Schwab Adoption Case

I dissent from the majority opinion. The court below decided that the mother had abandoned her child when it was 3 1/2 years of age and our duty is "to examine the testimony to determine whether there is any evidence to sustain the finding of fact" as this court said in Weinbach's Appeal, 316 Pa. 333, 337,175 A. 500, which rule was followed by Mr. Justice JONES in DaviesAdoption Case, 353 Pa. 579, 46 A.2d 252.

I agree with the majority opinion that abandonment "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: Weinbach's Appeal," supra. I think the evidence in this case fully supports the charge of abandonment as thus defined. I do not agree with the statement in Judge BOYLE'S dissent (which statement is accepted in the majority opinion) that the father's taking of this child from the mother "was a forcible one," if it is meant *Page 543 thereby that the father used unlawful force to take this child away from its mother. The mother testified that it was she who left her husband on April 17, 1942. She said when she started out on the 17th with the baby and the baby's clothes, she found the husband was already home from work. She said: "I made a mistake. I was young, I guess; I didn't know any different, right from wrong. I says to him, 'Well, Gus, so long. You won't be seeing me nor the baby either.' So he said, 'Oh, yes,' and he grabbed the clothes and pushed them back and grabbed the kid with the other hand, went down Werner Street towards Gironde, and turned to the left, and where he went to I couldn't say, because he went fast." She was then asked what she did. She said: "I figured that if I would stay around the house — he knew if I make my mind up it was made up, and if I would stay around the house that he would not come back with the baby, he would take it up to his mother's and therefore I would not have no way of getting it." She then said she took a street car and went to the home of Mrs. Bessie Grande, 2206 Perrysville Ave. She stayed there and did housework for a while. She made absolutely no effort to regain possession of her child. Since it was she who left the home, the father was legally justified in taking the child as he did when he discovered that the mother was leaving him (her husband) and without his consent taking the child away from their common habitation. Almost any other father who was concerned for the welfare of his child would do what this father did in taking the child away from the mother who had grossly neglected it, and in placing the child with the paternal grandparents who, it is not disputed, have taken excellent care of this child and who now, after several years good care of the child, want to adopt the boy as their own. After the husband took this child from the wife who was leaving him and their home, the mother of the child made absolutely no effort either by *Page 544 legal proceedings, or otherwise, to regain possession of the child, and from April 17, 1942 until January 1944 while the mother resided in the same section of the city of Pittsburgh as this child resided with his paternal grandparents, she never talked to the child on the telephone and made only one attempt to visit him. After these adoption proceedings were instituted she made two visits to the child. After April 17, 1942, the only gifts which she sent to the child were $1 at Christmas time in 1943 and three handkerchiefs and three chocolate bars at about Easter time 1944. Except for a brief period immediately following her separation from her husband she was employed as a cashier in a chain store and as a defense worker both in Pittsburgh and Detroit, Michigan, and her earnings ranged from $90 to $140 a month. She never contributed any of her income, except $1, to the welfare of the child. Mrs. Shaughnessy, who occupied the second story of the building in which this child's parents resided in Pittsburgh, testified that the child was neglected by its parents and was not properly bathed and nourished, and that when the child had measles the mother was "out on the street jumping rope and playing ball with school children." She said the child was getting "sore eyes" and was "broken out with a rash", and that it was upon her advice that the father of the child took him to the paternal grandparents. Other neighbors corroborated this testimony. Miss Ruth Zimmerman, who was an investigator for the Western Pennsylvania Humane Society, testified that many complaints had been received about the neglect of this child by its parents. Upon investigating she found "terrible conditions" in the home. The child was very dirty, and was undernourished. At one time a complaint had been filed with an Alderman by the child's father against the mother, charging abandonment. This court in an opinion by Mr. Justice STERN in the Hazuka's Case,345 Pa. 432, 435 said: "Abandonment may occur in a *Page 545 number of ways. It may be effected by a formal legal instrument or merely by conduct evincing a settled purpose to forego all parental duties and relinquish all parental claims. It is a matter largely of intention to be ascertained from the circumstances, and whether or not a child has been abandoned is a question of fact."

