OPINION OF THE COURT
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 appellant Marjorie L. to her three sons William L., Mark L., and Frank L.
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 TERMINATE APPELLANTS' PARENTAL RIGHTS.
Every presumption is in favor of the constitutionality of legislative acts, Statutory Construction Act of 1972, 1 Pa. C.S. § 1922(3) (Supp. 1977), and statutes are to be construed whenever possible to uphold their constitutionality. Bentman v. Seventh Ward Democratic 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 Constitution.'" Tosto v. Pennsylvania Nursing Home 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). Appellants' constitutional challenges do not meet this stringent burden.
Appellants both assert that section 311(2) of the Adoption Act is unconstitutional unless given a narrowing interpretation precluding 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
A. Section 311(2) is not unconstitutionally vague because the language of the section and the decisions of this Court interpreting section 311(2) provide sufficiently precise guidelines to ensure reasonable notice and proper application.
Vague statutes may offend the Constitution in three ways: (1) they may trap the innocent by failing to give a person of ordinary intelligence reasonable opportunity to know what is prohibited so that he may act accordingly; (2) they may result in arbitrary and discriminatory enforcement in 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
Considering first the question of notice, we believe appellants misperceive the nature of section 311(2). Unlike the typical statute attacked on vagueness grounds, section 311(2) does not prohibit or regulate any particular conduct.
Of course, the other bases for termination relate to parental neglect, abuse, or refusal to meet the child's essential needs and thus involve parental misconduct. Section 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 parent." 1 P.S. § 311(2) (Supp. 1977). This requirement excludes the possibility that parental rights will be terminated because of insufficient notice, since the parent's inability or unwillingness to meet the child's essential needs must be affirmatively demonstrated. The requirement that parental conduct resulting in termination
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.
When the child is in the home, this on-going relationship will not be disturbed except upon a showing by clear and convincing evidence 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 parental rights under section 311(2) to demonstrate that the home is "submarginal" and likely to result in a "cultural
Often, as in these appeals, the question of whether to terminate parental rights 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 determining whether the child has been without essential parental care or control. See Rothstein v. Lutheran Social Services of Wisconsin 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 termination 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 Interests: 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 recognized 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 Rights of S.C.B. and K.T., 474 Pa. 615, 379 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
The language of section 311(2) does not admit of an interpretation permitting termination 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 "necessary" to his "physical or mental well-being." In addition, the evidence must establish 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 Legislature's and this Court's strong policy of restraint from interfering with the family, sufficiently protect against the arbitrary and discriminatory application of section 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 deprive the child of its essential needs. See In re Geiger, supra. However, parental misconduct 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 linked to a free exercise claim, may be subject to limitation . . . if it
B. Section 311(2) does not violate substantive due process rights because a state may constitutionally intervene to terminate parental rights when a natural parent's continued incapacity causes the 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 misconduct" and that their children, while in their custody, had ever suffered substantial physical or mental harm, violates their constitutionally protected interest in mutual association with their children. We do not agree.
There is no doubt that the Constitution protects the family against certain intrusions by the state. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), generally considered the seminal case recognizing constitutional protection of family concerns, invalidated a statute which prohibited teaching young children any language other than English because the statute unreasonably infringed upon the liberty interest, 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 freedom 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. Society 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,
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 questioned. Just last term the United States Supreme Court stated that "when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 499, 97 S.Ct. 1932, 1936, 52 L.Ed.2d 531 (1977) (plurality opinion). See also Smith v. Organization of Foster Families for Equality 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 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 affords protection to "a right of personal privacy, 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 International, 431 U.S. 678, 684, 97 S.Ct. 2010, 2016,
These cases do not, however, support the proposition that the state can never interfere in the parent-child relationship. Indeed, 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. Massachusetts, supra (upholding anti-child labor statute against challenge that it unreasonably infringed upon parent's and child's free exercise of religion and parent's right to educate child in her beliefs). Constitutional 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 rejected 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 fundamentally in conflict and the very existence of the pregnancy has already fractured the family 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 dissenting opinion of Douglas, J.); In re Roger S., 19 Cal.3d 921, 141 Cal.Rptr. 298, 569 P.2d 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 parent.
