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A York County couple’s lawsuit in federal court seeks to give greater standing to grandparents in child custody cases involving their grandchildren.

Melissa and Mark Pickel of York County filed suit against Lancaster County Children and Youth Services in 2018 after the agency placed their daughter’s two children in foster care.

While the facts of the Pickels’ custody effort are complicated, the case essentially boils down to their assertion that they were acting as caregivers for the older of the two children at the time he was removed from the mother’s care, which happened in 2015. As such, they maintain they had established parent-like rights that put them in a stronger legal position to gain custody of both children, the second of whom was removed shortly after he was born in 2017.

The rights of grandparents who act as caregivers for a minor child or children, known broadly in legal terms as in loco parentis, aren’t clearly defined in the court system, either at the state or federal levels, according to Lancaster County’s attorneys, although the Pickels argue a 1970s U.S. Supreme Court case bolsters their claim.

That’s the argument made by the Pickels’ attorney in court on Friday.

“Our interest is in family integrity and (establishing) that when children are taken away from the family that the grandparents do have due process rights,” Dennis Boyle, a Washington D.C.-based attorney representing the Pickels, told the judges.

The unsettled legal question was alluded to by a federal judge on Friday as a three-judge panel of the U.S. Third Circuit Court of Appeals in Philadelphia heard arguments in the Pickels’ case. Judge Theodore McKee pointed out that the 1977 case Moore V. City of East Cleveland, which Boyle referenced, didn’t specifically deal with in loco parentis.

Case background

The particulars of the case relate to two children belonging to the Pickels’ daughter, Jazmin Lowar.

Melissa Pickel and her adult daughter, Jazmin Lowar - a Lancaster County resident at the time - had been sharing the parental responsibilities of raising Lowar’s infant son, referred to in court documents as S.P.L. That shared caregiving responsibility, the Pickels argue, established their claim to in loco parentis.

According to court documents, in March 2015 Lancaster County Children and Youth Services was called to investigate suspected drug use by Lowar and the child was sent to live with his paternal grandparents before the agency took custody of the child and placed him in foster care in May. The Pickels applied to be foster parents for S.P.L. in August 2015, but the youth services agency denied their application. In 2016 S.P.L. was adopted by his foster parents over the competing application of the Pickels.

In early 2017 when Lowar gave birth to a second son, D.M.L., Lowar and the Pickels agreed that the Pickels should become D.M.L.’s legal guardians and were seeking to make that official. But D.M.L. was placed with a foster family by Lancaster County Children and Youth Services shortly after his birth because he and his mother both tested positive for cocaine.

The legal question

The Pickels and their attorney, Boyle, argue that because S.P.L. lived with and was cared for by the Pickels prior to March 2015, they had established in loco parentis. And because Lowar wanted the Pickels to be D.M.L.’s caregivers, they argue they should have been afforded the same due process rights a biological parent would be when parental rights are terminated by the state.

The Pickels lost their case at the district court level, with the judge determining they did not meet the standard for in loco parentis, overturning the finding of Common Pleas judge Merrill Spahn. They appealed that ruling to the Third Circuit, which is what brought them to court on Friday.

“I think what’s most important from my perspective is when someone has in loco parentis, whether that status ends when you are separated from the child,” Boyle told the judges. In a conversation with LNP|LancasterOnline on Wednesday, he likened it to a biological parent losing their parental rights when a child spends a month at summer camp.

But the lawyers representing Lancaster County argue that because the Pickels did not provide care to S.P.L from March to May of 2015, the period immediately preceding his removal by CYS, the Pickels no longer had in loco parentis status. And although their daughter wanted the Pickels to provide care for D.M.L, because they never actually provided any care to the infant, the Pickels did not have in loco parentis status over him, Philadelphia-based attorney Shane Haselbarth argued in court on Friday.

Boyle conceded to the panel that the Pickels’ argument with regard to D.M.L was weaker for the reason Haselbarth noted, but that the intention of the biological mother was clear.

Through his questioning of Haselbarth, Judge Joseph Greenway Jr. hinted that he was open to the argument that the Pickels had in loco parentis status over S.P.L. for at least some period of time, but when that ended was unclear.

Haselbarth argued that the question of when exactly it ended was critical, pointing to a lower court decision from western Pennsylvania in which a judge found that the grandparents in that case did not meet the in loco parentis criteria because they had been separated from the child in the one to two months immediately preceding CYS taking custody. Haselbarth also argued that Lowar had denied the Pickels access to S.P.L. from March to May of 2015, which he said should end any in loco parentis status.

“The concept of in loco parentis is interesting because it's not exactly clear whether or not it ends,” said Wendy Chan, a Lancaster-based family law attorney who has represented grandparents in custody matters. “The (Pickels) were arguing that because the relationship doesn't go away it doesn't end. That is exactly what no one has really addressed, whether or not it ends or doesn't end.”

But even if the court found that the Pickels did have in loco parentis status, it did not automatically mean they should be given the same due process rights as parents, Haselbarth told judge Greenway.

“To date that issue is unclear,” he said, adding that only one Circuit Court had addressed the issue while others had “run to the hills”to avoid it. “(In loco parentis) are like a parent, but they are not a parent and no court has recognized that.”

Boyle disagreed, pointing to a 1977 Supreme Court case, Moore v. City of East Cleveland, that touched on due process rights of grandparents when the city enacted a zoning ordinance that in effect barred grandparents from living with their grandchildren.

The Pickels are not seeking to reverse the custody decisions on SPL and DML, nor is Lowar. The two boys are both currently living with their respective adoptive families, and Boyle said the Pickels understand it would be disruptive to the children - who are now 7 and 4 years old - to be placed into yet another new environment.

Rather, Boyle said they are seeking damages and an established procedure on the due process rights of grandparents, especially those with in loco parentis status.

When asked by Judge McKee asked if they were seeking to ensure that the agency “shape(s) up and fl(ies) right,” Boyle said he was.

“We find the conduct of the agency to be shocking and cavalier,” he said.

Following Friday’s arguments in court, neither Boyle nor Haselbarth would comment on how the judges will rule, but Gregory Kunkle, who was representing two contractors of the county named as defendants and argued that the claims were barred by the statute of limitations, said he was feeling confident.

“We were very pleased that the judges seemed very well versed in the issues and the facts in the case,” he said. “We’re very confident that the ruling of the district court (against the Pickels) will be affirmed.”

A ruling on the case is expected at some point in the future.

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