Minnesota Supreme Court Rules that Relative Placement NOT Preferred over Foster Placement with Strangers UPDATED

“A sharply divided Minnesota Supreme Court today ruled that two young African American girls, born to apparent drug addicts, can be adopted by their white foster parents rather than their grandparents, despite a state law that appears to favor adoption by family members over others.

The decision appeared to hinge on one word in the law: consider.

The two girls both tested positive for cocaine upon birth and have had developmental problems since. They were removed from the home almost immediately by Hennepin County and put in the care of foster parents.

Later, the foster parents agreed to adopt the girls after the grandparents initially expressed interest in the adoption, but didn’t cooperate with an in-home placement study in Mississippi. After some delay, they relented, the study was turned in, and the two competing adoption petitions went before a district court, which ruled adoption by the foster parents was in the best interest of the girls. The court said given their special needs, there could be damage by removing the girls from the only home they ever knew.

But the grandparents appealed, saying state law favors relatives over  “an important friend with whom the child has resided or had significant compact.” They said  the district court should have ruled they were fit to adopt, and the process should have stopped there.

But in her opinion today, Justice Lori Gildea disagreed, saying the law only requires courts to consider the adoption petition of a relative first and then the foster parents. But it does not prefer a relative over a non-relative.

“It is true that the district court did not analyze the grandparents’ petition in its entirety before turning to analyze the foster parents’ petition,” Justice Gildea wrote. “The court also did not expressly conclude in its order that it was not in the girls’ best interests to be adopted by their grandparents, which would be the better practice. But the court did consider and then form a conclusion about the grandparents’ petition with respect to each factor before considering the foster parents’ petition on that factor.”

But the grandparents are African American while the foster parents are white and the issue of tending to the “cultural needs” of adoptive children has been controversial in Minnesota and elsewhere, even though state law requires cultural needs be considered.

“The foster parents have adopted two sons who are Asian-American and African-American respectively, and an African-American friend lives with the family,” Justice Gildea said in rejecting the argument. “The district court did not specifically explain how the foster parents were able to meet the cultural needs of the children other than to find that the foster parents ‘believe that diversity is very important.’ We share the court of appeals’ concern that the district court’s findings on this factor ‘grossly simplify’ the girls’ needs… But given our deferential standard of review, we cannot say that the court’s analysis of this factor renders its overall best-interests analysis an abuse of discretion.”

But in his dissent, Justice Alan Page, joined by Justice David Stras,  said Gildea’s interpretaton of the law would require courts to consider a relative’s adoption petition and a non-relative’s “side by side and at the same time,” and effectively makes the state statute “meaningless.”

“If the Legislature had intended for us to read the statute the way the concurrence suggests, there would have been no reason to require courts to consider placement in a particular order, and absolutely no reason to distinguish between relatives and others,” Justice Page wrote.

And that’s important in a case like this, Page noted, because the Legislature’s authors wrote the statute with race differences in mind. “The authors of the amendments were no doubt concerned that eliminating race as a consideration in adoptive and foster care placements might have the unintended effect of decreasing the likelihood that children from racial minorities would be adopted by relatives,” he wrote. “One way to mitigate these potential negative effects was to strengthen the statutory emphasis on placement with relatives by requiring that placement with relatives be considered before placement with others.”

Justice Wilhelmina Wright agreed with Justice Page that the district court should’ve considered the grandparents’ petition first before moving on to the foster parents’ adoption petition, but she said “the best interests of the children could not have been ascertained without consideration of the impact of the proposed move on these young children.””

MN Supreme Court: Foster parents can adopt children even if relatives are able

[Minnesota Public Radio 3/27/13 by Bob Collins]

The 41-page decision can be viewed here.

“Steven and Liv Grosser, from Plymouth, will  now raise the girls instead of Dorothy and Lawrence Dunning after the court  ruled relatives should get first consideration but not preference in  adoptions.

Princess and Dorothy Knox, who are now aged  three and two, were placed with the Grossers after doctors found they both had  traces of cocaine in their blood after they were born.

As a result of the pre-natal drug ingestion,  they both suffer from developmental difficulties and the court ruled that the  Grossers are better placed to provide for them

But the Dunnings, from Gautier, Mississippi,  have fought a hard battle for their granddaughters, and argue that blood  relations, love and heritage should come before money.

State laws say that race should not factor in  to adoptions but require that a child’s ‘cultural needs’ should be a  consideration when determining a child’s best interests.

The Grossers’ attorney, Wright Walling, told  the Minnesota Star  Tribune that there were grey areas over the word  ‘culture’.

