In Re Adoption of Margaret Nolan , 113 Pa. Super. 198 ( 1933 )

Argued October 19, 1933. This is an appeal from a refusal of the municipal court of Philadelphia to vacate a decree of adoption.

On February 26, 1931, John Fenderson Kyes, Jr., and Florence Margot Kyes, his wife, filed a petition in the municipal court of Philadelphia averring their temporary residence in Philadelphia, and praying a decree of adoption of Margaret Nolan, who had been in their custody since October 11, 1930.

Attached to the petition were two affidavits executed by appellant, one of which, dated October 10, 1930, averred that she resides at New York City, State of New York, that she is the mother of the minor child, Margaret Nolan, "whose adoption is prayed in the petition to which this affidavit is to be attached as her consent thereto," ...... "thereby ratifying and confirming the adoption of said child specifically waiving any and all notices or citations whatsoever." This affidavit was signed by her both in her right name, Mary Getsy, as well as a fictitious name, Mary Nolan. The other affidavit, dated December 10, 1930, executed in her assumed name, avers that she is "presently" residing at West Chester, Pennsylvania, and in which she gives a false name as that of the putative father. In this affidavit she specifically authorizes any attorney to deliver her written consent to the adoption of her child "to the adopting parents or petitioners." Likewise attached to the petition were two affidavits of persons acquainted with the petitioners certifying to their good moral character and financial ability to support the child, as well as their belief that the child's welfare would be promoted by the adoption prayed for. There was also attached a statement of the investigator, undated, to the effect that the petitioners were fully qualified to become the parents of the child and that the mother had found herself incapable of supporting the child and had consented to give her child for adoption to the petitioners.

This petition was filed on February 26, 1931, and on the same day the court, WALSH, J., entered a decree stating that the court being satisfied that the welfare of the child would be promoted by the adoption, so found and entered a decree of adoption.

On June 15, 1932, appellant filed a petition in the municipal court, averring that at the time of the adoption, appellant was a resident and citizen of New York, and appellees were residents and citizens of Massachusetts; that the address of appellees, set forth in the petition for adoption as Lecomey Plaza Apartments, 58th and Cobbs Creek Boulevard, Philadelphia, was a temporary one, assumed only for the purpose of this case. Appellant prayed that the decree of adoption be vacated and revoked and the possession of the child be awarded to her. To this petition appellees filed an answer admitting that they were not permanent residents or citizens of Pennsylvania, but averring that they were constructive and temporary residents of the county of Philadelphia and State of Pennsylvania.

Hearings were held on the petition to revoke on October 14 and October 19, 1932. The court on December 28, 1932 discharged the rule to vacate the decree of adoption and refused to revoke or set aside the original order or decree of adoption.

On December 29, 1932, the court by WALSH, J., filed appellees' requests for findings of fact and conclusion of law, in which the court found, inter alia, that appellees at the date of filing the petition of adoption were temporary and constructive residents of Philadelphia County, such constructive residence arising through the filing of their petition; that at the time of the birth of said child and for some time thereafter, the said Mary Getsy was and continued to be, unable to support said child; that there was no evidence of any fraud, misrepresentation or coercion of said Getsy in connection with the signing of her affidavits attached to the petition for adoption, consenting to the adoption of said child; the court found from the hearings of October 14 and October 19, 1932, that said Mary Getsy on or about October 11, 1930, abandoned said child. The lower court found as a conclusion of law that it had jurisdiction to make the decree of adoption entered on February 26, 1931, under the provisions of the Act of May 11, 1923, P.L. 201, and that the adoption proceedings were in conformity with the provisions of said act, and of the Act of April 4, 1925, P.L. 127, so far as the provisions of the latter act apply to adoption proceedings in said court, and that no ground for vacating or revoking said decree had been shown and therefore dismissed the petition for the same. From that order this appeal was taken by Mary Getsy.

Appellant contends that the lower court was without jurisdiction in entering the decree of adoption, in that the petition was not filed by a citizen of the Commonwealth ofPennsylvania, residing therein, and that the proceedings did not conform with the requirements of the Act of April 4, 1925, supra.

