J-S03004-25
2025 PA Super 51
WASHINGTON COUNTY CHILDREN : IN THE SUPERIOR COURT OF AND YOUTH SERVICES OBO H.B : PENNSYLVANIA MINOR CHILD : : : v. : : : JOEL GALLAGHER : No. 1030 WDA 2024 : Appellant :
Appeal from the Order Entered August 8, 2024 In the Court of Common Pleas of Washington County Civil Division at No(s): 2021-5035
BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.
OPINION BY KUNSELMAN, J.: FILED: March 3, 2025
Joel Gallagher appeals from the order entered against him under the
Protection from Abuse (PFA) Act1 on the petition of Washington County
Children and Youth Services (CYS) on behalf of his infant son, H.B. We hold
that CYS is not a “parent, adult household member or guardian ad litem” who
can commence a PFA proceeding under 23 Pa.C.S. § 6106(a). Accordingly,
we reverse.
On August 2, 2021, CYS filed a petition for protection from abuse on
behalf of H.B. against Gallagher. The petitioner2 checked a box to indicate
that CYS was an “applicant for appointment as guardian ad litem” of H.B., who ____________________________________________
1 1990, Dec. 19, P.L.1240, No. 206, as amended, 23 Pa.C.S. §§ 6101–6122.
2 The person who signed the petition did not testify, and her name does not
appear elsewhere in the record. J-S03004-25
was less than one year old. After several continuances, the matter proceeded
to a hearing on July 29, 2024.
At the hearing, Gallagher moved to dismiss for lack of standing. The
trial court denied the motion. Two witnesses testified that Gallagher said he
would stab the child in the neck. MariAnn Hathaway, the guardian ad litem in
H.B.’s dependency case, also testified for CYS. She explained that CYS filed
a PFA petition because CYS had legal and physical custody of H.B., and
because the CYS office was closer to the courthouse than hers. Attorney
Hathaway noted that she had appeared at every scheduled PFA proceeding,
although she agreed that it was CYS, not she, who filed the petition.
The trial court entered a three-year, final PFA order at the conclusion of
the hearing and an amended order on August 8, 2024. Gallagher timely
appealed. After this Court remanded for Gallagher to file a concise statement
of errors complained of on appeal, Gallagher and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.3
On appeal, Gallagher claims first that CYS lacked standing and second
that the evidence did not establish that he abused H.B. Because Gallagher’s
first claim is meritorious, we do not reach Gallagher’s second claim.
The question of whether the PFA Act grants standing to a petitioner is a
question of law, for which our standard of review is de novo and our scope of ____________________________________________
3 The case was designated as a children’s fast track appeal. This Court denied Gallagher’s motion to remove the designation and directed him to file a Rule 1925(b) statement. Gallagher complied and thereby avoided waiving all his issues. In re K.T.E.L., 983 A.2d 745, 747 n.1 (Pa. Super. 2009).
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review is plenary. Evans v. Braun, 12 A.3d 395, 398 (Pa. Super. 2010)
(citing Scott v. Shay, 928 A.2d 312, 313 (Pa. Super. 2007)). Our objective
in interpreting the PFA Act “is to ascertain and effectuate the General
Assembly’s intention.” Commonwealth v. Stevenson, 283 A.3d 196, 204
n.3 (Pa. 2022) (citing 1 Pa.C.S. § 1921(a)). “When the words of a statute are
clear and free from ambiguity, the letter of the statute is not to be disregarded
under the pretext of pursuing its spirit.” Id. (citing 1 Pa.C.S. § 1921(b)).
At issue is subsection 6106(a) of the PFA Act, titled “Commencement of
proceedings.” The statute allows “any parent, adult household member or
guardian ad litem” to seek relief on behalf of a minor child. In full:
General rule.--An adult or an emancipated minor may seek relief under this chapter for that person or any parent, adult household member or guardian ad litem may seek relief under this chapter on behalf of minor children, or a guardian of the person of an adult who has been declared incompetent under 20 Pa.C.S. Ch. 51 Subch. B (relating to appointment of guardian) may seek relief on behalf of the incompetent adult, by filing a petition with the court alleging abuse by the defendant.