‘From my perspective it was never about  race, except to the extent that their race and culture is who these  children  are,’ Walling said.

‘But what does culture mean? My clients  living in the suburbs? My clients being white? Mrs. Dunning living in  rural  Mississippi? The kids living in Minnesota? Those issues have yet  to be flushed  out.’

But the Dunnings’ attorney, Michael  Perlman,  countered that race was – and should have been – a factor  during the adoption  proceedings.

‘Even if their hearts are in the right  place, they can’t give these children the same culture, the same  history, the  same experiences that relatives can,’ he told the Star Tribune.

The battle began in 2009 when Princess tested  positive for cocaine and was placed with the Grossers days later. The Dunnings  requested to adopt her, but the paperwork was ‘stalled’, the Star Tribune  reported.

When Dorothy was born in 2010,  officials  asked the Grossers if they would adopt her as well, and the  couple, who have  seven other children, agreed.

Hennepin County District Judge  Kathryn  Quaintance said the girls should stay with the Grossers as they  could better  help their special needs and moving the girls from the home could affect  them.

But the Dunnings argued that they could  provide a good home for the girls so no other home should have been  considered.

Despite her objections and a heartfelt media  campaign by Dorothy Dunning to gain custody of her granddaughters, the Minnesota  Court of Appeals sided with the Grossers.

The Minnesota Supreme Court heard the case in  January and reached their decision on Wednesday, ruling in favour of the  Grossers 5-2.

Justice Paul Anderson wrote that family  members should be considered but that there is no reason not to consider other  potential parents when deciding what is in the child’s best  interest.

But Justice Alan Page argued that the  relative’s petition should be considered first and others should only be looked  at if they are not providing adequately for the child.

He wrote: ‘I do not believe that the  Legislature intended that relatives – who can meet the child’s needs and offer a  loving home – be passed over merely because nonrelatives may be marginally  “better” in some sense, such as being more affluent or better educated than the  relative.

Dorothy Dunning had previously shared her  anguish in a series of YouTube videos and in an editorial for the Minnesota  Spokesman-Recorder.

She wrote that she only learned her  grandchildren were in care when she called the Department of Children’s Services  to express her concern that her son and the children’s mother were on  drugs.

‘I wanted my babies to be in a safer  environment. I then found out that my grandchildren were in the custody of  foster parents,’ ,’ she wrote in January  2012.

‘I am so appreciative of the care of  their  foster parents, but I am the biological grandmother, and I am not  giving up my  rights for the belief that they belong with me.

‘Although the foster parents may have  multiple degrees and earn more money than we do, I am a proud and hard  worker,  and so is my spouse. I’ve never turned to the government for any assistance.

‘I know that money does not give love,  and I  love my grandchildren and desire that they experience the love. This is not and  never has been about the finances… I am  their grandmother and will always be their grandmother.’

But as the Dunnings struggled to come to  terms with the ruling, the Grossers took to their Facebook page to celebrate  their win – and to pass on their thoughts to the Dunnings.

‘Justice has been done for two little girls  to stay with the only family they have ever known,’ Liv Grosser wrote.

‘I know Dorothy is feeling sad and my heart  is heavy for her… We will continue to honor her as the girls’ grandma and we  hope we can become friends soon. Please pray for Dorothy as she comes to grips  with this decision that she can see that it is best for the  girls.'”

Court rules white foster parents should raise sisters, 2 and 3, over the black grandparents who have battled for them

[Daily Mail 3/28/13]

REFORM Puzzle Piece

Update: Hat tip to a reader who forwarded on the link to the legal opinion. See the opinion here.

Update 2: Hat tip to a reader who forwarded on this history of the case:

Split the baby: Two sides of an adoption battle [City Pages 1/16/13 by Olivia LaVecchia]

“On the left side of the courtroom, Dorothy Dunning sat next to her husband, Lawrence. The couple had flown up from Mississippi on Sunday in anticipation of the trial. Dorothy was flanked by supporters, all African-American like her, some of whom she’d just met. They’d flocked to tell her their stories: One had fought the system for five years to get her grandson back from protective services; another’s son was beaten by his foster parents.

On the right side of the courtroom, Liv Grosser, a slim white woman with cropped red hair, sat close to her husband, Steven. They had driven to downtown St. Paul from their six-bedroom home in Plymouth. Close friends sat on either side, and members of their church, New Hope, filed into the other rows.