This court, in a very comprehensive opinion by our former Brother GAWTHROP, reviewed the legislation in this state, relating to the law and procedure governing adoptions, in In re Adoption of Elizabeth McCann, 104 Pa. Super. 196. Quoting from that opinion: ...... (205) "Section 3 of the Act of 1925 provides, inter alia, that when the petition is presented a time for hearing shall be fixed not less than ten days from said presentation: that the adopting parent or parents and the person proposed to be adopted must appear in person and be examined under oath; and that the court or judge may make or cause to be made an investigation by some person or agency specifically designated by said court or judge to verify the statements of the petition and such other facts as will give the court full knowledge of the desirability of the proposed adoption. From these and other requirements, it is manifest that by the act the legislature intended to and did make a radical change in the requirements of the petition in adoption proceedings, as well as in prescribing the duties of the court in respect to the fixing of a time for hearing on the petition, and in prescribing the duties of the court in respect thereto."

As stated in Thompson's Adoption, 290 Pa. 586, the law of adoption in Pennsylvania is entirely statutory. And being purely statutory the statutes must be strictly followed to give the court jurisdiction — Carroll's Estate, 219 Pa. 440; Keeler's Adoption, 52 Pa. Super. 516.

The appeal in this case is in effect a certiorari and brings up nothing but the record. While in such case we cannot review the merits, yet — "we are entitled to inspect the whole record with regard to the regularity and propriety of the proceedings to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion" — Helen Frances Young's Adoption,259 Pa. 573, 577, citing Robb's Nomination Certificate, 188 Pa. 212; Independent Party Nomination, 208 Pa. 108; Franklin Film Mfg. Corp., 253 Pa. 422.

An examination of the record shows that the decree for adoption was made on the same day on which the petition for adoption was filed, thereby failing to comply with the provision of Section 3 of the Act of 1925, requiring time for hearing thereon shall be fixed not less than ten days from the time of presentation of the petition. The same section also provides that "at said hearing the adopting parents or parent ...... must appear in person and be examined under oath by such court or judge unless deemed unnecessary." The record is silent as to this requirement which apparently is mandatory. Section 4 of the act provides, inter alia: "If satisfied that the statements made in the petition are true, and that the welfare of the person proposed to be adopted will be promoted by such adoption, andthat all the requirements of this act have been complied with, the court or judge shall make a decree so finding and recitingthe facts at length etc." The decree is lacking in not showing compliance with the requirements of the statute and in not reciting the same at length. (Italics supplied).

Appellees contend that the temporary or constructive residence of appellees in Philadelphia, through the filing of their petition for adoption, was sufficient to give the court jurisdiction. It was so held in Brown's Adoption, 25 Pa. Super. 259 prior to the Act of April 4, 1925, P.L. 127 and the amendment of April 26, 1929, P.L. 822. Both of these acts provide, "Section I. That it shall be lawful for any adultcitizen of this Commonwealth residing therein, desirous of adopting any person, either a minor or an adult, as his or her heir, or as one of his or her heirs, to present his or her petition etc." (Italics supplied). As the case must go back for further proceedings we are not passing on the effect of this provision requiring the adopting parent to be a citizen of this Commonwealth, as it was not considered by the lower court in its disposition of the case.

The case must be remanded with directions to fix a time for hearing in accordance with the provisions of the Act, at which time the petitioners must be required to be present in person and to submit to an examination under oath; the court should inquire into the truth of the statements in the petition, and whether all of the requirements of the Act have been complied with and the decree should recite the facts at length.

Attention is also called to the fact that the consent of the mother of the child to be adopted attached to the petition, does not in terms consent to the adoption of the child by the adopting parents named in the petition for adoption, and was signed and executed without any reference to the adopting parents, and apparently executed long before the date when the petition for adoption was executed.

The decree of the lower court is reversed and the record remitted with a procedendo.

AMENDMENT TO ORDER AND Now, to wit: July 13, 1934, the order in the opinion of this court filed in the above entitled case is amended to read as follows: The order of the lower court discharging the rule to vacate is reversed, the decree of adoption is vacated, and the record remitted for further proceedings not inconsistent with this opinion.

By the Court,

STADTFELD.