# Appendix — Beatty v. Lycoming County Children's Services > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1088%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 439 U.S. 880 ## Text 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 RECORD PRESS, INC., 95 MORTON ST., NEW YORK, N. Y. 10014—{212) 243-5775 a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1088%3A2. Public record. Not legal advice.