Their two foster children, three-year-old Princess and two-year-old Dorothy, had stayed home. Dorothy Dunning would get to see them later in the day, for visitation. They were her biological grandchildren, the younger girl named after her. But they had moved in with the Grossers within days of birth, and the house in Plymouth was the only home they’d ever known. Now the two families were fighting for custody.

“It was like a wedding,” says Wright Walling, the Grossers’ lawyer, with the two families and all of their supporters split into pews.

At 9 a.m. sharp, “All rise” echoed through the courtroom, and the seven black-robed justices of the Minnesota Supreme Court filed in. Newly appointed Justice Wilhelmina Wright, the court’s first African-American woman, sat on the far right. From that perch, she would ask some of the case’s most delicate questions: about whether race can ever really be removed from the equation, even though federal and state laws banish it from consideration.

“These are African-American children,” she said. “In America, taking race out may be counter to their best interest.”

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Contested adoptions are rare. Hennepin County handles only two to three per year. Most cases never get to that point: Statewide, of 11,400 children in out-of-home placements in 2011, 80 percent were reunited with family.

Those involving trans-racial adoptions, where a family like the Grossers is a different ethnicity than the child it’s fighting to adopt, are even more unusual.

Back in 1983, Minnesota became the first state in the country to pass laws, known as the Minority Child Protection Act, specifying that minority children should be placed with relatives or, failing that, with a family that shares the child’s race.

A decade later, the “Baby D” case changed all that. In 1992, the state Supreme Court affirmed a lower court’s decision to remove a three-year-old black girl from a white foster family she had lived with since birth, and gave custody to her grandparents.

Public outcry over Baby D’s fate helped prompt state legislators to loosen the heritage preference. Not long after, the federal government stepped in to rule that heritage cannot be considered at all.

But in practice, family ties — and heritage — continue to hold considerable sway.

“Having been in the field for 20-plus years, there is much more emphasis on maintaining a kin tie with kids now than ever before,” says Traci LaLiberte, executive director of the Center for Advanced Studies in Child Welfare at the University of Minnesota.

Though the Minnesota Supreme Court’s hands are tied on how to consider race, there’s still room to weigh in on how to rank relatives, and on the x-factor know as “culture”: the idea that, as Dorothy Dunning says, “in the black community, we do things differently.”

Walling, the lawyer for the Grossers, puts it even more bluntly: “The real social issue in this case is that Ms. Dunning is African-American and my clients are not.”

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When Princess was born in October 2009, the only people who knew she was alive were her mother, Javille “Angel” Sutton, and the Abbott Northwestern hospital team that delivered her.

She came into the world with cocaine in her system. Even though she was full-term, she was “significantly underweight” according to court records, and had tremors in her hands and legs from the drugs.

Sutton already had two sons, ages 4 and 12. In 2008, she had abandoned them with a relative and returned to “actively using drugs,” court records show. Eventually, Hennepin County found homes for the boys with maternal aunts, one in Minnesota and one in California. These women, however, didn’t have the resources to take care of the newborn Princess.

The baby’s dad was Princeton Knox, the man Sutton had been living with, and the man who is Dorothy Dunning’s son, the middle of her three boys. Knox first moved to Minneapolis as a teen to live with an uncle and play football for Roosevelt High School. He didn’t graduate.

By the late 2000s, he started smoking crack, then selling it. He also became violent: In 2005, 2006, and 2008, three domestic assault charges were filed against him by two different women.

In 2009, his older brother, Aubrey Knox, got a call at his job in Mississippi: His brother’s situation had gotten worse. Worried, Aubrey traveled to Minnesota.

Aubrey remembers seeing the Minneapolis “crack house” where his brother lived with Sutton, along with several “prostitutes” and another man.

Aubrey stayed with them for a week, trying to talk his brother into coming home and getting clean. Then, one morning, he walked into the house’s garage to find an awful surprise.

“I saw a body there in the corner of this place filled with garbage, and I thought it was dead,” Aubrey says. “Then I walked over and saw it was my brother.”

“I went out front and I called my mom,” Aubrey continues. “That’s when I really just broke down.”

Today, Princeton is sober and married with kids, but he has never laid eyes on the children he conceived with Sutton.

“It’s too much for him,” Aubrey says. “He don’t talk about it.”

---

Once doctors detected drugs, they couldn’t legally give the mother her baby. Sutton left her newborn at the hospital and the Hennepin County Department of Human Services was called in to find a foster family.

When Princess was just four days old, Liv Grosser came to the hospital to pick her up.

“She was very small — about five pounds even though she was full-term, very skinny, very dry-skinned, tense, shaky,” Liv remembers. “She had that high-pitched cry you hear from babies who have been exposed to cocaine, and didn’t make eye contact. She seemed fragile.”

