There is perhaps no more torturous force in child welfare cases than that of inertia – the missed filing deadlines, the attorney sick days, waiting for appeals to exhaust themselves.
Children linger in foster care, often away from relatives who love them. Even the slightest disruption in bonding can harm a child, a phenomenon clinical psychologist Jim Kenny refers to as “child time.”
“As the displaced child grows and develops, patterns are embedded that will be difficult to reverse,” Kenny wrote in a 2017 column for The Chronicle of Social Change. “Development cannot be paused like a video, or put on hold.”
Latonia Rolbiecki, a stable and loving African American grandmother, has spent nearly four years fighting to bring her biracial grandson Tavon* home, her only bonding opportunities coming in the form of brief weekly visits. And in the end, the time that had passed since Tavon went to foster care was used against her like a cudgel in court.
The Chisago County Health and Human Services department had kept Tavon with a foster family, John and Avery Bird, even after Rolbiecki became a licensed foster parent and despite a clear endorsement of the grandmother by an independent expert. And with the parental rights of Tavon’s mother and father completely terminated, the case came down to a hearing before Judge Robert Rancourt, who had presided over the case since Tavon was just a newborn in 2016.
Eight Days of Evidence
In a final series of delays, Rancourt pushed the pivotal “evidentiary hearing” — a trial to determine who should raise Tavon — from November of 2018 to January of 2019, and then again to March of 2019. Just after the trial began, Tavon turned 3.
Rolbiecki’s lawyers faced two legal hurdles. First, they had to prove that Chisago County’s decision to refuse to place Tavon in her care was “unreasonable,” an imprecise term that gives discretion to judges. In this case, their task was to convince Rancourt, the same judge who had monitored the case for years, that his home county’s child welfare agency lacked a rational argument for not giving custody to Rolbiecki.
Then, they had to convince Rancourt that Rolbiecki’s home was the “most suitable home.” So even if Rancourt agreed that Chisago County Health and Human Services had been unreasonable in keeping Tavon from his grandmother, he could still find that the Birds were the right family to adopt Tavon.
Under Minnesota law, the court must consider several factors in determining the best permanent option for a child in foster care. These include the child’s behavior; health; cultural, religious and educational needs; and his connection to “current caretakers, parents, siblings and relatives.”
Over eight days in court spanning March and April of 2019, the court heard from a long list of witnesses, including Rolbiecki and the Birds. “It is the longest proceeding I’ve ever had,” said Natalie Netzel, one of Rolbiecki’s attorneys.
All of Chisago County’s caseworkers supported adoption by the Birds. So did Laura Moore, Tavon’s guardian ad litem.
Nita Gay – the white grandmother who was granted immediate custody of Tavon’s white half-sister Jillian* when she was taken from her drug-addicted mother Adalynn Hubbell in 2016 – testified that she had become close friends with the Birds, and supported their bid to adopt the boy. She said if Rolbiecki was allowed to adopt Tavon, she would not bring Jillian to her home for visits, out of fear that Tavon’s father might be there.
Rolbiecki’s lawyers believe Rancourt ruled against them due in part to the testimony of Deena McMahon, the expert who eight months earlier had emphatically recommended Tavon be raised by his grandmother, despite concerns that Tavon “may experience disruption as a life-altering event.”
“[Latonia] has a stable and safe home environment,” McMahon said in her June 2018 report. “She is successfully parenting her two teenage children, who are thriving. They have been deprived of almost all contact with Tavon for no discernible reason.”
McMahon was asked to re-evaluate the situation closer to the trial, and said that the additional eight-month delay had rendered her undecided.
“It will be even harder for him to transition now than it would have been eight months ago,” she said, in a follow-up report for the court before trial. Rolbiecki was best for him “in terms of cultural and family belonging over time,” but the Birds were better “in terms of his attachment.”
Before the trial, Joanna Woolman, an attorney for Rolbiecki, got a call from McMahon warning her that her views had changed.
“We had a frank conversation. I said, basically, ‘You’re tanking our case,’” says Woolman. “And [McMahon] said, ‘No, the judge could still …’, and I was like, ‘Deena, it’s going to go away if you make a change. You know that it is.’”
Rancourt ruled that Tavon should be adopted by the Birds. He lauded Latonia Rolbiecki’s “commitment and involvement in this process and her desire to do what is in Tavon’s best interests.” But he said that even if he agreed that Chisago County Health and Human Services was culpable, Tavon was better off with the Birds.
“The court understands Ms. Rolbiecki’s frustration with [Chisago County] due to the lengthy foster care application process, but [the county’s] refusal to place Tavon with her was not irrational and is supported by the record,” he wrote. He argued that “attachment” to the Birds justified his decision, writing, “There is no dispute that Tavon has a stronger bond with the Birds and their children than Ms. Rolbiecki.”
