoption must contain the consent of the parents or surviving parent of the person proposed to be adopted. The Act provides: “. . .
the consent of a parent . . . who has abandoned the child is unnecessary, provided such fact is proven to the satisfaction of the court or judge hearing the petition, in which case such court or judge shall so find as a fact”
(italics ours). See
Sasuka’s Case,
345 Pa. 432, 29 A. 2d 88.
In the instant case the mother of the child, the surviving parent, refused to give her consent to an adoption by the paternal grandparents. At the hearings she was charged with abandonment. Judge Tener was the hearing judge. He entered an' order dismissing the petition. In his opinion, discussing the facts and the law, he found as a fact that abandonment had not been proven to his satisfaction. Judge Tener’s tenure of judicial office thereafter expired. He was succeeded by Judge Cox. Exceptions were filed to Judge Tener’s decree, which were heard by the court in banc, consisting of President Judge Trimble and Judges Boyle and Cox. In an opinion by Judge Trimble, with a concurring opinion by Judge Cox, the exceptions were sustained and the adoption permitted. Judge Boyle filed a dissenting opinion.
The legal problem is therefore presented: where the hearing judge, who alone saw and heard the witnesses, finds as a fact that abandonment was not proven
to Ms satisfaction, may a majority of the court in banc reverse such finding?
The Act, in plain words, prescribes who shall make the finding of fact as to abandonment and in what manner it shall be indicated. The words of the act are clear and free from all ambiguity and therefore must be given effect:
Salvation Army Case,
349 Pa. 105, 36 A. 2d 479.
The finding of a hearing judge as to abandonment, under the act, is nevertheless reviewable. Such a finding may not be made arbitrarily. There must be evidence legally sufficient to support it:
Davies Adoption Case,
353 Pa. 579, 46 A. 2d 252.
The finding in this case cannot be regarded as arbitrary when after exhaustive hearings two judges were of opinion that no abandonment was proven, while two other judges were of the contrary view. It comes then to a review of the evidence to determine whether it is legally sufficient to support the finding. If the finding is properly supported, it is immaterial that another judge, or judges, under the same evidence, might have reached another and different conclusion:
Frank’s Estate,
339 Pa. 499, 15 A. 2d 353;
Lochinger v. Hanlon,
348 Pa. 29, 33 A. 2d 1;
Kenna Estate,
348 Pa. 214, 34 A. 2d 617.
This Court has defined abandonment. It imports 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:
Weinback’s Appeal,
316 Pa. 333, 175 A. 500. The question, therefore, is whether the mother, by her conduct, evidenced such intention to abandon her child and to forego all parental duties and to relinquish all parental claim. Our review of the testimony convinces us that the finding of the hearing judge is amply supported by the testimony.
The parents of the minor were married December 31,1937. The wife was then but seventeen years of age.
Her husband was nine years her senior. Their child was born October 29, 1938. The parents separated about April 17, 1942. Judge Tener characterized the the domestic relations during this period as “tawdry” — really an understatement of the proven facts. After the marriage the husband exhibited not the slightest effort to perform his marital obligations. He failed adequately to support and maintain his family; he drank to excess; he was profane and abusive, worked irregularly, and was on public relief. The wife also failed in her duties. She not only neglected the home, but failed properly to care for the bodily needs and training of her child. It is quite understandable why the paternal grandparents were hostile and antagonistic toward her.
Upon the separation the wife went to the home of a friend.
She took the child with her.
She returned to the home the next day, and found her husband there. While the hearing judge found that the husband
“without his wife’s consent”
took the child to his parents’ home (petitioners’), we agree with the statement in Judge Boyle’s dissent that such taking was in truth a
“forcible”
one.
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Opinion by
Mr. Justice Allen M. Stearns,
This is an appeal from a decree of an orphans’ court permitting the adoption of a minor. The pivotal question is whether an abandonment of the child, by its mother, was proven as required by section 2 (c) of the Act of April 4, 1925, P. L. 127, sec. 2, as amended April 26, 1929, P. L. 822, sec. 2, 1 PS, section 2 (c).
In Pennsylvania a valid adoption severs the child from its natural family tree and engrafts it upon that of its new parentage. Thereafter the child attains the status, in law, of a natural child of the adopting parents:
Cave’s Estate,
326 Pa. 358, 192 A. 460. Adoption is a practice which was recognized by the civil law from its earliest date, but was unknown to the common law of England. It exists in the United States solely by virtue of statute. The first statute of adoption in this Commonwealth was the Act of May 4, 1855, P. L. 430: Chief Justice Sharswood in
Ballard v. Ward,
89 Pa. 358, 362; President Judge Rice in
Evan’s Estate,
47 Pa. Superior Ct. 196, 198. See
Carroll’s Estate,
219 Pa. 440, 68 A. 1038.
The Act of 1855, supra, conferred jurisdiction in adoption upon the common pleas courts:
Ballard v. Ward,
supra. Cf.
