In the Int. of: A.G., a Minor

J-A01039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.G., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: R.G., FATHER :

:

:

:

: No. 1093 MDA 2021

Appeal from the Dispositional Order Entered July 19, 2021

In the Court of Common Pleas of Lebanon County Juvenile Division at

No(s): CP-38-DP-0000033-2021

BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.

MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 1, 2022

R.G. (Father) appeals from the order adjudicating A.G. (Child)

dependent. Father challenges the trial court’s dependency adjudication, the

placement of Child in foster care, and the effectiveness of court-appointed

counsel’s representation. We affirm.

The trial court set forth the factual and procedural history of this case

as follows:

K.G. (Mother) and [Father] are the natural parents of A.G.

[(Child)], born [in March of] 2014. Mother and [E.G.] are the

natural parents of [Child’s] half-sibling (whose initials are also

A.G.), born [in March of] 2020. Both children are involved in

related dependency proceedings. Father lives in Texas and has

not seen [Child] since she was three years old. [Child] is unable

to identify him as her father and lived with Mother until removal

from the home. [Father] testified that the distance has prevented

him from pursuing a formal custody arrangement with Mother.

Lebanon County Children and Youth (LCCYS) received a referral

for the family on May 17, 2021, relating to inappropriate discipline

by [J.B. (Mother’s paramour)] of [Child’s] half-sibling and relating

J-A01039-22

to Mother’s drug use. LCCYS attempted to contact the family as

a result and was unable to do so at that time. On May 20, 2021[,

Mother’s paramour] had the children in the car while Mother was

getting her driver’s license renewed at the DMV. [Mother’s

paramour] drove away and left the children at the home of his

[cousins], who called Pennsylvania State Police. LCCYS picked the

children up from State Police barracks in Jonestown and requested

emergency custody of [Children].

On May 20, 2021, the [court] granted LCCYS a verbal order for

emergency protective custody, finding that under the

circumstances of child abandonment, LCCYS’s immediate taking

of custody was necessary to preserve the life and well-being of

[Child] and her sibling. The [c]ourt at that time found 1) LCCYS

had made reasonable efforts to prevent the need for removal by

attempting to locate the children’s parents, and 2) given the

inability to find Mother, the lack of preventive services was

reasonable.

Mother arrived at the state police barracks on May 20th, but after

the children had been removed and placed that afternoon.

Mother disclosed regular marijuana use and occasional use of

methamphetamine and ecstasy to the Agency. LCCYS filed a

Petition for Emergency Protective Custody on May 21, 2021,

alleging that it would be contrary to [Child’s] welfare, safety, and

health to remain in Mother’s care. LCCYS averred that it sought

continuing custody to ensure that Mother would be able to gain

sobriety and properly care for [Children,] it had not offered

services to prevent family separation due to the necessity of

emergency placement, and this lack of services was reasonable

given the nature of the emergency. The [court] granted LCCYS’s

Petition for Emergency Protective Custody on May 21, 2021. A

shelter care hearing was also held on May 21st, and pursuant to

the shelter care order entered on that date [Child] and her sibling

remained in their current non-relative kinship foster placement.

The Agency or a 30-day detox program has conducted a drug test

of Mother every week since the end of May, and Mother’s first test

was positive for marijuana, methamphetamine, and ecstasy. Each

drug test since then has been negative. LCCYS filed a Dependency

Petition for [Child] on July 1, 2021, alleging that [Child] is

dependent under 42 Pa.C.S. § 6302 because she is without proper

parental care or control and because she is without a parent,

guardian, or legal custodian. At the time of filing, the Petition

averred that Father had not been actively involved with [Child,]

-2-

J-A01039-22

and Mother had signed herself into treatment that was then

ongoing. The court held a hearing on the Dependency Petition on

July 19, 2021.

After the filing of the Dependency Petition, Mother successfully

completed the 30-day detox program and began ongoing mental

health counseling and drug and alcohol treatment. She is

currently living with her mother. Mother’s mother is in the process

of being approved to care for both children through a private

agency, but the children would not be able to return there until

Mother completed all her goals. Mother has completed almost all

tasks on the initial child permanency plan. However, she still must

finish four out of a required twelve hours of age-appropriate

parenting classes. LCCYS at the dependency hearing sought to

add two new tasks regarding maintaining stable housing and

employment for a period of six months. Mother has not missed a

weekly visit with the children and the Agency intends to increase

visits based on her progress on her goals. The Agency’s primary

permanency goal for both children is to return to Mother’s home.

