Appendix — Beatty v. Lycoming County Children's Services

la

In re WILLIAM L., Frank L., and Mark L.,

minor children,

Appeal of MAJORIE L.

In re JUDITH DENISE B., a minor.

Appeal of GLADYS B.

Supreme Court of Pennsylvania,

Argued April 21, 1977.

Decided Jan. 31, 1978.

ROBERTS, Justice,

These are appeals from final decrees of

the Orphans‘ Court Division of the Court of

Common Pleas of Lycoming County terminating

the parental rights of appellant Gladys B.

to her daughter Judith Denise B,. and of ap-

pellant Marjorie L. to her three sons Willi-

am L., Mark L., and Frank L, Appellee, in

both appeals, is Lycoming County Children's

Services [Children's Services]. The paren-

tal rights of both appellants were terminat-

ed pursuant to section 311(2) of the Adop-

1. We hear these appeals pursuant to the Ap-

pellate Court Jurisdiction Act, Act of July

31, 1970, P.L. 673, art. II, § 202(3), 17 P.

S. § 211.202(3) (Supp.1977).

a

2a

tion Act of 1970.7 In addition to challen-

ging the sufficiency of the evidence to sup-

port the decrees entered in their respective

cases, both appellants claim that section 31l

(2) is vague, in violation of the due process

clause of the fourteenth amendment. They al-

so assert that section 311(2), as applied to

them, deprives them of their interest in

maintaining their parental relationships pro-

tected by the first, ninth, and fourteenth

amendments of the United States Constitution.

Because of the substantial similarity of

these claims, we agreed to hear and decide

the two cases together. We affirm in both

appeals.

I, SECTION 311(2) OF THE 1970 ADOPTION ACT

IS NEITHER UNCONSTITUTIONALLY VAGUE NOR

VIOLATIVE OF SUBSTANTIVE DUE PROCESS AND

MAY CONSTITUTIONALLY BE APPLIED TO TERM-

INATE APPELLANTS' PARENTAL RIGHTS.

2. Act of July 24, 1970, P.L. 620, § 311(2),

1 P.S. § 311(2) (Supp.1977). Section 311(2),

for which there was no corollary provision

in the previous Adoption Act, authorizes

termination of parental rights when:

"The repeated and continued incapacity,

abuse, neglect, or refusal of the parent has

caused the child to be without essential pa-

rental care, control, or subsistence neces-

sary for his physical or mental well-being

and the conditions and causes of the incapa-

city, abuse, neglect, or refusal cannot or

will not be remedied by the parent."

3a

Every presumption is in favor of the con-

stitutionality of legislative acts, Statutory

Construction Act of 1972, 1 Pa. C.S. § 1922

(3) (Supp.1977), and statutes are to be con-

strued whenever possible to uphold their con-

stitutionality. Bentman v. Seventh Ward Den-

ocratic Executive Committee, 421 Pa. 188, 218

A.2d 261 (1966). “Courts may not declare a

statute unconstitutional ‘unless it clearly,

palpably, and plainly violates the Constitu-

tion.'" Tosto v. Pennsylvania sin

Loan Agency, 460 Pa. 1, 16, 331 A.2d 198, 205

(1975), quoting Daly v. Hemphill, 411 Pa.

263, 271, 191 A.2d 835, 840 (1963). Appel-

lants' constitutional challenges do not meet

this stringent burden,

Appellants both assert that section 311(2)

of the Adoption Act is unconstitutional un-

less given a narrowing interpretation pre-

cluding its application to terminate their

respective parental rights. They assert

that parents have a fundamental interest in

continued association with their children

protected by the United States Constitution.

They contend that section 311(2) violates

this interest unless interpreted to require

two showings before parental rights may be

terminated: (1) that the parent has demon-

strated a “high and substantial degree of

misconduct;" and (2) that the child, while

in the parent's custody, has suffered sub-

stantial physical or mental harm because of

the absence of a basic need such as food,

clothing, shelter, or medical care. Appel-

lants contend that, absent such a narrow in-

terpretation, the phrase “has caused the

ae eS

4a

child to be without essential parental care,

control, or subsistence necessary for his

physical or mental well-being” in section 311

(2) is unconstitutionally vague because it is

susceptible to arbitrary enforcement and

fails to give adequate notice to parents of

the conduct required of them. We do not

agree. Section 311(2) is not unconstitution-

ally vague and may constitutionally be ap-

plied to terminate parental rights where, as

here, the record establishes "the repeated

and continued incapacity” of a parent to pro-

vide the child with the “essential parental

care, control, or subsistence necesgary for

his physical or mental well-being."

A. Section 311(2) is not unconstitutionally

vague because the language of the section

and the decisions of this Court interpre-

ting section 311(2) provide sufficiently

precise guidelines to ensure reasonable

notice and proper application.

Vague statutes may offend the Constitu-

tion in three ways: (1) they may trap the

innocent by failing to give a person of or-

dinary intelligence reasonable opportunity

to know what is prohibited so that he may

act accordingly; (2) they may result in ar-

bitrary and discriminatory enforcement in

3. The Attorney General was notified of the

constitutional challenge to section 311(2)

raised in these appeals, as prescribed by

Pa. R.A.P. 521.

5a

the absence of explicit guidelines for their

application, and (3) where they implicate

first amendment freedoms, they may inhibit

constitutionally protected activity. Grayned

v. City of Rockford, 408 U.S. 104, 108-09, 92

S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972).

Appellants argue that the language "has

caused the child to be without essential par-

ental care, control, or subsistence necessary

for his physical or mental well-being” in

section 311(2) presents all three dangers.

See Alsager v. District Court of Polk City,

Iowa, 406 F.Supp. 10 (S.D. Iowa 1975), aff'd

in part 545 F.2d 1137 (8th Cir. 1976).

Considering first the question of notice,

we believe appellants misperceive the nature

of section 311(2). Unlike the typical stat-

ute attacked on vagueness grounds, section

311(2) does not prohibit or regulate any par

ticular conduct. Section 311(2) is concern

ed only with the welfare of children whose

essential needs have not been met, and whose

parent cannot or will not meet those needs

in the future. In the instant cases, the

basis for termination is several years of

demonstrated parental incapacity, which does

not involve parental misconduct. When a

4. Legislation prescribing any particular

mode of child rearing would likely be uncon-

stitutional. See Pierce v. Society of Sis-

ters, 268 U.S. 510, 535, 45 S.Ct. 571, 573,

69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262

U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed.

1042 (1923).

6a

statute attaches consequences to parental in-

capacity, a requirement that the statute

"give a person of ordinary intelligence fair

notice that his contemplated conduct is for-

bidden by the statute," United States v. Har-

riss, 347 U.S. 612, 617, 74 S.Ct. 808, 812,

98 L.Ed. 989 (1954), serves no purpose, be-

cause the statute applies only to a parent

incapable of conforming conduct to avoid the

effect of the statute.

Of course, the other bases for termina-

tion relate to parental neglect, abuse, or

refusal to meet the child's essential needs

and thus involve parental misconduct. Sec-

tion 311(2), however, requires that, before

parental rights may be terminated, the court

must find that the "conditions and causes of

the incapacity, abuse, neglect, or refusal

cannot or will not be remedied by the par-

ent.” 1 P.S. § 311(2) (Supp.1977). This re-

quirement excludes the possibility that par-

ental rights will be terminated because of

insufficient notice, since the parent's ina-

bility or unwillingness to meet the child's

essential needs must be affirmatively demon-

strated. The requirement that parental con-

duct resulting in termination of parental

rights be irremediable negates appellants'

notice argument,

5. When termination is sought on the basis

of parental conduct causing the child to be

without essential parental care, the require

ment that the conduct be shown to be irre-

mediable could be (footnote continued 7a)

7a

Second, section 311(2) does not create the

potential for arbitrary and discriminatory

enforcement. The language of section 311(2)

is broad and speaks in general terms, as do

most statutes concerned with neglect, How-

(footnote 5. continued) met rarely, if ever,

absent evidence that the deficiencies in par-

ental conduct had been identified, and the

parent was nonetheless unwilling or unable to

modify the conduct to remedy the situation.

Moreover, because of the Commonwealth's com-

mitment to the preservation of the family,

when termination is sought by an agency, a

normal element of the agency's proof will be

that services have been made available to the

parent to help remedy the causes of removal

and have proved unavailing. See Adoption of

R,I,, 468 Pa. 287, 295 n.9, 361 A.2d 294,

298 n.9 (1976). We need not decide whether

such a showing is required in light of the

Commonwealth's public policy, since it is

clear that both appellants have received

years of assistance from Children's Services

and related public agencies. See section II,

infra.

6. See, e.g., Cal. Welf. & Inst. Code § 600

(West 1972).

Many commentators believe that, because

of the many different circumstances which

may justify intervention, general language

is necessary in statutes authorizing inter-

vention in the parent-child relationship.

E.g., Katz, When Parents Fail 64 (1971)

("{Broad] neglect statutes recognize that

‘neglectful' behavior (footnote continued 8a)

ever, our strong policy protecting the family

from unwarranted state intrusion protects

against arbitrary or discriminatory applica-

tions of section 311(2).

When the child is in the home, this on-go-

ing relationship will not be disturbed except

upon a showing by clear and convincing evi-

dence that removal is "clearly necessary."

Adoption of R,I,, 468 Pa. 287, 294, 361 A.2d

294, 297 (1976); Interest of Larue, 244 Pa,

Super. 218, 366 A.2d 1271, 1275 (1976). It

is not enough to justify termination of par-

ental rights under section 311(2) to demon-

strate that the home is "submarginal"” and

likely to result in a “cultural deprivation."

In re Geiger, 459 Pa. 636, 640, 331 A.2d 172,

174 (1975). These decisions render agency

officials powerless to remove a child from

parental care and control absent a clear

showing that the child either has been sub-

jected to abuse or suffered serious harm, or

that the threat of such harm is real and sub-

stantial and cannot be alleviated by means

less drastic then removal.