“She looked like a little bird,” Steven recalls.

That night, the baby went to sleep in a bassinet in the Grossers’ bedroom.

A week later, when a child protective services worker visited the Grossers in Plymouth, Liv answered the door with the baby asleep in her arms.

Grosser told the case worker about their first week together, and how they were starting to settle into a routine. The baby would sleep for five hours each night, but would wake up for two-hour periods, so Liv would sit with her. She loved to be held, Liv said, and mentioned that she had noticed Princess jittering as she went through withdrawal from the cocaine.

Liv and the social worker talked about which of the baby’s relatives might be able to take her, and the case notes show that Grosser wanted the baby to be reunited with her parents. She knew she was a foster parent, and that the situation was only temporary.

The Grossers first became foster parents in August 2008. They did it because the religious and family-oriented couple felt a sense of duty, a desire to give back.

“We didn’t do this because we wanted more kids,” Liv explains. “We wanted to help the moms — we wanted to help the kids. We wanted to help.”

The Grossers’ first foster child was reunited with his parents after four months, and they later adopted their second foster child after the boy’s birth parents requested it. Princess joined that boy, an African-American child not much older than her. There were also the four biological Grosser children, ages 8 to 18, as well as a son adopted from China and a teenage friend who lived with the family.

Steven Grosser went off to work as the CFO of a media company every day, and Liv Grosser — who has a master’s degree in Christian counseling — stayed home with the kids and volunteered at church.

“The family has a more-than-satisfactory income,” a case worker wrote in their home study. “Their finances will in no way be impacted by the foster care payments.”

The weekend after Thanksgiving, the Grossers brought Princess with them to their cabin north of Brainerd. In early December, Liv reported that the baby was “very sweet and easy going,” according to case notes, and by early January 2010, Grosser told her case worker that if the baby’s relatives didn’t work out, the Grossers would like to adopt her.

The county continued to look into relative options, but when there was still no progress by the end of April, Grosser began to worry that the baby was growing attached.

By May, Princess had four teeth. In June, she could stand, clap, giggle, and “scoot around on her tummy,” case notes describe. In both months, Grosser talked with the case worker about preparing herself for the foster child to leave.

In July, Grosser was nursing Princess through teething pains, and the baby was trying solid foods. Grosser again voiced concerns — at this point shared by Princess’s pediatrician — that after eight months, moving Princess out of the Grosser home “will cause permanent attachment problems.”

“She was bonding all the time, like babies do, but I started getting more concerned as she started to be more aware,” Liv remembers. “At nine months, she was coming to be a person and wondering, ‘Who’s my family?’ To her, I was mom.”

Nine months stretched into 11. Princess had started walking and chattering, calling Liv and Steven “mama” and “dada.” She regularly sat and looked at books with the Grossers’ young adopted son as the two grew close, like any siblings.

By the end of September, Princess had a new biological sister. Knox had gotten Sutton pregnant again, and she gave birth at Regions Hospital in St. Paul. The new baby was born with cocaine in her system, as well as marijuana. Though she later indicated she wanted her to be named Dorothy, after her grandmother, Sutton left the hospital without naming her fourth child. The girl’s birth certificate reads “Baby Girl Sutton.”

Within days of the new baby’s arrival, Liv Grosser drove to the hospital to bring her home. Asked by the county to choose a name, the Grossers decided on Hannah. Today, it is the only name the two-year-old knows.

Meanwhile, the county was still trying to place the two sisters with relatives. State law required that the county decide on a permanent option for children within six months of entering the system. For Princess, it had now been a year.

In December 2010, Hennepin County asked the Grossers to adopt both sisters, and the family agreed. The Grossers began building an addition on their house to provide bedrooms for the girls, and looked into opening accounts to save for their college educations.

Not long after, Liv Grosser asked the case worker if the family could include the girls in their family Christmas card photo. The county told her it wasn’t a good idea before the girls were officially adopted, according to the case notes. Grosser said she understood, even though “we feel like they are part of our family.”

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On a recent afternoon, Dorothy Dunning sat down near a fountain at the Ridgedale Center mall in Minnetonka, where she had just finished visitation with her granddaughters. She smiled as she talked about seeing them.

The girls seemed good, Dunning said: They were happy and running around.

“But they hair was matted,” she says, pointing at pictures she had taken of the girls’ heads. “In the black community, if I let my children go around with hair like that, I would be considered an unfit grandmother.”

