Dissenting Opinion
Garrard, J.— In 1969 our legislature amended the adoption statutes to contemplate a separate proceeding in which the rights of natural parents might be terminated. IC 1971, 31-3-1-7. The relevant portions have been further amended by the Acts of 1971 and 1975.
This proceeding arises under the statute as it existed in 1973. It involves two children previously declared to be dependent or dependent and neglected children,. At the time the questioned proceeding was instituted, they had been under foster care for more than five years. In July 1973, the welfare department petitioned to have the children made permanent wards for all purposes, including adoption. The trial court found this to be a petition to terminate the parental rights of the natural parents and, after hearing, granted the petition. The principal question is whether it had the authority to do so. The essence of the problem is the statutory authority granted by the legislature and what is meant by “terminating parental rights.” To me, the phrase does not have a well-defined meaning when its various applications under the law are considered. There appear to be potentially two types of uncertainty.
The first is whether “terminate” means permanently or merely temporarily. Historically, when an adoption is decreed, the termination of the rights of the natural parent is “permanent.” However, the termination of present rights to custody, etc. which may result from delinquency, dependency or neglect proceedings has historically been considered as not permanent. *186See, IC 1971, 31-5-7-17, which expressly recognizes the continuing ability to rehabilitate the family unit.
The second question concerns which parental rights are in issue. One apparent grouping consists of the present right to the custody, control, etc. of the child. Another concerns the right of inheritance and the right of support which flow between parent and child. Our traditional concepts of adoption have generated yet a third category of parental rights: the right to consent (or withhold consent) to an adoption.
The significance of the question dealt with by the legislature is fundamental. On the one hand, we have consistently recognized the importance of the family, not only as one of the essential units of personal liberty and freedom but as the necessary cornerstone for a viable society. If attributes such as love, duty, honor, and morality are not fostered in the home, they are unlikely to be acquired at the hands of government through any system of schools or courts. Our juvenile code was therefore established upon the premise that where possible, an ailing family should be cured rather than have its members amputated.
On the other hand, where these values are non-existent in the home, or even negative, where do' a child’s interests lie and what is the proper concern of society? I do not dispute the generalization that institutions, and even foster care, fail to provide an adequate substitute. I also recognize that our ability to successfully find adoptive homes for children may decline in'proportion to their increasing ages; as may the ability of such a home to have basic impact on the child.
It appears to be the broad purpose of the legislature to promote the finding of adoptive homes for unfortunate children who are denied proper parental care. The statutory device employed is apparently intended to permit a proceeding with notice and opportunity to be heard. If proper grounds are established, the right of natural parents to resume control of their children and to withhold consent to an adoption of the children are to be terminated.
*187This approach appears to be reasonable. In addition to the primary effect of dispensing with lack-of-consent issues in adoption proceedings at a time when the familial relationship between the child and the would-be adoptive parents has been encouraged and oftentimes established, there may be secondary effects. Prospective families might be much encouraged to consider making a home for a particular child if it appeared at the onset that the child could be adopted and its natural parents would not be able to effectively withhold consent. Once initiated, the relationship between the child and the prospective family could benefit from a unity unhampered by continuing appeals or contacts from a natural parent.
These goals appear worthy and within the province of the legislative branch. That, however, is not the question confronting this court. Moreover, it must be remembered that the legislature is attempting to provide for the exception, not the rule. The rule remains the essential value of the right-duty relationship between natural parent and child.
As a final precursor to a decision, I do not believe appellate courts must shy away from implementing a legislative enactment merely because the court must judicially fill in “interstitial spaces” or even engage in substantial judicial interpretation to effect the legislative purpose. Properly courts can, and should, so interpret statutes in terms of the use and demands of society where they can do so within the approach of law-reason.1 This qualification, although perhaps incapable of any precise definition, provides a restraint upon statutory construction that is both real and proper.
The question at hand is whether the enacted provisions providing for the termination of parental rights are sufficiently explicit that they may be enforced against the appellants. In view of the substantial impact of the answer and the fact that *188this is a case of first impression, I feel compelled to state the dissent to the view taken by the majority.
