By Jesse Marx
By Chris Parker
By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
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.
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."