P.G. v. A.C. and D.H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
A.C. AND D.H. : No. 947 WDA 2020
Appeal from the Order Entered August 21, 2020
In the Court of Common Pleas of Butler County Civil Division at No(s):
F.C. #20-90275-C
BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED: April 23, 2021
Appellant, P.G., appeals from the August 21, 2020 order granting the
preliminary objections of A.C. (“Mother”) and finding that P.G. lacks in-loco-
parentis standing to pursue custody of Mother’s daughter, H.C. (“Child”), born
in January of 2016. After careful review, we affirm.
Child is the daughter of Mother and D.H., who did not participate in this
proceeding. N.T., 7/28/20, at 18–19. P.G. and Mother were friends, who
engaged in one or two sexual encounters in 2013 or 2014, but they never
were in a prolonged romantic relationship. Id. at 9, 24–25, 48-49. Following
Child’s birth in January 2016, Mother stayed home and cared for Child until
October 2016. Id. at 8-12, 72. Mother returned to work and obtained a
position as a certified nurse’s assistant. Id. at 8–12. Mother and Child lived
alone at the time, and Mother’s grandmother cared for Child while Mother
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worked.1 Id. at 9. When Mother’s grandmother died in March of 2017, P.G.
offered to care for Child, and Mother accepted P.G.’s assistance. Id. at 12–
13, 72–74. P.G. cared for Child regularly over the next several years,
including at least two or three overnight periods each week. Id. at 13–14,
21, 34–40. This arrangement finally ended in February 2020. Id. at 21.
The dispute at the heart of this appeal relates to how much time P.G.
spent with Child during these years and P.G.’s status in Child’s life. On May
18, 2020, P.G. filed a complaint requesting shared legal and physical custody.
He averred that he stood in loco parentis with respect to Child, as he had
exercised an extensive caretaking schedule and provided for her medical,
emotional, and financial needs. P.G. also filed an emergency petition for
special relief on May 21, 2020, requesting an interim custody order pending
conciliation and raising concerns regarding Child’s safety. He averred that
Mother was in a relationship with a J.K., and that a temporary Protection from
Abuse (“PFA”) order recently had been entered against J.K., relating to his
own children as protected parties. Mother filed preliminary objections on June
5, 2020, challenging P.G.’s standing to pursue custody, averring that P.G.
merely was a childcare provider.
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1 Mother also had an eight-year-old son, who resided with Mother’s parents.
N.T., 7/28/20, at 9. That child is not involved in this case.
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The trial court held a hearing, at which Mother and P.G. testified, on July
28, 2020.2 Mother testified that her usual work shift is from 3:00 p.m. to
11:00 p.m. five days per week, but that she also began working double shifts
during the first year at her new job, from 3:00 p.m. to 7:00 a.m. two to three
nights per week. N.T., 7/28/20, at 11–15. Mother explained that P.G. usually
cared for Child during these two-to-three-overnight periods each week and
acknowledged that P.G. “[s]ometime[]” cared for Child at other times as well.
Id. at 13–14, 17, 34–40. Mother also acknowledged that Child would remain
in P.G.’s care after Mother’s double shifts so she could go home and sleep
before returning to work again. Id. at 16. Although Mother stopped working
double shifts in the spring or summer of 2019, she indicated that P.G.
continued to spend the same amount of time caring for Child until February
2020. Id. at 14–15, 21. Mother did not dispute that P.G. and Child shared a
bond. Id. at 25, 42 (“There would be a bond, correct. . . . She doesn’t bring
his name up as often as she did before. I’m sure she does [miss P.G.]”). Id.
at 42.
Regarding the amount of responsibility P.G. had while caring for Child,
Mother testified that P.G. contributed to Child’s care by buying formula and
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2 The purpose of the hearing was nominally to address Mother’s preliminary
objections and P.G.’s emergency petition for special relief, but the trial court
addressed only the merits of Mother’s preliminary objections, reasoning that
P.G.’s emergency petition for specific relief would be moot if P.G. lacked
standing. N.T., 7/28/20, at 3, 86–87.
