In Re William L.

NIX, Justice,

concurring and dissenting.

I dissent as to the termination of parental rights of appellant Marjorie L., not only because the facts of this appeal, as accepted by the majority, clearly do not warrant termination of parental rights due to incapacity under section 311(2), but also because the majority’s expansive interpretation of this section creates serious constitutional problems.

Appellant, Marjorie L., is the natural mother of three boys, Frank, William and Mark. It is with respect to these three sons that the Lycoming County Children’s Services *360 Agency (Children’s Services) sought involuntary termination of appellant’s parental rights. Appellant, who currently resides with her six-year-old daughter, Tracie, in a public housing project, subsists on a Supplemental Social Security Income Allowance, public assistance grants, and food stamps. Psychological testing indicated that appellant is mentally retarded but educable and trainable. 1

The record shows that in June of 1971, due to the unhealthy condition of her dwelling at that time, her advanced stage of pregnancy and her difficulty in finding day care assistance for her sons, 2 appellant voluntarily placed her sons in custody of Children’s Services, with every expectation that she would regain custody of her sons as soon as her situation improved. The sons have lived in foster homes since June of 1971. Children’s Services set up a visitation *361 schedule, and from June, 1971 until November, 1974, appellant and her sons met on a monthly basis, usually at the Children’s Services offices, but occasionally, during summer months, at nearby parks. After seeking legal assistance, appellant, in December, 1975 obtained a court decree increasing the visits to bi-monthly and allowing the visits to take place at appellant’s home. Over the years, appellant has never missed any of the visits with her sons, and the record shows that during the home visits, appellant fed, entertained and conversed with her sons. To the extent possible under the circumstances, appellant has maintained continual contact with her sons and has kept abreast of her sons’ activities; despite her difficult financial position, appellant has remembered her sons with gifts on special occasions such as Christmas or Easter. Since June of 1971, appellant frequently expressed to Children’s Services officials, nutrition aides, and the county nutrition aide supervisor her desire to regain custody of her sons.

Shortly after the birth of her daughter Tracie in September, 1971, in order to provide a better home, appellant moved to the housing project where she now lives. The record shows that appellant is a conscientious mother; she maintains a clean, healthy home and provides adequate care for Tracie. Because of her limitations appellant has frequently enlisted the help of nutrition aides to maintain her household; she has always cooperated with these aides. Notwithstanding appellant’s low intelligence, focused upon by the majority, during the proceedings in the lower court, appellant was lucid in her responses to direct examination, cross-examination and questions from the bench. The thirty pages of appellant’s transcribed testimony presented the picture of a mother who was knowledgeable in all facets of her daily existence; she knew her sources of income, the nature of her responsibility to her daughter, and she was acutely aware of the serious nature of the termination proceedings. In response to counsel’s question as to what effect the loss of her sons would have upon her, appellant said, “I’m going to take it pretty hard.” The majority’s *362 characterization of appellant as a deluded retard is grossly inaccurate. Her voluntary decision to seek the aid of a social agency in June of 1971 is but another indication of appellant’s ability to appraise the needs of her family, to recognize when they were not being adequately provided for, and to successfully secure effective means to meet the needs of her children.

Section 311(2), upon which the termination of parental rights rests in the instant appeal, provides for such termination on the ground that:

“(2) The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent:” Act of July 24, 1970, P.L. 620, No. 208, art. Ill, § 311(2), 1 P.S. § 311(2) (Supp.1977-78).

The majority asserts that “the basis for termination is several years of demonstrated parental incapacity, which does not involve parental misconduct.” In my judgment this premise ignores the record and introduces an insidious and dangerous philosophy completely at odds with fundamental American values. First, I take issue with the claim that there has been a demonstration of parental incapacity as envisioned in this section. The majority relies upon the fact that Marjorie L.’s limited intelligence handicaps her in the performance of her parental responsibilities. I would not dispute the possibility that a brighter, better trained and more affluent mother might be more proficient in the discharge of parental responsibilities. I do, however, reject the contention that this fact would empower a state to dissolve a maternal relationship and to create an artificial one that the state might deem “more advantageous.” Cf. Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923); In re Geiger, 459 Pa. 636 , 331 A.2d 172 (1975). The example provided by the Nazi Germany Youth Camps should *363 dissuade anyone who might be tempted to opt for such a sterile clinical approach to child rearing. The majority has totally disregarded the wisdom of Judge Woodside in Rinker Appeal, 180 Pa.Super. 143 , 117 A.2d 780 (1955), wherein he stated:

A child cannot be declared “neglected” merely because his condition might be improved by changing his parents. The welfare of many children might be served by taking them from their homes and placing them in what the officials may consider a better home. But the Juvenile Court Law was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take the children of the illiterate and give them to the educated, nor to take the children of the crude and give them to the cultured, nor to take the children of the weak and sickly and give them to the strong and healthy. Id. 180 Pa.Super. at 148 , 117 A.2d at 783 . 3

By its indifference to law and sound judicial caution, the majority has terminated the parental rights of a mother who did all she could with the few natural attributes that God gave to her.

In applying a statute, this Court must construe the words of the statute “according to their common and approved usage.” Statutory Construction Act of 1972, Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. § 1903(a) (Supp.1977-78). Turning to Webster’s Third New International Dictionary, we learn that “incapacity” is the state of being incapable, i. e., lacking capacity, ability or qualification for the purpose or end in view. In the instant case, the majority itself states that appellant is “minimally capable” of caring for a child. In considering a question as momentous as the involuntary termination of parental rights, it is not semantic quibbling to point out that a parent who is *364 minimally capable of caring for a child cannot also be, in fact and in logic, legally unqualified as a parent.

Section 311(2) requires not only a finding of incapacity but also a showing that the incapacity resulted in an absence of parental care and control. Here the record indisputably reflects that Marjorie L. recognized her limitations and sought assistance from those public agencies available to her. Her continuing interest, love and affection for these children has never been questioned. At every opportunity she maintained communication to assure that their relationship would be sustained. If appellant were fortunate enough to have been financially able to solicit this assistance from private sources, the question of termination of her parental rights would never have arisen. 4 It cannot be said that the mother’s infirmities resulted in the children’s deprivation of parental care, control or subsistence. Her only “sin” was to seek assistance from a public agency in providing these needs. Thus, in essence, the majority holds that where an indigent parent seeks the support of a public agency to assure assistance in obtaining adequate care for the child, the parent does so upon pain of being found to have been incapable of performing the duties of parenthood and subject to the termination of parental rights.

There is also no basis for finding that “the conditions and causes of the incapacity . . . cannot or will not be remedied by the parent.” 1 P.S. § 311(2) (Supp.1977-78). In the instant appeal, the cause of appellant’s supposed incapacity is her lack of intellectual talent or ability. How *365 ever, the evidence does not support a conclusion that this cause cannot be remedied. To the contrary, there is expert testimony, summarized by the majority, that appellant’s I.Q. scores placed her within the category of educable and trainable mentally retarded. A finding that the cause of appellant’s incapacity cannot be remedied could only be sustained by ignoring the psychologist’s testimony concerning appellant’s capacity for training and education. Nor can it be concluded that the cause of appellant’s incapacity will not be remedied. Appellant has, at considerable inconvenience, sought and received the assistance of Children’s Services and nutrition aides in order to provide adequate parental care; appellant changed her residence in order to improve her family’s living conditions; appellant maintains an adequate and healthful dwelling; and she provides for her daughter’s basic needs. The record shows that appellant was more than willing to seek the best possible environment for the rearing of her children and that she possessed sufficient capacity to perform the duties of parenthood. I am therefore of the belief that even without a consideration of the question of “fault” the clear language of section 311(2) does not provide a basis for termination under the instant record. 5

Even more egregious, in my view, is the majority’s position that the element of parental fault is not required by section 311(2). The majority construction of section 311(2) in effect means that an involuntary parental incapacity, sustained through no fault of the parent, if found to be irremediable, justifies judicial termination of the incapacitated parent’s parental rights. Such a construction raises serious equal protection questions which may very well render section 311(2) invalid.

