In the Int. of: A.G., a Minor ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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APPEAL OF: R.G., FATHER :
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: 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
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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,]
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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.
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[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).
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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)
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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?
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keeping Child and her sibling together was more important than the two
children residing in “separate kinship placements.” LCCYS’s Brief at 13-14.
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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.
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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.
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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:
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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:
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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.
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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
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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
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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
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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-
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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
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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.
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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).
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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)).
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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
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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 -
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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.
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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.
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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
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