23 Pa.C.S. § 6106(a).4
Thus, because H.B. is a minor child, CYS only had statutory authority to
initiate a PFA action on H.B.’s behalf if CYS was H.B.’s “parent, adult household
member or guardian ad litem.” At different times throughout this case, it was
suggested that each of these categories applied to CYS. However, as we ____________________________________________
4 The parties and trial court accept without further analysis that subsection
6106(a) implicates standing, i.e., that a person not listed in the statute lacks the ability to seek relief on behalf of another person. We agree. Cf. Scott v. Shay, 928 A.2d 312, 314 (Pa. Super. 2007) (citing 23 Pa.C.S. § 6106(a) when describing the requirement of standing in a PFA proceeding).
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discuss below, the PFA Act and the facts of this case do not support a reading
that CYS fits any of these categories.
“Parent”
First, the trial court reasoned that CYS had standing because CYS
“stepped into the role of H.B.’s parents” after H.B. was adjudicated dependent.
Trial Court Opinion, 10/9/24, at 5. Without citation to authority, the court
stated that “an individual serving as guardian or in loco parentis may file for
a protection from abuse order as they are acting as the parent.” Id. at 6.
Because CYS had legal and physical custody of H.B., as well as a panoply of
statutory rights, the trial court determined that CYS could file a PFA petition
on H.B.’s behalf. The trial court observed that allowing CYS to initiate a PFA
proceeding would serve the protective goals of the PFA Act and the Child
Protective Services Law.
The PFA Act does not define “parent.”5 The “common and approved
usage” of the term includes biological and adoptive parents, as well as those
standing in loco parentis. Peters v. Costello, 891 A.2d 705, 713 (Pa. 2005)
(surveying dictionaries). A person stands in loco parentis, literally “in place
of a parent,” by assuming parental status and discharging parental duties.
Hunt v. Vardaro, 317 A.3d 1046, 1050 (Pa. Super. 2024) (quoting K.W. v. ____________________________________________
5 The PFA Act refers to the Crimes Code for terms not otherwise defined. 23 Pa.C.S. § 6102(b). Although three criminal statutes define “parent,” those definitions are specific to each offense. See 18 Pa.C.S. §§ 2902(d) (unlawful restraint), 2903(d) (false imprisonment), 3132(e) (female mutilation) (each defining “parent” “[a]s used in this section”).
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S.L., 157 A.3d 498, 504–05 (Pa. Super. 2017)). Critically, however, “in loco
parentis status cannot be achieved without the consent and knowledge of, and
in disregard of, the wishes of a parent.” Id. Thus, a third party “can not place
himself in loco parentis in defiance of the parents’ wishes and the parent/child
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J-S03004-25
2025 PA Super 51
WASHINGTON COUNTY CHILDREN : IN THE SUPERIOR COURT OF AND YOUTH SERVICES OBO H.B : PENNSYLVANIA MINOR CHILD : : : v. : : : JOEL GALLAGHER : No. 1030 WDA 2024 : Appellant :
Appeal from the Order Entered August 8, 2024 In the Court of Common Pleas of Washington County Civil Division at No(s): 2021-5035
BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.
OPINION BY KUNSELMAN, J.: FILED: March 3, 2025
Joel Gallagher appeals from the order entered against him under the
Protection from Abuse (PFA) Act1 on the petition of Washington County
Children and Youth Services (CYS) on behalf of his infant son, H.B. We hold
that CYS is not a “parent, adult household member or guardian ad litem” who
can commence a PFA proceeding under 23 Pa.C.S. § 6106(a). Accordingly,
we reverse.
On August 2, 2021, CYS filed a petition for protection from abuse on
behalf of H.B. against Gallagher. The petitioner2 checked a box to indicate
that CYS was an “applicant for appointment as guardian ad litem” of H.B., who ____________________________________________
1 1990, Dec. 19, P.L.1240, No. 206, as amended, 23 Pa.C.S. §§ 6101–6122.
2 The person who signed the petition did not testify, and her name does not
appear elsewhere in the record. J-S03004-25
was less than one year old. After several continuances, the matter proceeded
to a hearing on July 29, 2024.
At the hearing, Gallagher moved to dismiss for lack of standing. The
trial court denied the motion. Two witnesses testified that Gallagher said he
would stab the child in the neck. MariAnn Hathaway, the guardian ad litem in
H.B.’s dependency case, also testified for CYS. She explained that CYS filed
a PFA petition because CYS had legal and physical custody of H.B., and
because the CYS office was closer to the courthouse than hers. Attorney
Hathaway noted that she had appeared at every scheduled PFA proceeding,
although she agreed that it was CYS, not she, who filed the petition.