Woolman sees a biased government system that got what it wanted in this case.
“Bad inertia is what our child protection system does to exclude relatives,” she said. “When counties and judges delay moving children to a safe and loving relative, they may be counting on the fact that ultimately there will reach a point where they think they are justified in not ever moving the child to that relative’s home simply because too much time has passed.”
Regarding McMahon’s torn testimony about who should raise Tavon, Woolman alleged, “I think she was conflicted, and I think she didn’t go as far as [Chisago County] wanted. She knew Latonia was the right person, and at the same time there was legitimacy to the fact that it had been eight more months.”
Judge Rancourt, and Chisago County Health and Human Services officials, declined to be interviewed for this series.
Sitting in a coffee shop months after Rancourt’s decision, McMahon said Tavon’s case was the first she recalls in which she didn’t write a final summary advising the court of a proper choice.
“I was very worried that Tavon was coming apart at the seams,” she said. “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 Rancourt’s decision noted that McMahon “believes that the Birds will continue the relationship with Ms. Rolbiecki, even though the court process is divisive.” But months after the trial concluded, McMahon drew an unpleasant picture of the power the Birds may wield against Rolbiecki if they get formal custody.
“I am worried that the Bird family will not in good faith maintain contact, and at any point if they decide it is too difficult for Tavon or there’s some challenge with Latonia they don’t like, they can simply stop” and cut off his grandmother for good, McMahon said.
Between a future for Tavon with the Birds that excludes Latonia, or suffering attachment issues if he’s moved from the Birds to his grandmother, what is best?
“He would be worse off if there was no contact with Latonia,” she said.
In the end, the fact that this transpired in rural Chisago County, with a 95 percent white population, matters, she said. “Had this case been heard in a number of other surrounding counties, the outcome would have been different. The demographics of individual counties certainly does have some influence on case outcomes.”
“He’ll Find Me One Day”
Rolbiecki has appealed the decision against her to the Minnesota Court of Appeals, which will hear oral arguments in the case on Wednesday, January 22. The core of her lawyers’ argument will be that Chisago County Judge Rancourt illegally delayed Rolbiecki’s custody request for almost 19 months by jumping on a technicality that no government — no judge — can use to keep a family apart.
“It took almost 19 months to issue a decision on Latonia’s motion” for custody of Tavon filed in December 2017, said Natalie Netzel, one of Rolbiecki’s attorneys from the Mitchell Hamline School of Law. “That was just an error. That is our big overarching argument.”
Chisago County Attorney Janet Reiter, representing the county government, argued in her brief to the appeals court, “It is common to consider the number of moves a child is at risk of experiencing when making placement decisions, and the goal is always to minimize the number of placement changes.”
By the time the appeals court makes a decision, Tavon might have blown out the candles on his fourth birthday cake.
Sitting at her kitchen table in Coon Rapids, Rolbiecki struggles when asked how she might stay in her grandson’s life if the court allows the Birds to adopt him. “I don’t even want to think that way,” she said.
Her fight in court has prompted Rolbiecki to become an activist in the child welfare arena. She speaks frequently now at events promoting the African American Family Preservation and Child Welfare Disproportionality Act, which will be introduced for a third time this year by State Sen. Jeff Hayden (D) and State Rep. Rena Moran (D).
The bill would minimize circumstances under which non-white children can be placed into foster care and prevent child welfare agencies from placing them in foster homes with strangers unless they can prove there are no extended family members who could care for the child.
Kelis Houston, who connected Rolbiecki with the Mitchell Hamline Clinic attorneys, is widely credited with the creation of the legislation. Asked for the evidence that such a drastic change is necessary, she cites a slate of damning data about the use of foster care in the Twin Cities. In Minneapolis, where 14 percent of people are black, more than 51 percent of the kids removed from home in 2017 were black. In Saint Paul where 13 percent of the population is black, 45 percent of the kids removed from their homes were black.
“I do agree they should be doing all they can for every family,” Houston said of the state’s child welfare agencies. “But we have to get a focus on the children most impacted.”
Rolbiecki’s mother, who is white, attended one of the events where Latonia spoke about her experience fighting for Tavon, and her own experience as a biracial girl growing up in the Twin Cities suburbs.
“She was just like, ‘I’m sorry you’ve had to go through all this. But I’m so proud of you because you haven’t stopped fighting for Tavon, and you’re up here taking a stand.’”
Rolbiecki shares McMahon’s concern that if the courts do not back her, the Birds might not allow her to remain in Tavon’s life. But she would never give up on being his grandparent.
“He’ll find me one day,” she said, tearfully allowing herself to imagine the worst-case scenario. “He’ll find me eventually. And if it’s 10, 20 years down the road, guess what? I’m going to be in the same boat, but I’ll have to be fixing a lot more than just what we have to fix now.”
*This is a pseudonym meant to conceal the identity of a minor.