The court was fully justified in making on the evidence the finding that this child had been abandoned by his mother. In affirming the action of the court below we have not overlooked the testimony of the child's mother to the effect that in the summer of 1942 when she went to visit her child either "Mr. or Mrs. Schwab" (she does not remember which one) "pulled the child back when they seen me coming and slammed the door". This testimony was denied by Mr. Schwab. When the mother was asked if she made any effort at any other time to see the child she replied: "I was afraid to go down on account of I knew that if they thought I was coming around they would not open the door and let me in." Even on her own testimony she made but few and feeble efforts to visit her child. She stated that at Christmas 1943 she was admitted to the grandparents' home and saw the child. She remained there about fifteen minutes. Clearly the weight of the testimony is that the mother of this child had ceased to feel such concern for its interest as a mother naturally has for her child. Her conduct evinced a purpose to disregard her maternal duties and relinquish her claim to her child's custody and companionship.

To "abandon" a child does not necessarily mean that the abandoning parent makes a formal declaration of abandonment or ignores entirely the child's existence and evinces no interest whatsoever in its whereabouts and welfare. It means that the parent has acquiesced in a termination of that close relationship which normally exists between a parent and child and in the assumption by others of complete parental rights and responsibilities *Page 546 in respect to the child. The long continued conduct of this boy's mother revealed an intention on her part toward him which is the negation of an intention to support him, to promote his well-being and to retain a maternal relationship with him. If no one did more for this child than its mother did the child would have died of neglect. Apparently this mother was satisfied to have her son's paternal grandparents support and foster him without assistance from her and to enjoy his exclusive custody and companionship, with all the reciprocal responsibilities incident thereto. She shared none of her substantial earnings with the child. What we wish to retain and maintain we do not thus "abandon" and give up to someone else for safe-keeping.* What we are indifferent to we lose. This mother who earned from $90 to $140 a month over a considerable period of time showed unmaternal indifference toward her child and she cannot justify that indifference by a plea of poverty. Out of $38 a week, her admitted earnings at certain periods, she should certainly have contributed more than $1 at Christmastime in 1943 and 3 handkerchiefs and 3 chocolate bars at Eastertime in 1944, to the support of her child.

I agree, of course, with the excerpt from the opinion of Judge KELLER in Petition of Sulewski et al., 113 Pa. Super. 301, 173 A. 747, which the majority opinion quotes, to wit: "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." But in this case there was a distinct finding by the court below that the surviving *Page 547 parent (the mother) abandoned her child, and this finding was, in my judgment, amply supported by the evidence. Such being the state of the record, the future welfare of the child becomes a proper matter for consideration. On that question also we agree with the court below.

In Weinbach's Appeal, supra, this court quoted with approval what was said in Winans v. Luppie, 47 N.J. Eq. 302, 304,20 A. 969, 970, as follows: "The statutory notion of abandonment does not necessarily, we think, imply that the parent has deserted the child, or even ceased to feel any concern for its interests. It fairly may, and in our judgment does, import any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. Such a purpose, clearly manifested, certainly forms a more reasonable ground for permitting judicial discretion to decide whether another may assume these claims and duties, than does the signature of the parent, which a mere impulse may induce. It does not follow that the purpose may not be repented of, and in proper cases all parental rights again acquired, including this statutory right of preventing adoption by withholding consent; but, when once the abandonment is shown to have existed, it becomes a judicial question whether it really has been terminated, or can be, consistently with the welfare of the child. When, in pursuance perhaps of the abandonment, new ties have been formed and a new station in life has been taken by the child, it might be unjust, that, solely because of the parent's caprice, legal sanction should be refused to the new conditions. Under such circumstances, a court might lawfully deem the abandonment irrevocable, so far as the claims of the parent were concerned."

This New Jersey case and a part of the opinion filed in that case were also cited by this court in Hazuka's Case, 345 Pa. 432. *Page 548