When Princess was born, Dunning had never been on a plane. She has lived in Gautier, Mississippi, for 25 years, and grew up in a neighboring town. But when she traveled to Minnesota in April 2011 to meet her granddaughters for the first time, she flew.

Since then, she says she has made the trip “I would guess about 20 times.” She takes time off from her job cleaning homes and offices and mostly flies, although occasionally she has made the 22-hour drive.

On many of those trips, she has been able to get unsupervised visitation with her granddaughters. At one point, she was even allowed to spend the day with them at a nearby relative’s house.

Her last few visits, however, have been limited to a few hours at Ridgedale Center.

“This mall is the only place they’ll let me see them,” Dunning says.

Aside from an indoor playground, “there’s nothing to do here,” Dunning complains. “It’s not like having them at home where they’re laughing with the other grandkids and laying up in my arms, and where I’m hugging and nurturing and loving.”

The Dunnings live in a three-bedroom home, and Dorothy’s gardening has won the “Yard of the Month” award from the local garden club. She has 11 other grandkids, and she herself is one of 18 brothers and sisters, most of whom still live close by in Mississippi. The entire clan — plus all of their spouses and kids and cousins and grandkids — regularly gathers at Dunning’s mother’s house.

“Most every day,” she says. “That’s what these grandbabies are missing out on.”

When Princess was born, Dunning didn’t know. She didn’t know about her new granddaughter until after her son Aubrey went to check on Princeton, and saw him in the garage.

“I heard Princeton on crack,” she remembers, “and my world ended.”

Dunning sent her son a bus ticket. When he showed up in Mississippi, his girlfriend, Sutton, was accompanying him.

“They told me they had had a baby,” Dunning remembers, “but that the baby was with [Sutton’s] sister, so I figured I would get them in rehab first and then go up and get the baby.”

Dunning enrolled her son and Sutton in an outpatient program. But after about a week, Knox and Sutton got into a fight.

“That’s when she told him that the baby wasn’t with her sister, but was in the system,” Dunning says.

When the couple later told Dunning, she says, “My heart about sunk.”

First thing Monday morning — December 2, 2009, per the records — Dunning called Hennepin County. Princess was two months old.

If her son was the father, Dunning told the case worker on the other end of the line, “I want to do everything to get her in my care,” according to the worker’s notes.

First, though, the county had to determine that her son was the dad. Minnesota law requires the county to search for relatives on both sides of the family. But often in these cases, it’s hard to figure out who the father is: Children are usually in the care of the mother or her relatives when the county first steps in, and either she won’t say who the father is or doesn’t know his whereabouts.

Even if Dunning hadn’t called, at some point the county should have contacted her. By calling them first, she bypassed that step. But Princeton would still have to take a paternity test.

This didn’t happen for three months. Results came back 99.99 percent positive that Princeton was the father, and Minnesota moved to ask Mississippi to investigate the Dunnings’ as a possible home for the girls.

But when cases such as this cross state lines, they often get messy.

“The child welfare system is very, very complicated already,” says LaLiberte, from the U of M. “You throw in interstate issues, and it is compounded.”

Minnesota’s only choice was to send Mississippi what’s known as the “interstate compact in the placement of children,” or ICPC. Mississippi was then supposed to run a preliminary check for things like criminal history within 30 days. If that cleared, the state would assign a case worker of its own and tell Minnesota that it had begun the process of licensing the Dunnings: doing a home study, fingerprinting them, and signing them up for training classes.

By April, Minnesota sent out the request, and started talking to the Grossers about the Dunnings as a possible placement for the girls.

But then, nothing happened. Two months later, Minnesota still hadn’t heard anything from Mississippi, not even on the preliminary check.

The case worker kept telling Liv Grosser, “We expect to hear soon.”

Dunning, too, was growing restless: She called Minnesota three times in the first half of 2010, records show.

By the end of June, Minnesota checked with Mississippi, and inquired twice more in July. Still nothing.

Throughout August, Mississippi told Minnesota that the girls’ grandfather, Lawrence Dunning, wasn’t cooperating — he didn’t want to confirm his social security number or take the two mandatory parenting classes.

Dorothy Dunning would later say that this was a misunderstanding. She married Lawrence when her first husband died. Since he wasn’t the girls’ biological relative, he thought he didn’t have to take the classes. By the time he realized the mistake, they weren’t offered again for months.

Hearing about the delays from their case workers, the Grossers began to worry that Dunning wasn’t really interested.

“Nothing was happening,” Steven says. “We were in a hold pattern and getting increasingly concerned.”

