*1 warranting departure gun where defendant did dence about the defendant’s use of the conduct). calculating when his sentence. not admit Winchell at 750. precisely the This is situation before us. charges against The two Pearson were consistently Pearson has denied that he acts, separate charged proven one fracture, daughter’s skull caused his (by plea), uncharged and one now and al- charge relating to the skull fracture ways unproven. Because the trial court unproven. pre- dismissed and is was injuries considered in im- the victim’s head investigation report sentence includes Pear- posing triple sentencing departure, guilt denial of for the more son’s serious trial court committed reversible error. Therefore, contrary injury. majori- to the conclusion, ty’s not free was injuries
to consider the child’s head sentencing.
purposes of aggravating
The two other factors cited
by the trial court—the victim’s vulnerabili- position
ty authority— and Pearson’s In the Matter of the WELFARE of D.L. considered certainly be No. C7-91-1173. depart deciding upward. Such may warrant a sentence increase factors Appeals Court of of Minnesota. high presumptive as double the perhaps as Dec. 1991. here, triple departure A sentence. how- ever, explained the trial can Review Granted Feb. underlying of conduct court’s consideration charge stemming the dismissed assault baby’s skull fracture. This is under current
impermissible Minnesota
law. not, majority sug-
This case as the Winchell, analogous to
gests, State v. (Minn.1985). Winchell, charged aggravated
defendant was
robbery, burglary, and assault. In ex-
change dropping burglary and as- pleaded charges, guilty
sault the defendant robbery. aggravated The trial court sentence, presumptive
doubled the
doing underlying so relied on facts
robbery charge. appeal, On the defendant
argued improperly that the trial court relating
sidered to the dismissed evidence
burglary charges and assault when calcu-
lating his sentence.
In contrast and this Womack
however, charge the assault in Winchell simply charge lesser
was based on the (that gun);
same evidence he used a charge superfluous once the
assault agreed plead guilty
defendant aggravated robbery charge.
more serious
Therefore, court found no er- supreme considering
ror in the trial the evi- *2 parents appeal
The foster the trial court’s petitiоn. ruling granting grandparents’ We affirm.
FACTS D.L., July whose date is birth *3 during was the third child born the mar- riage of Debra L. and Jonathan L. D.L. appellants, has been in the care of her parents, days since a after her foster few D.L., Debra, respondent birth. and African-American; grandparents are parents foster and the father are not. give any information Debra did not about agency placed D.L. her appellants. gave agency She a keep appoint- false address and failed to agency ments with the social worker. De- parental rights D.L. bra and Jonathan’s to were terminated the trial court’s order 15,1990, August ground on on the of aban- donment. Perry, Perry, Shawn M. Stew- Shane C. Perry Way Perry, Perry, Perry, & za- art R. daughters Debra’s two other have lived
ta, appellants. for herein, parents, respondents her since daughters 1988. One of the is from the Freeman, Hennepin County Michael 0. marriage with Jonathan and the other from Neiman, Jones, Nancy Atty., A. K. William prior relationship. Respondents have le- a County Attys., Minneapolis, for re- Asst. gal custody girls, eight six and both now spondent Hennepin County. years marriage, old. Another child of thе Belton, Barrows, L. Steven L. Robert boy, lived with them for a time. At the Deinard, Leonard, Minneapolis, Street and father, boy request of both the and his respondent Grandparents. respondents boy returned the to Jonathan. III, Gen., Humphrey, Atty. H. Hubert Respondents live in rural Halifax Coun- Iverson, Gen., Sp. Atty. Asst. David P. St. Virginia. They first ty, learned D.L.’s Paul, Dept, respondent Minnesota August existence in of 1989 when Debra Human Services. from Minnesota and told them she called Walling, George Stephen- T. Wright S. daughter. give refused to had a Debra P.A., son, Berg, Minneapolis, Walling & any furthеr information or a tele- parents Ad Litem. Guardian phone where she could be reached. number Knutson, Knutson, Stier, Howard A. respondents days for a few Debra visited Knutson, Burnsville, Ilstrup for amicus & They urged to in late December 1989. curiae NAACP. Debra, get baby and live with them. however, returned to Minnesota and re- Considered and decided spondents had no contact with her until SCHUMACHER, P.J., KLAPHAKE and they February of when learned she DAVIES, JJ. Respondents jail Minneapolis. who assured them that D.L. called Debra OPINION get good people and she would was with DAVIES, her back. Judge. Debra called her mother parents foster and maternal June