Often, as in these appeals, the question

of whether to terminate parental rights

(fcotnote 6. continued) can also vary, and

thus cannot be easily or specifically de-

fined. . . . The broad neglect statutes al-

low judges to examine each situation on its

own facts."); Levine, Caveat Parens: A De-

mystification of the Child Protection System,

35 Pitt.L.Rev. 1, 17 (1973).

9a

arises long after the unity of the family has

been disrupted by separation of the child

from the parent. Marjorie L's three sons

have been in foster care since 1971; Gladys

B's daughter Judith has been in foster care

since 1974, Extended relegation of a child

to the care of others as a result of parental

incapacity or neglect is relevant in deter-

mining whether the child has been without es-

sential parental care or control. See Roth-

stein v. Lutheran Social Services of Wiscon-

sin and Upper Michigan, 405 U.S. 1051, 92 S.

Ct. 1488, 31 L.Ed.2d 786 (1972); cf. In re

Smith's Adoption, 412 Pa. 501, 194 A.2d 919

(1963) (that natural mother allowed foster

parents to meet child's physical and mental

needs for over a year was relevant to termi-

nation of parental rights). A stable family

relationship is “necessary for [a child's]

physical or mental well-being." "Continuity

of parental affection and care provides the

cornerstone for the child's sense of self

worth and security; parental discipline and

example develop the wellsprings of values

and ideals." Note, In the Child's Best In-

terests: Rights of the Natural Parents in

Child Placement Proceedings, 51 N.Y.U.L.Rev.

446, 450 (1976). The essential need of a

child for close and continuous association

with a parent or parent-figure is well rec-

ognized in psychological literature. See

sources cited in id. at 449-51,

Accordingly, when a child has been placed

in foster care, a parent has an affirmative

duty to work towards the return of the child.

See Involuntary Termination of Parental

ee

10a

Rights of S,C,B., and K,T,, Pa. , 3T9 A,

2d 535 (1977); Appeal of Diane B,, 456 Pa.

429, 321 A.2d 618 (1974). However, even when

there has been a long separation occasioned

by parental neglect or incapacity, termina-

tion of parental rights will not be ordered

if there is a reasonable possibility that the

causes and conditions which have led to the

separation can be remedied and the family re-

stored. Jones Appeal, 449 Pa. 543, 297 A.2d

117 (1972), demonstrates our deference to

this requirement. There, although the mother

was an accomplice to sexual abuse of her

daughter, we refused to terminate her paren-

tal rights because the evidence did not es-

tablish that the causes or conditions leading

to the abuse could not be remedied. Id. at

548, 297 A.2d at 120,

The language of section 311(2) does not

admit of an interpretation permitting termi-

nation of parental rights based upon personal

preferences or speculative concepts of proper

child rearing. The needs of the child unmet

by the parent must be “essential” and "“nec-

essary" to his "physical or mental well-be-

ing." In addition, the evidence must estab-

lish that the causes and conditions of the

deprivation “cannot or will not be remedied."

We conclude that the demanding standards

of section 311(2), together with the Legis-

lature's and this Court's strong policy of

restraint from interfering with the family,

sufficiently protect against the arbitrary

and discriminatory application of section

lla

311(2).

Similarly, even assuming that decisions

affecting private family concerns implicate

first amendment values, see Griswold v.

Connecticut, 381 U.S. 479, 485, 85 S.ct. 1678

1682, 14 L.Ed.2d 510 (1965), we must reject

appellants' argument that the language of

section 311(2) may have a "chilling" effect

on protected parental conduct. The decisions

of this Court interpreting section 311(2)

protect parental conduct which does not de-

prive the child of its essential needs. See

In re Geiger, supra. However, parental mis-

conduct which deprives the child of essential

needs is not protected by the Constitution.

Mr. Chief Justice Burger, writing for the

Court, stated in Wisconsin v. Yoder: "To be

sure, the power of the parent even when link-

ed to a free exercise claim, may be subject

to limitation . . . if it appears that paren-

tal decisions will jeopardize the health or

safety of the child, or have a potential for

significant social burdens." 406 U.S. 205,

233-34, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15

(1972). Section 311(2) and our decisions

are sufficiently clear to avoid any signifi-

cant possibility a parent would be inhibited

from engaging in protected conduct not con-

stituting deprivation of essential needs of

the child,

B. Section 311(2) does not violate substan-

tive due process rights because a state

may constitutionally intervene to termi-

nate parental rights when a natural par-

ent's continued incapacity causes the

4

12a

child to be without essential parental

care.

Appellants argue that the application of

section 311({2) to terminate their respective

parental rights, in the absence of a showing

of "high and substantial miswonduct" and that

their children, while in their custody, had

ever suffered substantial physical or mental

harm, violates their constitutionally pro-

tected interest in mutual association with

their children. We do not agree.

There is no doubt that the Constitutia

protects the family against certain intru-

sions by the state. Meyer v. Nebraska, 262

U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923),

generally considered the seminal case recog-

nizing constitutional protection of family

concerns, invalidated a statute which prohib-

ited teaching young children any language

other than English because the statute un-

reasonably infringed upon the liberty inter-

est protected by the fourteenth amendment of

parents, teachers, and children. Noting

that the contours of the liberty interest

guaranteed by the fourteenth amendment had

never been exactly defined, the Court stated:

“Without doubt, it denotes not merely free-

dom from bodily restraint but also the right

of the individual to . . . marry, establish

a home, and bring up children . . .." Id. at

399, 43 S.ct. at 626. Accord, Pierce v. So-

ciety of Sisters, 268 U.S. 510, 45 S.Ct. 571,

69 L.Ed. 1070 (1925) (striking down a statute

requiring that all children attend public

schools). In Prince v. Massachusetts, 321

13a

U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944),

the Court recognized that:

"It is cardinal with us that the custody,

care and nurture of the child reside first

in the parents, whose primary function and

freedom include preparation for obliga-

tions the state can neither supply nor

hinder, [citing Pierce] And it is in rec-

ognition of this that these decisions

[Pierce and Meyer] have respected the pri-

vate realm of family life which the state

cannot enter,"

Id. at 166, 64 S.ct. at 442.

The continued vitality of the principle

that there is a “private realm of family life

which the state cannot enter" cannot be ques-

tioned. Just last term the United States Su-

preme Court stated that "when the government

intrudes on choices concerning family living

arrangements, this Court must examine care-

fully the importance of the governmental in-

terests advanced and the extent to which

they are served by the challenged regula-

tion." Moore v, City of East Cleveland,

Ohio, 431 U.S, 494, 499, 97 S.ct, 1932,

1936, 52 L.Ed.2d 531 (1977) (plurality opin-

ion). See also Smith v. Organization of

Foster Families for ality and Reform, 431

U.S. 816, 829, 97 S.Ct. 2094, 2109, 53 L.Ed.

2d 14 (1977); Cleveland Board of Education

v. LaFleur, 414 U.S. 632, 639-40, 94 S.ct.

791, 796, 39 L.Ed.2d 52 (1974) ("This Court

has long recognized that freedom of personal

choice in matters of marriage and family

life is one of the liberties protected by

the Due Process Clause of the Fourteenth

l4a

Amendment."); Wisconsin v. Yoder, 406 U.S.205,

231-33, 92 S.Ct. 1526, 1541-42, 32 L.Ed.2d 15

(1972); Stanley v. Illinois, 405 U.S. 645,651,

92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972);

Ginsberg v. New York, 390 U.S. 629, 639, 88 S.

Ct. 1274, 1280, 20 L.Ed.2d 195 (1968).

In related cases, the United States Supreme

Court has recognized that the Constitution af-

fords protection to "a right of personal pri-

vacy, or a guarantee of certain areas or

zones of privacy." Roe v. Wade, 410 U.S. 113,

152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973).

See also Carey v. Population Services Inter-

national, 431 U.S. 678, 684, 97 S.Ct. 2010,

2016, 52 L.Ed.2da 675 (1977) (plurality opin-

ion); Whalen v. Roe, 429 U.S. 589, 598, 97 S.

Ct. 869, 876 (1977); Griswold v. Connecticut,

supra at 485, 85 S.Ct. at 1682. Personal de-

cisions relating to child rearing are within

this zone and protected from unwarranted in-

terference by the state. Carey v. Population

Services International, supra, 431 U.S. at

684, 97 S.Ct. at 2016 (plurality opinion),

citing Pierce and Meyer.

These cases do not, however, support the

proposition that the state can never inter-

fere in the parent-child relationship. In-

deed, in Stanley v. Illinois, supra, the

United States Supreme Court recognized that

the state had not only a right, but a duty

to protect minor children. 405 U.S. at 649,

92 S.Ct. at 1212. See also Prince v. Massa-~-

chusetts, supra (upholding anti-child labor

statute against challenge that it unreasona-

15a

bly infringed upon parent's and child's free

exercise of religion and parent's right to

educate child in her beliefs). Constitution-

al restraint on state interference in family

matters does not compel the courts to protect

parental rights at the expense of ignoring

the rights and needs of children. In Planned

Parenthood of Central Missouri v. Danforth,

428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788

(1976), the United States Supreme Court re-

jected the argument that the state's interest

in protecting parental authority justified

giving parents a veto power over a minor's

decision to have an abortion “where the minor

and the nonconsenting parent are so fundamen-

tally in conflict and the very existence of

the pregnancy has already fractured the fami-

ly structure." Id. at 75, 96 S.Ct. at 2844,

See also Wisconsin v. Yoder, 406 U.S. at 241-

49, 92 S.Ct. at 1546-50 (concurring and dis-

senting opinion of Douglas, J.); In re Roger

S., 19 Cal.3d 921, 141 Cal. Rptr. 298, 569 P,

24 1286 (1977) (unconstitutional to permit

parent of fourteen year old child to commit

the child to a mental institution over the

child's objection). In determining whether

parental rights should be terminated, the

court must recognize the essential needs of

the child as well as the rights of the par-

ent.

The source of the state's authority to

intervene in family matters to protect minor

children has been said to be the doctrine of

parens patriae, the concept that the sover-

eign is the father of his country. See, e.

g., Adoption of R,I,, 468 Pa. at 294, 361 A.

l6a

2d‘at 297. Although the doctrine of parens

patriae has been_subject to critical comment

in recent years, there is general agreement

that the state has the right and the duty to

act to protect its weaker members, such as 9

infants, who are unable to protect themselves,

and to compel parents and children alike to

act in ways beneficial to society.” See

Kleinfeld, The Balance of Power Among Infants,

Their Parents and the State, 4 Fam.L.Q. 320

(1970), 4 Fam.L.Q. 410 (1970), 5 Fam.L.Q. 64

(1971). The state's responsibility to pro-

tect its weaker members authorizes interfer-

7. The criticism has generally centered on

its invocation to deny due process to infants.