*366 The, construction placed upon section 311(2) by the majority results in the creation of two categories of parents; one consisting of involuntarily incapacitated parents, either physically, mentally, or both, and the other consisting of basically healthy parents. As to those parents in the former category, the majority would apply section 311(2) to terminate their parental rights, whereas those parents in the latter category would not face such a threat without some dereliction on their part. By this judgment they have ordained that the bedridden terminally ill cancer patient, the comatose accident victim, the paralytic, and the contagiously ill patient are all prime subjects for involuntary termination under this section. 6

It is conceded that there are literally hundreds of legislatively created classifications and that the constitutional guarantee of equal protection does not operate as a per se prohibition of such classifications. The traditional equal protection standard required only that the differentiation in treatment created by a classification bear some reasonable relationship to a legitimate legislative objective. See e. g., Dandridge v. Williams, 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420 , 81 5. Ct. 1101, 6 L.Ed.2d 393 (1961); Railway Express Agency v. New York, 336 U.S. 106 , 69 S.Ct. 463 , 93 L.Ed. 533 (1949) (Jackson, J., concurring). See generally, G. Gunther, Constitutional Law 657 (9th ed. 1975). However, where a statuto *367 ry classification affects a fundamental interest, equal protection requires that the statutory classification be necessary to promote a compelling state interest. See Kramer v. Union Free Sch. Dist., 395 U.S. 621 , 89 S.Ct. 1886 , 23 L.Ed.2d 583 (1969) (right to vote). Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969) (right of interstate travel). The cornerstone of the parental relationship is the natural love that exists where it is properly nurtured by the parent. In the panoply of duties and responsibilities that comprise the obligations of parenthood, nothing is more important than the fostering of the love that can exist between parent and child. No experience in life is more gratifying and significant in the development of the child than to have been the recipient of parental love. The warmth and the security of that love dwarfs the incidental benefits that riches, luxury and power may provide. The societal importance of the parental relationship explains, if such explanation is needed, why the United States Supreme Court has consistently held that the right of natural parents to raise their own offspring is a fundamental interest and thus subject to the highest degree of constitutional protection. Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972); see Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. Since the classification drawn by the majority’s construction of section 311(2) directly impinges upon involuntarily incapacitated parents’ rights to the companionship, care and custody of their children, only a compelling state interest can justify the classification. I have grave doubts that the state’s admittedly valid interest in protecting minor children is sufficiently powerful to legitimize the classification. 7 Furthermore, I would submit that even if this state interest is considered to be a “compelling” one, there are less drastic alternatives available (e. g., continued foster home care), short of absolute termination of *368 parental rights, to promote this state interest. 8 The state’s interest is that of insuring that the essential needs of the child are met. In cases involving no parental misconduct, such as the instant case, this interest is sufficiently promoted by custody awards.

I need not reach the ultimate merits of the constitutional issues discussed above, because in my judgment the appropriate construction of section 311(2) avpids constitutional problems. In concluding that the incapacity provisions of section 311(2) do not require any showing of parental fault, the majority relies upon the Joint State Government Commission, Official Comment, Adoption Act (1970). It is, of course, permissible for this Court to consult such comments in construing a statute. 1 Pa.C.S.A. § 1939 (Supp.1977-78). However, in construing a statute, this Court should also consider the consequences of a particular interpretation and should presume that the legislature did not intend that a statute be construed in a constitutionally questionable manner. 1 Pa.C.S.A. §§ 1921(6), 1922(3) (Supp.1977-78). While the words, “incapacitated” and “cannot”, when read in conjunction in a purely literal sense, could support the construction urged by the majority, it is my view that such a construction is foreign to the American philosophy of the relationship between the State and the citizen and is totally unwarranted. The majority’s no-fault interpretation of the *369 incapacity provisions of section 311(2) permits the termination of the parental rights of parents who, without any fault, are rendered unable to care for their children. In light of this consequence and the attendant constitutional difficulties, I suggest that some degree of parental fault be a prerequisite to a termination on grounds of incapacity. The “abuse, neglect, or refusal” language of section 311(2) shows that parental misconduct was a primary concern of the legislature. Furthermore, in providing for termination when an incapacity “will not be remedied by the parent”, the legislature clearly intended that the willful refusal of parents to take steps to remedy their own incapacity would constitute grounds for termination. Thus, the element of fault, or parental misconduct, permeates section 311(2). Since the state has a much stronger interest in protecting minor children from willful or even negligent parental misconduct, the statutory interpretation I proffer is essential if section 311(2) is expected to withstand an equal protection attack.

I therefore dissent as to the termination of parental rights of appellant Marjorie L., and I concur in the result as to the termination of parental rights of appellant Gladys B.