The trial court entered a three-year, final PFA order at the conclusion of
the hearing and an amended order on August 8, 2024. Gallagher timely
appealed. After this Court remanded for Gallagher to file a concise statement
of errors complained of on appeal, Gallagher and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.3
On appeal, Gallagher claims first that CYS lacked standing and second
that the evidence did not establish that he abused H.B. Because Gallagher’s
first claim is meritorious, we do not reach Gallagher’s second claim.
The question of whether the PFA Act grants standing to a petitioner is a
question of law, for which our standard of review is de novo and our scope of ____________________________________________
3 The case was designated as a children’s fast track appeal. This Court denied Gallagher’s motion to remove the designation and directed him to file a Rule 1925(b) statement. Gallagher complied and thereby avoided waiving all his issues. In re K.T.E.L., 983 A.2d 745, 747 n.1 (Pa. Super. 2009).
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review is plenary. Evans v. Braun, 12 A.3d 395, 398 (Pa. Super. 2010)
(citing Scott v. Shay, 928 A.2d 312, 313 (Pa. Super. 2007)). Our objective
in interpreting the PFA Act “is to ascertain and effectuate the General
Assembly’s intention.” Commonwealth v. Stevenson, 283 A.3d 196, 204
n.3 (Pa. 2022) (citing 1 Pa.C.S. § 1921(a)). “When the words of a statute are
clear and free from ambiguity, the letter of the statute is not to be disregarded
under the pretext of pursuing its spirit.” Id. (citing 1 Pa.C.S. § 1921(b)).
At issue is subsection 6106(a) of the PFA Act, titled “Commencement of
proceedings.” The statute allows “any parent, adult household member or
guardian ad litem” to seek relief on behalf of a minor child. In full:
General rule.--An adult or an emancipated minor may seek relief under this chapter for that person or any parent, adult household member or guardian ad litem may seek relief under this chapter on behalf of minor children, or a guardian of the person of an adult who has been declared incompetent under 20 Pa.C.S. Ch. 51 Subch. B (relating to appointment of guardian) may seek relief on behalf of the incompetent adult, by filing a petition with the court alleging abuse by the defendant.
23 Pa.C.S. § 6106(a).4
Thus, because H.B. is a minor child, CYS only had statutory authority to
initiate a PFA action on H.B.’s behalf if CYS was H.B.’s “parent, adult household
member or guardian ad litem.” At different times throughout this case, it was
suggested that each of these categories applied to CYS. However, as we ____________________________________________
4 The parties and trial court accept without further analysis that subsection
6106(a) implicates standing, i.e., that a person not listed in the statute lacks the ability to seek relief on behalf of another person. We agree. Cf. Scott v. Shay, 928 A.2d 312, 314 (Pa. Super. 2007) (citing 23 Pa.C.S. § 6106(a) when describing the requirement of standing in a PFA proceeding).
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discuss below, the PFA Act and the facts of this case do not support a reading
that CYS fits any of these categories.
“Parent”
First, the trial court reasoned that CYS had standing because CYS
“stepped into the role of H.B.’s parents” after H.B. was adjudicated dependent.
Trial Court Opinion, 10/9/24, at 5. Without citation to authority, the court
stated that “an individual serving as guardian or in loco parentis may file for
a protection from abuse order as they are acting as the parent.” Id. at 6.
Because CYS had legal and physical custody of H.B., as well as a panoply of
statutory rights, the trial court determined that CYS could file a PFA petition
on H.B.’s behalf. The trial court observed that allowing CYS to initiate a PFA
proceeding would serve the protective goals of the PFA Act and the Child
Protective Services Law.
The PFA Act does not define “parent.”5 The “common and approved
usage” of the term includes biological and adoptive parents, as well as those
standing in loco parentis. Peters v. Costello, 891 A.2d 705, 713 (Pa. 2005)
(surveying dictionaries). A person stands in loco parentis, literally “in place
of a parent,” by assuming parental status and discharging parental duties.
Hunt v. Vardaro, 317 A.3d 1046, 1050 (Pa. Super. 2024) (quoting K.W. v. ____________________________________________
5 The PFA Act refers to the Crimes Code for terms not otherwise defined. 23 Pa.C.S. § 6102(b). Although three criminal statutes define “parent,” those definitions are specific to each offense. See 18 Pa.C.S. §§ 2902(d) (unlawful restraint), 2903(d) (false imprisonment), 3132(e) (female mutilation) (each defining “parent” “[a]s used in this section”).
