*1 pre- of the court below sustaining The decrees of the Diocese are affirmed. objections liminary affirmed. costs. Appellant pay Decrees Adoption Case. J., Before January 15, 1971. Bell, C. Argued Jones, Pomeroy JJ. Roberts, O’Brien, Barbieri, Eagen, Caine, Melvin E. with him Edel- Caine, DiPasqua, son Patterson, & appellants.
No oral made nor was brief submitted for *2 argument appellee.
Opinion by Mr. 12, 1971: October Justice Pomeroy, This is an from a final Or- decree of the appeal phans’ Court Division of the court a below dismissing for petition of adoption. natural father Appellee, involved, the two children refused consent and ap- in peared to the The trial opposition judge petition. no below, denied the abandonment, adoption petition. followed, appeal This and affirm. we
The facts are as Arthur pertinent follows: Lucky and Barbara Ann Vaders, of appellee, one Vaders, were in appellants, divorced both have 1962; since remarried. The Barbara Ann and appellants, Kenneth are the Kirby, childrens’ natural mother and her pres- ent husband, with whom the children been living have since 1963. The are children Arthur Lucky Jr., Vaders, bom October 7, and Kim Louise born Vaders, November 1958.
Mr. Vaders for provided support the children pur- suant to a order support entered about the time of di- in 1962 in the of vorce amount a later in- week, $20.00 In to creased 1965 Vaders $25.00. moved New Jer- and sey generally maintained his support al- there were instances when though he inwas arrears. Until 1987 Vaders visited the children sporadically; that year from the date of trial he had not seen the the record children, although discloses that he did keep with them in touch through occasional gifts and cards. In of 1969 Vaders February notified the New Jersey authorities that he was court discontinuing as of that month inasmuch as he payments was then in the establishment of a involved new business. The sent in February that later record discloses appel- children. Although to his greetings Valentine also the father claimed otherwise, lants testified in children April cards to both sent Easter have he that in August notified 1969. Vaders was to the with respect support payments was delinquent those he thereafter resumed of over $800, extent to this Pennsylvania applicable The law of adoption amended, P. L. as April 4, 1925, is the Act case provides part: Act 2(c) P.S. Section §1.* . abandoned the . . who has “The consent a parent be shall un of at least six months, child, period the satisfac such fact necessary, provided proven in which court or judge hearing petition, tion . or . fact; court shall so find as judge such case *3 “abandonment” as “conduct on the defines The statute a settled of purpose of a which evidences part parent of refus claim to the child and relinquishing parental 1947, or duties.” Act of perform to failing parental ing 1 P.S. §l(a). as §1, amended, supra, a consideration of of our review involves The scope whether the findings to determine testimony the are that no abandonment has occurred sup court below Case, evidence. by Hookey competent Adoption ported 860 (1966) ; 215 A. 2d 583, Harvey Adoption 419 Pa. A. 2d 276 (1953). Pa. 99 Case, 1, 375 * by July 24, 620, repealed 1970, the Act of P. This act was Tj. January §601, act, VI, 1971. This effective known as art. Act”, replaces prior legislation “Adoption applies the the January begun proceedings on or after 1971. Under all to Act, parent adoption of a consent to is not of the new §414 parental rights regard of termination required if decree of with a grounds entered, if parent or the court finds been that has to such involuntary parental for the Act termination of of §311 under exist speaks purpose prior law, in terms §311 of rights. “settled the Like perform parental and refusal or claim” failure to relinquishing of duties, alternatives. as parental but Appellants the failure contend that natural father’s provide support payments period to of a time in compels finding a excess of months of abandonment. six neglect, It is well that evidenced settled, however, as by provide support, failure to is not of itself sufficient prove part to abandonment. on the “While failure parent a a factor to child is to be considered determining parent in whether the abandoned the has yet support, standing to child, failure is not con alone, clusive of an intent to abandon the child: Southard (cites omitted).” Adoption Hangartner Adoption Case (1962). Case, 407 Pa. 2d 601, 604-5, 181 This adoption proceedings, in discussion of Court, its has necessity neglect coupling often stressed with conclusively some other indicative before acts neglect necessarily an abandonment. “Mere does not ordinarily, constitute to abandonment; have that effect, coupled it must be with affirmative or declara acts indicating positive . tions . . intention to abandon the Harvey Adoption supra, child.” Case, Pa. at 6. A review record does not an indicate us part intent on affirmative of Mr. sever finally relationship parenthood respect with suspend support his children. While it is he true did equally compelled, up- it true that he felt delinquency on notification and when his busi- prospering, ness was reinstate those Al- petitioners, though endeavor show that Mr. Vaders’ steadily grew through question, income months *4 ability indicating to make his the crucial neglect willingness, his factor is not but his even be- latedly, during resume Moreover, the support payments, he failed to make time when the children on possibly at sent cards to least and one, occasion. As to the father’s another, failure to visit the lower 1967, since the children court observed, “He 432 chil- says with the visitation lie did not seek
[Vaders] agree only make trouble. We because it would dren the opportunity heartily, having and hear see had the parties.” add not together, facts do feel that these we
Taken the up has often stressed This Court abandonment. finality finding . . because of abandonment: of a rights finality of a natural the severance, the the clearly war parent not be terminated unless should Adoption Pa. by 413 Best Case, ranted the record. Adoption (1964); 358 Case, A. 2d 342 Southard 196 Adop (1948).” Hunter A. 907 57 2d 904, Pa. 386, 392, (1966). 218 A. 2d Pa. Case, 287, 292, tion part fa natural on conduct While exemplary, it not indicate not does here is ther parenthood. Contrast the ties intent to sever settled Adoption, Jagodzinski 444 Pa. 2d 868 scrutiny day, (1971), our which decided this affirm the lower court’s caused us to record had occurred. that an abandonment appellants. on Decree costs affirmed; by Opinion Dissenting : Chief Bell Mr. Justice petition grant the mother’s I and would dissent, adoption. say like most but true to that this case,
It trite child-custody vitally life, affects cases, contested happiness young and inciden- children, and the love Judge’s heartstrings. tally, tears at a sometimes plus sporadic and an Easter card, card A Christmas Court-imposed by payments father under a years by the father for several no visits with Order, of affection or love for his real manifestations no and prove performed that he not suffice should children, did not intend parental duties abandon or *5 To claim to his children. paraphrase relinquish whole “if world’s old this love, popular song, crazy.”
Commonwealth v. Wilson, Appellant. Submitted November 1970. Before J., C. Bell, Jones, Cohen, Eagen, Roberts O’Brien, Pomeroy, JJ. refused
reargument November 11, 1971. Miller Jonathan and John W. Packet, Assistant De- and Vincent J. fenders, Ziccardi, Defender, appel- lant. M.
Milton Stein, Assistant District Attorney, James D. District Crawford, Deputy Attorney, Richard