MN Supreme Court issues close decision in Dunning-Grosser adoption case [UPDATE]

Categories: Law, Supreme Court
SplitTheBaby.jpg
Our January cover, "Split the Baby," told the story of the Dunning family and the Grosser family, and the battle to adopt two baby sisters that had landed them in the Minnesota Supreme Court.

On Wednesday, the court issued a sharply divided decision in the case. The Grossers, they ruled, should raise the girls.

"It was a big relief, and my clients are ecstatic," says Wright Walling, the Grossers' lawyer. "It's a pretty convoluted, interesting decision. You don't often see the justices this divided, so there obviously was a lot of discussion up at the court."

See Also:
- COVER: Split the baby: The fight over two baby girls could change how Minnesota considers relatives and race in adoption cases


Princess and Dorothy Knox were born a year apart, both with cocaine in their systems. Within days of their births, Steven and Liv Grosser became their foster parents. The Grosser home in Plymouth is the only one that the girls, now three and a half and two and a half, have ever known.

But as the babies settled in with the Grossers, Dorothy Dunning, who lives in Mississippi, learned that the girls were her grandchildren, and became determined to raise them herself.

She thought that becoming the girls' guardian would be easy; she was their blood. But over the next two years, a series of delays and miscommunications between Minnesota and Mississippi complicated the process. In December 2010, Hennepin County asked the Grossers to adopt the girls, and they agreed. But then, four months later, the county reversed its decision and asked Dunning and her husband to adopt.

In summer of 2011, the two families met in court to sort out their dueling petitions to adopt the two girls. The judge found in favor of the Grossers, and an appeals court affirmed the decision.

The state Supreme Court agreed to hear the case, and in January, its justices wrestled with how to weigh relatives in contested adoption cases. They wondered out loud whether, if two families seemed to both meet a child's needs, the court "should put a finger on the scale for relatives," whether "capable" is the same as "best," whether "there's a game, set, match just because a relative is involved."

The court ended up split nearly down the middle. The verdict came in at 5-2, with one justice, Wilhelmina Wright, half-concurring and half-dissenting. The majority opinion confirms that the lower court interpreted the law, which says that relatives should be considered first in adoption cases but not be given a preference, correctly. Usefully, it also discusses a best practice framework for how to do this.

"They made it clear that there is no preference for relatives, so stop talking about that," explains Walling. "But there is consideration in the following order. I do think in the courtroom [this ruling] will simplify things for judges."

In his concurring opinion, Justice Paul Anderson clarifies it further. He writes that determining best interest requires comparison, and that deciding between two families should be like crossing the street: "'First look left, and then look right.'"

The question of how much weight relatives get, however, is also tied up in the question of culture. In this case, the Grossers are white, but the two girls and the Dunnings are black. Though federal law prohibits race from being considered in adoption cases, the state does allow for children's cultural needs to factor in determining their best interests.

During arguments before the Supreme Court, the Dunnings' lawyer argued that heritage is inseparable from best interest, while the Grossers' lawyer, Walling, argued that this case wasn't about culture. Ultimately, the court's opinion only discusses the culture question briefly, but it does address how race is a factor in considering how to assess relatives.

In his dissenting opinion, Justice Alan Page asks that the case be sent back to the lower court for more information. He argues that the decision not to give relatives a preference could disproportionately affect children of racial minorities.

The law's original authors "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," Page writes. "One way to mitigate these potential negative effects was to strengthen the statuatory emphasis on placement with relatives by requiring that placement with relatives be considered before placement with others."

Page continues, "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 non-relatives may be marginally 'better' in some sense, such as being more affluent or better educated than the relative, or having spent more time with the child."  

Now, Princess and Dorothy will stay with the Grosser family. Dunning, meanwhile, says that she's still not ready to accept defeat. After finding out about the ruling over email, she immediately started talking to people and trying to determine what, if any, her next steps could be.

"I'm not going to stop fighting," she says. "It's just going to round three."

Click here to read the court's opinions in full.
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