Everyone was growing frustrated. Dunning called Minnesota two more times that month, then again in September, and three times in October — not including the calls she was making to Mississippi.

At the end of October — five months after Minnesota had sent Mississippi the compact — a Hennepin County case worker finally got through to Mississippi and learned that, though Lawrence Dunning had now completed classes and been fingerprinted, the state had yet to even assign a case worker to start on the home study.

Not long after, one of Minnesota’s administrators emailed Mississippi a threatening message: “We’re at the point with this request that we may be requesting a review at the federal level regarding the delays and lack of response.”

By now, Dunning was angry. She didn’t understand the delay. It seemed, she says, like they were deliberately keeping her away from her own family.

“These are my grands,” she says. “Once I tell Minnesota that, and I can provide for them and love them, why wouldn’t they give them back to me?”

Aubrey Knox says that the system was confusing to his mother.

“You seen that movie The Help?” he asks. “That’s my mom. She’s been working since she was 14. She didn’t really go to school, she didn’t understand all this. But she wasn’t just going to walk away.”

At the end of November 2010, Minnesota withdrew its compact request to Mississippi. In December, Hennepin County asked the Grossers to adopt both girls.

In January 2011, Dunning again called Hennepin County to ask what was happening. The county case worker explained that, because of the delays and the need to decide on a permanent home for the girls, Minnesota had withdrawn its request.

“Ms. Dunning asked if this means she cannot adopt her grandchildren,” the case worker wrote in her notes. “I said that was correct. She got upset again and raised her voice saying she has done everything she was asked.”

Dunning began to yell, according to the case worker, and “told me to listen good and that her son may be a crack head, but he does not come from crack heads.”

Dunning remembers the exchange.

“I told her, ‘Even if I have to sell everything I own, I will fight tooth and nail and I will get my grandkids,'” Dunning recounts.

Then, the case worker’s notes conclude, Dunning hung up.

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Not long after the phone call, Mississippi finally sent Minnesota a home study for the Dunnings. Hennepin County, though, reassured the Grossers that they were still on track to adopt, and was actively working with the family to make it happen.

In March — a full three months after the county asked the Grossers to raise the girls — Liv Grosser got a call from one of the adoption workers on the eve of a routine state ward review hearing.

“She said, ‘I just want you to know before you go to court tomorrow that the county is going to support Grandma,'” Liv remembers.

The Grossers were devastated.

“As foster parents, you know you’ll treat the child like your own, but it’s not your own,” Liv says. “But since December, they had been our kids.”

The couple discussed whether to contest the adoption. But for Steven, there was never any real choice.

“From my perspective, our decision was made back in December,” he says. “We had committed to the girls.”

“We’re doing this for Princess,” Liv explains. “I was the person in the world who knew her better than anyone else. By the time she was a year old, I knew that if she had to leave me, that would cause her a lot of stress, and I knew from being trained as a foster parent how that has long-term effects.”

The Grossers had also become increasingly worried about the Dunnings. The girls were experiencing developmental delays as a result of their prenatal exposure to drugs, and the Grossers were actively seeking therapies for them.

Dunning, though, was expressing doubts that her granddaughters’ special needs were even real. She wondered if it was just a tactic employed by the Grossers to complicate the custody transfer.

For her part, Dunning says she didn’t ask about the girls’ needs because whatever their delays are, it won’t impact how she feels about the kids.

“They’re my blood,” Dunning says. “I’ll care for them no matter what.”

If it hadn’t been for these doubts, the Grossers say things might have gone differently.

“It wasn’t about me,” Liv says. “I’m an adult; I’ll get over it. But these girls have needs that require more than marginally okay parenting.”

On top of this, the Grossers were skeptical of the county’s reasoning. Seven county workers had been involved in the decision to switch sides, but only two of them knew the girls or the families. These workers had to fall in line with their supervisors, but privately, the Grossers say, they continued to express support.

“Our case workers told us they had to change their mind because [Dunning] was African-American and the grandmother, and whenever they had the same race and a relative, they had to go with her,” Liv explains. “It was all about skin and kin.”

To the Grossers, those reasons didn’t seem right. So they hired the best lawyer they could find: Walling, the past president of the American Academy of Adoption Attorneys, who has been arguing before the Minnesota Supreme Court for 40 years.

At this point, Princess had been with the Grossers for 17 months, and Dorothy for six.

“Children don’t sit in the corner like a potted plant waiting for the adults to get their act together,” Walling says. “A year to a two-year-old child is a lifetime.”

To Walling, a broken bureaucracy had made the bonding — and now, the impending legal battle — inevitable.