The source of the state's authority to intervene in family matters to protect minor children has been said to
362 Pa. 85, 99, 66 A.2d 300, 307 (1949).
Parental rights must be accorded significant protection. Meyer v. Nebraska, supra; Pierce v. Society of Sisters, supra; Prince v. Massachusetts, supra; and Wisconsin
Therefore, appellants' assertion that "high and substantial misconduct" on the part of the parent must be shown before parental rights may be constitutionally terminated cannot be accepted. Their contention ignores the state's constitutional interest in the welfare of the child.
II. THE DECREES OF THE ORPHANS' COURT DIVISION TERMINATING THE PARENTAL RIGHTS OF APPELLANTS ARE SUPPORTED BY COMPETENT EVIDENCE.
A. Scope of Review
Having determined 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 review is limited to determining whether the orphans' court's terminations of appellants' parental rights are supported by competent evidence. E.g., In re: Involuntary Termination of Parental Rights of S.C.B. and K.T., 474 Pa. 615, 624, 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 (1973). Findings of the orphans' court supported by evidence of record are entitled to the same weight given a jury verdict and must be sustained unless the court abused its discretion 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.2d 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.2d 97 (1964).
B. The orphans' court division's determination that appellant Marjorie L.'s continued 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].
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 1. Appellant has never married and none of the fathers of the three children has opposed termination of his parental rights.
Appellant was pregnant with Tracie at the time she placed her three sons with Children's Services. Children's Services had become involved with appellant and her children because of the severely substandard condition of the home which, according to appellant's caseworker, was unfit for habitation by children.
Shortly after the three boys entered foster care in 1971, nutrition aids began regularly visiting appellant's home to help her maintain her household and raise Tracie.
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 appellant and that she was incapable of doing anything about it. He believed that appellant would not be able to care for him and his brothers.
The orphans' court terminated appellant's parental rights to her three sons pursuant to section 311(2) of the Adoption
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 opportunity might be afforded the three boys to enjoy a stable family relationship through adoption. We find the decree of the orphans' court supported by competent evidence.
Appellant argues that the decree cannot be sustained because there was no compelling evidence that Frank, William, and Mark, while in her care, were ever neglected, abused, or abandoned by appellant or deprived of a basic
Nothing in the language of the act requires a showing of a "high and substantial degree of misconduct" before parental rights can be terminated.
It is the policy of this Commonwealth to preserve and protect the family whenever possible. The Juvenile Act like the Adoption Act, concerns state intervention in the parent-child relationship when essential to protect the welfare of the child.
This policy of restraint, however, is not intended solely to protect the rights of parents. 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 "continuity of relationships" consideration, however, is equally applicable where, 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 create psychological and emotional distress similar 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.13; Commonwealth ex rel. Children's Aid Society v. Gard, 362 Pa. 85, 97, 66 A.2d 300, 306 (1949); Foster, Adoption and Child Custody: 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
Appellant's contention that a child can never be without essential parental care while in a foster home is neither factually correct nor required by the law.
Here, appellant's three sons have been in foster care since 1971. Perhaps in recognition of her own inability to care for them, appellant made no effort to secure the return of her three sons for more than three years.
The orphans' court's determination that appellant's continued inability
C. The orphans' court division's determination 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 11, is appellant Gladys B.'s youngest child. Judith's father left the home many years ago and his whereabouts are unknown. Judith has been in foster care since November, 1974, pursuant to an order granting custody of Judith to appellee, Lycoming County Children's Services [Children's Services].
In 1974, four of appellant's six minor 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,
A Williamsport Public Health Officer testified to responding regularly over a ten year period to complaints filed by neighbors while appellant lived at seven different addresses. Typically, the complaints related to insect and rodent infestation and accumulations of garbage. Invariably, he found the houses grossly unsanitary, with garbage scattered 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 refrigerator was always filthy and usually contained moldy food. Roach infestation was the norm, and in appellant's last two residences, including 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 unsanitary as to be unfit for human habitation.
A school counselor, associated with appellant's family over an eight year period, corroborated the testimony concerning the condition of the homes. In the course of her work she visited appellant at three different residences. At each
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 common at appellant's residences. Room temperature 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 apparent effort to heat the house, the gas burners on the stove were turned on at full capacity. Nearby, dirty laundry was stacked up, creating an alarming fire hazard.
