William L., In re

• Decision Date: 31 January 1978
• Citation: 477 Pa. 322,383 A.2d 1228
• Parties: In re WILLIAM L., Frank L., and Mark L., minor children. Appeal of MARJORIE L. In re JUDITH DENISE B., a minor. Appeal of GLADYS B.
• Court: Pennsylvania Supreme Court

Page 1228

383 A.2d 1228

477 Pa. 322

In re WILLIAM L., Frank L., and Mark L., minor children Appeal of MARJORIE L In re JUDITH DENISE B., a minor Appeal of GLADYS B.

Supreme Court of Pennsylvania.

Argued April 21, 1977.

Decided Jan. 31, 1978.

[477 Pa. 328] 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.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

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 appellant Marjorie L. to her three sons William L., Mark L., and Frank L. ¹ 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. ² In addition to challenging the sufficiency 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.

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 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." ³

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 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. ⁴ 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 of parental rights be irremediable negates appellants' notice argument. ⁵ 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. ⁶ 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 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 then 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...