LCCYS scheduled a video call with Father so that [Child] could

meet him in late May or early June, but received no answer to the

video call or a subsequent phone call. The caseworker testified

he sent Father an email with the link for the video call by Zoom.

The caseworker testified that prior to his appearance at the

dependency hearing, the Agency had minimal contact with Father.

The caseworker could recall two conversations with Father by

phone. Father testified that he attempted to contact the

caseworker numerous times and finally received a call back after

contacting two supervisors. In addition to maintaining regular

visits with [Child], Father’s remaining permanency goal is to take

an age-appropriate parenting class. Father testified that his

parents had overnight care of [Child] while he was present, but

he has not had overnight care of her on his own. Father’s mother

has expressed interest in being a resource for [Child], but not for

[Child’s] sibling. LCCYS conducted a homestudy of paternal

grandparents’ home, but the kinship approval had not been

finalized at the time of the Dependency Hearing. [Child] does not

have a preexisting relationship with Paternal Grandmother and the

Agency intends to work on visitation and establishing a connection

with both Father and Paternal Grandmother before seeking

placement. Father testified he understands coming to live with

him would be “a drastic lifestyle change” for [Child] and he is

willing to work with LCCYS to facilitate such a transition.

-3-

J-A01039-22

[E.G.] was incarcerated in Lebanon County Correctional Facility at

the time of the hearing on the Emergency Custody Petition and

entered a rehabilitation facility on July 12, 2021. As of the July

19th Dependency Hearing, his earliest release date would be

August 12, 2021, after which he may enter a six-to-nine-month

aftercare program. Before his incarceration in January of 2021,

he lived with Mother and the children and performed parental

duties for both children. [E.G.’s] mother has offered to be a

placement resource for both children and currently has monthly

visitation with both children. She is in the process of having her

home approved through a private agency. [E.G.] intends to return

to his mother’s home when he is free to do so, so the children

could not be placed there until he completes his permanency

goals.

[Child] is seven years old and has never been enrolled in school.

She struggles to read, and LCCYS would need to coordinate with

the school district serving her placement to determine her grade

level upon enrollment. LCCYS intends to enroll both children in

trauma-based counseling related to [J.B.’s] abuse of [Child’s]

sibling. [Child] and her sibling are placed together in an agency-

approved non-relative kinship foster home with the cousins of

Mother’s paramour. [Children] are safe and doing well in

placement, and are comfortable with the foster family. As noted

on the record, it was clear to the [c]ourt from meeting with the

children before the Dependency Petition Hearing that the siblings

possess a strong bond with one another. Both the agency

caseworker and [E.G.] testified to such.

Trial Ct. Op., 9/2/21, at 4-8 (citations omitted, some formatting altered).

Child was adjudicated dependent following the July 19, 2021 hearing

and ordered to remain in foster care with her sibling.1 Father filed a timely

notice of appeal and complied with Pa.R.A.P. 1925(a)(2)(i).

____________________________________________

1 The testimony of Zachary Northen, LCCYS caseworker, identifies the foster

care as kinship, “potentially to the third degree of the foster father” and stated

that “[Mother’s paramour] is the cousin to the third degree of the foster

father.” N.T., Dependency H’rg, 7/19/21, at 15. Father refers to this

placement as non-kinship. See Father’s Brief at 14. LCCYS contends that

(Footnote Continued Next Page)

-4-

J-A01039-22

On appeal, Father raises the following issues for our review:

1. Whether the trial court erred by adjudicating Child dependent

where Child was not dependent as defined by the Juvenile Act,

42 Pa.C.S. § 6302?

2. Whether the trial court committed an error of law and abused

its discretion by entering a dispositional order placing Child in

the legal and physical custody of LCCYS and ordering that Child

be placed in foster care?

3. Whether the trial court committed an error of law and abused

its discretion by finding that Child’s placement is the least

restrictive placement that meets the needs of Child and there

is no less restrictive alternative available?

4. Whether the trial court committed an error of law and abused

its discretion by finding that reasonable efforts were made by

LCCYS to prevent or eliminate the need for removal of Child

from the home?