See, e.g., In re Gault, 387 U.S. l, 16, 87S.

Ct. 1428, 1437-38, 87 S.Ct. 1428, 18 L.Ed.2d

527 (1967) ("The Latin phrase proved to be a

great help to those who sought to rationalize

the exclusion of juveniles from the constitu-

tional scheme; but its meaning is murky and

its historic credentials of dubious relame.")

8. E.g., Prince v. Massachusetts, 321 U.S.

158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (anti-

child labor legislation); Ginsberg v. New

York, 390 1.S. 629, 88 S.Ct, 1274, 20 L.Ed.

2d 195 (1968) (variable obscenity standard to

protect children).

9. E.g., requiring children to attend some

school, at least to a certain age. Pierce v.

Society of Sisters, 268 U.S. 510, 534, 45 Ss.

Ct. 571, 573, 69 L.Ed. 1070 (1925); Wisconsin

v. Yoder, 406 U.S. 205, 213, 92 S.ct. 1526,

1532, 32 L.Ed.2d 15 (1972).

17a

ence with parental autonomy and decisionmak-

ing in appropriate circumstances. The moral

and practical importance of this authority

was set forth by Chief Justice Maxey in Com-

monweal ex rel. Children's Aid Society v.

Gard:

"Societies which like the relator are en-

trusted by the sovereign with power over

the lives of infants should ever bear in

mind that consideration for the sensibili-

ties of children and solicitude for their

well-being is the hallmark of an humane

individual and of a civilized state.”

362 Pa. 85, 99, 66 A.2d 300, 307 (1949).

Parental rights must be accorded signifi-

cant protection. Meyer v. Nebraska, supra;

Pierce v. Society of Sisters, supra; Prince

v. Massachusetts, supra; and Wisconsin v.

Yoder, supra. The state may, however, con-

stitutionally require the rights of parents

to yield to the child's essential health and

safety needs. See Wisconsin v. Yoder, supra;

accord, In the Matter of Petition for Adop-

tion of J,S.R,, 374 A.2d 860 (D.C. 1977)

("(T]he right of a parent to raise one's

child is an essential, but not absolute, one,

which can be terminated . . ..").+° when,

10. The District of Columbia Court of Ap-

peals there upheld the involuntary termina-

tion of parental rights, finding that 1) the

"best interest of the child” standard for

involuntary termination is not unconstitu-

tionally vague or (footnote continued 18a)

18a

as here, a parent is incapable of meeting the

child's essential needs, see section II, in-

fra, the state may constitutionally intervene

to protect the “physical or mental well-being"

of the chile. In these circumstances, the in

terest of the parent in keeping the child

conflicts with the interest of the child in

its essential physical and emotional needs

and the Legislature has constitutionally man-

dated that the interests of the weaker party,

the child, should prevail. This legislative

determination must be accorded great defer-

ence for "when an issue involves policy

choices as sensitive as those implicated by

[the involuntary termination of parental

rights], the appropriate forum for their res-

olution in a democracy is the legislature."

Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376,

2385-86, 53 L.Ed.2d 484 (1977). As Mr. Jus-

tice Holmes stated in Missouri, Kansas and

Texas Railway Company v. May, 194 U.S. 267,

270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904):

"“([Llegislatures are ultimate guardians of the

liberties and welfare of the people in quite

as great a degree as the courts."

Therefore, appellants’ assertion that

(footnote 10. continued) violative cf due

process and 2) a finding of parental unfit-

ness is unnecessary to a determination that

the child's interests will be served by ter-

mination of parental rights. Accord, In re

Petition of New England Home for Little Wan-

derers, 328 N.E.2d 854 (Mass.1975).

19a

"high and substantial misconduct" on the part

of the parent must be shown before parental

rights may be constitutionally terminated can-

not be accepted. Their contention ignores

the state's constitutional interest in the

welfare of the child.

Ii, THE DECREES OF THE ORPHANS' COURT DIVI-

SION TERMINATING THE PARENTAL RIGHTS OF

APPELLANTS ARE SUPPORTED BY COMPETENT

EVIDENCE.

A. Scope of Review

Having determinated that section 311(2) of

the 1970 Adoption Act is constitutional, it

remains to be determined whether the orphans'

court properly applied the section to the

facts of the instant cases. Our scope of re-

view is limited to determining whether the

orphans’ court's terminations of appellants'

parental rights are supported by competent

evidence. E.g., In re: Involuntary Termina-

tion of Parental Rights of S.C.B. and K,T.,

—- * ’ » 379 A.,2d 535, 540 (1977);

Adoption of M.T.T,, 467 Pa. 88, 354 A.2d 564

(1976); Adoption of Farabelli, 460 Pa. 423,

333 A.2d 846 (1975) (plurality opinion) ;

Sheaffer Appeal, 452 Pa. 165, 305 A.2d 36

ll. Appellants also argue that the language

of section 311(2) requires a showing of a

"high and substantial degree of misconduct,"

This contention was expressly rejected in In

Adoption of R,I,, 468 Pa. 287, 361 A.2d 294

(1976). See part II, infra.

20a

(1973). Findings of the orphans' court sup-

ported by evidence of record are entitled to

the same weight given a jury verdict and must

be sustained unless the court abused its dis-

cretion or committed an error of law. E.g.,

Garges Estate, 474 Pa. 237, 378 A.2d 307

(1977); In re Wertman Estate, 462 Pa. 195,340

A.2da 429 (1975); Button Estate, 459 Pa. 234,

328 A.2d 480 (1974); Cohen Will, 445 Pa. 549,

284 A.2d 754 (1971); Holtz Will, 422 Pa. 540,

222 A.2d 885 (1966); Hunter Will, 416 Pa.127,

205 A.24 97 (1964) .12

B. The orphans’ court division's determina-

tion that appellant Marjorie L.'s contin-

ued incapacity to care for her children,

combined with her separation from her

children since 1971, had caused her three

sons to be without "essential parental

care", and that this incapacity could not

be remedied by appellant, is supported by

competent evidence [Appeal at No. 46].

ee

12. In determining whether the findings of

the orphans' court are supported by competent

evidence, we must take as true all the evi-

dence supporting the findings and all reason-

able inferences therefrom, See Kay v. Kay,

460 Pa. 680, 334 A.2d 585 (1975). Mr. Jus-

tice Nix, in his dissenting opinion, departs

from this standard by drawing his own infer-

ences contrary to the findings of the or-

phans' court. An appellate court is not

free to draw inferences contrary to the find-

ings of the orphans' court supported by com-

petent evidence,

2la

The three children involved in this appeal

are Frank, age 13, William, age 11, and Mark,

age 7. Pursuant to a voluntary placement

agreement, all have been in the custody of

Children's Services since June 8, 1971, when

they were, respectively, ages 7, 5, and l.

Appellant has never married and none of the

fathers of the three children has opposed

termination of his parental rights. Appel-

lant has two other children. Carol, the old-

est, age 17, has lived with appellant's par-

ents for many years and there are no plans

for her to return to her mother. Appellant's

youngest child, Tracie, age 6, lives with ap-

pellant.

Appellant was pregnant with Tracie at the

time she placed her three sons with Chil-

dren's Services had become involved with ap-

pellant and her children because of the se-

verely substandard condition of the home

which, according to appellant's caseworker,

was unfit for habitation by children. Af-

13. Notice of the termination proceedings

was sent to the last known addresses of the

fathers of Frank and William. Neither fa-

ther responded. Notice was sent to a man al-

leged to be the father of Mark. The man de-

nied by affidavit that he was Mark's father,

relinquished any parental rights he might

have to Mark, and waived any right to further

notice in this or any subsequent proceedings

involving Mark,

14, The caseworker testified that the home

was roach infested, (footnote continued 22a)

22a

ter Tracie's birth Children's Services helped

appellant locate an apartment. The apartment

appellant selected gguid accommodate only ap-

pellant and Tracie. Frank, William and

Mark continued to remain in foster care, and

appellant visited them once a month at the

Children's Services' office. In November,

1974, while still in the two-person apartment,

appellant requested that her three sons be

returned. The agency, concluding appellant

was unable to provide the children with ap-

propriate care and supervision, declined,

Children's Services advised appellant of the

availability of legal services and in Decem-

ber, 1975, with the assistance of counsel,

appellant petitioned for visitation with the

children in her home, The court of common

pleas ordered that her visitation be increas-

ed to twice a month, and that visitation be

at her home,

Shortly after the three boys entered fos-

ter care in 1971, nutrition aids began regu-

larly visiting appellant's home to help her

(footnote 14. continued) that appellant had

seen a rat near the refrigerator, and that

appellant agreed that the housing was unfit

for children. Appellant did not contradict

this testimony.

15. According to the caseworker, appellant

at first could not decide whether to take

the apartment, or wait for housing which

could accommodate all four children. She

finally decided to take the smaller apart-

ment, in which she still resides.

23a

maintain her household and raise Tracie, 1®

Appellant has continuously relied heavily on

those aids for even the more simple tasks of

everyday life. The nutrition aid supervisor

testified that in the three week period be-

fore the hearing appellant had visited her

approximately seventeen times for assistance

with various minor problems, even though the

supervisor's office was some distance from

appellant's home, Despite the continuous as-

sistance, however, appellant has made little

or no progress in learning how to cope with

problems on her own, and the aids must neces-

sarily continue to perform basic tasks for

appellant.

16. According to the nutrition aid supervisor,

the program encompasses more than advice on

food and diet planning. The aids advise on a

variety of matters, including child care,

money management, and housekeeping.

17. For example, at one time school authori-

ties would not allow Tracie to go to school

because she had lice. The supervising nutri-

tion aid encountered great difficulty ex-

plaining to appellant, and having her per-

form, the necessary procedures to rid Tracie

of the lice, which involved shampooing and

using a special comb, to get the nits out of

Tracie's hair. Appellant seemed unable to

understand the necessity of removing the

nits. When Tracie still had nits after two

weeks, and was upset about missing school,

the aid treated Tracie.