This boy, who was eight years of age on the 29th of October last, has been with his paternal grandparents since he was 3 1/2 years of age. Strong ties of affection are formed between a child and those who treat him kindly, train him properly and minister to his welfare. The proof is that these paternal grandparents have given this boy loving care. They have a comfortable unmortgaged home, the assessed valuation of which is $4500. Their annual income is $3000. The boy is being educated and the reports as to his progress in school are satisfactory. The grandparents testified that the child is happy in his present surroundings and that he wishes to remain with them. The grandmother testified that the child was in an ill-kept condition when he came to them and that he was a "scared" child. He was thin and pale and "had to be coaxed to get him to play". He is now a normal child in every respect and is in good health. He resides in the only home he has known since he emerged from infancy. This home is in the city of his birth and upbringing. His mother, whom he has seen but a few times since he was 3 1/2 years of age, and who neglected him when he resided with her and who contributed only $1 toward his support in four years, is now married to a man who is a total stranger to this boy and her home with this husband is in a distant state. To take this eight year old boy out of the grand-parental home to which he has long been accustomed and place him in a home presided over by his stepfather in Muskegon, Michigan, would be likely to cause a serious emotional disturbance in him and would be detrimental to his health, his happiness and his general well-being.

In Davies Adoption Case, 353 Pa. 579, this court in an opinion by Mr. Justice JONES said: "The emotional disturbance to a child that would threaten from its being removed summarily and permanently from familiar and agreeable surroundings and associations, incident to the only parental control and supervision it has ever known, *Page 549 could have a very harmful effect on the child's whole life. Fortunately, the law's regard for a child's welfare does not admit of any such injury or harm being done it . . . the child's welfare [is] not to be subject to the precariousness of a later asserted change of mind on the mother's part . . ."

The majority opinion poses this question: where the hearing judge, who alone saw and heard the witnesses, finds as a fact that abandonment was not proven to his satisfaction, may a majority of the court en banc reverse such finding? My answer to that is yes. The majority opinion admits that "the finding of a hearing judge as to abandonment, under the Act, is nevertheless reviewable" but the implication of the majority opinion appears to be that the findings of one hearing judge is entitled to more weight than the findings of the court en banc. I do not think that the Act of Apr. 4, 1925, P. L. 127, as amended on Apr. 26, 1929, P. L. 822, 1 PS, section 2(c), intended by the phrase "prove to the satisfaction of the court or judge hearing the petition" that if only one judge listened to the witnesses he was the only part of the court to be "satisfied" in order to decide the case. The words "court or judge" obviously mean the tribunal to which the petition was addressed and which acted on the petition after the evidence was all in. The word "hearing" is used in the sense of adjudicating or acting on.

Mr. Justice MOSCHZISKER in his opinion in The LewisburgBridge Co., Aplnt., v. The County of Union and The County ofNorthumberland, 232 Pa. 255 said, speaking for this court: "The word 'hearing' means 'the session of any court, or of an adjunct thereof, for considering the proofs in a case': Anderson's Law Dictionary, 506; 'The receiving of facts and arguments thereon for the sake of deciding correctly:' 4 Words Phrases, 3237."

In Menard v. Bowman Dairy Co., 15 N.E.2d 1014, 1015, 296 Ill. App.? 323, the court held, " 'Hearing' is *Page 550 frequently used in a broader and more popular significance to describe whatever takes place before magistrates clothed with judicial functions and sitting without jury at any stage of the proceedings subsequent to its inception, and may include proceedings before an auditor." See also Commonwealth v.Seventeen Half Barrels of Beer, 94 Pa. Super. 430.

Judge TENER, who made the first finding of facts in this case, retired from the bench before the case was heard by the court en banc. We have no right to conclusively assume that Judge TENER would not have agreed with the majority of the court as to the abandonment of this child, after he had considered the evidence further and had an opportunity to receive and to consider the views of his colleagues. It not infrequently happens that the judge who takes the testimony and makes preliminary findings of fact, later joins with one or more of the court en banc in sustaining exceptions to the original findings. In the instant case there was no such substantial contradiction between the testimony of the witnesses as to give the conclusion of the judge who listened to the witnesses any better facilities for passing on the facts of this case than was given to the court en banc which reviewed the entire transcript of the testimony.

It is clear that it is to the best interest of this eight year old boy that he remain with his paternal grandparents where he has been well-cared for, where he is contented and where he is making satisfactory progress in his school work. Since the custody of the grandparents should not be disturbed, no good purpose is served by refusing the request of the grandparents to adopt this child. Inasmuch as the court below found upon sufficient evidence that the mother of this boy abandoned him and that the boy's interests would be promoted by the adoption asked for I would affirm its order.

* "Abandonment denotes the absolute giving up of an object, often with the further implication of its surrender to the mercy of something or someone else": Webster's New International Dictionary, Second Edition. *Page 551