dissenting.
I must dissent. The Court finds both a “settled purpose” of relinquishing parental claim and a refusal and failure on the part of each parent to perform parental duties and therefore under Section 311(1) of the Adoption Act of July 24, 1970, P.L. 620, Act III, 1 P.S. § 311(1) terminates the appellants’ parental rights. In arriving at this decision the majority has failed to follow our recent decisions which say we must examine the surrounding circumstances. In re Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1975); In re Adoption of McAhren, 460 Pa. 63, 331 A.2d 419 (1975); In re Adoption of Farabelli, 460 Pa. 423, 333 A.2d 846 (1975).
In Orwick we stated:
*129“Where, as in the instant case, the evidence clearly establishes that the parent has failed to perform his affirmative parental duties for a period in excess of six months, this Court must then examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of circumstances, clearly warrants permitting involuntary termination . . . . 347 A.2d at 680.”
(emphasis added)
In examining the circumstances of the case before us, appellant P.M., the child’s mother, has an I.Q. of 47; appellant W.M., the child’s father, has an I.Q. of 65. The Bureau of Children’s Service was aware of this at the time the child was first removed from appellants’ home. It is true that as the majority states appellants did not maintain communication with their son. However, a month or two after the child’s initial removal, the mother called the Bureau and requested a visit with her child. She was refused and was told that such a visitation would “upset” the child. Appellants then made no further efforts because they believed that to do so would “upset” their son. Appellants were not contacted by the Bureau until four years later and were never advised by the Bureau how to maintain contact with their son.
Furthermore, appellants were lulled into a state of inactivity by the Bureau. When W.M, III, was removed in 1967, the Bureau also removed his sisters from appellants’ home. However, in 1974, the Bureau returned to the parents the custody of their mentally retarded daughter even though communications were not maintained with that child.
The majority casually dismisses the facts saying “[wjhile it may be that a child care agency should offer education, training and encouragement, to parents who evince an interest in keeping a family together by improving conditions in a home, we know of no legal obligation to that effect . . . .” At p. 412. While the majority may be reluctant to find a legal duty on behalf of the Bureau, the majority has no such qualms in ignoring these same facts and finding a waiver by appellants of their rights as parents.
*130The Court does not discuss the appellants’ “incapacity” under Section 311(2) but says that such “incapacity” is probably a “permissible inference.” At p. 412, n. 4. Given the intellectual capacity of appellants and the fact that the Bureau has not shown that the causes of an “incapacity” cannot or will not be remedied, the parental rights of appellants cannot be terminated under § 311(2). In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975). Additionally, the state cannot constitutionally terminate parental rights if the parent is “incapacitated” without fault. In re William L., 477 Pa. 322, 383 A.2d 1228, 1252 (Concurring and dissenting opinion of Nix, J.; and dissenting opinion of Manderino, J.)
It is also important to note that the Bureau returned the retarded child to the appellants but in the case of the son they believed appellants could not perform their parental duties! Surely if the parents are “incapacitated” for one child they would be for the other.
NIX, J., joins in this dissent.