5. Whether the trial court committed an error of law and abused

its discretion by entering a dispositional order placing Child in

a non-familial foster care placement where Child’s [paternal]

grandparents immediately came forward as a potential kinship

resource and are appropriate caregivers for Child?

6. Whether the trial court violated Father’s procedural due

process rights by failing to ensure a full and complete record

was created to support its adjudication of dependency and

disposition?

7. Whether court-appointed counsel for Father rendered

ineffective assistance, including by failing to introduce relevant

testimony and evidence and adequately cross-examine

witnesses regarding relevant facts and information that would

have proven Child was not dependent?

____________________________________________

keeping Child and her sibling together was more important than the two

children residing in “separate kinship placements.” LCCYS’s Brief at 13-14.

-5-

J-A01039-22

Father’s Brief at 4-5 (some formatting altered).2

Our standard of review is as follows:

In reviewing an order in a dependency matter, our standard of

review requires us to accept the findings of fact and credibility

determinations of the trial court if they are supported by the

record, but does not require the appellate court to accept the

lower court’s inferences or conclusions of law. Accordingly, we

review for an abuse of discretion.

In re Interest of N.B., 260 A.3d 236, 245 (Pa. Super. 2021) (Bucks County)

(citation omitted and quotations omitted).3

We are guided by the following principles:

To adjudicate a child dependent, a trial court must determine, by

clear and convincing evidence, that the child:

is without proper parental care or control, subsistence,

education as required by law, or other care or control

necessary for his physical, mental, or emotional health, or

morals. A determination that there is a lack of proper

parental care or control may be based upon evidence of

conduct by the parent, guardian or other custodian that

places the health, safety or welfare of the child at risk.

____________________________________________

2 Father’s brief combines his second, third, and fourth issues into one

argument, and his sixth and seventh issues into one argument. We will

address them in the same manner. Additionally, we note that an appellant

has a duty to ensure that the certified record is complete. Although the

certified record does not contain transcripts of testimony from the dependency

hearing, a copy of the relevant transcript was included in Father’s reproduced

record. LCCYS has not objected to the accuracy of those copies. Therefore,

we decline to find waiver. See Pa.R.A.P. 1921, note (citing Commonwealth

v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)).

3 In this memorandum, we cite two Superior Court cases, both of which are

captioned In re N.B. In order to differentiate these cases, we have added

their counties of origin, Bucks County, and Philadelphia County.

-6-

J-A01039-22

42 Pa.C.S. § 6302. Clear and convincing evidence has been

defined as testimony that is so clear, direct, weighty, and

convincing as to enable the trier of facts to come to a clear

conviction, without hesitancy, of the truth of the precise facts in

issue.

In accordance with the overarching purpose of the Juvenile Act to

preserve the unity of the family whenever possible, a child will

only be declared dependent when he is presently without proper

parental care and when such care is not immediately available.

This Court has defined proper parental care as that care which (1)

is geared to the particularized needs of the child and (2) at a

minimum, is likely to prevent serious injury to the child.

In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (citations omitted and

formatting altered); accord 42 Pa.C.S. § 6351(a).

In determining whether a non-custodial parent may provide proper care

and control, this Court has previously considered the level of that parent’s

involvement in the child’s life. See, e.g., In re B.B., 745 A.2d 620, 623 (Pa.

Super. 1999). Where a parent is a stranger to and has not had a relationship

with a child, a trial court may find that the parent cannot be designated as a

parental caregiver. Id. Essentially, a parent cannot be “a fit parent by

default.” Id.

“Following a finding of dependency, the trial court may make an order

for the child’s disposition pursuant to the Juvenile Act, which is best suited to

the safety, protection and physical, mental, and moral welfare of the child.”

In re A.C., 237 A.3d 553, 564 (Pa. Super. 2020) (formatting altered, citation

and footnote omitted). One such disposition is removal of the child from her

home:

-7-

J-A01039-22

Under the provisions of the Juvenile Act, . . . the trial court is given

broad discretion in meeting the goal of entering a disposition best

suited to the protection and physical, mental, and moral welfare

of the child. The trial court’s decision to permit a child to either

remain with his present caretaker(s), or to temporarily transfer

custody to a qualified agency or individual, is subject only to the

express limitation that the disposition be in the best interest of

the child.

