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WILLIAM L. (01/31/78)

decided: January 31, 1978.



Warren R. Baldys, Jr., Williamsport, for appellant.

Charles F. Greevy, III, Williamsport, for appellee, Lycoming County Children's Services in both cases.

Robert P. Kane, Atty. Gen., for appellee, Commonwealth of Pennsylvania.

Greevy, Greevy & Greevy, Williamsport, for appellee, Lycoming County Children's Services in No. 113.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring and dissenting opinion. Manderino, J., filed a dissenting opinion.

Author: Roberts

[ 477 Pa. Page 328]


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.*fn1 Appellee, in both appeals, is Lycoming County Children's Services [Children's Services]. The parental rights of both appellants were terminated pursuant to section 311(2) of the Adoption Act of 1970.*fn2 In addition to challenging the sufficiency

[ 477 Pa. Page 329]

    of the evidence to support the decrees entered in their respective cases, both appellants claim that section 311(2) is vague, in violation of the due process clause of the fourteenth amendment. They also assert that section 311(2), as applied to them, deprives them of their interest in maintaining their parental relationships protected by the first, ninth, and fourteenth amendments to 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.


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

[ 477 Pa. Page 330]

    to require two showings before parental rights may be terminated: (1) that the parent has demonstrated a "high and substantial degree of misconduct;" and (2) that the child, while in the parent's custody, has suffered substantial physical or mental harm because of the absence of a basic need such as food, clothing, shelter, or medical care. Appellants contend that, absent such a narrow interpretation, the phrase "has caused the 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 unconstitutionally vague and may constitutionally be applied to terminate parental rights where, as here, the record establishes "the repeated and continued incapacity" of a parent to provide the child with the "essential parental care, control, or subsistence necessary for his physical or mental well-being."*fn3

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

[ 477 Pa. Page 331]

    parental 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 statute attacked on vagueness grounds, section 311(2) does not prohibit or regulate any particular conduct.*fn4 Section 311(2) is concerned 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 statute attaches consequences to parental incapacity, a requirement that the statute "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), serves no purpose, because the statute applies only to a parent incapable of conforming conduct to avoid the effect of the statute.

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

[ 477 Pa. Page 332]

    of parental rights be irremediable negates appellants' notice argument.*fn5

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.*fn6 However, our strong policy protecting the family from unwarranted state intrusion protects against arbitrary or discriminatory applications of section 311(2).

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

[ 477 Pa. Page 333]

    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 subjected to abuse or suffered serious harm, or that the threat of such harm is real and substantial and cannot be alleviated by means less drastic than removal.

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

[ 477 Pa. Page 334]

    by parental neglect or incapacity, termination 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 restored. 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 parental rights because the evidence did not establish that the causes or conditions leading to the abuse could not be remedied. Id. 449 Pa. at 548, 297 A.2d at 120.

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

[ 477 Pa. Page 335]

    appears that parental 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 significant possibility a parent would be inhibited from engaging in protected conduct not constituting deprivation of essential needs of the child.

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,

[ 477 Pa. Page 336321]

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 obligations the state can neither supply nor hinder. [citing Pierce ] And it is in recognition of this that these decisions [ Pierce and Meyer ] have respected the private 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 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,

[ 477 Pa. Page 33752]

L.Ed.2d 675 (1977) (plurality opinion); 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 decisions relating to child rearing are within this zone and protected from unwarranted interference 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 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 non-consenting 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

[ 477 Pa. Page 338]

    be the doctrine of parens patriae, the concept that the sovereign is the father of his country. See, e. g., Adoption of R.I., 468 Pa. at 294, 361 A.2d at 297. Although the doctrine of parens patriae has been subject to critical comment in recent years,*fn7 there is general agreement that the state has the right and the duty to act to protect its weaker members, such as infants, who are unable to protect themselves,*fn8 and to compel parents and children alike to act in ways beneficial to society.*fn9 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 protect its weaker members authorizes interference with parental autonomy and decisionmaking in appropriate circumstances. The moral and practical importance of this authority was set forth by Chief Justice Maxey in Commonwealth ex rel. Children's Aid Society v. Gard :

"Societies which like the relator are entrusted by the sovereign with power over the lives of infants should ever bear in mind that consideration for the sensibilities of children and solicitude for their well-being is the ...

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