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diapers “here and there.” N.T., 7/28/20, at 43–44. Mother stated that she
offered P.G. money for childcare services, but he declined. Id. at 16. Mother
explained that she does not drive, and P.G. assisted her with transportation
as well as childcare. Id. at 10, 43. Mother averred that she provided P.G.
with cash or her debit card to cover transportation expenses. Id. at 16, 44–
46. Mother also explained that she filed releases so that P.G. could take Child
to the doctor or the hospital in case of an emergency. Id. at 17. Mother
stated that P.G. was to keep her informed of any situation that arose, and
Mother retained decision-making authority in an emergency. Id. at 18. In
addition, Mother agreed that P.G. took Child to doctors’ appointments when
she was working. Id. at 41.
In contrast, P.G. testified that he spent extensive periods caring for
Child, even having her in his care for nearly two weeks during the summer of
2018. N.T., 7/28/20, at 54. P.G. presented text messages, which his counsel
used to cross–examine Mother, in support of this claim. The text messages
revealed that Mother asked P.G. to care for Child even when she was not
working, because she was having a bad day, wanted to spend time with her
friends, or myriad other reasons. Id. at 34–40. In one message sent in June
2019, Mother demanded that P.G. retrieve Child at 5:15 a.m., stating, “You
need to come get [Child]. . . . No. Come get her. You said to call if I need
anything. You need to come get her. Come get [Child].” Id. at 34. In
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another message sent in February 2019, Mother demanded that P.G. “come
get this f–ing kid right now. She is nonstop screaming.” Id. at 39.3
P.G. also endeavored to present himself as exercising a greater degree
of responsibility for Child than Mother had suggested. P.G. testified that he
was at the hospital at Mother’s request when Child was born and assisted with
Child’s care from the very beginning. N.T., 7/28/20, at 49, 70–71. He
maintained that he provided occasional support for Child by purchasing
formula and diapers even before he began caring for her overnight. Id. at
49–50. P.G. stated that he did not recall whether Mother offered to pay him
for childcare services, but he would have declined if she had. Id. at 57–58,
66–67. He conceded that Mother provided him with her debit card “a couple
times . . . where she would need me to pick something up or pay some bill for
her.” Id. at 50.
Although the parties disagreed regarding the extent of P.G.’s
involvement in Child’s life, they agreed that P.G.’s caretaking role ceased due
to Mother’s relationship with J.K. Mother testified that she began dating J.K.
in April 2019 and moved into J.K.’s apartment in September or October 2019,
although he was not living there at the time because he was incarcerated.
N.T., 7/28/20, at 19–22, 43. Mother suggested that J.K. was released in
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3 It appears the trial court admitted the text messages into evidence. N.T.,
7/28/20, at 87–89. However, they do not appear in the record certified to us
on appeal.
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January 2020, and P.G. became upset because J.K. was spending more time
with Child than he was. Id. at 22. Mother testified that she offered P.G. three
days per week with Child, but P.G. declined. Id. at 22–23. Mother maintained
that P.G. appeared hostile to Child developing a bond with any of the men she
dated.4 Id. at 23.
P.G. testified that he did not decline Mother’s offer of three days per
week with Child; rather, he claimed they never concluded their discussion on
the matter. N.T., 7/28/20, at 57–59, 64, 83–84. P.G. acknowledged that he
became upset when other men entered Child’s life but insisted it was because
Mother dated men of questionable character and brought Child into their
presence. Id. at 51. On cross–examination, Mother’s counsel pressed P.G.
about whether he had romantic feelings for Mother, and P.G. contended that
he loved Mother “as a friend, as family.” Id. at 65–66.
Following the hearing, the trial court entered the order on appeal on
August 21, 2020, concluding that P.G. did not possess in-loco-parentis
standing with respect to Child. The order sustained Mother’s preliminary
objections and denied P.G.’s emergency petition for special relief. P.G. timely
filed a notice of appeal on September 11, 2020, along with a concise statement
of errors complained of on appeal.
