D.G. & D.G. v. D.B.& G.V., 91 A.3d 706 (Pa. Super. May 2, 2014)

The D.G. & D.G. v. D.B. & G.V. custody action was originally commenced in 2009 when Grandmother sought partial physical custody of the Child, E.B. ("Child"). In January 2010, the parties reached an agreement where Mother retained primary custody, and Grandmother received partial custody on weekends. In March 2013, Grandmother and Step-Grandfather filed a petition for primary custody of the Child. The basis of the Grandparent's request for primary custody was their care of the Child, financial support of the Child, and Mother's failure to provide adequate care of the Child. Mother's lack of care included instances where the Child would return from school and be locked out of Mother's apartment, missing several days of school, and missing doctor's appointments.

The trial court granted Grandmother in loco parentis standing and primary physical custody. The trial court relied on the fact that four years prior, Mother and the Child resided with Grandmother, Grandmother provided financial assistance, and Grandmother had a strong relationship with the Child. In addition to the connection to Grandmother, the trial court also found short comings as to Mother's parenting, and stated "Mother had revealed herself to be too immature, challenged and or dysfunctional to handle her parental duties and often been neglectful of the Child's needs." Mother underwent a court ordered mental health evaluation, which concluded that Mother had psychological issues including paranoia, depression, anxiety, and required ongoing treatment. The mental health evaluation concluded, however, that Mother could care for the Child and would not harm the Child.

The Pennsylvania Superior Court found that the trial court erred in conferring Grandmother in loco parentis standing, because Grandmother and the Child did not live together as an intact family unit. While Grandmother played a significant role by providing occasional shelter, meals, laundry and transportation to and from medical appointments, Grandmother's actions were not consistent with a "de facto adoption of the Child."

While Grandmother could also have standing if the Child was "substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity," the trial court failed to make such a determination. While the record contained significant shortcomings of Mother, the Superior Court did not possess the ability to make such a determination. Accordingly, the trial court's order was vacated and the matter was remanded to the trial court, for a determination of "substantially at risk."