Similarly, appellant has made no signifi-

cant progress in (footnote continued 24a)

24a

The record establishes that appellant is

minimally capable of caring for her youngest

(footnote 17. continued) learning how to bud-

get and manage her money. In the past, appel-

lant's heat and electricity were frequently

turned off because she neglected to pay her

bills. On one occasion, appellant came to

the nutrition aid supervisor requesting emer-

gency financial assistance because she be-

lieved she owed money for rent, gas, water,

and lights. When the aid contacted various

utilities and appellant's landlord (the hous-

ing project director) she learned that, in

fact, appellant did not owe money to any of

them, Workers at the Salvation Army told the

nutrition aid that appellant came to them fre-

quently with similar requests. There was no

indication that appellant intended to defraud

anyone; rather, she simply was unable to keep

track of her income,

The nutrition aids suspected that others

often took advantage of appellant's inability

to manage her money. On several occasions

appellant told the nutrition aids of giving

money to people for such things as toys,

which were never delivered. Appellant's sole

income is a monthly Supplemental Security In-

come (SSI) allowance. One nutrition aid ob-

served on three different occasions that a

creditor came to appellant's house on the day

her check arrived and appellant turned over

her check to him, He took the checks, cashed

them, and, after deducting money allegedly

due, returned what was left.

25a

daughter Tracie, even with the extensive as-

sistance she receives from the nutrition aids.

The record also establishes, however, that

appellant's capabilities are taxed beyond

their limits when she attempts to supervise

and control her three sons, in addition to

Tracie, The caseworkers and aids present

during the custodial visits ordered in 1975,

which continued regularly up to the time of

the hearing in May, 1976, testified that gen-

eral havoc prevailed during the visits. They

described the visits as "free-for-alls" in

which appellant chased one child after anoth-

er attempting to keep them under control.

The visits failed to re-establish closer ties

between appellant and the boys. Frank and

William were observed to "tolerate their moth

er." Mark, who has been with the same foster

family since he was one year old, was unable

to relate emotionally to appellant or his

brothers and would simply watch television.

All three children testified in chambers

and, although they expressed some affection

for appellant, agreed that they did not want

to live with appellant, Frank, then 13,

openly admitted that he refused to obey ap-

pellant and that she was incapable of doing

anything about it. He believed that appel-

lant would not be able to care for him and

his brothers.

In January, 1976, appellant, at the re-

quest of Children's Services, agreed to be

interviewed and tested by a psychologist.

The psychologist administered a structured

interview called the Vinelin Social Maturity

26a

Scale and the standardized Slosson Intelli-

gence Test. The first test indicated that

appellant's social skills and ability to

function independently were at about the

twelve year old level. The intelligence test,

which measures numerical and verbal reasoning

skills, indicated that appellant had an IQ

43 and a mental age of six years, ten months.

Although appellant testified at the hearing

that she had completed the seventh grade in

school, she told the psychologist that she

did not know how to read. The psychologist

testified that appellant had limited communi-

cation skills and showed considerable diffi-

culty in comprehending simple ideas concern-

ing housework, cooking, and child care. In

her psychological evaluation, the psycholo-

gist concluded that appellant lacked the so-

cial maturity and intellectual capability to

cope with the continuing responsibilities of

raising children. 9

18. Appellant began failing test items at

the five year level and low six year level.

She passed a few items at the seven and

eight year level, but did not pass any of

the test items at the nine year level and

above.

In 1963, when hospitalized after suffer-

ing from apparent hallucinations, appellant

was administered the Weschler Adult Intelli-

gence Test, which rated her IQ at 57. The

psychologist testified that both scores

placed appellant in the range of the educa-

ble or trainable mentally retarded.

19. Although the (footnote continued 27a)

27a

The orphans' court terminated appellant's

parental rights to her three sons pursuant to

section 311(2) of the Adoption Act. As this

Court observed in In re Geiger, 459 Pa. 636,

639, 331 A.2d 172, 174 (1975), this section

requires that three facts be shown before

parental rights may be terminated: (1) re-

peated and continued incapacity, abuse, ne-

glect, or refusal; (2) such incapacity, abuse,

neglect, or refusal has caused the child to

be without essential parental care, control

or subsistence necessary for his physical or

mental well-being; and (3) the causes of the

incapacity, abuse, neglect, or refusal cannot

(footnote 19. continued) psychologist did not

testify directly concerning appellant's men-

tal health, there is evidence suggesting that

appellant suffers from some mental instabili-

ty. In 1963 appellant was hospitalized for a

month after suffering from the delusion that

she was pregnant and about to deliver. The

supervising nutrition aid testified that ap-

pellant once asked her to locate a certain

boyfriend of appellant's. Upon investigation,

the aid discovered that the boyfriend did not

exist. Another aid testified to a story ap-

pellant had told her, which appellant repeat

ed under examination by Children's Services'

counsel at the hearing, of having seen her

mother kill her father when appellant was a

young girl, after which her mother buried

him in the family's back yard, The circum-

stances surrounding appellant's relation of

this story rendered it incredible.

28a

or will not be remedied. A decision to term-

inate parental rights, never to be made light-

ly or without a sense of compassion for the

parent, can seldom be more difficult than

when termination is based upon parental inca-

pacity. The Legislature, however, in enact-

ing the 1970 Adoption Act, concluded that a

parent who is incapable of performing paren-

tal duties is just as parentally unfit as one

who refuses to perform the duties. The or-

phans' court properly adhered to this statu-

tory determination and concluded that the el-

ements of the statute -- continued incapacity

to meet the children's essential needs -- had

been demonstrated by clear and convincing ev-

idence. The orphans' court stated:

"It is absolutely clear to the court that,

by reason of her very limited social and

intellectual development combined with her

five year separation from the children,

the mother is incapable of providing min-

imal care, control and supervision for the

three children. Her incapacity cannot and

will not be remedied."

Having first determined that grounds for

termination existed, the orphans' court held

that the best interests of Frank, William

and Mark dictated that appellant's parental

rights be terminated in order that the oppor-

tunity might be afforded the three boys to

enjoy a stable family relationship through

adoption. We find the decree of the orphan's

court supported by competent evidence.

Appellant argues that the decree cannot

be sustained because there was no compelling

29a

evidence that Frank, William, and Mark, while

in her care, were ever neglected, abused, or

abandoned by appellant or deprived of a basic

health need such as food, medical care, cloth

ing, or shelter. Appellant also asserts that

a "high and substantial degree of misconduct"

by the parent must be demonstrated before the

parent's rights to a child may be terminated,

She contends that section 311(2) requires a

showing that substantial physical or mental

harm resulted from the absence of a basic ne-

cessity such as food, clothing, shelter, or

medical care, and that such harm occurred

while the child was living with its parent.

Finally, appellant argues that a child cannot

be deprived of "essential parental care, con-

trol, or subsistence” while in foster care.

Nothing in the language of the act requires

a showing of a "high and substantial degree

of misconduct" before parental rights can be

terminated.29 in Adoption of R.I., 468 Pa,

287, 361 A.2d 294 (1976), this Court rejected

the contention that "willful misconduct" was

a necessary predicate to termination of par-

ental rights. Id. at 297-98 n.10, 361 A.2d

at 299 n.10. The notion that a showing of

parental misconduct is necessary before par-

ental rights may be terminated rests upon the

erroneous assumption that the purpose of sec-

tion 311(2) is to punish an ineffective or

negligent parent. Section 311(2) reflects a

30a

deep concern for the essential needs of the

child, not a legislative vengeance against

parental misconduct. The official comment to

the Adoption Act of 1970 states that the pro-

vision "centers judicial inquiry upon the wel-

fare of the child rather than the fault of

the parent." Joint State Government Commis-

sion, Official Comment, Adoption Act (1970).

Thus, section 311(2) authorizes termination

upon a showing of parental incapacity, when

the incapacity "cannot or will not be remedied

by the parent" and has "caused the child to be

without essential parental care, control, or

subsistence necessary for his physical or mer

tal well-being." The Legislature clearly man-

dated that, in suci: circumstances, the "“phys-

ical or mental well-being" of the child must

be protected.

Neither the language of section 311(2) nor

our case law supports appellant's contention

that section 311(2) requires a showing that

the chili suffered substantial physical or

mental harm while in the parent's custody,

see Appeal of Diane B., 456 Pa. 429, 321 A.2d

618 (1974), or that a child cannot be depriv-

ed of “essential parental care, control, or

subsistence" while in foster care, see Adop-

tion of R,I,, 468 Pa. 287, 361 A.2d 294

(1976). Appellant argues that her narrow

construction is necessary to protect the fam-

ily from unwarranted and potentially harmful

intrusions by the state. However, the need

to guard against unwarranted state intrusion

in family affairs does not require an inter-

pretation of section 311(2) precluding its

3la

application in circumstances where, as here,

the family has no prospect of being reunited

and the physical and mental needs of the

three children, who have already been out of

the home since 1971, cannot be met by the

parent,

It is the policy of this Commonwealth to

preserve and protect the family whenever pos-

sible. The Juvenile Act like the Adoption

Act, concerns state intervention in the par-

ent-child relationship when esgential to pro-

tect the welfare of the child. The Juven-

ile Act provides:

"This Act shall be interpreted and con-

strued as to effectuate the following pur-

poses:

(1) To preserve the unity of the family

whenever possible and to provide for

the care, protection, and wholesome

mental and physical development of

children coming within the provisions

of this act,

(3) To achieve the foregoing purposes in

a family environment whenever possi-

ble, separating the child from parents

only when necessary for his welfare

21. To the extent that both acts relate to

state intervention in the parent-child rela-

tionship, the Juvenile Act and the Adoption

Act may be considered in pari materia, 1 Pa.

C.S.A. § 1932 (Supp.1977). See Adoption of:

R.I., 468 Pa. 287, 295 n.9, 361 A.2d 294,

298 n.9 (1976).

32a

or in the interest of public safety.”

Act of December 6, 1972, P.L. 1464, § 1(b) (1),

(3), 11 P.S. § 50-101(b) (1), (3) (Supp.1977).

Thus, our courts have held that, under the

Juvenile Act, the state may act to remove a

child from its home only upon a showing of

“clear necessity.” Adoption of R,I,, 468 Pa.

at 294, 361 A.2d at 297(dictum); Interest of

Larue, 244 Pa.Super. 218, 225, 366 A.2d 1271,

1275 (1976); Stapleton v. Dauphin County Child

Care Services, 228 Pa.Super. 371, 391, 324 A.

2d 562, 572 (1974); Rinker Appeal, 180 Pa.Su-

per. 143, 117 A.2d 780 (1955).