Thompson’s Adoption
, 290 Pa. 586, 589, 139 A. 737. The Act was subsequently amended by the Act of April 2, 1872, P. L. 31 (later repealed, providing for adoption by deed) ; by the Act of May 19, 1887, P. L. 125 (later repealed, enlarging sec. 7 of the Act). The Act of May 11, 1923, P. L. 201, sec. 1, 17 PS, section 693, conferred concurrent jurisdiction upon the municipal court in cities of the first class. The Act of 1925, supra, conferred concurrent jurisdiction upon the orphans’ court with the courts of common pleas and codified the law and procedure in adoption. The Act of 1925, supra, was amended by the Act of April 26, 1929, P. L. 822 (as to procedure) and finally by the Act of July 2, 1941, P. L. 229, Title 1 PS, sec. 1, 1945 Cumu
lative Annual Pocket Part. (This Act conferred exclusive jurisdiction upon the orphans’ court, except in cities of the first class, where the municipal court was given exclusive jurisdiction).
Where a remedy or method of procedure is provided by an Act, its provisions must be strictly pursued and exclusively applied:
Bartron v. Northampton County,
342 Pa. 163, 168, 19 A. 2d 263;
Thompson v. Morrison,
352 Pa. 616, 624, 44 A. 2d 55;
Era Company, Ltd. v. Pittsburgh Consolidation Coal Company,
355 Pa. 219.
Section 2 (c) of the Act of 1925, supra, provides that the petition for adoption must contain the consent of the parents or surviving parent of the person proposed to be adopted. The Act provides: “. . .
the consent of a parent . . . who has abandoned the child is unnecessary, provided such fact is proven to the satisfaction of the court or judge hearing the petition, in which case such court or judge shall so find as a fact”
(italics ours). See
Sasuka’s Case,
345 Pa. 432, 29 A. 2d 88.
In the instant case the mother of the child, the surviving parent, refused to give her consent to an adoption by the paternal grandparents. At the hearings she was charged with abandonment. Judge Tener was the hearing judge. He entered an' order dismissing the petition. In his opinion, discussing the facts and the law, he found as a fact that abandonment had not been proven to his satisfaction. Judge Tener’s tenure of judicial office thereafter expired. He was succeeded by Judge Cox. Exceptions were filed to Judge Tener’s decree, which were heard by the court in banc, consisting of President Judge Trimble and Judges Boyle and Cox. In an opinion by Judge Trimble, with a concurring opinion by Judge Cox, the exceptions were sustained and the adoption permitted. Judge Boyle filed a dissenting opinion.
The legal problem is therefore presented: where the hearing judge, who alone saw and heard the witnesses, finds as a fact that abandonment was not proven
to Ms satisfaction, may a majority of the court in banc reverse such finding?
The Act, in plain words, prescribes who shall make the finding of fact as to abandonment and in what manner it shall be indicated. The words of the act are clear and free from all ambiguity and therefore must be given effect:
Salvation Army Case,
349 Pa. 105, 36 A. 2d 479.
The finding of a hearing judge as to abandonment, under the act, is nevertheless reviewable. Such a finding may not be made arbitrarily. There must be evidence legally sufficient to support it:
Davies Adoption Case,
353 Pa. 579, 46 A. 2d 252.
The finding in this case cannot be regarded as arbitrary when after exhaustive hearings two judges were of opinion that no abandonment was proven, while two other judges were of the contrary view. It comes then to a review of the evidence to determine whether it is legally sufficient to support the finding. If the finding is properly supported, it is immaterial that another judge, or judges, under the same evidence, might have reached another and different conclusion:
Frank’s Estate,
339 Pa. 499, 15 A. 2d 353;
Lochinger v. Hanlon,
348 Pa. 29, 33 A. 2d 1;
Kenna Estate,
348 Pa. 214, 34 A. 2d 617.
This Court has defined abandonment. It imports 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:
Weinback’s Appeal,
316 Pa. 333, 175 A. 500. The question, therefore, is whether the mother, by her conduct, evidenced such intention to abandon her child and to forego all parental duties and to relinquish all parental claim. Our review of the testimony convinces us that the finding of the hearing judge is amply supported by the testimony.
The parents of the minor were married December 31,1937. The wife was then but seventeen years of age.
Her husband was nine years her senior. Their child was born October 29, 1938. The parents separated about April 17, 1942. Judge Tener characterized the the domestic relations during this period as “tawdry” — really an understatement of the proven facts. After the marriage the husband exhibited not the slightest effort to perform his marital obligations. He failed adequately to support and maintain his family; he drank to excess; he was profane and abusive, worked irregularly, and was on public relief. The wife also failed in her duties. She not only neglected the home, but failed properly to care for the bodily needs and training of her child. It is quite understandable why the paternal grandparents were hostile and antagonistic toward her.
Upon the separation the wife went to the home of a friend.
She took the child with her.