Considering that present rights to custody and control have been terminable under the juvenile laws since about 1907, but that parental rights in general have been historically terminated only upon a grant of adoption, it seems clear that the “termination” of parental rights referred to in Sections 6 and 7 2 of the amendments to the adoption statute connotes permanence. If it did not, nothing would be gained by such a proceeding because the parent could again seek a determination of his, or her, right to withhold consent when a petition for adoption was filed.
This follows because Section 6 provides the general rule that no court can grant an adoption unless the natural parents, if living, consent.3 (The provisions of Section 6 and 7 are set out in the margin.)4 This section, in subparagraph (g), states the exceptions by providing:
*192“ (g) Consent to adoption is not required of:
(1) a parent or parents if the child is adjudged to have been abandoned or deserted for six [6] months or more immediately preceding the date of the filing of the petition; or a parent of a child in the custody of another person, if for a period of at least one [1] year he fails without justifiable cause, to communicate significantly with the child when able to do so or he wilfully fails to' provide for the care and support of the child when able to do so as required by law or judicial decree;
(4) a parent whose parental rights have been terminated by order of court as provided under IC 1971, 31-3-1-7 or by order of court having jurisdiction to terminate parental rights on any ground for termination specified by other law;”
Section 7 consists of eight subparagraphs. Subsection (a) provides that the rights of a parent “including parental right to control or consent to a adoption” may be relinquished, or terminated as provided in Section 7. Subsection (b) provides for a voluntary relinquishment. Subsection (c) provides for termination of “all rights . . . including right to control or consent to an adoption” by court order in either of two instances. The first is by a court “having jurisdiction to terminate parental rights on any ground for termination specified in that law.” The alternative is termination by the court having adoption jurisdiction “on any ground provided by law for termination of parental rights.”
The subsection further provides that the court’s paramount concern shall be for the health, welfare and future of the child, and the law should be given liberal construction to effect its social purpose of benefitting unfortunate children.
Subsection (d) provides that for purposes of adoption proceedings, “a decree terminating all rights of a parent with reference to a child, including parental right to control or consent to an adoption” if entered by a court of competent jurisdiction, dispenses with the necessity of that parent consenting to an adoption.
*193Subsection (e) provides when a petition to terminate maybe filed in connection with an adoption proceeding and who may file it. It also provides for notice.
Subsection (f) then provides, “Every order of the court terminating the parent-child' relationship,” or transferring custody or guardianship shall be in writing and shall recite the court’s findings. The subsection further provides, “If the court finds grounds for termination of the parent-child relationship, it shall terminate such relationship.”
Finally, subsection (g) specifies that an order terminating the parent-child relationship shall divest the parent and the child of “all legal rights, privileges, duties and obligations, in-cuding rights of inheritance.”
Are the grounds to terminate the “parent-child relationship” different from those to terminate “the rights of a parent, including parental right to control or consent to an adoption?” Are these terminations the same thing?
In either event, what are the “grounds?” Aside from the reference to consideration for the health, welfare and future of the child, the statute is silent. From bowsprit to rudder, Section 7 contains no express mention of any substantive ground upon which the court, or parents and children, may by any objective standard gauge when “rights” shall be terminated and when they shall not.5
The statute, however, also provides for termination by a court “having jurisdiction to terminate parental rights on any ground for termination specified in that law.” Do the dependency and neglect provisions in the juvenile law meet this definition?
Clearly these provisions do contemplate terminating a parent’s present right to custody and control. They do provide *194a substantive basis- for decision, and in practice they can have the effect of permanency by withholding custody and control for the duration of the child’s minority. In recognition of these attributes and in accord with the concern voiced in Section 7 (c) for the health, welfare and future of the child, the majority has held the juvenile statute sufficient to permit termination of the right to withhold consent to an adoption where the dependency or neglect has a protracted history, and it appears substantially probable that the condition will continue and the future welfare of the child will not be served by continuing the relationship with the natural parents.
While this is a reasonable basis for applying the dependency and neglect statute under Section 7, it begs the question.
To sustain the authority (the jurisdiction) of the trial court to make the termination it made in this case, it seems to me that only two courses are open.