P.G. now presents the following claims for our review:
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4 Mother stated that she and J.K. broke up in May or June 2020 and last spoke
in June or July 2020. N.T., 7/28/20, at 19, 45.
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1. The Trial Court committed an abuse of discretion or error of law
in finding that [Appellant], P.G., lacked in loco parentis standing
based upon the frequent, continuing contact that he had with the
minor child, which was, at the least, encouraged and supported
by Mother and at times, even demanded by Mother.
2. The Trial Court committed an abuse of discretion or error of law
in finding that [Appellant], P.G., lacked in loco parentis standing
when Mother discharged her parental duties when [Child was] with
[P.G.], not only when she was working, but also when it was
convenient for Mother’s sleeping schedule or social activities.
3. The Trial Court committed an abuse of discretion or error of law
in not considering the best interests of the child in making its
determination.
P.G.’s Brief at 4.
“‘Threshold issues of standing are questions of law; thus, our standard
of review is de novo and our scope of review is plenary.’” K.W. v. S.L., 157
A.3d 498, 504 (Pa. Super. 2017) (quoting Rellick–Smith v. Rellick, 147
A.3d 897, 901 (Pa. Super. 2016)). Further:
Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
Shafer Electric & Construction v. Mantia, 67 A.3d 8, 10–11 (Pa. Super.
2013).
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P.G.’s claims are interrelated. In all three of his issues, P.G. challenges
the trial court’s conclusion that he lacks in-loco-parentis standing to pursue
custody of Child. P.G. contends that he cared for Child frequently and
effectively co-parented Child. P.G.’s Brief at 13–16. He argues that Mother
consented, and sometimes demanded, his significant role in Child’s life, and
he directs our attention to her text messages discussed supra. Id. Finally,
P.G. asserts that the trial court improperly failed to consider Child’s best
interests when rendering its decision. Id. at 16–18. He emphasizes that he
shares a bond with Child, which supports the conclusion that he stands in loco
parentis. Id.
Our child custody statute provides for only limited circumstances under
which an individual other than a parent may pursue custody of a child. 23
Pa.C.S. §§ 5324–5325. At issue instantly is Section 5324(2), which grants
standing to pursue any form of legal or physical custody to “[a] person who
stands in loco parentis to the child.” 23 Pa.C.S. § 5324(2). This Court has
explained in loco parentis standing as follows:
“The term in loco parentis literally means ‘in the place of a
parent.’” Peters v. Costello, 586 Pa. 102, 891 A.2d 705, 710
(2005) (citing Black’s Law Dictionary, 791 (7th Ed. 1991)). A
person stands in loco parentis with respect to a child when he or
she assumes the obligations incident to the parental relationship
without going through the formality of a legal adoption. The
status of in loco parentis embodies two ideas; first, the
assumption of a parental status, and second, the discharge of
parental duties. . . . [I]n loco parentis status cannot be achieved
without the consent and knowledge of, and in disregard of, the
wishes of a parent.
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K.W., 157 A.3d at 504–505 (some citations and quotation marks omitted).
There is no clear line of demarcation when an individual has attained in-
loco-parentis status. As this Court explained, “Whether or not such status
exists is a ‘question of fact to be determined by an evaluation of all of the
circumstances, rather than a matter of strict legal definition.’” Drawbaugh
v. Drawbaugh, 647 A.2d 240, 241 (Pa. Super. 1994). Review of the relevant
case law reveals that our courts have found in-loco-parentis standing most
often when the person seeking custody is a former stepparent or romantic
partner. See, e.g., T.B. v. L.R.M., 786 A.2d 913, 920 (Pa. 2001) (holding
that the mother’s former partner stood in loco parentis, where the partner
“established that she assumed a parental status and discharged parental
duties with the consent of [the mother]”). Our courts have also found in-loco-
parentis standing when the person seeking custody has acted as the child’s
primary or sole caregiver because of the incapacity or absence of the parents.