She returned to the home the next day, and found her husband there. While the hearing judge found that the husband
“without his wife’s consent”
took the child to his parents’ home (petitioners’), we agree with the statement in Judge Boyle’s dissent that such taking was in truth a
“forcible”
one. The mother testified that the reason for her failure to attempt to regain the custody of the child was her poverty; her husband did not support her; she was required to earn her own living and had no one with whom to leave the child and that she realized that the child would receive proper care in the grandparents’ home.
Petitioners contend that after the child came into their custody, the conduct of the mother evidenced the intent of abandonement. They point to the fact that the mother only visited the child three times from the time they assumed custody of the child in April, 1942, until the petition for adoption was filed in November, 1943, a period of about a year and one half. In answer to this charge the mother testified that petitioners being hostile to her, obstructed her repeated efforts to visit and talk with the child; that on one occasion, by ruse, she was able to enter petitioners’ home and see and talk with the
child, but such interview was unsatisfactory because of one of petitioners’ conduct. All of this was denied by petitioners. The mother also testified that her husband on many occasions surreptitiously took her child out of the petitioners’ home to a public park, where she met and talked with the child and they were taken by the husband to a refreshment stand.
Petitioners also said that the mother neglected to contribute toAvard the child’s support. We note from the record that the child has remained in the custody of petitioners since April 17, 1942. The father died in September, 1943. The petition for adoption was filed November 12, 1943 — within two months after his death. While the father lived it was his obligation to support the child and not that of the wife. After the separation the husband made no contribution toward her support. To maintain herself the wife worked as a domestic, as a night chambermaid at a city hotel, as clerk in a store, and in war work. Her minimum wage was $3.50 per week and board, and the maximum $38 per week, which was barely sufficient for her own sustenance. Since the filing of the adoption petition on November 12,1943, and pending this litigation, it would seem to be no dereliction of duty not to pay or offer to pay for the support of the child.
It should be noted that the majority of the learned court in banc, in reviewing and reversing the hearing judge’s findings, gave considerable attention to the desirability of the proposed adoption. They concluded that the proposed adoption was beneficial to the child. Consideration of what is beneficial for the child is vital in custody cases, but cannot be regarded as evidence of abandonment. The child’s happiness and well being is the paramount consideration in
custody cases: Commonwealth ex rel. v. Daven,
298 Pa. 416, 148 A. 524. Under the
Adoption Act
the welfare of the child is weighed only
after
the necessary consents have already been given or forfeited.
The welfare of the child, as an element in adoption proceedings, has no relation to the question of the parent’s abandonment. In
custody
cases the orphans’ court has no jurisdiction. Ordinarily this question is brought before the common pleas under the 13th section of the
Habeas Corpus
Act of February 18, 1785, 2 Sm. L. 275, sec. 1 (12 PS, 1871). See
The Commonwealth v. Addicks,
5 Binney 519. In Philadelphia County the Municipal Court has been given
exclusive
jurisdiction: Act of July 12, 1913, P. L. 711, sec. 11 (a); Act of June 17, 1915, P. L. 1017, sec. 1; Act of July 17, 1917, P. L. 1015, sec. 1. In Allegheny County, the county court has jurisdiction in juvenile custody cases, where it has already acquired jurisdiction in matters relating to the child’s maintenance. Acts of March 19, 1915, P. L. 5, sec. 1; May 23, 1923, P. L. 324, sec. 1 (17 PS, 653).
Petition of Sulewski et al.,
113 Pa. Superior Ct. 301, 173 A. 747, cited by Judge Boyle in his dissent, has particular application to the present case. The appeals in that case were from Northumberland County where there is no separate orphans’ court. The same judges sit in both courts. One appeal was from the orphans’ court decreeing an adoption where consent was withheld and no finding as to abandonment. The other appeal was from a decree of the common pleas in a
habeas corpus
case for the custody of the child sought to be adopted. The court below refused custody to the mother and left the child with the petitioners for adoption. The Superior Court, in an exhaustive opinion by Judge Keller. (later President Judge) reversed the appeal as to adoption and dismissed the petition, but affirmed the judgment as to custody. As the cases were heard together by the same judge, who would have heard both of them if tried separately, the Superior Court refused to reverse on a question of procedure (p. 311). Judge Keller
said, p. 308: “Unless the requisite consents declared by the act of assembly to be necessary are obtained, or there is a specific finding that both the father' and the mother of the children have abandoned them, a decree of adoption cannot be entered. The welfare of the children is not sufficient ground for the decree of adoption, unless based on the necessary consent of the parents, or on the distinct finding that the parent or parents not consenting have abandoned the children. The fact that the adoption asked for may be advantageous to the children and for their material welfare, is not to be considered by the court until the necessary prerequisites for such action exist.”
We are therefore required to reverse the decree here appealed from, but expressly withhold any decision as to the custody of the child, a matter not now before us.
The decree is reversed. Costs to be paid by appellee.