The first would be to interpret the provision of Section 7 (c) stating that rights may be terminated “by order of a court having jurisdiction to terminate parental rights on any ground for termination specified in that law” as simply recognizing that other statutes may also deal with permanently terminating parental rights. The difficulty with this interpretation as applied to the present juvenile code is that nothing in the provisions relating to dependency or neglect expressly empowers the court to terminate a parent’s right to consent to adoption, much less the entire parent-child relationship.6 I am unwilling to now imply this power to a juvenile court on the basis of the “make such further disposition” language contained in IC 1971, 31-5-7-15(5). The precise language of the statute limits its application to the other provisions of the act. These include IC 1971, 31-5-7-17, which recognizes the continuing opportunity to rehabilitate the family.
*195The second alternative is to interpret the “other law” jurisdiction recognized in Section 7(a) as simply vesting jurisdiction to conduct a Section 7 termination upon any court that has jurisdiction to presently terminate or suspend any kind of parental rights. However, under this view, the court would be governed by the provisions of Section 7 for the substance and procedure to effect a permanent termination of all rights. It appears to me that the fatal defect in accepting this interpretation for the case at hand is the total failure of Section 7 to specify any substantive grounds for determining when permanent termination is appropriate.7
It must therefore be concluded that IC 1971, 31-3-1-7, as it existed in 1973, is vague and ambiguous; that it does not vest the juvenile court with the power to permanently terminate all rights of the parents of dependent or neglected children, and that the juvenile court has no such power pursuant to IC 1971, 31-5-7-15. See, Railroad Comm’n. v. Grand Trunk, etc. Ry. (1913), 179 Ind. 255, 100 N.E. 852; Cook v. State (1901), 26 Ind. App. 278, 59 N.E. 489. See, also, Shupe v. Bell (1957), 127 Ind. App. 292, 141 N.E.2d 351, stating that dependency and neglect statutes should be strictly construed.
Accordingly, that portion of the judgment purporting to *196permanently terminate parental rights, including the right to consent to adoption, should be vacated.
Note. — Reported at 352 N.E.2d 502.
. See, Leflar, Statutory Construction: The Sound Law Approach, remarks, Federal Judicial Center, Washington, D.C., May 13, 1975.
. IC 1971, 31-3-1-6, 7.
. The exception regarding fathers of illegitimate children is not relevant here and no discussion regarding it is necessary.
. “31-3-1-6 [3-120]. Consent of parent or parents — Abandoned or deserted child — Child over fourteen — Parents deprived of parental rights —Notice.— (a) Except as otherwise provided in this section, a petition to adopt a minor may be granted only if written consent to adoption has been executed by:
(1) each living parent of a legitimate minor child;
(2) the mother of an illegitimate minor child and the father of such child whose paternity has been established by a court proceeding and who has contributed to the support or care of such child and whose home or work address is known or can be found without expenditure exceeding five dollars [$5.00] ;
(3) any person, agency or county department of public welfare having lawful custody of the minor;
(4) the court having jurisdiction of the custody of the minor, if the legal guardian or custodian of the person of the minor is not empowered to consent to the adoption;
(5) the minor to be adopted, if more than fourteen [14] years of age; or
(6) the spouse of the minor to be adopted.
A minor parent may consent to an adoption without the concurrence of his parent or parents, or the guardian of his person, unless the court, in the exercise of its discretion, determines that it is in the best interest of the child to be adopted to require such a concurrence.
(b) The consent to adoption may be executed at any time after the birth of the child either in the presence of the court, in the presence *189of a notary public, or other person authorized to take acknowledgments, or in the presence of a duly authorized agent of the state or county department of public welfare or licensed child-placing agency.
(c) A consent which does not name or otherwise identify the adopting parent is valid if the consent contains a statement by the person whose consent it is, that the person consenting, voluntarily executed the consent without disclosure of the name or other identification of the adopting parent.
(d) The state department of public welfare is hereby authorized to furnish to the clerks of courts prescribed forms for use by parents or other persons when giving consent.
(e) Copies of such consent when signed shall be filed with the investigating agency aforesaid and with the clerk of the court in which the petition for adoption is pending. Such court shall cause notice of hearing and oportunity to file objection to be given to such interested parties as the court in its discretion may direct.
(f) A consent to adoption cannot be withdrawn after the entry of the decree of adoption. A consent to adoption may not be withdrawn prior to the entry of the decree of adoption unless the court finds, after notice and opportunity to be heard afforded to the petitioner, the person seeking the withdrawal is acting in the best interest of the person sought to be adopted and the court orders the withdrawal.
