Earlier this week, The Chronicle of Social Change published a three-part series on Latonia Rolbiecki, an African American grandmother in Minnesota who has pursued custody of her grandson for nearly four years while he lives in Chisago County foster care. A Chisago County judge ruled in favor of an adoption with the child’s white foster parents this summer, a decision that Rolbiecki appealed.
On Wednesday, the Minnesota Court of Appeals heard oral arguments in the case.
The Minnesota Court of Appeals expressed concern about Chisago County’s treatment of Latonia Rolbiecki, an African American mother of three seeking to adopt her grandson. But the court also wondered aloud if it had jurisdiction to change the outcome of the case.
In front of a packed courtroom, with more observers watching from an overflow room, the three-judge panel that heard the case yesterday morning pressed Chisago County Attorney Jeanine Putnam for answers on why it took until March of 2019 to conduct an evidentiary hearing on placement of the child. Rolbiecki’s first motion for placement as a foster parent occurred on December of 2017, more than a year-and-a-half earlier.
Still, the comments of justices suggested that even if they agreed that Rolbiecki had been poorly treated by the county, it was not clear if there was an error to correct.
“We as an error-correcting court … are not in the position of second guessing what the district court did,” said Judge Peter Reyes. “The issue is whether or not the district court abused its discretion by either committing an error of law or made a decision not based on the factual record.”
[The reporter was not present for oral arguments – all comments from lawyers and judges during it were obtained from the official recording of the proceedings.]
Rolbiecki’s grandson, who like her is biracial, was born in March of 2016 with drugs in his system. He was placed with white foster parents, John and Avery Bird, who in 2017 announced their interest in adopting the child.
Rolbiecki stepped forward to help care for the child at birth. In August of 2017, Rolbiecki became a licensed foster parent so that her grandson could live with her. In November, the court terminated the parental rights of the child’s parents, Marquise Rolbiecki and Adalynn Hubbell.
In December of that year, she made a motion for placement with her. Chisago County Judge Robert Rancourt granted her visitation, but decided to put any decision to move the child on hold because both birth parents were appealing the termination of their rights.
In September of 2018, Chisago County Health and Human Services (CCHHS) entered into an adoption agreement with the child’s foster family, who at that point had cared for the child since April of 2016.
When a hearing was finally held in March of 2019, the district court found that Chisago County Health and Human Services had not been unreasonable in failing to place Rolbiecki’s grandson with her. And, Rancourt ruled, adoption by the foster family was in the best interests of the child, due in large part to the fact that he had a strong primary attachment to them.
At the appeals court this week, lawyers for Rolbiecki argued that Minnesota law requires courts and child welfare agencies to make “all progress” toward a permanent option for children in foster care. While adoptions and guardianships cannot be finalized before the rights of parents have been terminated, movement forward on such placements must occur.
The evidentiary hearing is “something that must happen during the pendency of an appeal and it didn’t take place,” said Elizabeth Slama, who argued the case representing Rolbiecki’s team of lawyers from the Mitchell Hamline School of Law. “And because it didn’t take place, the best interest factors and the analysis that took place in this case was tainted and must be redone.”
Slama said the delay of a hearing on Rolbiecki’s motion “was an error, an abuse of discretion, and contrary to the child’s best interest to not place him with grandma,” and that this case came down to “an intransigent county administration undermining legislative policy.”
Chisago County Attorney Putnam argued to the panel that Rancourt’s decision to hold on Rolbiecki’s December motion in January of 2018, and continuing to keep the child with the foster family at subsequent review hearings in the case, was the court acting against the grandmother’s pursuit of custody.
“I’m not satisfied with that answer,” said Judge Diane Bratvold, “Because the district court addressed them only to put them on hold, but the district court also addressed issues of visitation, of ongoing contact during each of those hearings.”
Putnam cited several reasons why, at various points, a move to Rolbiecki’s home was not in her grandson’s best interests, in the opinion of the county. At the point of the initial motion in December, she said, there had never been unsupervised contact between Rolbiecki and her grandson.
She also argued that later, with the termination of parental rights (TPR) appeal still pending, Rolbiecki’s rocky relationship with the birth mother – Adalynn Hubbell – was a factor.
Hubbell “had indicated throughout the proceedings she did not want the child to be placed in the grandmother’s home,” Putnam said.
Putnam also argued that the attachment formed between the Birds and the child, which loomed large in the 2019 decision by Rancourt to support their adoption, was already established by December of 2017.
“If this motion had been heard in December of 2017, there’s no indication on the record that the district court would have reached a different conclusion,” she said. “The child was already attached to the primary caregiver. All of these things that are present at the time of the ultimate evidentiary hearing were present in December.”
That would seem to be in contradiction to the fact that, six months after the December motion, an independent expert brought in to assess the child’s options had strongly urged the court to place Rolbiecki’s grandson with her.
“Latonia has been licensed for foster care for a year. [Her grandson] should have been placed with her at that time,” wrote therapist Deena McMahon, in a report issued in June of 2018. “[Latonia] has a stable and safe home environment. She is successfully parenting her two teenage children, who are thriving. They have been deprived of almost all contact…for no discernible reason.”
By the time of the evidentiary hearing in March of 2019, McMahon told Rancourt that she had no opinion on which was the better option for the child, because of the extensive amount of time that had passed since her last report.
“I was very worried that [he] was coming apart at the seams,” McMahon told The Chronicle of Social Change, in a series of stories published this week about the case. “I saw him the second time, and he was much more fragile. He cried at the drop of a hat, he was clingy … He needed therapy, where before he didn’t.”
Judge Bratvold told Slama that McMahon’s change of heart demonstrated “how prejudicial the delay was.” But it also highlights “your position that the evidentiary hearing had to occur” while the termination of parental rights was still pending.
Bratvold said she was not sure “on what authority” the court could do anything about that, “especially under an abusive discretion standard of review.”
Reyes later asked Slama if she was asking them to issue a rule that evidentiary hearings on permanency options should be required “in every case even though the TPR still being appealed.”
Slama replied that Rolbiecki was asking for “an opinion that says … all progress must continue” toward permanency, “and a part of that progress is the evidentiary hearing.”
The panel has 45 days to return an opinion on the matter. If it sides with Rolbiecki, it is within their power to reverse the district court’s actions and directly award adoption to her. It could also reverse the lower court and remand the case back to Chisago County for Rancourt, or another judge, to redetermine which home is in the child’s best interests.
“We realize that this is a very important issue and we will be taking the matter on a consideration and issue and opinion within the statutory timeframe,” said Reyes.