These conditions, as well as complaints from neighbors concerning a lack of supervision over the children, led Children's Services 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 appellant in improving conditions.
In March, 1974, Judith's sister Dorothy, then 17, was involved in a burglary. The juvenile court removed Dorothy from the home and placed her in foster care where she remained until she was 19. She is now enrolled in college and living outside the home. Judith's brother Boyd, then 15, was also involved 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 excellent record and
David and Judith were also removed from the home following the theft offense. After completing a youth development program, David was placed in a foster home and is now in a private group home. There are no plans for his return to appellant's custody.
Appellant's caseworker testified that, rather than improving, appellant's home deteriorated from Spring, 1974, when Children's Services 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 developing. Since placed in the custody of Children's Services, she has been in a stable foster home and appears well adjusted. Children'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 appellant which would allow Judith to return. 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 occasions when conditions seemed to have improved and the home appeared reasonably sanitary. However, opportunities for observation of conditions in the home were limited because appellant was often not at home, or did not answer the door, when the nutrition aid arrived for scheduled visits, or a caseworker came to the house. Sometimes appellant or her daughter Joan refused
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 appellant's home where David was hiding. The conditions 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 permeate the house. Photographs confirm the testimony describing these grossly unsanitary conditions.
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 conditions of her different residences and supervising 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 testified that appellant would hear them out and promise to follow their suggestions. Invariably, however, appellant made no effort to alleviate the offensive conditions. At other times, appellant expressed hostility towards the agency and the caseworkers for interfering in her life. Nutrition aides discontinued their visits in late 1975 because appellant 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 rudimentary standards necessary to maintain minimal living conditions and to supervise her children.
The orphans' court concluded that, although appellant appeared to love Judith, the evidence clearly established appellant's "continued and repeated incapacity" which had caused Judith to be without "essential parental care, control or subsistence necessary for her physical and mental well-being." The court found that this incapacity, which it attributed primarily to appellant's lack of emotional control and self-discipline, was irremediable. Having determined that grounds existed justifying termination of appellant's parental rights under section 311(2) of the Adoption Act, the court concluded that Judith's best interests would be served by terminating appellant's parental rights so that Judith might be adopted into a responsible family, able to meet her essential needs.
As in the appeal of Marjorie L., appellant Gladys B. argues that the decree cannot be sustained because there was no compelling evidence 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 relates to the requirements of the Adoption Act. Although Judith never suffered serious harm while in appellant's custody, the record fully supports the orphans' court's finding that the conditions in appellant's homes while Judith was in her
Appellant's reliance upon In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), in which this Court reversed a decree terminating parental rights under section 311(2), is misplaced. Geiger does not support appellant's contention that substantial physical harm to the child must first be shown before parental 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's rights. Here, unlike in Geiger, the orphans' court's decree was based upon substantial evidence establishing that the conditions in appellant's different homes presented a serious 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, before Judith was taken from appellant's custody, Judith appeared to be entering the same pattern of delinquency exhibited by her older brothers and sister.
We hold that section 311(2) is not unconstitutionally 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. Finally, we hold that there is competent evidence in each appeal supporting the orphans' court's decrees terminating appellants' parental 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 dissenting opinion.
MANDERINO, J., filed a dissenting opinion.
NIX, Justice, concurring and dissenting.
I dissent as to the termination of parental rights of appellant Marjorie L., not only because the facts of this appeal, as accepted by the majority, clearly do not warrant termination of parental rights due to incapacity under section 311(2), but also because the majority's expansive interpretation of this section creates serious constitutional problems.