-4- J-S03004-25
S.L., 157 A.3d 498, 504–05 (Pa. Super. 2017)). Critically, however, “in loco
parentis status cannot be achieved without the consent and knowledge of, and
in disregard of, the wishes of a parent.” Id. Thus, a third party “can not place
himself in loco parentis in defiance of the parents’ wishes and the parent/child
relationship.” T.B. v. L.R.M., 786 A.2d 913, 917 (Pa. 2001) (citations
omitted). Notably, when the rights of a child’s parents are terminated by
decree, a county agency or person receiving custody obtains in loco parentis
status over the child. 23 Pa.C.S. § 2521(c); see In re Adoption of Hess,
608 A.2d 10, 14 (Pa. 1992) (recognizing that an agency stood in loco parentis
under subsection 2521(c) since the rights of a child’s natural parents were
terminated).
We accept for our analysis that a “parent” who may file a PFA petition
on behalf of a minor includes a biological or adoptive parent, as well as a
person in loco parentis. Peters, supra. Here, however, the record does not
support that CYS stood in loco parentis at the time it filed the petition.
Although CYS had legal and physical custody of H.B. through a dependency
proceeding, the agency assumed this status by statute and in defiance of the
wishes of Gallagher, H.B.’s parent. The record does not reflect that
Gallagher’s parental rights had been terminated when CYS filed the PFA
petition; thus, CYS did not stand in loco parentis and was not a “parent” under
23 Pa.C.S. § 6106(a).
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“Adult household member”
Next, CYS argues in its appellate brief that it had standing as an “adult
household member”; CYS claims it was related to H.B. by “affinity.” Because
it was legally responsible for H.B.’s safety and welfare through the dependency
proceeding, CYS contends that it had standing to initiate a PFA action on H.B.’s
behalf.
Under the PFA Act, “family or household members” includes “persons
related by consanguinity or affinity.” 23 Pa.C.S. § 6102(a). While the statute
does not define “affinity,” we have held that term to includes relations by
marriage, so brothers- and sisters-in-law are “family or household members.”
McCance v. McCance, 908 A.2d 905, 909–10 (Pa. Super. 2006). The statute
defines “adult” as “[a]n individual who is 18 years of age or older.” 23
Pa.C.S. § 6102(a) (emphasis added).
Here, regardless of its role in a dependency case, CYS is not an
“individual” and thus cannot be an “adult household member” under 23
Pa.C.S. § 6106(a).
“Guardian ad litem”
Finally, when CYS filed the initial PFA petition in 2021, it checked the
box to indicate that it was an “applicant for appointment as guardian ad litem”
of H.B. CYS, as an agency, however, is not a licensed attorney (or other
professional) who can be appointed as a guardian ad litem for a child. See
42 Pa.C.S. § 6311(a) (requiring a guardian ad litem in a dependency
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proceeding to be an attorney at law); Pa.R.Civ.P. 1915.11–2(b) (requiring a
guardian ad litem in a custody proceeding to be a licensed attorney or licensed
mental health professional). Therefore, CYS cannot be a “guardian ad litem”
under 23 Pa.C.S. § 6106(a).
* * *
We conclude that CYS was not a “parent, adult household member or
guardian ad litem” of the infant H.B., and therefore lacked standing to file a
PFA petition on H.B.’s behalf. 23 Pa.C.S. § 6106(a). While we appreciate that
the trial court and CYS acted to protect the child’s safety, we cannot ignore
the plain language of the PFA Act. 1 Pa.C.S. § 1921(b). The legislature simply
has not included CYS in the class of persons who can file a PFA petition on
behalf of a minor.6, 7 Because we grant relief on Gallagher’s first claim, we do
not address his second claim.
Order reversed. Jurisdiction relinquished.
____________________________________________
6 The only exception would be if CYS gained in loco parentis status following
a termination of parental rights. 23 Pa.C.S. § 2521(c). 7 We observe that Attorney Hathaway was appointed as H.B.’s guardian ad
litem in the dependency case. Although neither she nor CYS thought to substitute her as the moving party in this PFA action, nothing in our decision prevents her from taking any appropriate legal action on behalf of H.B. moving forward.
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DATE: 3/3/2025
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