(g) Consent to adoption is not required of:
(1) a parent or parents if the child is adjudged to have been abandoned or deserted for six [6] months or more immediately preceding the date of the filing of the petition; or a parent of a child in the custody of another person, if for a period of at least one [I] year he fails without justifiable cause, to communicate significantly with the child when able to do so or he wilfully fails to provide for the care and support of the child when able to do so as required by law or judicial decree;
(2) the natural father of an illegitimate minor child;
(3) a parent who has relinquished his right to consent as provided in IC 1971, 31-3-1-6;
(4) a parent whose parental rights have been terminated by order of court as provided under IC 1971, 31-3-1-7 or by order of court having jurisdiction to terminate parental rights on any ground for termination specified by other law;
(5) a parent judicially declared incompetent or mentally defective if the judge dispenses with the parent’s consent;
(6) any legal guardian or lawful custodian of the person to be adopted other than a parent who has failed to respond in writing to a request for consent for a period of sixty [60] days or who, after examination of his written reasons for withholding consent, is found by the court to be unreasonably withholding his consent.
(h) Notice of hearing on a petition for adoption need not be given to a person whose consent has been filed with the petition or to a person whose consent is not required by subsection (g) (2), (g) (3) or (g) (4) of this section, except that in the case of the natural father of an illegitimate minor child, where the paternity of such child has been established by law and the father is adequately supporting such child, or where for any reason in the discretion of the court it is deemed advisable that he be heard, he shall have such notice as the court deems necessary and opportunity to file his objection if any, and oppose such adoption, which objection shall be considered and determined by the court.
*190(i) Where the parental rights have been terminated as provided in IC 1971, 31-3-1-7 notice of the pendency of such adoption proceedings shall be given to the agency or county department of public welfare of which the child is a ward.
31-3-1-7 [3-120a]. Termination of parental rights — Minor parents— Power of court.— (a) The rights of a parent including an adjudicated or adoptive parent with reference to a child, including parental right to control or consent to an adoption, may be relinquished or terminated in or prior to an adoption proceeding as provided in this section.
(b) All rights of a parent with reference to a child, including parental right to control or consent to an adoption or to receive notice of a hearing on a petition for adoption, may be relinquished and transferred to a licensed child-placing agency or county department of public welfare, by a writing (1) signed by the parent in the presence of a representative of an agency or county department to whom custody of the child is transferred and in the presence of a notary public or other person authorized to take acknowledgments; or (2) signed by the parent in the presence and with the approval of a judge of a court of record of the jurisdiction within or without this state in which the minor is present or in which the parent resided at the time it is signed.
A minor parent may relinquish and transfer his parental rights as provided herein, without the concurrence of his parent or parents, or the guardian of his person, unless the court, in the exercise of its discretion, determines that it is in the best interest of the child to be adopted to require such a concurrence.
The state department of public welfare is hereby authorized to furnish the clerk of courts prescribed forms for use in such relinquishment of parental rights. Such form shall include a provision naming the licensed child-placing agency or county department of public welfare to whom the rights of the parent with reference to the child shall be transferred.
(c) All rights of a parent with reference to a child, including right to control or consent to an adoption, may be terminated by order of a court having jurisdiction to terminate parental rights on any ground for termination specified in that law. In addition, all rights of a parent with reference to a child, including right to control or consent to an adoption, may be terminated by the court having jurisdiction over adoption proceedings under this chapter issued on any ground provided by law for termination of parental rights. When the court terminates parental rights under this chapter [31-3-1-1 — 31-3-1-12] its paramount concern shall be for the health, welfare and future of the child whose adoption is immediately contemplated or who in the future will hopefully be adopted. The purpose^ of this chapter in regard to the termination of parental rights is to give to unfortunate children who have been bereft of love and parental care the benefits of a home, and of such parental care, and the law should receive a liberal construction to effect this purpose.
(d) For purposes of proceedings under this chapter [31-3-1-1 — 31-3-1-12], a decree terminating all rights of a parent with reference to a child, including parental right to control or consent to an adoption, entered by a court of competent jurisdiction in this or any other state is sufficient to dispense with the consent of a parent whose rights are terminated by the decree and with any required notice of an adoption proceeding other than as provided in this section.