D.L.’s if she could not sought say for the first time that grandparents adopt both her. appellants. going They lose D.L. We turn now to the jail, she was get out thereafter, grand- respondent they testified have married since been Promptly son, teenage appel- Minneapolis Except look for for a came to mother living D.L.; grand- away lants’ children married and able to locate her she was agency. Appellants they from home. through testified daughter profound D.L. respondents notified love D.L. and that Within a few weeks A County’s adoption deeply unit that attached to issue Hennepin them. consequences D.L. at trial was the D.L. adopt wished breaking the emotional bond between her Initially, Hennepin County re- advised appellants. custody and spondents they could assume presented Virginia with them after take D.L. back However, psychologists, period. on clinical Drs. Winifred Scott a short transition Oc- Moore; 5, appellants, parents, pediatrician, Dr. tober D.L.’s foster Clifford Jef- Alexander; By frey professor of child adopt order filed a *4 Minnesota, psychology University granted the trial court at the of dated October prevent Byron Egeland. experts Dr. restraining order to These testi- temporary removing appellants’ age fied that a child of D.L.’s immediate removal from D.L.’s from caretakers to whom the child se- home. curely attached will cause harm granted On November in to the child result later de- which respondents’ motion to intervene the All the pressive or conduct disorders. ex- proceeding appellants. initiated adoption age perts agreed that a child D.L.’s would respondents Then on November if experience pain short-term the attach- petition adopt to D.L. An their own filed caretaker was dis- ment with hearing January set evidentiary was rupted. trial, an Prior to the court issued 1991. primary expert hearing Respondents’ issue was Ken- limiting the of order Watson, work- good ap- neth a licensed clinical social there was cause not par- er and the Assistant Director of the Chica- respondents adoptive as D.L.’s prove Society. go Care Watson testified he preference of the Child ents under the “relative” adop- has in thousands of Act, involved Minority Adoption Minn.Stat. been toddler-aged children his involving tions 2. subd. He experience. of stated that years trial, pro- seven-day respondents At the if great pain re- although children feel back- description detailed their vided a are from caretakers whom moved Respon- and grоund, marriage, life. attached, likelihood that the securely respon- age was 51 and grandfather dent any significant emotional suffer child will age 48 the time grandmother was at dent small, extremely given loving problems is They have married since of trial. been testified about family. Watson recipient and good Both are health are 1962. child of advantages grand- normally full time. The employed biological family. He also testi- within the leave that she took a mother testified parents have a African-American fied that job to D.L.’s from her pursue absence along chil- pass to their ability to unique stay at planned she minority coping skills needed for dren the if the to care for D.L. home society. manage person to this granted. Dr. Lawrence Respondents also called Lawson, Hennepin County so- Sandra Kutner, psychologist, as a rebut- a clinical worker, fa- pertaining testified cial although testified that tal Kutner witness. respondents’ study home. Law- vorable impact ear- important, attachment is positive rela- regarding son’s oppor- away fade with the ly can their respondents and tionship between positive new attachments. tunity to form was confirmed grandchildren children respondents' granted litem, Moore, The trial guardian ad Jane by D.L.’s find- making extensive petition, respondents Virginia. visited who also upheld “feasible,” ings give The court the consti- fact. shall Minority tutionality Adoption Act a family of different racial or ethnic good there was no not to heritage and found cause “knowledge- from the child that is placement preference follow the relative appreciative” able of the child's racial separate the Act. The court also made a heritage. Id.
finding that was in D.L.'s interest best Appellants contend that Minn.Stat. respondents adoptive par- become 2, impermissibly classifies ents. race, upon children based appeal
This to or- followed. Pursuant thereby violating the 14th Amendment’s court, ders of this D.L. has remained in Equal Protection Clause. during appellants’ pendency home argument joined guardian D.L.'s appeal. litem ad and amicus curiae Suburban Respondents grandparents
NAACP. Hennepin County contend that ISSUES standing challenge lack the statute and Minority Act, Adoption Does argue that further the statute withstands violate equal protection scrutiny analysis. strict 14th Equal Amendment's Protection Clause by limiting placement prefer- mandatory jurisdiction To invoke minority ences to children of or eth- racial court, constitutionality when the of a stat backgrounds? nic is challenged, litigant ute bringing the
2. Did trial court abuse its broad challenge must bе able to show that the *5 concluding that the child’s has or applied statute been is about to be by placing best interests were served his disadvantage. or her St. Paul Area for adoption grandpar- with her maternal Marzitelli, Chamber Commerce v. 258 of ents? 585, (Minn.1977). N.W.2d 588 In this
appellants
aggrieved by
were
the trial
application of
prefer
court’s
the relative
ANALYSIS
259.28,
ence under Minn.Stat.
subd.