This policy of restraint, however, is not

intended solely to protect the rights of par-

ents. Continuity of relationships is also

important to a child, for whom severance of

close parental ties is usually extremely

painful. Goldstein, Freud & Solnit, Beyond

the Best Interests of the Child 20, 31-34

(1973), cited in Wald, "Search for Realistic

Standards," supra at 994, Thus the policy of

restraint is incorporated in the demanding

standards of our removal and termination

statutes to protect the family from harmful

and unwarranted state intrusion.

The “contimuity of relationships" consid-

eration, however, is equally applicable wher,

as here, the child has lived with one foster

family for a considerable period of time.

Removal of the children from their foster

homes, or inflicting upon them the fear that

they might be removed at any time, could cre-

ate psychological and emotional distress sim-

33a

ilar to that caused by their removal from

their natural parent. See Adoption of R,I.,

supra, 468 Pa, at 299 n.13, 361 A.2d at 300 n.

i3; Commonwealth ex rel. Children's Aid Soci-

eity v. Gard, 362 Pa. 85, 97, 66 A.2d 300,

306 (1949); Foster, Adoption and Child Cus-

tody: Best Interests of the Child? 22 Buff.

L.Rev. 1, 11-14 n.8 (1972). The language of

section 311(2) should not, therefore, be read

to compel courts to ignore a child's need for

a stable home and strong, continuous parental

ties, which the policy of restraint in state

intervention is intended to protect, where,

as here, disruption of the family has already

occurred and there is no reasonable prospect

for reuniting it without serious emotional

harm to the child. In such circumstances,

the issue is not whether the state should in-

trude to disrupt an on-going family relation-

ship, but whether the state should seek to

preserve in law a relationship which no lon-

ger exists in fact, with the result that the

child is consigned indefinitely to the limbo

of foster care or the impersonal care of in-

stitutions,

Appellant's contention that a child can

never be without essential parental care

while in a foster home is neithey. factually

correct nor required by the law. Appel-

22. Our courts have long recognized that a

biological parent's claim to a child can be

weakened by long separation causing the par-

ent's relationship with the child to dwindle,

while the child de- (footnote continued 34a)

34a

(footnote 22. continued) velops other, more

stable ties. In Commonwealth ex rel. Chil-

dren's Aid Society v. Gard, Chief Justice Max

ey, writing for the Court, observed that a

child will become strongly attached to those

“who stand in parental relationship to it

and who have tenderly cared for it. Its

bonds of affection [may] have become so

strong that to sunder them suddenly may |

result not only in the child's unhappiness,

but also in its physical injury. ...

Nothing could be more cruel than the force-

able separation of a child from either its

real or foster parents by whom it has been

lovingly cared for and to whom it is bound

by strong ties of affection; to a child it

is equally cruel whether the separation is

brought about by ‘kidnapping’ or by legal

process. In passing on the contested cus-

tody of children no judge can do justice

without considering the human aspect of

this problem,"

362 Pa. 85, 97-98, 66 A.2d 300, 306 (1949).

See Davies Adoption Case, 353 Pa. 579, 588,

46 A.2d 252, 257 (1946); Stapleton v. Dauphin

County Child Care Services, 228 Pa.Super.371,

324 A.2d 562 (1974).

In Smith Adoption Case, this Court recog-

nized that parental rights may be terminated

if a parent does not affirmatively act to

meet the child's essential needs but rather

allows others to meet those needs. We there

stated:

"Parental rights may not be preserved by

complete indifference to the daily needs

of a child or by (footnote continued 35a)

35a

lant's interpretation of section 311(2) would,

contrary to the legislative mandate, protect

the rights of a parent long separated from

her child at the expense of the essential

physical and mental needs of the child. To

the contrary, when continued incapacity pre-

vents a parent from caring for the child and,

as a result, the parent-child relationship is

substantiaily "weakened by long separation"

(footnote 22. continued) merely waiting for

some more suitable financial circumstances

or convenient time for the performance of

parental duties and responsibilities

(while others adequately provide the child

with her immediate and continuing physical

and emotional needs). The parental obli-

gation is a positive duty and requires af-

firmative performance which may not be de-

layed beyond the statutory period by the

parent if the parental right is not to be

forfeited.”

412 Pa, 501, 506, 194 A.2d 919, 922 (1963).

Although Gard and Stapleton involved cus-

tody disputes, and Davies and Smith involved

abandonment, the principle that a parent's

claim to his child is weakened by long separ-

ation and development by the child of other,

closer, attachments applies equally to a pro-

ceeding under section 311(2) which, "is in-

tended to center judicial inquiry upon the

welfare of the child, rather than the fault

of the parent." Joint State Government Com-

mission, Official Comment, Adoption Act

(1970).

36a

and cannot be re-established, parental rights

may be terminated so that the child may have

an opportunity to escape the limbo of foster

or institutional care and establish a new par-

ent-child relationship through adoption.

Here appellant's three sons have been in

foster care since 1971. Perhaps in recogni-

tion of her own inability to care for then,

appellant made no effort to secure the return

of her three sons for more than three years 23

Despite her regular visits, appellant's rela-

tionship with her sons, especially the youn-

gest, has greatly deteriorated. All threg ,re-

gard their foster parents with affection

23. The orphans‘ court found as a fact that

the "mother began to request the return of

the children in November of 1974."

Appellant's caseworker testified that ap-

pellant made no request for the return of her

sons before November, 1974. Appellant testi-

fied that she had "asked to have them all

back, but just like I say, the caseworker

just gives you the run around, and I went to

Legal Aid Society, went in the middle part of

January." She did not indicate when she

first requested their return before going to

legal aid in January, 1975.

24. The foster parents of Mark, who has been

with the same foster family since 1971 when

he was one year old, and the foster parents

of William, who was five years old at the

time of placement in 1971, have told Chil-

dren's Services they are interested in adop-

ting the boys. Frank(footnote continued 37a)

eee ee ee

37a

and have no desire to return to appellant's

custody. In determining whether appellant's

continued incapacity had caused them to be

“without essential parental care, control, or

subsistence necessary for [their] physical or

mental well-being,” the orphans' court proper-

ly considered the fact that appellant's ina-

bility to care for the three boys since 1971

effectively precluded the possibility that the

family would ever be reunited.?> The orphans '

(footnote 24. continued) referred to his fos-

ter mother as "mom" and expressed his clear

preference to remain with his foster parents.

Appellant's own testimony indicated atten-

uation of the relationship between herself

and her sons. Appellant demonstrated little

knowledge of the habits and interests of her

sons, other than that they liked to watch TV

and play basebull. She was unaware of what

grade in school any of the boys was in, or

how they were doing in school.

25. This conclusion is consistent with our

decisions in Adoption of R,I,, 468 Pa. 287,

361 A.2d 294 (1976) and In re Geiger, 459 Pa.

636, 331 A.2d 172 (1975). In Adoption of R,I,,

we rejected the requirement of a showing of

"willful misconduct" because it "would deny

R.I. the benefits of a family through adop-

tion and continue the long period of tempor-

ary care to protect a possible reunion which

has been shown will not occur." 468 Pa. at

298 n.1l, 361 A 2d at 299 n.1l1. Although in

holding that R.I. had been deprived of essen-

tial parental care we(footnote continued 38a)

38a

(footnote 25. continued) relied on evidence

of physical deprivation leading up to her re-

moval from the home, nothing in our opinion

indicates that her long stay in foster care

was irrelevant to this question, and we clear-

ly relied upon the long stay in foster care in

determining that the neglect or incapacity of

her natural mother was irremediable.

In Geiger, we reversed an order terminating

a mother's parental rights. The termination

was based on opinion evidence that the house

was “'submarginal'” and "'was setting a cul-

tural standard for these children which would

be a deprivation in the future.'" 459 Pa. at

640, 331 A.2d at 174 (emphasis in original).

There, the child welfare agency had removed

the children from the home on this basis and

sought termination of the rights of both par-

ents. The propriety of the removal was not

before us. However, unlike here, there was

no allegation that the children had spent any

substantial time out of the home or that, with

agency assistance, the family could not be re-

united,

Appellant's assertion that, before her

richts can be terminated pursuant to section

311(2), it must be shown that her children

suffered some substantial harm such as depri-

vation of food, clothing, or shelter while in

parental custody, is contradicted by Appeal

of Diane B., 456 Pa, 429, 321 A.2d 618 (19%),

Like appellant, the mother in Diane B. vol-

untarily placed her child in the custody of

the children's agency. Nonetheless, this

Court held that the mother's subsequent con-

duct in failing to support her child or

maintain a close re- (footnote continued 39a)

39a

court concluded that "the mother will never

be capable, in our judgment, of resuming cus-

tody. The choice is between the limbo of

continuing fosterhood and the potentiality of

a normal parent-child relationship.”

The orphans' court determipation that ap-

pellant's continued inability to care for

her three sons, combined with her separation

from her children since 1971, had caused her

three sons to be without “essential parental

care, control or subsistence necessary for

(footnote 25. continued) lationship with the

child caused the child to be “without essen-

tial parental care" and justified termination

of the mother's rights under section 211(2).

26. In reviewing whether the evidence sup-

ports the orphans' court decree, we have

placed only limited reliance on appellant's

IQ score, Experts generally agree that soci-

ally and culturally disadvantaged people tend

to score lower on standardized intelligence

tests, which suggests that cultural bias may

affect the result. See Galliher, Termination

of the Parent-Child Relationship: Should Par-

ental I.Q. be an Important Factor?, Law and

the Social Order 855, 865-66 (1973). More-

over, "No Study has ever documented the prem-

ise that unintelligent parents are unable to

give love and affection." Id. at 871. Con-

sequently, we consider appellant's test score

only as a factor among many relevant to her

incapacity to meet the essential needs of her

children,

40a

[their] physical or mental well-being,” and

that this incapacity could not or would not

be remedied by appellant is supported by com-

petent evidence. See Appeal of Diane B., 456

Pa. 429, 321 A.2d 618 (1974).

C. The orphans' court division's determina-

tion that appellant Gladys B.'s "repeated

and continued incapacity” to maintain a

safe and sanitary home had caused her

daughter Judith to be without “essential

parental care, control or subsistence” and

that such incapacity would not or could

not be remedied is supported by competent

evidence, [Appeal at No. 113].