A.C., 237 A.3d at 565 (citations omitted, some formatting altered). “[T]he

child’s proper placement turns on what is in the child’s best interest, not on

what the parent wants or which goals the parent has achieved.” In re J.J.,

69 A.3d 724, 732 (Pa. Super. 2013) (citation omitted).

In determining whether to remove a child from parental care, this Court

has explained:

The law is clear that a child should be removed from her

parent’s custody and placed in the custody of a state agency

only upon a showing [by the petitioner] that removal is

clearly necessary for the child’s well-being. In addition, this

Court had held that clear necessity for removal is not shown

until the hearing court determines that alternative services

that would enable the child to remain with her family are

unfeasible.

In addition, this Court has stated it is not for this Court, but for

the trial court as fact finder, to determine whether a child’s

removal from her family was clearly necessary.

A.B., 63 A.3d at 349-50 (citations omitted and formatting altered).

“[A] decision to remove a child from his or her parents’ custody must

be reconciled with the ‘paramount purpose’ of preserving family unity.” In re

A.L., 779 A.2d 1172, 1175 (Pa. Super. 2001) (citation omitted). Further, this

Court has explained:

-8-

J-A01039-22

We have previously recognized that reconciling the court’s

decision to remove a child from her parents’ custody with the

paramount purpose of preserving the family unity may require

that temporary custody of the child be given to someone other

than the parents until such time as the welfare of the child no

longer demands that [she] be separated from [her] parents. [In

re S.M., 614 A.2d 312, 314-15 (Pa. Super. 1992) (citing In re

Frank W.D., 462 A.2d 708 (Pa. Super. 1983)] (decrees

concerning children are temporary and subject to modification to

meet changing conditions; appellant may institute proceedings to

recover her child and present evidence or professional evaluations

regarding any improvement in her parenting skills and abilities)).

A.C., 237 A.3d at 566.

Adjudication of Dependency

Father first argues that the trial court erred in adjudicating Child

dependent because she was not without a parent or parental care and control.

Father’s Brief at 20. He contends that at the time of the hearing, he was

ready, willing, and able to provide care for Child. Father disputes that because

he was not actively involved with Child’s life, he was not able to parent her.

Id. He contends that LCCYS did not provide testimony or evidence regarding

any concerns related to his ability to care for Child.4 Id. Father does not

dispute that Mother was unable to provide proper parental care or control for

Child. Id.

By way of background to this issue, LCCYS caseworker Zachary Northen,

testified that Father had not been involved with Child’s life, had not had

contact with her for seven years, and that Child would not recognize him. N.T.

____________________________________________

4 The trial court discusses its adjudication in relation to Mother’s ability to

provide parental care and control to Child but does not address Father’s

argument. See Trial Ct. Op. at 8.

-9-

J-A01039-22

Dependency H’rg, 7/19/21, at 11. Mr. Northen also testified that, prior to the

hearing, Father had not been actively involved with LCCYS’s attempts to set

up a Zoom call for him to meet Child, and Father had not responded to Mr.

Northen’s attempts to contact him by phone. Id. Mr. Northen also stated

that in the two phone calls he conducted with Father, Father claimed that

Mother “kept the children away from him” and “he just stayed in Texas. I don’t

know the whole story.” Id. at 28-29.

Father testified that he was involved with Child for the first four years

of her life, but after he moved to Texas, Mother would not allow him to have

contact with Child, despite his attempts to call and visit. Id. at 40-41. Father

stated that the last time he visited with Child was when she was approximately

three years old. Id. at 40. Father admitted that prior to moving to Texas, his

contact with Child was minimal and mostly limited to holidays. Id. at 46-47.

Child stayed overnight at Paternal Grandparents’ house with Father present

once, but Father never had a place of his own to house Child. Id.

When questioned, Father stated that he tried to reach out “numerous

times” and had made “attempts” to visit, but it was “always something that

either I couldn’t come up to Pennsylvania or [Mother] was busy. It didn’t work

out at the time.” Id. at 41. Father also claimed that he could not make phone

calls because he “was continuously working.” Id. With regard to initiating a

custody matter, Father claimed that “no family attorneys in Texas will touch

anything in Pennsylvania . . . I tried [to contact Pennsylvania attorneys] but

again it’s the distance . . . It wouldn’t work out.” Id. Father testified he had

- 10 -

J-A01039-22

never received a call about the Zoom meeting, and that he attempted

seventeen times to reach out to Mr. Northen but did not receive responses.