Appellant, Marjorie L., is the natural mother of three boys, Frank, William and Mark. It is with respect to these three sons that the Lycoming County Children's Services
The record shows that in June of 1971, due to the unhealthy condition of her dwelling at that time, her advanced stage of pregnancy and her difficulty in finding day care assistance for her sons,
Shortly after the birth of her daughter Tracie in September, 1971, in order to provide a better home, appellant moved to the housing project where she now lives. The record shows that appellant is a conscientious mother; she maintains a clean, healthy home and provides adequate care for Tracie. Because of her limitations appellant has frequently enlisted the help of nutrition aides to maintain her household; she has always cooperated with these aides. Notwithstanding appellant's low intelligence, focused upon by the majority, during the proceedings in the lower court, appellant was lucid in her responses to direct examination, cross-examination and questions from the bench. The thirty pages of appellant's transcribed testimony presented the picture of a mother who was knowledgeable in all facets of her daily existence; she knew her sources of income, the nature of her responsibility to her daughter, and she was acutely aware of the serious nature of the termination proceedings. In response to counsel's question as to what effect the loss of her sons would have upon her, appellant said, "I'm going to take it pretty hard." The majority's
Section 311(2), upon which the termination of parental rights rests in the instant appeal, provides for such termination on the ground that:
The majority asserts that "the basis for termination is several years of demonstrated parental incapacity, which does not involve parental misconduct." In my judgment this premise ignores the record and introduces an insidious and dangerous philosophy completely at odds with fundamental American values. First, I take issue with the claim that there has been a demonstration of parental incapacity as envisioned in this section. The majority relies upon the fact that Marjorie L.'s limited intelligence handicaps her in the performance of her parental responsibilities. I would not dispute the possibility that a brighter, better trained and more affluent mother might be more proficient in the discharge of parental responsibilities. I do, however, reject the contention that this fact would empower a state to dissolve a maternal relationship and to create an artificial one that the state might deem "more advantageous." Cf. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975). The example provided by the Nazi Germany Youth Camps should
Id. 180 Pa.Super. at 148, 117 A.2d at 783.
By its indifference to law and sound judicial caution, the majority has terminated the parental rights of a mother who did all she could with the few natural attributes that God gave to her.
In applying a statute, this Court must construe the words of the statute "according to their common and approved usage." Statutory Construction Act of 1972, Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. § 1903(a) (Supp. 1977-78). Turning to Webster's Third New International Dictionary, we learn that "incapacity" is the state of being incapable, i.e., lacking capacity, ability or qualification for the purpose or end in view. In the instant case, the majority itself states that appellant is "minimally capable" of caring for a child. In considering a question as momentous as the involuntary termination of parental rights, it is not semantic quibbling to point out that a parent who is
Section 311(2) requires not only a finding of incapacity but also a showing that the incapacity resulted in an absence of parental care and control. Here the record indisputably reflects that Marjorie L. recognized her limitations and sought assistance from those public agencies available to her. Her continuing interest, love and affection for these children has never been questioned. At every opportunity she maintained communication to assure that their relationship would be sustained. If appellant were fortunate enough to have been financially able to solicit this assistance from private sources, the question of termination of her parental rights would never have arisen.
There is also no basis for finding that "the conditions and causes of the incapacity . . . cannot or will not be remedied by the parent." 1 P.S. § 311(2) (Supp. 1977-78). In the instant appeal, the cause of appellant's supposed incapacity is her lack of intellectual talent or ability. However,
Even more egregious, in my view, is the majority's position that the element of parental fault is not required by section 311(2). The majority construction of section 311(2) in effect means that an involuntary parental incapacity, sustained through no fault of the parent, if found to be irremediable, justifies judicial termination of the incapacitated parent's parental rights. Such a construction raises serious equal protection questions which may very well render section 311(2) invalid.
It is conceded that there are literally hundreds of legislatively created classifications and that the constitutional guarantee of equal protection does not operate as a per se prohibition of such classifications. The traditional equal protection standard required only that the differentiation in treatment created by a classification bear some reasonable relationship to a legitimate legislative objective. See e.g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (Jackson, J., concurring). See generally, G. Gunther, Constitutional Law 657 (9th ed. 1975). However, where a statutory
I need not reach the ultimate merits of the constitutional issues discussed above, because in my judgment the appropriate construction 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 Commission, Official Comment, Adoption Act (1970). It is, of course, permissible for this Court to consult such comments in construing a statute. 1 Pa.C.S.A. § 1939 (Supp. 1977-78). However, in construing a statute, this Court should also consider the consequences of a particular interpretation and should presume that the legislature did not intend that a statute be construed in a constitutionally questionable manner. 1 Pa.C.S.A. §§ 1921(6), 1922(3) (Supp. 1977-78). While the words, "incapacitated" and "cannot", when read in conjunction in a purely literal sense, could support the construction urged by the majority, it is my view that such a construction is foreign to the American philosophy of the relationship between the State and the citizen and is totally unwarranted. The majority's no-fault interpretation of the
I therefore dissent as to the termination of parental rights of appellant Marjorie L., and I concur in the result as to the termination of parental rights of appellant Gladys B.