. The majority’s suggestion that appellant suffers from some mental instability is without support in the record. There was no finding by the lower court that appellant was mentally unstable, and the delusion of pregnancy suffered by appellant nearly 15 years ago, and referred to by the majority, could hardly constitute substantial evidence of a present instability. See Adoption of Farabelli, 460 Pa. 423 , 333 A.2d 846 (1975). In straining to find support for the theory that appellant “suffered from some mental instability”, the majority takes facially neutral evidence and wrenches factual inferences that are unwarranted and unfavorable to appellant. In describing appellant’s failure to locate a certain boyfriend, the majority states that the boyfriend did not exist. Although these were the words used by appellee’s witness to describe the witness’ unsuccessful attempt to locate the boyfriend, the context of the comment shows that the witness merely meant that she could not establish the identity of the boyfriend, not that the boyfriend was a figment of appellant’s imagination.

The testimony of the county nutrition aide supervisor concerning appellant’s account of her father’s death, although of highly questionable relevance, was also seized upon by the majority to support its thesis of mental instability. Although appellant later adopted this account and it was not rebutted, the majority transforms this testimony into evidence of appellant’s delusions by stating that “the circumstances surrounding appellant’s relation of this story rendered it incredible.” If such stories were incredible merely because they were bizarre, this Court could quickly dispose of numerous homicide appeals by discharging defendants who committed “incredible” murders.

. At that time her sons ranged in age from one year to seven years. Tracie was bom in September, 1971.

. Judge Woodside’s caveat in Rinker Appeal, 180 Pa.Super. 143 , 117 A.2d 780 (1955) arose in the context of an appeal from an award of custody. His warning should be accorded even greater weight in cases such as the instant one involving the irreversible termination of parental rights based upon an alleged parental incapacity.

. Financially secure parents suffering from the same mental or intellectual deficiencies as appellant Marjorie L. conceivably could hire nurses or seek the services of a private agency to aid in their childrearing. Thus, wealthy parents of families may avoid even the possibility of losing their parental rights. On the other hand, indigent parents similarly afflicted must seek aid from public agencies in order to provide for their children. It is indeed ironic that in seeking the only assistance available to them indigent involuntarily incapacitated parents expose themselves to the threat of losing the very reason for the quest for help — their children. Such de facto discrimination on the basis of wealth should be considered by this Court when construing and applying the words of a statute. 1 Pa.C.S.A. § 1921(6) (Supp.1977-78). See note 8 infra.

. The record in the appeal of Gladys B. presents a significantly distinguishable factual situation. Appellant Gladys B.’s refusal to cooperate with school counselors and nutrition aides and her open hostility toward caseworkers present a clearer case of an incapacity which “will not be remedied by the parent.” Gladys B.’s obstinate unwillingness to accept the assistance offered is but one kind of parental misconduct which is a prerequisite to termination of parental rights under Section 311(2). I therefore concur in the result as to the appeal of Gladys B.

. We who sit as appellate judges must always guard against becoming emotionally isolated from human nature and the human consequences of our decisions lest in our endeavors to render dispassionate justice we lose our compassion. Kafka, in describing judges in a fictional judiciary, wrote:

“. . . yet confronted with quite simple cases, or particularly difficult cases, they were often utterly at a loss, they did not have any right understanding of human relations, since they were confined day and night to the workings of their judicial system, whereas in such cases a knowledge of human nature itself was indispensable.”

F. Kafka, The Trial 148 — 49 (M. Brod ed. 1969). One cannot ignore the human result of the majority’s decision today. In the words of Mr. Justice MANDERINO in his dissent in the instant case, Frank, William and Mark are dead so far as appellant is concerned.

. Since, as the majority correctly notes, the appeal of Marjorie L. does not involve any parental misconduct, the “abuse, neglect, or refusal” language of section 311(2) was not a basis for the majority’s holding.

. I have already discussed the potential for de facto discrimination on the basis of wealth created by the majority’s construction of section 311(2). See note 4, supra. I now point out that such a wealth-based classification also raises an arguable equal protection question. It must be conceded that the Equal Protection Clause has not been judicially accepted as a means of redressing all economic inequalities. Compare San Antonio Ind. Sch. Dist. v. Rodriguea, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973) (Texas system of financing public education upheld in face of equal protection attack) and Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963) (denial of appellate counsel to indigent criminals held unconstitutional, but opinion unclear as to whether holding relied upon due process or equal protection). Nevertheless, in interpreting a statute, this Court should consider the consequences, both legal and practical, of its interpretation. 1 Pa.C.S.A. § 1921(6) (Supp.1977-78). Certainly there is no justification for a construction, not absolutely required by the language of the act, which would create such a blatant disparity between the rich and the poor.