NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 20-3228 __________

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.

__________

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 __________

Argued: July 16, 2021 ______________

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 __________

OPINION __________ 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,

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 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,

(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.”

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,

(3d Cir. 2021). Once this is done,

we look “to factually analogous Supreme Court precedent, as well as binding opinions from

our own Court.”

(citing Fields v. City of Phila.,

(3d Cir. 2017))

(quoting Sharp v. Johnson,

(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,

(quoting L.R. v. Sch. Dist.

of Phila.,

(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,

.

3 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,

, at *10 (E.D. Pa. Sept. 30, 2020); see Rees v. Off. of Child. and Youth,

(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,

(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,

(W.D. Pa. 2010) [“Rees I”];

Clayton v. Children’s Choice,

, at *5 (E.D. Pa. Aug. 18, 2010); Bresko

4 v. Critchley,

, at *5 (D.N.J. July 26, 2012); Derr v. Northumberland

Cnty.,

, 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 2 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.,

(1978).

See Hatfield v. Berube,

, 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,

(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

1 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. 2 The District Court had jurisdiction under

. We have jurisdiction under

. We review de novo the District Court’s grant of summary judgment. Goldenstein v. Repossessors Inc.,

(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,

(3d Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).

5 officially adopted by the governing body or informally adopted by custom.” Mulholland,

(quoting Beck v. City of Pittsburgh,

(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.,

(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

6 rights of persons with whom the [untrained employees] come into contact.’” Id. (quoting

City of Canton, Ohio v. Harris,

(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.,

(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.

7