See, e.g., Peters, 891 A.2d at 706–714 (observing it was undisputed that
the appellees stood in loco parentis to a now-adult child, where the child’s
mother died, and the father placed the child in their care, thus holding that
the appellees were the “grandparents” of the child’s daughter and could
pursue custody based on their in-loco-parentis status).
Our research, however, has not uncovered a published opinion granting
in-loco-parentis status to a part-time caregiver, even when that caregiver has
provided a parent with significant assistance. To the contrary, our courts have
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rejected requests for in-loco-parentis standing on that basis. For example, in
Argenio v. Fenton, 703 A.2d 1042 (Pa. Super. 1997), this Court considered
the case of a grandmother who sought in-loco-parentis standing with respect
to her deceased daughter’s child. The grandmother contended that she had
“cared for the child on a daily basis, both in the presence and the absence of
her daughter. . . . while her daughter attended school and/or was away from
the child for general purposes.” Id. at 1043–1044. We affirmed the trial
court’s decision that the grandmother lacked standing, agreeing that her role
in the child’s life was that of a babysitter or frequent caretaker. Id. at 1044.
We also agreed with the trial court’s characterization of the daughter’s actions
as “appropriate and . . . consistent with that which would be expected of a
young, unwed mother who was trying to obtain an education, be productive,
and continue to develop socially.” Id.We reached a similar result in Morgan v. Weiser, 923 A.2d 1183 (Pa.
Super. 2007). Morgan involved a biological father whose parental rights had
been terminated. The father filed for custody, claiming in-loco-parentis
standing based on his relationship with the child, which he allegedly
maintained with the adoptive parents’ permission. Id. at 1186–1189. The
trial court found that the father lacked standing, and this Court affirmed. We
explained that the father never lived with the child in a familial setting, that
he generally saw her for only a few hours each week, and that the time he
spent with her “equated [to] time as a babysitter or caretaker.” Id. at 1188.
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We added that the child did not refer to the father as “Dad,” and that the
father never discharged parental duties. Id. at 1188–1189. While the father
had unsupervised time with the child, he did not support her financially or
provide input regarding her development. Id.Turning to the merits of this appeal, the trial court discussed both
Argenio and Morgan in its opinion and reasoned as follows, in relevant part:
M]uch like the maternal grandmother in Argenio, [P.G.] provided
frequent child care for [Child] and helped Mother during work
hours and when she needed help running errands or developing a
social life, those things “which would be expected of a young,
unwed mother who was trying to obtain an education, be
productive, and continue to develop socially.” Argenio, 703 A.2d
at 1044. [P.G.’s] argument that this case does not apply or that,
in the alternative, if it did apply[,] he would still have standing[]
because Mother would only be working some of the time that he
was babysitting, . . . she would also text him other times to come
and get [Child] when she wanted to sleep, was feeling
overwhelmed, or wanted to be left alone[,] is unpersuasive. It
does not paint the picture of Mother that [P.G.] intends. Rather,
it shows a young mother who knows her limits and understands
when to ask for help. Asking for help does not equate [to] a
discharge of parental duties. There was no evidence on the record
that Mother lacked parenting abilities in any way. Rather, she
thought she had a support system in her friend, and [a] reliable
child care provider, someone that is necessary to a single working
mother, only to have that support system ripped out from under
her when [P.G.] did not like the way in which Mother was living
her life, namely that she was living with a man that was not him.[5]
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5 We note that there was some indication in the testimony that J.K. actually
did pose a threat of harm to Child, and that P.G.’s concerns as to Child’s safety
were valid. During the hearing, P.G.’s counsel asked Mother about a text
message that she sent to P.G., describing an incident during which J.K.
knocked Mother unconscious with a table. N.T., 7/28/20, at 31 (“He took
[Child’s] wooden table . . . and whaled it at my head. So I was trying to run
from him, got knocked out, and woke up to being carried with blood dripping
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There was simply no evidence to indicate that she viewed [P.G.]
as anything but a babysitter for [Child.] She offered him money,
kept a set schedule but would ask if he wanted additional shifts,
left spending money for [Child] by way of a debit card while she
was with [P.G.], and made arrangements so that [Child] could
receive medical attention if needed while with [P.G.] without
handing over medical decision making. These are all normal
actions taken between parents and babysitters. [P.G.] was
temporarily entrusted with the responsibility of ensuring [Child’s]
safety and caring for her needs (i.e., ensuring her welfare) in
Mother’s absence. [P.G.] did not financially provide for [Child]
beyond providing some food and diapers on [a] few occasions,
certainly nothing rising to the level of parental duties.