Id. at 42. Father claimed that following the missed Zoom call, he again

attempted to contact Mr. Northen and received no response. Id. at 42-43.

After considering this testimony, the trial court observed:

I’m familiar with the concept of you’re way out of town and it’s

easy for someone to keep the child from you . . . I can understand

all of the practical problems. I just can’t feel that they are more

important than my relationship with my children or anyone’s

relationship with their child.

It’s been four years. If we were talking four weeks or four months,

I get it. But it’s four years. And in seven years, there has been

one overnight and that occurred at your parents’ house.

N.T. at 62. The court also noted that LCCYS needed to make a more

concentrated effort to respond to phone calls in a timely fashion. Id. at 64-

65. Thus, though the court concluded that LCCYS needed to better

communicate with Father, it placed more weight upon the fact that Father had

not attempted to forge a relationship with Child in four years.

Pursuant to our standard of review, we conclude that there was no abuse

of discretion, especially where Father did not initiate a custody matter, either

in Pennsylvania before his move, or in Texas after his move. N.B., 260 A.3d

at 245 (Bucks County); see also N.T. at 41-43. The court may determine

what weight to afford testimony. N.B., 260 A.3d at 245 (Bucks County).

Given that Father was admittedly not involved in Child’s life for at least four

years, it was not an abuse of discretion for the trial court to find that Child

- 11 -

J-A01039-22

was without proper parental care or control, regardless of Mother’s alleged

refusal to let Father see Child or any failure on the part of LCCYS. B.B., 745

A.2d at 623 (noting that a parent may not be considered “a fit parent by

default”). Accordingly, Father is not entitled to relief on his first issue.

Child’s Placement in Foster Care

Father’s next arguments, relating to his second, third, fourth, and fifth

issues, all involve Child’s placement in foster care. He contends that the trial

court erred by removing Child from the home and placing her in foster care,

because it was not the least restrictive placement and reasonable efforts were

not made to prevent the need for removal. Father’s Brief at 22-27.

Essentially, Father contends that the court should have provided alternative

services, such as contacting the local Texas child welfare agency to arrange

for in-home services to be implemented to ensure he was maintaining active

involvement in Child’s life while she was in his custody in Texas. Id. In the

alternative, Father argues that Child’s paternal grandparents were willing to

care for her. Id. at 26-28.

The trial court addressed Child’s placement as follows:

Having found [Child] dependent, the [c]ourt considered the

appropriate disposition under 42 Pa. C.S. § 6351. The [c]ourt had

found at proceedings prior to the Dependency Hearing that the

lack of services to prevent removal from the home had been

reasonable given that the children had been left alone and LCCYS

had attempted and been unable to locate their parents. Given the

emergent nature of LCCYS’s assumption of custody, returning

[Child] to Mother’s custody even under supervision would not be

appropriate at this stage. While Mother had successfully

completed a thirty-day detox at the time of the Dependency

- 12 -

J-A01039-22

Hearing, she has not yet demonstrated that she can maintain a

stable home environment that would be safe for [Child] and would

meet [Child’s] educational needs. Placement outside the home

will allow [Child] time to start school and Mother time to maintain

sobriety. Father has had no contact with [Child] since she was

three, so returning her to his custody will first require time to

establish a relationship.

In addition to the parents, LCCYS has been in contact with

Mother’s mother, Father’s mother, and the mother of the father of

[Child’s] sibling. [E.G.’s] mother knows both children and is

willing to be a resource for both, however the children will not be

able to reside with her should [E.G.] return to her home when he

leaves rehab. The same is true of the maternal grandmother,

because Mother lives with her. Paternal Grandmother has

indicated that she wants to be a resource for [Child,] but as with

Father the Minor Child does not have an established relationship

with her paternal grandparents. The siblings have a strong bond

with each other. Both children are safe in the non-relative kinship

foster care setting. The foster mother has begun to provide

[Child] with resources to learn to read. Unlike placement with her

paternal grandparents, the kinship foster care will permit [Child]

to remain with her sibling. The [c]ourt therefore found that

transferring temporary legal custody of [Child] to LCCYS and

keeping [Child] in the foster placement was the disposition best

suited to the safety, protection and physical, mental and moral

welfare of [Child]. See 42 Pa. C.S. § 6351 (a)(2)(iii).