Judith Denise B., age ll, is appellant

Gladys B.'s youngest child. Judith's father

left the home many years ago and his wherea-

bouts are unknown, Judith has been in foster

care since November, 1974, pursuant to an or-

der granting custody of Judith to appellee,

Lycoming County Children’s Services [Chil-

dren's Services]. 7

In 1974, four of appellant's six minor

27. The juvenile proceedings were not incor-

porated in the record, but the record does

indicate that custody was taken from appel-

lant because previous court-ordered efforts

by Children's Services to help improve the

physical conditions in the home had been un-

successful and because Judith participated

with her older brothers in the commission of

a juvenile offense.

4la

children resided with her -- Dorothy, then age

17, Boyd, then age 15, David, then age 12, and

Judith, then age 9. An older daughter, Joan,

and hg two children also resided with appel-

lant. Appeilant was well known to public

health officials and Children's Services as a

result of frequent complaints received over

the years concerning extremely unsanitary con-

ditions in the different homes in which the

family had lived. Children's Services had

worked with the family since 1966. The case-

worker involved from August 1971 until August

1975 testified that, without exception, when

she visited appellant's home the floor was

strewn with raw garbage on which one could

not avoid stepping. She observed dogs running

free throughout the house, eating off dirty

diapers, and occasionally stealing food from

the plates of the younger children.

A Williamsport Public Health Officer tes-

tified to responding regularly over a ten

year period to complaints filed by neighbors

while appellant lived at seven different ad-

dresses, Typically, the complaints related

to insect and rodent infestation and accumu-

lations of garbage. Invaniably, he found the

houses grossly unsanitary, with garbage scat-

tered both inside and about the home. Dirty

clothes and particles of food were all over

the floors; during the summers, he observed

maggots in the food. Appellant's refriger-

28. Appellant has one other older daughter,

Shirley, who apparently lived elsewhere at

that time.

42a

ator was always filthy and usually contained

moldy food. Roach infestation was the norm,

and in appellant's last two residences, in-

cluding the residence she occupied with the

children in 1974, roaches were even inside

the refrigerator. About the time Judith was

placed in foster care, appellant was evicted

from her residence in the housing project.

The public health officer testified that the

whole row of houses adjoining appellant's

residence had to be fumigated, which took

about four months. He testified that most of

the twenty-five to thirty times he visited

appellant's residences they were so unsani-

tary as to be unfit for human habitation,

A school counselor, associated with appel-

lant's family over an eight year period, cor-

roborated the testimony concerning the condi-

tion of the homes. In the course of her work

she visited appellant at three different res-

idences. At each residence raw garbage and

food was scattered on the floor and the odor

of animal feces permeated the air. The coun-

selor met appellant while working with Ju-

dith's brother David, who was a truancy prob-

lem. Children at school teased David because

of his filthy clothes and lack of personal

hygiene. The counselor testified that appel-

lant listened to her recommendations, but did

nothing to correct the problems,

In February, 1974, a juvenile probation

officer visited the home. It was extremely

squalid. The windows were out, a condition

the public health officer testified was. com-

mon at appellant's residences. Room temper-

43a

ature was below freezing and there was no

heat. The probation officer could not recall

if he had seen Judith, but the children he

observed were inadequately clothed, including

an infant wearing only a diaper. In an appar-

ent effort to heat the house, the gas burners

on the stove were turned on at full capacity.

Nearby, dirty laundry was stacked up, creat-

ing an alarming fire hazard.

These conditions, as well as complaints

from neighbors concerning a lack of supervi-

sion over the children, led Children's Ser-

vices to seek custody of Judith in the Spring

of 1974, Rather than remove Judith at that

time, the court ordered Children's Services

to visit the home regularly and assist appel-

lant in improving conditions.

In March, 1974, Judith's sister Dorothy,

then 17, was involved in a burglary. The ju-

venile court removed Dorothy from the home

and placed her in foster care where she re-

mained until she was 19. She is now enrolled

in college and living outside the home. Ju-

dith's brother Boyd, then 15, was also in-

volved in juvenile offenses. In 1973, he was

before the juvenile court twice, once for

burglary and larceny, and a second time for

burglary. In October of 1974, he was again

before the juvenile court for bicycle thefts,

in which he had enlisted the aid of his 13

year old brother David and Judith, then 9

years old. Boyd was removed from the home

and placed in a juvenile institution where,

according to the testimony, he had an excel-

lent record and improved educationally and

44a

socially. He returned to the home in November

1975, but less than three months later, he was

again removed after yet another theft offense.

He was placed in a residential work experience

program where, once again, he had an excellent

record and seemed to mature considerably. He

completed the program, returning home in Au-

gust, 1976. His caseworker testified that, at

age 17, he appeared sufficiently mature to get

by on his own,

David and Judith were also removed from the

home following the theft offense. After com-

pleting a youth development program, David was

placed in a foster home and is now in a pri-

vate group home, There are no plans for his

return to appellant's custody.

Appellant's caseworker testified that, ra-

ther than improving, appellant's home deteri-

orated from Spring, 1974, when Children's Ser-

vices first petitioned for Judith's custody,

until October, 1974, when Judith was removed,

Moreover, Judith's involvement in the bicycle

thefts and her increasing truancy indicated

that serious behavioral problems were devel-

oping. Since placed in the custody of Chil-

dren's Services, she has been in a stable

foster home and appears well adjusted. Chil-

dren's Services considers her prospects for

adoption excellent.

After appellant's minor children had been

removed from the home in 1974, Children's

Services attempted to develop a plan with ap-

pellant which would allow Judith to return,

45a

The plan involving working with nutrition

aids to improve her housekeeping and food

preparation skills, seeking counseling, and

allowing caseworkers to monitor conditions in

the home, There was testimony that aids and

caseworkers visited the home on a few occa-

sions when conditions seemed to have improved

and the home appeared reasonably sanitary.

However, opportunities for observation oz

conditions in the home were limited because

appellant was often not at home, or did not

answer the door, when the nutrition aid ar-

rived for scheduled visits, or a caseworker

came to the house. Sometimes appellant or

her daughter Joan refused to allow the case-

worker inside and spoke to her at the door or

through a window,

That unsanitary conditions persisted in

the home was again revealed in February,1976.

David had run away from his foster home and

juvenile probation caseworkers came to appel-

lant's home where David was hiding. The con-

ditions were so deplorable that the juvenile

officers requested Children's Services to

make an immediate visit. Although all of

appellant's minor children were then living

elsewhere, the agency was concerned about

the infant children of Joan, appellant's

daughter. Garbage and food were strewn on

the floors throughout the house, including

the upstairs. Dirty diapers were found on

the floors, along with feces from several

dogs and cats, causing a foul odor to perme-

ate the house. Photographs confirm the tes-

timon describing these grossly unsanitary

conditions.

46a

Children's Services petitioned for custody

of Joan's children. The agency reached an

agreement with Joan whereby she obtained and

is maintaining a separate residence with her

children,

Appellant's willingness to cooperate with

Children's Services in improving the condi-

tions of her different residences and super-

vising her children has varied over the years.

At times, she has listened to the suggestions

of caseworkers and expressed her intention to

improve her housekeeping and child care skills.

Similarly, the public health officer and the

school counselor who worked with David testi-

fied that appellant would hear them out and

promise to follow their suggestions. Invari-

ably, however, appellant made no effort to

alleviate the offensive conditions. At other

times, appellant expressed hostility towards

the agency and the caseworkers for interfer-

ing in her life. Nutrition aides discontin-

ued their visits in late 1975 because appel-

lant was never home at the agreed times.

Appellant, who completed only two years of

schooling and is illiterate, has shown over

the years almost no comprehension of even ru-

dimentary standards necessary to maintain

minimal living conditions and to supervise

her children, Repeatedly, she expressed a

complete inability to control the children,

whom she blamed for the unsanitary condi-

tions. For example, when advised by differ--

ent caseworkers that the animals running

loose throughout the house had to be control-

led, she answered that she could do nothing

47a

about them because they were the children's

pets,

The orphans‘ court concluded that, al-

though appellant appeared to love Judith, the

evidence clearly established appellant's “con

tinued and repeated incapacity” which had

caused Judith to be without "essential paren-

tal care, control or subsistence necessary for

her physical and mental well-being." The

court found that this incapacity, which it at-

tributed primarily to appellant's lack of emo-

tional control and self-discipline, was irre-

mediable. Having determined that grounds ex-

isted justifying termination of appellant's

parental rights under section 311(2) of the

Adoption Act, the court concluded that Ju-

dith's best interests would be served by ter-

minating appellant's parental rights so that

Judith might be adopted into a responsiblg.,

family, able to meet her essential needs.

The decree of the orphans' court is supported

by adequate and competent evidence.

As in the appeal of Marjorie L., appellant

29. Appellant has not argued that, even if

grounds justifying termination under section

311(2) have been shown, it would be in Ju-

dith's best interests to deny the petition.

We note only that the orphans’ court consid-

ered this possibility and concluded that,

particularly in light of the progress which

had been made by Dorothy and Boyd outside the

home, Judith's best interests would be served

by adoption.

48a

Gladys B. argues that the decree cannot be

sustained because there was no compelling ev-

idence of a “high and substantial degree of

misconduct" by appellant or that Judith,

while in appellant's custody, ever suffered

serious harm from lack of food, clothing or

shelter. We rejected the former argument in

Part II B of this opinion, insofar as it re-

lates to the requirements of the Adoption Act,

Although Judith never suffered serious harm

while in appellant's custody, the record ful-

ly supports the orphans’ court's finding that

the conditions in appellant's homes while Ju-

dith was in her custody constituted a serious

threat to Judith's health and safety. We

cannot agree with appellant that where, as

here, a serious threat to health and safety

has been shown, the court cannot terminate

parental rights until serious harm actually

occurs. It would indeed be an insensitive

requirement that actual harm must first come

to the child before the Commonwealth's inter-

est in the child's health and welfare could

be invoked.

Appellant's reliance upon In re Geiger,

459 Pa. 636, 331 A.2d 172 (1975), in which

this Court reversed a decree terminating par-

ental rights under section 311(2), is mis-

placed. Geiger does not support appellant's

contention that substantial physical harm to

the child must first be shown before paren-

tal rights may be terminated. In Geiger,

the orphans' court relied upon evidence that

the home condition was "“submarginal” and

would cause, a “cultural deprivation” in the

future to support termination of the parent’

49a

rights. Here, unlike in Geiger, the orphans’

court's decree was based upon substantial ev-

idence establishing that the conditions in

appellant's different homes presented a seri-

ous health and safety hazard, and not merely

a “cultural deprivation.”

