Pickel v. Lancaster County Children ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-3228
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MARK PICKEL; MELISSA PICKEL,
Appellants,
v.
LANCASTER COUNTY CHILDREN AND YOUTH SOCIAL SERVICES AGENCY;
JADE LANDIS, Individually and in Her Official Capacity; NICOLE LAUZUS,
Individually and in Her Official Capacity; CRYSTAL NATAN, Individually and in Her
Official Capacity; KRYSTAL WNEK, Individually and in Her Official Capacity; JASON
DOYLE, Individually and in His Official Capacity; STEPHANIE VAN CISCO,
Individually and Her Official Capacity; JANE DOE, Individually and in Her Official
Capacity; KAYLA TEEPLES, Individually and in Her Official Capacity.
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 5:18-cv-03400)
Magistrate Judge: Honorable Henry S. Perkin
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Argued: July 16, 2021
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Before: McKEE, GREENAWAY, JR., and RESTREPO, Circuit Judges
(Filed: September 14, 2021)
Dennis E. Boyle [Argued]
Suite 500
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Counsel for Appellant Mark Pickel, Melissa Pickel
Shane Haselbarth [Argued]
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street
Suite 2300
Philadelphia, PA 19103
Counsel for Appellees Lancaster County Children and Youth Social
Service Agency, Krystal Wnek, Stephanie Van Cisco, Kayla Teeples, Crystal A. Natan,
Jason Doyle
Gregory C. Kunkle [Argued]
Thomas Thomas & Hafer
1550 Pond Road
Suite 210
Allentown, PA 18104
Counsel for Appellee Jade Landis, Nicole Lauzus
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OPINION
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RESTREPO, Circuit Judge.
Mark Pickel and Melissa Pickel challenge the Magistrate Judge’s grant of summary
judgment against their Fourteenth Amendment substantive and procedural due process
claims. These claims—brought against Lancaster County Children and Youth Social
Services Agency (“LCCYS”), its agents and employees, and two of its contracted workers,
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Jade Landis and Nicole Lauzus—are based on alleged interference with their rights as
grandparents in relation to two minors, S.P.L and D.M.L. The Pickels also alleged that
LCCYS should be held liable as a municipality pursuant to Monell. For the reasons that
follow, we will affirm the Magistrate Judge’s order.
I.
Qualified immunity shields officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Kelly v. Borough of Carlisle, 622 F.3d 248, 253
(3d Cir. 2010). In determining whether an official is entitled to qualified immunity, “we
ask: (1) whether the facts alleged by the plaintiff show the violation of a constitutional
right, and (2) whether the law was clearly established at the time of the violation.” Id.In determining whether a right is clearly established for the purposes of qualified
immunity, we must first “define the right allegedly violated at the appropriate level of
specificity.” Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021). Once this is done,
we look “to factually analogous Supreme Court precedent, as well as binding opinions from
our own Court.” Id. (citing Fields v. City of Phila., 862 F.3d 353, 361 (3d Cir. 2017))
(quoting Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012)). We also consider whether
there is a “robust consensus of cases of persuasive authority in the Courts of Appeals”
clearly establishing the right in question. Fields, 862 F.3d at 361 (quoting L.R. v. Sch. Dist.
of Phila., 836 F.3d 235, 248 (3d Cir. 2016)). At our discretion, “[w]e may also take into
account district court cases, from within the Third Circuit or elsewhere.” Peroza-Benitez,
994 F.3d at 165-66.
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The alleged right that is implicated in both the Pickels’ substantive due process
claim and their procedural due process claim is derived from the purported liberty interest
that grandparents have in the care, custody, and management of their grandchildren. Such
an interest, however, has not been “clearly established” by relevant law. The Magistrate
Judge correctly noted that there is no controlling precedent in our Circuit that defines the
scope of grandparents’ substantive due process rights with respect to their care of their
noncustodial grandchildren, and there is a lack of consensus among other Circuits to the
same. Pickel v. Lancaster Cnty. Child. & Youth Soc. Servs., No. CV 18-3400, 2020 WL
5820798, at *10 (E.D. Pa. Sept. 30, 2020); see Rees v. Off. of Child. and Youth, 473 F.
App’x 139, 142 (3d Cir. 2012) (“Rees II”) (noting “[t]here is no controlling law on point
in the Third Circuit concerning grandparents’ substantive due process rights relative to the
custody and care of their non-resident grandchildren”). The unsettled state of the law with
respect to the scope of grandparents’ liberty interests in relation to family integrity stands
in stark contrast to those of parents’ liberty interests in the care of their children. See Troxel
v. Granville, 530 U.S. 57, 65 (2000) (observing that the “liberty interest at issue in this
case—the interest of parents in the care, custody, and control of their children—is perhaps
the oldest of the fundamental liberty interests recognized by this Court”). Moreover, four
other district courts to have considered the issue in our Circuit have determined that
noncustodial grandparents who have little beyond biological ties to their grandchildren did
not have a fundamental liberty interest in associating with their grandchildren. See Rees v.