Trial Ct. Op. at 8-9.

Our review confirms that the trial court’s findings are supported by the

record. As noted previously, neither Father nor Paternal Grandparents had

any relationship with Child. N.T. at 46-47. Mr. Northen and the court both

recognized Child’s strong bond with her half-sibling and how important it was

to keep the children together, even in a non-kinship placement. Id. at 15-

16, 60-61. The record also reflects that neither Father nor Paternal

Grandparents were prepared to take Child’s sibling into care. Id. at 12, 25-

- 13 -

J-A01039-22

26, 47-48. Father’s suggestion that the court should have immediately

removed Child from the home and sent her to Texas with him would, likewise,

have “wrenched” her from the presence of her sister and placed her in a

distant and unfamiliar environment outside of the supervision of the court.

See, e.g., Father’s Brief at 27. In the instant case, Mother could not care for

Child, and there were no other suitable kinship placements for her after Mother

lost custody of Child in May, 2021. See Trial Ct. Op. at 8-9.

In determining a placement for a child, the paramount concern is the

child’s best interests. A.C., 237 A.3d at 565. Therefore, the trial court did

not abuse its discretion when it determined that it was in Child’s best interest

to remain in Pennsylvania with her sibling, and that a non-kinship foster care

placement was the best means to achieve that goal, as neither Father nor

Paternal Grandparents would take in Child’s half-sibling. Id. Accordingly,

under the circumstances of this case, we conclude that Father’s argument that

LCCYS failed to exercise reasonable efforts to prevent placement warrants no

relief. See A.B., 63 A.3d at 349.

Effective Representation of Counsel

Finally, Father raises arguments regarding the effectiveness of court-

appointed counsel’s representation during the dependency hearing.5 Father’s

____________________________________________

5 The trial court did not address the quality of counsel’s representation in its

Rule 1925(a) opinion beyond noting that “the [c]ourt may only rule on the

evidence introduced in the record; therefore, any information [Father’s]

[c]ounsel at the [d]ependency [h]earing may have known and failed to

introduce is outside of the [c]ourt’s knowledge.” Trial Ct. Op. at 3.

- 14 -

J-A01039-22

Brief at 28. Father contends that court-appointed counsel did not elicit

relevant testimony, did not present evidence that would have supported

Father’s position, and did not competently question and cross-examine

witnesses. Id. at 28-34. In support of his argument, Father attached to his

brief an affidavit listing various aspects of Mr. Northen’s testimony which he

claimed were untrue, and listing various facts that Father claims his counsel

did not introduce into evidence through his own direct examination.6 See

Father’s Brief at 110-112.

During dependency proceedings,

[i]t is well-settled that there exists in parents a right to counsel in

dependency cases, which right derives from [the Juvenile Act, 42

Pa.C.S. § 6337]. This right to counsel has also been expressed as

a right to effective assistance of counsel, such that the denial of

effective assistance is tantamount to having proceeded with no

counsel at all.

In re N.B., 817 A.2d 530, 535 (Pa. Super. 2003) (Philadelphia County) (some

citations omitted).

____________________________________________

6 To the extent that Father argues that his due process rights were violated,

he does not fully develop and argue this issue, nor does he support his claim

with citations to the relevant authority. Thus, he has waived this claim for

purposes of appeal. See In re M.Z.T.M.W., 163 A.3d 462, 465–66 (Pa.

Super. 2017) (holding that where “an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is waived”)

(citation and quotation omitted)).

- 15 -

J-A01039-22

In examining the differences between the ineffectiveness standard used

in criminal matters and the ineffectiveness standard used in dependency

cases,7 this Court has explained:

Under the criminal standard, in order to prevail on an

ineffectiveness of counsel challenge, the appellant must show that

she had a claim of arguable merit, that counsel handled the claim

unprofessionally and that counsel’s action caused her prejudice.

Commonwealth v. Ferrari, [593 A.2d 846 (Pa. Super. 1991)].

We hold that in the context of a dependency proceeding, before

counsel can be deemed ineffective, under the above stated

criminal standard, the appellant must make a strong showing of

ineffectiveness of counsel. Under this heightened test the parent

must come forward with evidence that indicates to a high degree

of likelihood that but for an unprofessional error on the part of

counsel, the child would not have been found to be dependent.

S.M., 614 A.2d at 315–16.