“There are a lot of good people in the system,” Walling says, “but the system itself is broken. It just doesn’t work.”

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Two months later, the Grossers and the Dunnings met in court for the first time. Four county workers and one state worker all testified, and when Walling got them on the stand, he grilled them on the decision to reverse.

“I was doing cross-examination of a supervisor,” Walling remembers. “Nobody testified to why it would be in these kids’ best interest to be with Ms. Dunning.”

So Walling asked the supervisor why the county had changed its mind. She replied that the county always goes with relatives.

“Well, that’s not true,” Walling says. “That’s not the law. I can think of all kinds of reasons you wouldn’t go with relatives.”

Then, Walling says, he led this supervisor and two other county employees into a discussion of race.

“I said something like, ‘Isn’t it true that the primary concern here was race?'” he recalls. “Two people said yes.”

Records show that, over the course of proceedings, three of the county employees admitted that race had been a consideration.

But according to both Minnesota and U.S. law, race isn’t supposed to be part of the decision at all: Considering race as a placement factor is strictly illegal.

“It’s my opinion that many of the people [in the county] believe this is what the law should be,” says Walling. “And since very few people challenge it, that’s what they do, but their whole standard was wrong.”

Emotions ran high throughout the trial, starting with the first witness to take the stand: Liv Grosser. She testified that she had once been open to the girls knowing their grandparents. But now that things had gotten ugly, “I think I’ve changed my mind about that.”

In a recent conversation, the Grossers explained that they would still be receptive to an open adoption, but that the Dunnings have seemed uninterested.

“All along, I was saying, ‘You can be their grandmother, and I’ll be their mom,'” Grosser says. “But by the time I got to court, I felt like she had expressed no interest in that. She just wants them.”

In addition to Liv and the county employees, Steven and the Dunnings also testified. So did the children’s court-appointed volunteer guardian, who had known the girls since birth. Like the county employees who were familiar with the family, she said she strongly supported the girls staying with the Grossers.

The Dunnings’ lawyer — a man who had helped Dorothy’s brother with a mortgage — didn’t call any expert witnesses. Walling, however, called two: the girls’ pediatrician and an unrelated doctor.

The pediatrician testified that the girls have some special needs as a result of their exposure to cocaine, and that moving them now could result in long-term attachment problems. The second doctor, too, said she believed babies the age of the girls should never be moved, and that their drug exposure put them at high risk.

The trial lasted four days. Afterward, Judge Kathryn Quaintance was left to determine what she called “an especially difficult question” in her 29-page review of the case: “Should the secure attachments of these children be disrupted, risking long-term impact, in order to provide them with a lifetime of familial connections that they might not otherwise have?”

Before Quaintance got around to answering that question, she took time to scold Hennepin County. Its decision to switch allegiance, she wrote, “glossed over” anything that reflected negatively on the Dunnings. Plus, the people involved in making the decision to back the grandparents “appear” to have “misunderstood Minnesota law.”

“Race,” Quaintance wrote, “should not have been considered.”

Then Quaintance got around to addressing the Grossers.

“The way the Grossers were treated by [the county] is unconscionable,” she wrote. “The Court cannot imagine the stress placed on the Grosser family as a result of [the county’s] complete reversal…. Being a foster parent is emotionally difficult enough without being lied to.”

Quaintance noted that the Dunnings, too, were “treated poorly,” and that both parties received “disrespect and unfairness” from Hennepin County.

Quaintance then wrote a thorough analysis of the girls’ best interest, and what each family could provide. In a perfect world, she wrote, the girls could know both families. Ideally, Princess and Dorothy would live with the Grossers and have “extended summer and holiday visits with their large loving family in Mississippi.”

But ordering that was beyond the judge’s power. So she ruled that the Grossers should keep the girls.

“Given their particular vulnerabilities, the Court does not believe it is in their best interests to be removed from the Grosser home,” Quaintance concluded. “The Court understands what this means for the Dunnings, and it makes this decision with a heavy heart.”

Dorothy Dunning was at work cleaning a family’s house in Mississippi when her lawyer called with the news. It was baby Dorothy’s first birthday.

“I just couldn’t believe it,” she says. “I decided I wasn’t going to sit down anymore. I had to stop doing what they told me to do, and start doing whatever it takes.”

The Dunnings switched lawyers and appealed. In August 2012, the Court of Appeals upheld Judge Quaintance’s ruling. The Dunnings started rallying, sending out letters and enlisting the support of nationally visible advocates like the Rev. Jesse Jackson.