Office of Children & Youth, 744 F. Supp. 2d 434, 451-52 (W.D. Pa. 2010) [“Rees I”];
Clayton v. Children’s Choice, 2010 WL 3282979, at *5 (E.D. Pa. Aug. 18, 2010); Bresko
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v. Critchley, 2012 WL 3066640, at *5 (D.N.J. July 26, 2012); Derr v. Northumberland
Cnty., 2019 WL 6210898, at *9 (M.D. Pa. Oct. 23, 2019). Given the dearth of precedential
caselaw in our Circuit concerning the scope of grandparents’ constitutional liberty interests
in caring for their grandchildren, the individual Appellees in this action are entitled to
qualified immunity with respect to both Fourteenth Amendment claims as the right that is
implicated here has not yet been “clearly established.” 1
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II.
The Pickels also assert claims against LCCYS directly, which is treated as a
municipal entity under Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).
See Hatfield v. Berube, 714 F. App’x 99, 103 n.1 (3d Cir. 2017) (noting “Pennsylvania
county offices of children and youth are treated as municipalities for purposes of Monell.”)
(citing Mulholland v. Gov’t Cty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013)). “When a suit
against a municipality is based on § 1983, the municipality can only be liable when the
alleged constitutional transgression implements or executes a policy, regulation or decision
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The Pickels contend that they stood in loco parentis toward both S.P.L. and D.M.L., which they
argue strengthens their claim that they possessed substantive and procedural due process rights in
associating with them. Without taking a view as to whether they in fact attained this in loco
parentis status or not, we maintain that grandparents’ liberty interests in exercising care and control
over their grandchildren are not sufficiently “clearly established” to hold the individual Appellees
liable.
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The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the District Court’s grant of summary judgment. Goldenstein v.
Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016). Summary judgment is appropriate only if,
viewing the evidence in the light most favorable to the nonmovant, “there is no genuine dispute as
to any material fact,” such that “the movant is entitled to judgment as a matter of law.” Hayes v.
Harvey, 903 F.3d 32, 40 (3d Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).
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officially adopted by the governing body or informally adopted by custom.” Mulholland,
706 F.3d at 237 (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)).
The Pickels allege that “LCCYS violated the Pickels’ constitutional rights to family
integrity by not having certain policies in place. Appellant Br. 35. They further argue that
“LCCYS, in some instances, had affirmative policies, procedures, practices, and/or
customs which violated their constitutional rights to family integrity.” Id. at 35-36.
To the extent the Pickels allege they were harmed by LCCYS policy, their claims
fail as they do not adequately link the purportedly responsible policymaker with final
authority—in this instance, Crystal Natan, the Executive Director of LCCYS—to the
policies that have allegedly resulted in injury. See McTernan v. City of York, Pa., 564 F.3d
636, 658-59 (3d Cir. 2009). Indeed, their allegations primarily appear not to be concerned
with LCCYS’s official policies, but instead with its “unwritten practice of ignoring…
written policy” with respect to collaborating in good faith with all relevant relatives and
stakeholders involved in child dependency, placement, and custody proceedings.
Appellant Br. 41.
The Pickels do not fare better, however, in alleging that any unofficial LCCYS
customs have violated their constitutional rights. The core of the Pickels’ argument is that
LCCYS failed to train its caseworkers with respect to their evaluation of kinship care
applications, providing relatives with notice of court proceedings, and advising
caseworkers of the rights of individuals that possess in loco parentis status vis-à-vis
dependent minors. In order to establish liability under § 1983, “a municipality’s failure
to train its employees in a relevant respect must amount to ‘deliberate indifference to the
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rights of persons with whom the [untrained employees] come into contact.’” Id. (quoting
City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)) (alteration in original).
Deliberate indifference “is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.” Thomas v.
Cumberland Cnty., 749 F.3d 217, 223 (3d Cir. 2014) (quoting Bryan County, 520 U.S. at
410). “Without notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training program that will
cause violations of constitutional rights.” Id. (quoting Connick, 563 U.S. at 62). As noted
by the Magistrate Judge, the Pickels do not allege that LCCYS had prior notice of its
purportedly deficient training program, nor do they provide any evidence that a “pattern of
similar constitutional violations by untrained employees” occurred such that LCCYS could
be said to have acted with “deliberate indifference.” Connick, 563 U.S. at 62; App. 28-29.
Consequently, the Pickels cannot succeed on a failure-to-train theory either, and their
municipal liability claims against LCCYS fail.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment against the Pickels.
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