Counsel is presumed effective and an appellant has the burden to prove

otherwise. See, e.g., Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa.

2012). Where ineffective assistance of counsel is alleged in the context of a

dependency hearing, the appellant must show by clear and convincing

evidence that counsel handled the matter unprofessionally, and that it is more

likely than not that the result would have been different, absent the

____________________________________________

7 The court noted that there had previously been a tension in establishing this

standard between “adopting a new rule of fundamental fairness” and

“adopting the standard of ineffectiveness applied in the criminal law.” S.M.,

614 A.2d at 315–16. The panel noted issues with both standards, specifically

“the rule of fundamental fairness does not provide a sufficiently clear test,

adoption of the standard applied in criminal cases is also inappropriate in that

such an approach focuses too heavily on the rights of the parents at the

expense of the interests of the child.” Id.

- 16 -

J-A01039-22

ineffectiveness. In re K.D., 871 A.2d 823, 829 (Pa. Super. 2005). The

appellant must make a strong showing of ineffective assistance of counsel;

i.e. actual prejudice. S.M., 614 A.2d at 316.

Father’s claims regarding ineffective assistance of counsel may be

separated into two basic categories: that counsel failed to elicit testimony on

direct and cross-examination, and that court-appointed counsel was not

available when Father attempted to contact him. See Father’s Brief at 28-34.

With regard to Father’s first argument, he claims that he was not

provided with notice by LCCYS of either Child’s placement into emergency

protective custody, or of the shelter care hearing, and that his numerous

attempts to contact Mr. Northen or his supervisors were unsuccessful. Id.

Father contends that had he been able to visit with Child prior to the hearing,

the Agency would have been able to see that Child knew him and that they

had a “good relationship.” Id. In support of this assertion, Father also

claimed that he resided with Child from the time of her birth until she was four

years old, maintained contact with her after first moving to Texas, had

multiple “overnight visits at my parents[’] home and over the holidays” and

that Mother cut off all contact in September 2018. Id. Father avers that

counsel did not adequately introduce this information during the hearing. Id.

With regard to Father’s second argument, Father contends that court-

appointed counsel was ineffective because he attempted to contact her by

telephone and email and was not able to do so. Id. at 30-31.

- 17 -

J-A01039-22

Many of these claims contradict Father’s own testimony at the

dependency hearing. Contrary to his assertions that counsel did not elicit

testimony regarding Mr. Northen’s failure to contact him, Father testified at

length regarding Mr. Northen’s alleged failure to contact him and set up the

Zoom call, both on direct and cross-examination. N.T. at 40-47. Similarly,

contrary to his assertions, Father’s own testimony established that he had

only one overnight visit with Child at his parents’ house; that he only saw her

on holidays; and that his general contact was minimal. Id. at 40, 46-47.

Regarding his claims that Child knew him and recognized him and regarding

court-appointed counsel’s alleged failure to communicate, court-appointed

counsel asked Father, “Is there any other information that you want to share

with the court today?” Id. at 44. Father replied, “No, ma’am.” Id. Father

did not testify that he had a significant relationship with Child, nor did he

testify that he was dissatisfied with the representation of counsel, nor did he

request a continuance so that he might have more time to prepare. See,

e.g., id.

Father has not proven by clear and convincing evidence that counsel

handled the matter unprofessionally, and that it is more likely than not that

the result would have been different, absent the ineffectiveness because

Father’s claims contradict his own testimony and are not supported by the

record. See K.D., 871 A.2d at 829. Accordingly, we discern no prejudice and

conclude that court-appointed counsel was not ineffective. See S.M., 614

A.2d at 316.

- 18 -

J-A01039-22

Conclusion

For these reasons, we conclude that there was no abuse of discretion,

or legal error in the trial court’s determination that LCCYS satisfied its burden

by clear and convincing evidence, which is supported by the record, and that

Father is not entitled to have Child placed in his care. N.B., 260 A.3d at 245

(Bucks County); A.B., 63 A.3d at 349; B.B., 745 A.2d at 623. Additionally,

we agree with the trial court that the placement of Child was the least

restrictive placement available. Further, we conclude that Father has failed

to prove ineffective assistance of counsel. Therefore, no relief is due. See

S.M., 614 A.2d at 316. Accordingly, we affirm the trial court’s dependency

order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/01/2022

- 19 -