In addition to the threat to Judith's

health presented by appellant's inability to

maintain a safe and sanitary home, the record

supports the orphans’ court's conclusion that

appellant is incapable of supervising Judith.

Appellant admitted she was unable to control

her children when they were at home and, be-

fore Judith was taken from appellant's cus-

tody, Judith appeared to be entering the same

pattern of delinquengy exhibited by her older

brothers and sister.?

30, We do not imply that evidence of delin-

quent behavior, standing alone, justifies an

inference of parental incapacity to provide

proper care, control and supervision of the

child, for the causes of juvenile crime are

too myriad, complex, and imperfectly under-

stood. See generally, M. Wolfgang and L.

Radzinowicz, Crime and Justice (1971). Here,

however, appellant's own testimony indicated

that appellant was unable to control the

children and, at least with regard to Judith,

Boyd, and Dorothy, their antisocial behavior

ceased whenever they we were outside appel-

lant's home and in the custody of others.

50a

Judith had been in foster care since 1974.

Appellant's incapacity to maintain a minimal-

ly adequate home or to supervise her children,

which has already led to the disruption of

the family for many years, has not been reme-

died despite ten years of assistance from

caseworkers, nutrition aides, public health

officials, and school counselors. The or-

phans' court properly concluded that appel-

lant's incapacity would not or could not be

remedied.

D. Summary

We hold that section 311(2) is not uncon-

stitutionally vague in light of its demanding

standards and the strong policy of restraint

from interfering in the family developed in

our case law. We also hold that, on the facts

of these cases, the application of section

311(2) to terminate appellants’ parental

rights is constitutionally permissible. Fi-

nally, we hold that there is competent evi-

dence in each appeal supporting the orphans'

court's decrees terminating appellants' par-

ental rights pursuant to section 311(2) of

the Adoption Act.

Decree in Appeal No. 46 terminating the

parental rights of Marjorie L. is affirmed,

Each party to pay own costs.

Decree in Appeal No. 113 terminating the

parental rights of Gladys B. is affirmed.

Each party to pay own costs.

NIX, J., filed a concurring and dissent~

5la

ing opinion,

MANDERINO, J., filed a dissenting opinion.

NIX, Justice, concurring and dissenting.

I dissent as to the termination of paren-

tal rights of appellant Marjorie L., not only

because the facts of this appeal, as accepted

by the majority, clearly do not warrant ter-

mination of parental rights due to incapacity

under section 311(2), but also because the

majority's expansive interpretation of this

section creates serious constitutional prob-

lems.

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

Agency (Children's Services) sought involun-

tary 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 Supple-

mental Social Security Income Allowance, pub-

lic assistance grants, and food stamps. Psy-

chological testing indicated that appellant

is mentally retarded but educable and train-

able.

- 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 unsta- (footnote continued 52a)

52a

(footnote 1. continued) ble, 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 in-

stability", the majority takes facially neu-

tral evidence and wrenches factual interfer-

ences 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. Al-

though 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 iden-

tity of the boyfriend, nor 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 ques-

tionable relevance, was also seized upon by

the majority to support its thesis of mental

instability. Although appellant later adop-

ted this account and it was not rebutted,

the majority transforms this testimony into

evidence of appellant's delusions by stating

that "the circumstances surrounding appel-

lant's relation of this story rendered it

incredible." If such stories were incredi-

ble merely because they were bizarre, this

Court could quickly dispose of numerous hom-

icide appeals by discharging defendants who

committed “incredi- (footnote continued 53a)

53a

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 assis-

tance for her sons, * appellant voluntarily

placed her sons in custody of Children's Ser-

vices, with every expectation that she would

regain custody of her sons as soon as her sit-

uetion improved. The sons have lived in fos-

ter homes since June of 1971. Children's

Services set up a visitation schedule, and

from June, 1971 until November, 1974, appel-

lant and her sons met on a monthly basis, us-

ually at the Children's Services offices, but

occasionally, during summer months, at nearby

parks. After seeking legal assistance, appe}l

lant, in December, 1975 obtained a court de-

cree increasing the visits to bi-monthly and

allowing the visits to take place at appel-

lant'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 con-

versed with her sons. To the extent possible

under the circumstances, appellant has main-

tained continual contact with her sons and

has kept abreast of her sons' activities; de-

spite her difficult financial position, ap-

pellant has remembered her sons with gifts on

special occasions such as Christmas or Easter.

Since June of 1971, appellant frequently ex-

2. At that time her sons ranged in age from

one year to seven years, Tracie was born in

September, 1971.

54a

pressed to Children's Services officials, nu-

trition aides, and the county nutrition aide

supervisor her desire to regai: 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 lim

itations appellant has frequently enlisted the

help of nutrition aides to maintain her house-

hold; she has always cooperated with these

aides. Notwithstanding appellant's low intel-

ligence, focused upon by the majority, during

the proceedings in the lower court, appellant

was lucid in her responses to direct examina-

tion, 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 fa-

cets of her daily existence; she knew her

sources of income, the nature of her respons-

ibility to her daughter, and she was acutely

aware of the serious nature of the termina-

tion 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 ma-

jority's characterization of appellant as a

deluded retard is grossly inaccurate. Her

voluntary decision to seek the aid of a so-

cial agency in June of 1971 is but another

indication of appellant's ability to appraise

the needs of her family, to recognize when

55a

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 ap-

peal, provides for such termination on the

ground that:

"(2) The repeated and continued incapa-

city, abuse, neglect, or refusal of the

parent has caused the child to be without

essential parental care, control, or sub-

sistence necessary for his physical or men-

tal well-being and the conditions and caus-

es 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. III, § 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 incapa-

city as envisioned in this section. The ma-

jority 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

56a

mother might be more proficient in the dis-

charge 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); Mey-

er 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 provid

ed by the Nazi Germany Youth Camps should dis-

suade anyone who might be tempted to opt for

such a sterile clinical approach to child

rearing. The majority has totally disregard-

ed the wisdom of Judge Woodside in Rinker Ap-

peal, 180 Pa. Super. 143, 117 A.2d 780 (1955),

wherein he stated:

A child Cannot be declared "neglected"

merely because his condition might be im-

proved by changing his parents. The wel-

fare 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 ed-

ucated, nor to take the children of the

crude and give them to the cultured, nor

to take the children of the weak and sick-

ly and give them to the strong and healthy.

Id. at 148, 117 A.2d4 at 783.2

3. Judge Woodside's (footnote continued 57a)

57a

By its indifference to law and sound judicial

caution, the majority has terminated the par-

ental 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.” Statu-

tory Construction Act of 1972, Act of Decem-

ber 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, abil-

ity 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 consider-

ing a question as momentous as the involun-

tary termination of parental rights, it is

not semantic quibbling to point out that a

parent who is 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

(footnote 3. continued) caveat in Rinker Ap-

peal, 180 Pa.Super. 143, 117 A.2d 780 (1955)

arose in the context of an appeal from an a-

ward of custody. His warning should be accord-

ed even greater weight in cases such as the

instant one involving the irreversible ter-

mination of parental rights based upon an al-

leged parental incapacity.

58a

of incapacity but also a showing that the in-

capacity resulted in an absence of parental

care and control. Here the record indisputa-

bly reflects that Marjorie L. recognized her

limitations and sought assistance from those

public agencies available to her. Her con-

tinuing interest, love and affection for

these children has never been questioned. At

every opportunity she maintained communica-

tion to assure that their relationship would

be sustained, If appellant were fortunate

enough to have been financially able to soli-

cit this assistance from private sources,

the question of termination of her parental

rights would never have arisen.* It cannot

4. 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 chil-

dren. It is indeed ironic that in seeking

the only assistance available to them indi-

gent involuntarily incapacitated parents ex-

pose 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.

59a

be said that the mother's infirmities resulted

in the children's deprivation of parental care,

control of subsistence. Her only "sin" was to

seek assistance from a public agency in pro-

viding these needs. Thus, in essence, the ma-

jority 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 termi-

nation of parental rights.

There :8 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 instart appeal, the cause of appellant's

supposed incapacity is her lack of intellec-

tual talert or ability. However, the evidere

does not support a conclusion that this cause

cannot be remedied. To the contrary, there

is expert testimony, summarized by the major-

ity, 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 psy-

chologist'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 pro-

vide adequate parental care; appellant changed

60a

her residence in order to improve her family's

living conditions; appellant maintains an ad-

equate and healthful dwelling; and she pro-

vides for her daughter's basic needs. The

record shows that appellant was more than wil-

ling to seek the best possible environment for

the rearing of her children and that she pos-

sessed sufficient capacity to perform the du-

ties of parenthood. I am therefore of the be-

lief that even without a consideration of the

question of "fault" the clear language of sec-

tion 311(2) does not provide a basis for ter-

mination under the instant record.°

Even more egregious, in my view, is the

majority's position that the element of par-

ental 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, justi-

5. The record in the appeal of Gladys B. pre-

sents a significantly distinguishable factual

situation. Appellant Gladys B.'s refusal to

cooperate with school counselors and nutri-

tion aides and her open hostility toward

caseworkers ee a clearer case of an in-

capacity 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 pre-

requisite to termination of parental rights

under Section 311(2). I therefore concur in

the result es to the appeal of Gladys B.

6la

fies 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) in-

valid,

The construction placed upon section 311(2)

by the majority results in the creation of two

categories of parents; one consisting of in-

voluntarily 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 termi-

nate their parental rights, whereas those par

ents in the latter category would not face

such a threat without some dereliction on

their part. By this judgment they have or-

dained that the bedridden terminally ill can-

cer patient, the comatose accident victim,

the paralytic, and the contagiously ill pa-

tient are all prime subjects fox involuntary

termination under this section.

6. 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 com-

passion. 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, (footnote continued 62a)

62a

It is conceded that there are literally

hundreds of legislatively created classifica-

tions 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 reason-

able 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

$.cCt. 1101, 6 L.Ed.2d 393 (1961); Railway Ex-

press Agency v. New York, 336 U.S. 106, 69S.

Ct. 463, 93 L.Ed. 533 (1949) (Jackson, J.,

concurring). See generally, G. Gunther, Con-

stitutional Law 657 (9th ed. 1975). However,

where a statutory classification affects a

fundamental interest, equal protection re-

quires tha* the statutory classification be

necessary to promote a compelling state in-

terest. See Kramer v. Union Free Sch, Dist.,

395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583

(footnote 6. continued) since they were con-

fined 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 ma

jority's decision today. In the words of Mr.