(e) A petition for termination of parental rights made in connection with or before an adoption proceeding may be filed by the following:
(1) either parent when termination of a parent-child relationship is sought with respect to the other parent, or
*191(2) the guardian of the person, the legal custodian, or the person standing in parental relationship to the child, or
(3) a licensed child-placement agency or county department of public welfare, or
(4) any other person having a legitimate interest in the matter.
The petition shall be filed before adoption proceedings are instituted, unless the court in its discretion, allows a petition to be filed during the adoption proceedings. When the petition is filed the adoption of the minor child need not be immediately contemplated, and the purpose of the petition may be to facilitate adoption when adoptive opportunities arise.
After a petition has been filed, the court shall require notice of the hearing to be given to the petitioner, the parents of the child, the guardian of the person of the child, the person having legal custody of the child, and, in the discretion of the court, a person appointed to represent any party.
(f) Every order of the court terminating the parent-child relationship or transferring legal custody or guardianship of the person of the child or providing for protective supervision of the child under this chapter [31-3-1-1 — 31-3-1-12] shall be in writing and shall recite the findings upon which such order is based, including findings pertaining to the court’s jurisdiction. Such order shall be conclusive and binding on all persons from the date of entry.
(1) If the court finds grounds for the termination of the parent-child relationship it shall terminate such relationship and: (A) appoint an individual as guardian of the child’s person, or (B) appoint an individual as guardian of the child’s person and vest legal custody in another individual or in an authorized agency, or (C) where it is alleged in the petition that the termination is in contemplation of adoption, appoint an official of an - authorized agency as guardian of the child’s person and vest legal custody in such agency.
The court shall also make an order fixing responsibility for the child’s support. The parent-child relationship may be terminated with respect to one [1] parent without affecting the relationship between the child and the other parent.
(2) Where the court does not order termination of the parent-child relationship, it shall dismiss the petition: Provided, however, That where the court finds that the best interest of the child requires substitution or supplementation of parental care and supervision it shall make an order placing the child under protective supervision, or vesting temporary legal custody in an authorized agency and fixing responsibility for temporary child support, and may certify the case to an appropriate court for further action as may be necesary: Provided further, That the court, if it has not certified the case to another court, shall periodically review its temporary child custody order for the purpose of permanently terminating parental rights or restoring complete custody in the person temporarily divested of control or custody of the child.
(g) An order terminating the parent-child relationship shall divest the parent and the child of all legal rights, privileges, duties and obligations, including rights of inheritance, with respect to each other.
(h) As used herein, ‘guardianship of the person’ with respect to a minor includes, when the parent-child relationship has been terminated by judicial decree with respect to the parents, or only living parent, or where there is no living parent, the authority to consent to the adoption of the child and to make any other decision concerning the child which the child’s parents could make.”
. One may also express curiosity regarding the status of a child whose “parent-child relationship” has been terminated where no adoption proceedings ever materialize. Although his right of inheritance from his natural parents may be largely academic, what of his standing as an otherwise potential heir-at-law of his natural parents’ relatives?
. Arguably under this interpretation the impact of the termination of the entire parent-child relationship could be restricted to proceedings brought “directly” under the adoption court alternative.
. The 1975 amendments do little to solve the problem. Section 7 was amended to specify that at the hearing on a petition to terminate, the petitioner shall show that reasonable services were offered to the parents to aid in overcoming the problems which originally led to deprivation of physical custody. IC 1971, 31-3-1-7 (e). Furthermore, although Section 6(g) (7) and (8) now specifically refers to certain neglected or dependent children, it does so merely in terms of dispensing with consent to adoption and not to otherwise terminating parental rights. Query: What is the effect of these sections which dispense with consent in the case of cruelly treated or neglected children or judicially declared dependent children whose parents suffer a disability from the use of alcohol or controlled substances? In each category, one of the statutory requirements is the condition that the parents have been deprived of physical custody for at least two (2) years prior to the filing of a petition for the termination of parental rights. If parental rights have been terminated under Section 7, what is the significance of subsections (7) and (8), especially in view of subsection (4), which purports to dispense with consent wherever parental rights have been terminated under Section 7?