The frequent and continuing contact that [P.G.] had with
[Child] that was encouraged and supported by Mother, was that
of a child and her babysitter. Like Morgan, Mother never
permitted [P.G.] to assume parental status during this time, nor
did [P.G.] discharge any parental duties. See Morgan, 923 A.2d
at 1189. [P.G.] also fails in his argument that Mother discharged
her parental duties when [Child] was with [P.G.] for times other
than when Mother was working. Again, [P.G.] failed to prove that,
even in the time he had [Child] when Mother was not working,
. . . he had assumed any parental status or discharged any
parental duties. Thus, any reasons as to why [P.G.] was
babysitting [Child] is irrelevant to standing in a custody action.
Importantly, it should be noted that [P.G.] is asking for something
that even a biological grandparent would not have the legal rights
to obtain. The rights of the family do not give way to the
attachment of a babysitter, especially in light of a total lack of
evidence that [Child] has been harmed in any way by not having
contact with [P.G.] in months. Granting [P.G.] standing would
lead to an absurd result. As such, [P.G.’s] . . . argument that the
[c]ourt failed to consider the best interest of the child in making
its determination is thusly discredited. The facts established by
[P.G.] fall drastically short of those cases in which in loco parentis
has been upheld, and, as such, he does not have standing for
custody.
Trial Court Opinion, 11/9/20, at 14–16.
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off of me and him throwing me in the tub washing me off.”). Mother’s counsel
objected based on relevance, and the trial court sustained the objection. Id.at 31–32.
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We discern no error in the trial court’s conclusion. The trial court found
Mother to be more credible than P.G. and accepted Mother’s characterization
of P.G. as merely a babysitter or part-time caretaker, a status which does not
entitle him to in-loco-parentis standing. See Argenio, 703 A.2d at 1044;
Morgan, 923 A.2d at 1188. The trial court was aware of the evidence P.G.
cites in his brief, including Mother’s text messages demanding that he retrieve
Child from her care. However, the trial court did not interpret Mother’s text
messages as P.G. advocated nor accord them controlling weight. It was within
the court’s discretion to assess the credibility of the witnesses and weigh the
evidence, and the court’s findings in this regard do not warrant reversal of its
order. V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012).
Moreover, we find meritless P.G.’s claim that the trial court improperly
failed to consider the bond he shares with Child. Our Supreme Court rejected
a similar claim in C.G. v. J.H., 193 A.3d 891 (Pa. 2018). There, the appellant
contended that she attained in-loco-parentis standing based on the bond she
had established with her former partner’s child. Id. at 907. Our Supreme
Court concluded that this contention did not entitle the appellant to relief and
explained that, while “it is a concern to the courts whether a child has
developed strong psychological bonds, . . . such bonds must necessarily be
based on the assumption of parental status and discharge of parental duties
in order to achieve [in-loco-parentis] status.” Id. at 910. The C.G. Court
observed that giving determinative weight to the existence of a bond would
undermine well established in-loco-parentis principles, such as the rule that
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an individual may not attain such standing contrary to the wishes of a parent.
Id. Thus, in the case sub judice, P.G.’s bond with Child does not overcome
his status as a babysitter or part-time caretaker and does not confer in-loco-
parentis standing.
Based on the foregoing analysis, we conclude that the trial court did not
commit an error of law by granting Mother’s preliminary objections and
concluding that P.G. lacked in-loco-parentis standing with respect to Child.
We therefore affirm the trial court’s August 21, 2020 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2021
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