§
authority
grant
The
court’s
an
standing
We find
to chal
adoption petition
governed by
Minn.Stat.
lenge
constitutionality
of the statute.
(1990).
provides
259.28
The
that
statute
§
a
if
decree of
shall be made
purpose
A
of
core
14th
that
court finds
it is in “the best interests
away
govern-
Amendment is
do
with all
259.28,
of the child.” Minn.Stat.
subd
§
mentally imposed discrimination based on
Ka).
Sidoti,
432,
429,
race.
v.
Palmore
466 U.S.
1881,
1879,
(1984).
104 S.Ct.
I.
pass
muster,
To
constitutional
racial classi
Act,
Minority
The
Adoption
subject
exacting
at
codified
fications are
to the most
2,
is,
requires
scrutiny,
they
justified by
Minn.Stat.
subd.
§
must be
court,
good
compelling governmental
the absence of
cause to the
interest and must
* * *
contrary,
placement pref-
to follow certain
“necessary
accomplish
be
erences in the
of
legitimate
a child of “mi-
of
purpose.
ment”
nority
minority
heritage.”
Florida,
or
McLaughlin
racial
ethnic
379 U.S.
290-91,
determining adoptive placement
(1964).
Id.
of 85
13
222
S.Ct.
L.Ed.2d
children,
give
scrutiny”
such
prefer-
applies
court “shall”
“strict
test
The
even
or,
child,
“benign”
ence
a
of
first to
if
or “remedial”
race-based classifi
prescribed by
that would be “detrimental” to
or
the child
cations
state and local
available,
a
not
governments. City
relative is
to a
Riсhmond v. J.A.
of
Co.,
469, 490-91,
heritage
same racial or ethnic
as the
109
Croson
488 U.S.
S.Ct.
719-20,
(1989).1
child.
If such
Id.
a
is not
415 State, ex rel. St. Louis cerning proceedings may nonparent); therein as tend to Niemi, County Dept. v. delay). 284 cost unnecessary Minn. avoid Welfare (1969) (pain- N.W.2d motions, 2. post-trial In their parents from foster to natu- ful transition argued they were entitled to a trial new may compensated by parents be ulti- ral court This because trial bias. claim is growing up in mate benefit for the child opinion primarily piece based on аn written family). the natural judge for newspaper the trial a local pertaining to the difficulties Minne- white court, in summary, trial this understanding have in sotans other cul- circumstance, properly should con unusual tures. related both to sider statutes legal custody transfer of com preside A judge not in a maintaining law mon case if he or she has in its an interest biological family deter child within he might determination or if or she be adoption peti an mining grant excluded bias. Minn.R.Civ.P. 63.02. supports tion. the record prejudice, disqualifying, to be must Bias or findings signifiсant benefits trial court’s extrajudicial stem from an source and re grandpar D.L. with her from opinion sult in an on the merits on some opportunity ents. These include the judge basis other than what learned up siblings and the grow two In re participation from her in the case. family. support closely-knit a extended Lange, Estate N.W.2d say erred in cannot We Here, (Minn.App.1986). judge’s the trial pain concluding temporary that general newspaper in the comments article ap suffer due will unrelated to the merits of this case. were long-term pellants outweighed not a determina record does sustain advantages grandpar warranting new tion of bias trial. ents’ home. argue Appellants the trial 3. also allowing surprise erred rebut court III. This Dr. Kutner. testimo tal issues that Appellants raise three other cumulative, however, ny rejec and its require discussion. brief tion not have affected outcome. would not its The trial court did abuse argue trial court ground. trial on this refusing petition, denying new consider their erred Nash, Sward grand- 230 Minn. prior filed though it was evеn (new (1950) trial should be disagree. parents’ petition. We strong probability granted only if there is a Statutes, chapter Minnesota result). will render different specifically provide does not adoption petition a may accord one IV. competing pe preference over procedural 24, 1991, this April dated In an order Still, adoption statutes tition. appel- of D.L. from stayed transfer accomplish pur liberally construed to final all lants’ home until resolution more than a need not be pose, аnd there Respon- appellate proceedings. court and require compliance with their substantial stay at this request to rescind the dents’ *8 validity of the to sustain ments stay remains in effect The time is denied. Minn, Jordet, at proceedings. final. decision becomes until this court’s has discre The trial court N.W.2d at 646. Minn.R.Civ.App.P. 136.02. See in likely petition on the more tion focus avoiding lengthy and con the interest DECISION See