Split the baby: Two sides of an adoption battle

The fight over two baby girls could change how Minnesota considers relatives and race in adoption cases

"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."

Minnesota's Supreme Court Justices hear arguments from the Dunnings' lawyer
Jayme Halbritter
Minnesota's Supreme Court Justices hear arguments from the Dunnings' lawyer
Dorothy Dunning tells her story to a group of supporters at the Minneapolis Urban League
Jayme Halbritter
Dorothy Dunning tells her story to a group of supporters at the Minneapolis Urban League

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."

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."

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