Justice MANDERINO in his dissent in the in-

stant case, Frank, William and Mark are dead

so far as appellant is concerned.

63a

(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 cor-

nerstone of the parental relationship is the

natural love that exists where it is properly

nurtured by the parent. In the panoply of ad-

ties and responsibilities that comprise the

obligations of parenthood, nothing is more im-

portant that the fostering of the love that

can exist between parent and child. No exper

ience in life is more gratifying and signifi-

cant 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 ex-

plains, if such explanation is needed, why

the United States Supreme Court has consis-

tently held that the right of natural parents

to raise their own offspring is a fundamental

interest and thus subject to the highest de-

gree of constitutional protection. Stanleyv.

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 major-

ity's construction of section 311(2) directly

impringes upon involuntarily incapacitated

parents’ rights to the companionship, care

and custody of their children, only a compel-

ling state interest can justify the classifi-

cation. I have grave doubts that the state's

admittedly valid interest in protecting minor

children is sufficiently powerful to legiti-

64a

mize the classification, ’ 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 parental rights, to promote

this state interest. The state's interest is

7. 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.

8. 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 classifi-

cation also raises an arguable equal protec-

tion question. It must be conceded that the

Equal Protection Clause has not been judici-

ally 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 sys-

tem 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 coun-

sel to indigent criminals held unconstitution

al, 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 (footnote continued 65a)

65a

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, be-

cause in my judgment the appropriate construc-

tion of section 311(2) avoids 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 Commis-

sion, Official Comment,Adoption Act (1970).

It is, of course, permissible for this Court

to consult such comments in construing a stat-

ute. 1 Pa.C.S.A. § 1939 (Supp.1977-78). How-

ever, 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, "in-

capacity” and “cannot", when read in conjunc-

tion in a purely literal sense, could support

the construction urged by the majority, it is

my view that such a construction is foreign

(footnote 8. continued) (6) (Supp.1977-78).

Certainly there is no jusitication for a con-

struction, not absolutely required by the

language of the act, which would create such

a blatant disparity between the rich and the

poor.

66a

to the American philosophy of the relation-

ship between the State and the citizen and is

totally unwarranted. The majority's no-fault

interpretation of the 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 refus-

al" language of section 311(2) shows that pa

ental 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 in-

capacity would constitute grounds for termi-

nation. Thus, the element of fault, or par-

ental 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 stat-

utory 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 termina-

tion of parental rights of appellant Gladys

B,.

MANDERINO, Justice, dissenting.

67a

I must dissent. The majority holds that

the state may constitutionally terminate the

parental rights of a parent if that parent,

without fault, ir incapacitated, and the in-

capacity prevents the parent from taking care

of the parent's children. The state does not

have such a dangerous and far-reaching right

over its citizens. Suppose a parent is inca-

pacitated, without fault, as the result of an

automobile accident, or a heart attack,or an

injury received during a war? Under the ma-

jority's holding, if such a parent cannot tak

care of his or her children, the state may

terminate parental rights. To state the is-

sue is to answer it. The state can constitu-

tionally have no such right.

We are in this case concerned with custody,

Of course, if a parent is incapacitated, a

benevolent and protective state may help that

parent by providing care for the children out-

side of the parent's custody. The termina-

tion of parental rights, however, means that

the child is dead so far as that parent is

concerned, I cannot, as does the majority,

make a valued judgment that a child will grow

up to be a better adult if that child is cut

off from its natural parents who are not able,

without fault, to care for the child.

68a

IN THE COURT OF COMMON PLEAS

OF LYCOMING COUNTY, PA.

ORPHANS' COURT DIVISION

IN RE:

WILLIAM LEHMAN

MARK LEHMAN No. 2986

FRANK LEHMAN, 2987

2988

MINOR CHILDREN.

Findings, Discussion & Order

Before the court are petitions to involun-

tarily terminate the parental rights of Mar-

jorie Lehman with respect to three of her

children and petitions to voluntarily relin-

quish the parental rights of the fathers of

each of the same three children. After hear-

ing, the court makes the following findings

of fact:

The three children involved in this pro-

ceeding were voluntarily placed in the cus-

tody of the Lycoming County Children's Ser-

vices Agency on June 8, 1971, as a result of

an investigation by that agency into the

roach and rat infested conditions of the hore,

The children are Frank, age 12, date of birth

December 22, 1963 (7 years old at time of

placement); William, age 10, date of birth

November 22, 1965 (5 years old at time of

placement); and Mark, age 6, date of birth

October 8, 1969 (1 year old at time of

69a

placement).

The fathers of the children are Richard L.

Smith (as to Frank), William Tawney (as to

Mark), and Charles Morgan (as to William).

The mother is Marjorie Lehman, age 43, date

of birth September 18, 1932. She has never

been married and has two other children. The

oldest, Carol, age 15 years (date of birth-

September 30, 1960), has lived with Marjorie

Lehman's parents for many years and there are

no plans for her ever to return. The other

child, Tracie Ann Lehman, is four years old,

having been born on September 1, 1971. Mar-

jorie was pregnant with Tracie at the time,

Frank, William and Mark were placed in the

Children's Services agency. The mother has

custody of Tracie and appears to be able to

handle her custody at this time. The mother

functions socially at the twelve year level

and intellectually at the age of six years,

ten months. She went as far as the seventh

grade of school and is illiterate.

At the time of the placement of the chil-

dren with the Agency in June, 1971, the Agen-

cy's plan with respect to the children was to

seek their return by helping the mother to c-

tain adequate housing, by providing nutrition

aids to counsel her and by waiting for her

circumstances to stabilize after the birth of

the baby she was carrying.

Since 1971, nutrition aids have regularly

visited the home and have attempted to assist

Marjorie Lehman in coping with the complex-

70a

ities of life. They have found that Miss

Lehman has repeatedly been in need of and in

fact has constantly solicited their advise as

to some of the more simple problems in day to

day living. At one time Tracie Ann was not

permitted to go to school because she had

lice. The supervising nutrition aid had

great difficulty explaining to Miss Lehman

the procedures necessary to rid the child of

the problem; in the end, the supervisor had

to perform the process herself in order that

the child would be able to return to school.

Nutrition aids have observed that on the days

when Miss Lehman receives her S.S.I. checks

(her sources of income), a bill collector

will come to her home - she will give him the

check and he will return later, having cashed

the check and deducted whatever debts might

be due.

The mother began to request the return of

the children in November of 1974, but the

Agency felt that she was simply incapable of

dealing with these active young boys. In De-

cember of 1975, with the assistance of a le-

gal aid attorney, she petitioned for custodi-

al visits with the children. These visits

have been occurring since that time and by

observation of caseworkers and aids present

during different visits, the visits have con-

sisted of general havoc or "free-for-alls";

as the mother attempted to attend to one

child, the others were running wild. The ol-

der boys were observed to "tolerate their

mother" and the youngest boy who has been

away from home since age one, appeared unable

to relate emotionally with the mother and

7la

his brothers and simply watched television.

The mother, by virtue of her income and

having a child, finds it necessary to live in

a low income project area, where social prob-

lems are most intense and where the demands

upon a parent in properly supervising and dis-

ciplining his children are most extreme,

The children are healthy, active, alert

youngsters. The mother would not be able to

provide intellectual or social stimulation

for them, nor would she be able to channel

and discipline their behavior.

Section 31l of the Adoption Code provides:

"The rights of a parent in regard to a

child may be terminated after a petition

filed pursuant to section 312, and a

hearing held pursuant to section 313,on

the ground that: ...

(2) The repeated and continued inca-

pacity, abuse, neglect, or refusal

of the parent has caused the child

to be without essential parental

care, control, or subsistence neces-

sary for his physical or mental

well-being and the conditions and

causes of the incapacity, abuse, ne-

glect, or refusal cannot or will not

be remedied by the parent; ... "

The standard of proof required to involun-

tarily terminate parental rights is clear and

convincing evidence. Geiger Appeal, ___ Pa.

___. 331 A 2d 172 (1975).

72a

There is no question that Marjorie Lehman

loves her children and would like to see them

return. The court is also satisfied that the

older two children, Frank and William, remenm-

ber their mother and have affection for her.

However, it is absolutely clear to the court

that, by reason of her very limited social and

intellectual development combined with her

five-year separation from the children, the

mother is incapable of providing minimal care,

control and supervision for the three childmn,

Her incapacity cannot and will not be remedied,

If the termination petition is granted, the

children will be eligible for adoption and

will have the prospect of a stable and perma-

nent relationship with a father and mother.

If the petition were denied, the best inter-

ests of the children would dictate that they

remain in agency custody indefinitely, as the

mother will never be capable, in our judgment,

of resuming custody. The choice is between

the limbo of continuing fosterhood and the po-

tentiality of a normal parent-child relation-

ship.

The petitioner has met its burden of proof

in this matter and the parental rights of

Marjorie Lehman will be terminated with re-

spect to Frank, William and Mark Lehman,

The court considers the argument that Sec-

tion 311 of the Adoption Code is unconstitu-

tionally vague, to be without merit. The

legislation fairly puts the parent on notice

that parental rights can be terminated where

there is an abandonment or refusal to provié,

73a

or incapability of providing, essential par-

ental care. It would be impossible to set

forth in the statute all of the circumstances

which might arise in an infinite variety of

factual circumstances constituting lack of

essential parental care. The legislative ap-

proach, which is not at all uncommon in Anglo-

American jurisprudence, is to use a general

standard which has a commonly accepted mean-

ing and which is susceptible of application

by the courts as cases arise, in the com >n

law tradition.

Decree Nisi

AND NOW, June 3rd, 1976, for the reasons

set forth in the foregoing Findings and Dis-

cussion, it is Ordered and Decreed that the

parental rights of Marjorie Lehman with re-

spect to her children, Frank, William and

Mark are terminated. The parental rights of

Richard L. Smith as to Frank, Charles Morgan

as to William, and William Tawney as to Mark,

are relinquished and forever terminated. The

children are eligible for adoption. Unless

exceptions are filed to this Decree within

twenty (20) days of the date hereof, a Decree

absolute shall be filed.

By The Court,

(signed)

Thomas C. Raup, Judge

cc: L.C, Children's Services

Warren R. Baldys, Jr., Esq.

Charles F. Greevy, III, Esq.

Marjorie Lehman

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