MANDERINO, Justice, dissenting.
I must dissent. The majority holds that the state may constitutionally terminate the parental rights of a parent if that parent, without fault, is incapacitated, and the incapacity prevents the parent from taking care of that parent's children. The state does not have such a dangerous and far-reaching right over its citizens. Suppose a parent is incapacitated, without fault, as the result of an automobile accident, or a heart attack, or an injury received during a war? Under the majority's holding, if such a parent cannot take care of his or her children, the state may terminate parental rights. To state the issue is to answer it. The state can constitutionally have no such right.
We are not in this case concerned with custody. Of course, if a parent is incapacitated, a benevolent and protective
Many commentators believe that, because of the many different circumstances which may justify intervention, general language is necessary in statutes authorizing intervention in the parent-child relationship. E.g., Katz, When Parents Fail 64 (1971) ("[Broad] neglect statutes recognize that `neglectful' behavior can also vary, and thus cannot be easily or specifically defined. . . . The broad neglect statutes allow judges to examine each situation on its own facts."); Levine, Caveat Parens: A Demystification of the Child Protection System, 35 Pitt.L.Rev. 1, 17 (1973).
Similarly, appellant has made no significant progress in learning how to budget and manage her money. In the past, appellant'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 emergency financial assistance because she believed she owed money for rent, gas, water, and lights. When the aid contacted various utilities and appellant's landlord (the housing 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 frequently 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 Income (SSI) allowance. One nutrition aid observed 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.
In 1963, when hospitalized after suffering from apparent hallucinations, appellant was administered the Weschler Adult Intelligence Test, which rated her IQ at 57. The psychologist testified that both scores placed appellant in the range of the educable or trainable mentally retarded.
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 recognized 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:
412 Pa. 501, 506, 194 A.2d 919, 922 (1963).
Although Gard and Stapleton involved custody disputes, and Davies and Smith involved abandonment, the principle that a parent's claim to his child is weakened by long separation and development by the child of other, closer, attachments applies equally to a proceeding under section 311(2) which, "is intended to center judicial inquiry upon the welfare of the child, rather than the fault of the parent." Joint State Government Commission, Official Comment, Adoption Act (1970).
Appellant's caseworker testified that appellant made no request for the return of her sons before November, 1974. Appellant testified 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.
Appellant's own testimony indicated attenuation 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 baseball. She was unaware of what grade in school any of the boys was in, or how they were doing in school.
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 cultural 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 parents. 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 reunited.
Appellant's assertion that, before her rights can be terminated pursuant to section 311(2), it must be shown that her children suffered some substantial harm such as deprivation of food, clothing, or shelter while in parental custody, is contradicted by Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974). Like appellant, the mother in Diane B. voluntarily placed her child in the custody of the children's agency. Nonetheless, this Court held that the mother's subsequent conduct in failing to support her child or maintain a close relationship with the child caused the child to be "without essential parental care" and justified termination of the mother's rights under section 311(2).
The testimony of the county nutrition aide supervisor concerning appellant's account of her father's death, although of highly questionable relevance, was also seized upon by the majority to support its thesis of mental instability. Although appellant later adopted this account and it was not rebutted, the majority transforms this testimony into evidence of appellant's delusions by stating that "the circumstances surrounding appellant's relation of this story rendered it incredible." If such stories were incredible merely because they were bizarre, this Court could quickly dispose of numerous homicide appeals by discharging defendants who committed "incredible" murders.
F. Kafka, The Trial 148-49 (M. Brod ed. 1969). One cannot ignore the human result of the majority's decision today. In the words of Mr. Justice MANDERINO in his dissent in the instant case, Frank, William and Mark are dead so far as appellant is concerned.