Minn.R.Civ.P. proceeding. tentious adop- different criteria imposing (when By common involving a 42.01 actions minority ra- of childrеn placement pending tive or fact are before question of law opposed to backgrounds, as cial or court, such may make orders children, non-minority based on all of the relevant evidence. Moreover, violates 14th Amendment’s the trial court’s focus on wheth- Equal Although appli- Protection Clause. good er place there was cause not to preference cation of the relative under the grandparents may well have af- impermissible, statute was we affirm the fected the court's evaluation of critical evi- longstanding result this case based on disruption dence on the effect of the of the legislative preferences and common law primary caretaker experts bond. The placing permanent a child in the care and agreed that D.L. psychologically will be custody of a relative and on the trial damaged if appellants’ care, removed from separate court's conclusion that the child’s disagreed but as to the long likelihood of by placement best interests are served damage. term respondents The evidence grandparents. The trial court did not presented permanent- that D.L. will not be concluding its discretion in abuse broad ly weight harmed would be of less in an temporary resulting harm to D.L. inquiry where her best interests is only from her is out- issue. weighed significant by the benefits of Further, disagree I majori- with the biological family. within her ty’s conclusion that there is a “common Affirmed. preference law” for near in adop- relatives proceedings. power tiоn The to decree an SCHUMACHER, Judge (dissenting). adoption purely statutory is and the statute agree I that Minn.Stat. is the measure of the authority. court’s impermissible creates an racial classifica- Jordet, re 248 Minn. tion I disagree and is unconstitutional. (1957). statutory Without authori- majority's with the affirmance of the result zation, preference no for near relatives ground on the this case that the trial applied. court conducted an alternate inter- “best majority The fact, seeks to extend the com- analysis. procеedings ests’’ preference mon law near “good were limited to whether there relative was apply preference proceedings cause” not to relative adoption proceedings. The common under the statute we have now found un- law custody preference goal constitutional. Because the fostered the trial court’s preserving appellants’ family petition parental refusal to consider re- unit while rights adoption statute, sulted in the exclusion of continued. The сertain evidence skewing contrast, weight provide and the of the afforded to seeks to evidence, necessary. family other trial is relationship new I only children after respectfully therefore biological parents’ rights dissent. have been ter- purpose, minated. To achieve this the act majority 1. The concludes the trial biological relationships severs all and cre- choosing its acted within parent/child ates relationship a new with a only petition respondent to entertain new аnd new relatives. See Minn. grandparents. disagree. I In this (1990). Stat. subd. 1 appellants’ filed first. The grandparents were allowed to intervene in Accordingly, supreme our court has not proceeding appellants’ peti- to consider recognized a near relative Despite posture, tion. the trial court adoption proceedings. See In re Niska issued an order days before trial few nen, 301 Minn. 223 limiting the evidence to the issue of wheth- (1974) (in adoption contest between foster good grant er there was causе not to parents grandmother, no presumption grandparents’ petition. such parent as that favor of a natural
By preliminarily barring sup- applicable any petitioners, evidence in since port appellants’ petition, parental rights terminated). have been impossible rendered it majority’s attempt to make a in this reasoned case to con determination of nonstatutory D.L.’s best interests struct a *9 contrary import to the clear preference is
of Niskanen. lim- explicitly summary, proceedings here to the issue
ited the statutory apply. Our determination that
should trial court relied is
standard on which the compels remand for
unconstitutional interests” under true “best
sideration Although recognize I the need
standard. D.L., importance certainty
determining on home based according to relevant evidence and
all the delay proper justifies standard I proceedings. further
would be caused trial. and remand for a new
would reverse RUZIC, Respondent,
Joseph PRAIRIE, Appellant.
CITY OF EDEN
No. C6-91-1259. Appeals of Minnesota.
Court of
Dec.