They also hired another new lawyer, Michael Perlman, to ask the Minnesota Supreme Court to review the decision.

In October, the Supreme Court agreed to take the case.

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On the morning of January 8, neither Perlman nor Walling could get a word in edgewise. The justices of the Minnesota Supreme Court had a lot of questions.

They asked the lawyers what they thought the law should be. They posed hypotheticals, such as if two families were evenly tied, which should keep the child, or whether “capable” is the same as “best.” They wanted to know if the court “should put a finger on the scale for relatives.” They repeated the words “troubling” and “troubled.”

Perlman argued first, his voice low and steady. He said that if the law intends to give relatives first consideration, then courts should look at relatives before anyone else. If it finds the family to be “in the best interests” of the child, it should stop there and give the relatives custody.

The justices countered that “best” is comparative, and “there’s not a game, set, match just because a relative is involved.”

Walling walked up to the podium and fueled the debate. After a few rounds of back-and-forth, one of the justices asked, “Has the issue of race been taken out of this case?”

Yes, Walling replied.

At that point, Justice Wilhelmina Wright stepped in.

“These are African-American children,” she argued. “Help me understand what you mean by ‘taking race out of it,’ when that might be against these children’s best interest?”

The justices started talking about race, and culture, and culture as a euphemism for race.

“A case about culture is going to come up,” Walling offered, but this was not that case.

Perlman stepped back up to rebut: “If we aren’t giving meaning to relative preference,” foster families — who know the children and their needs — “are always going to win at attachment. Relatives have one, if not both hands tied behind their backs, and the foster families will prevail.”

After an hour, the arguments ended, and the two halves of the courtroom filed out into the hallway. Under a stained glass skylight, they started rehashing how it went. Both lawyers agreed that the court had asked the questions they expected, but differed on what the case could mean.

On one hand, the court could stick with the Grossers. In that case, “if they come out with a recommendation of, procedurally, how to handle these,” says Walling, “that would be an excellent tool, because these cases get handled very differently all over the state.”

The more major move would be if the court overturned the lower court’s decision, and sided with the Dunnings. If that happened, though the justices can’t touch federal rules surrounding race, there’s room for them to say that “culture” should weigh more heavily.

“Race per se is not supposed to influence where children go, but how can we truly separate race and culture?” Perlman asks. “We’re not saying that these are African-American children and so they should be in an African-American home, but part of culture is heritage.”

Perlman concluded that he would expect the court’s opinion to include some discussion of the culture question. But to him, the case is more about how to weigh the biological bond — whether “we’re really truly going to give meaning” to the idea that kids should grow up with their kin.

Walling thinks that the court is unlikely to come down in favor of a strong relative preference.

“If they say relatives should be considered before anybody else, that would be directly contrary to two of their other cases,” he says. “But that would change the outcome dramatically.”

To two families, the case’s implications aren’t theoretical. The court’s decision will determine whether or not they raise — or even know — two baby girls. It will mean, after nearly three years of suspense and fighting, that they finally have a resolution.

Both lawyers say they think the decision could go either way. In sensitive cases involving minors the court often moves more quickly, and in this case is expected to issue a decision within 90 days. At that point, Princess will be three and a half.

If the court overturns Quaintance’s opinion and gives the girls to the Dunnings, the Grossers feel as though two of their daughters would be taken away.

“I just hope the Supreme Court will see that it’s about two little girls, and not who they belong to,” Steven says. “To think about them going away to a place where they’re not going to be cared for, and mature to what they can be, that’s the scariest part.”

Liv agrees. “It’s about the best interest of the girls, not the best interest of the relatives,” she says. “There’s just this undercurrent of stress that at any time they can take our kids away.”

“We can’t change the color of our skin,” she continues. “We can go and do every single thing that we possibly could do for our kids, but we can’t be black.”

The Dunnings, for their part, are appealing the decision to a higher power.

“I believe in God, and there’s been too much praying for us not to get these babies,” Aubrey Knox says. “It’s going to take a turn — it has to, because of the race issue. You can’t ignore it.”

His stepfather, Lawrence Dunning, agrees. “I think they finally coming home,” he says.

Nearly an hour after court let out, Dorothy stepped into the elevator to leave the Minnesota Judicial Center.

“They made the fight come out in me,” she said on the ride down. “Even when I get my grandkids, I will not stop coming up here. I want to fight and mobilize to put another law on the books to give relatives, and relatives out of state, a chance.”

As she walked out into the bright January morning, she shivered in the cold.

“Minnesota,” she said, “will not forget me.””