In re J.P.

BECK, Judge,

concurring.

The principal issue presented is whether a mother whose child was adjudicated dependent was wrongfully denied the *29effective assistance of counsel at the adjudication hearing. I agree with the majority that a decree adjudicating a child dependent may not be disturbed on appeal on the basis of the ineffectiveness of a parent’s counsel unless the performance of counsel affected the outcome of the dependency proceeding. I also agree that the appellant in this case has failed to prove that she was prejudiced by any error or omission on her counsel’s part. Accordingly, I concur in the result reached by the majority. However, I differ with some aspects of the majority’s legal reasoning.

S.P., the appellant in this case, is the mother of J.P., a young child. When J.P. was two years old, the Erie County Office of Children and Youth filed a petition seeking to have J.P. adjudged dependent in light of evidence that J.P. had been physically and sexually abused. Prior to the adjudication hearing, the Court of Common Pleas determined that appellant was indigent and appointed counsel to represent her. On January 15, 1988, the court entered an order adjudging J.P. dependent, and on February 5, 1988, the court entered a dispositional order placing J.P. under the care and supervision of the Office of Children and Youth (OC & Y). The court found that although all reasonable efforts had been made to prevent a foster care placement, the continued presence of J.P. in her mother’s home would be contrary to the welfare of the child. The court therefore directed OC & Y to place J.P. in foster care pending a six-month review hearing, and to seek an adoptive home for J.P. unless her foster parents agreed to keep her. The court also ordered appellant to undergo mental health counseling, and stated that if appellant complied with her treatment plan, consideration would be given to placing J.P. with her great-grandparents.

Appellant obtained new counsel and filed a timely appeal from the court’s dispositional order. She now seeks relief on the grounds that her trial counsel provided ineffective *30assistance at the dependency adjudication hearing.1

We are called upon to consider a challenge to the effectiveness of counsel raised on direct appeal from a dispositional order placing a dependent child in foster care. This case does not involve a collateral attack on a dispositional order entered after an adjudication of dependency. Nor does this case involve an application of the right to effective assistance of counsel to juvenile delinquency proceedings. The majority’s references to the writ of habeas corpus and to the rights of juveniles are obiter dictum. I would defer consideration of these matters until they are squarely presented for review.

Turning to the issue at hand, I fully agree with the majority that appellant has a right to the effective assistance of counsel. Appellant was the legal custodian of J.P. and as such was clearly a party to the dependency proceedings. In the Interest of Michael Y., 365 Pa.Super. 488, 496, 530 A.2d 115, 120 (1987). The Juvenile Act explicitly states that “a party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him.” 42 Pa.Cons.Stat.Ann. § 6337 (Purdon 1982). The clear implication of this language is that indigent parents whose children are subject to dependency proceedings have a right to the appointment of counsel who is capable of providing effective assistance. As the Pennsylvania Supreme Court noted when interpreting the right to counsel provision of the Mental Health Procedures Act, “[f]or the legislatively-created right to representation to have meaning, counsel must be effective.” In re Hutchinson, 500 Pa. 152, 157, 454 A.2d 1008, 1011 (1982). Any interpretation of the Juvenile Act that would permit the appointment of ineffective counsel at a dependency hearing would render the statutory *31right to counsel worthless and would subvert the intent of the legislature. Cf. Adoption of T.M.F., 392 Pa.Super. 598, 573 A.2d 1035, 1042 (1990) (en banc) (Beck, J., concurring) (discussing right to effective assistance of counsel in proceedings to terminate parental rights).

Since parents do have a right to the effective assistance of counsel in dependency proceedings, it is necessary to develop a standard for evaluating ineffectiveness claims raised on appeal from dependency orders. In fashioning a standard, we must bear in mind that a dependency hearing is not simply a contest between the parent and the state. As is the case in a parental termination proceeding, the result of the hearing has a direct, profound, and inevitable effect upon a third party — -the child. Once a child is adjudicated dependent and placed in foster care, it is of great importance that state agencies plan for the child’s future and act to ensure the child the benefits of a stable home environment. In most cases, the welfare of the child requires that state agencies move expeditiously toward one of two goals — reunifying the child with the parent as soon as the parent is able to accept and fulfill parental responsibilities, or terminating parental rights and placing the child for adoption where parental incapacities are such that reunification is impossible. See Changing the Goal of the Plan: When May the Reunification Goal Be Abandoned?, Children’s Rights Chronicle, Vol. 6 No. 3 (1987-88) (discussing permanency planning in dependency cases). Unfortunately, relitigation of the underlying dependency determination would create additional uncertainty for the child and would delay a final resolution of the problems that led to the initiation of dependency proceedings. Accordingly, where a dependency adjudication and disposition has been properly entered on the basis of sufficient evidence, the state has a powerful interest in preserving the finality of the trial court’s order on appeal.

In light of these special considerations, there is good cause for applying a more stringent test for measuring the effectiveness of parents’ counsel in dependency proceedings *32than for measuring the effectiveness of lawyers in most other settings. I would therefore adopt the heightened standard that I have previously argued should apply to claims of ineffectiveness of parents’ counsel in parental termination proceedings. Adoption of T.M.F., 392 Pa.Superior Ct. at - - -, at 573 A.2d 1035, 1053-1056 (Beck, J., concurring). A parent may not prevail if her ineffectiveness claim lacks arguable merit or if the disputed actions or omissions of her counsel were reasonably designed to effectuate her best interest. Moreover, the parent must come forward with evidence that a high degree of likelihood exists that but for an unprofessional error on counsel’s part, the trial court’s adjudication or the trial court’s dispositional decision would have been different.

I view these observations as consistent with the “fundamental fairness” doctrine proposed by the majority. Majority Op. at 18. I would caution, however, that an ineffectiveness of counsel claim must not be confused with a challenge to the sufficiency of the evidence supporting the dependency decree. Unless the trial court’s conclusion that the child is without proper parental care and that such care is not immediately available is supported by clear and convincing evidence, the decree must be reversed even ife parent has not challenged the effectiveness of counsel’s performance. See In the Interest of Anita H., 351 Pa.Super. 342, 505 A.2d 1014 (1986). On the other hand, if the parent specifically argues and establishes that the ineffective performance of counsel resulted in the entry of the trial court order, a new hearing must be held even if the dependency determination is supported by clear and convincing evidence. Cf. In Re Manuel, 389 Pa.Super. 80, 84, 566 A.2d 626, 629 n. 7 (1989) (denial of right to counsel requires remand despite sufficiency of evidence supporting adjudication of dependency).

Finally, I agree with the majority that the ineffectiveness of counsel claim presented in this case is without merit. I have independently reviewed the trial court record, and I conclude that appellant has failed to establish that any *33error on her counsel’s part altered the outcome of the dependency proceeding. The trial court order must be affirmed.

. The mother also argues that the trial court erred by finding clear and convincing evidence that her child was dependent, and by placing the child in a foster home rather than immediately placing the child with her great-grandparents. I agree with the majority that these claims are without merit.