5-year-old Native American boy to remain in Ohio for now

COSHOCTON - A 5-year-old Native American boy at the center of controversy for more than a year will remain with his Coshocton County foster family, for now.

Last week, the Ohio Court of Appeals reversed an earlier juvenile court ruling that would have sent the preschooler 2,000 miles from his home to a reservation in Arizona. The ruling stated the juvenile court should not have granted custody without first conducting a full evidentiary hearing taking into account the best interest of the child.

Stan and Nichole Braxton have been caring for the child since he was 2 years old when Franklin County Children's Services removed him from his mother's custody.

Two years later the couple, with the biological mother's approval, decided to file for legal guardianship. What should have been a simple proceeding turned into a battle between courts.

According to the Indian Child Welfare Act, a 1978 law that limits the removal and adoption of American Indian children by non-Indians, the child should have been placed in the custody of Native American family members or a Native American foster family.

Against the mother's wishes and despite the child's wishes, on Dec. 13, tribal court was granted an emergency order placing him in the custody of the Gila River Indian Community in Arizona.

The juvenile court of common pleas ruled that improper notice was given to Gila River identifying the child as a member of the their tribe which would have afforded them the opportunity to intervene early in the child's displacement.

The decision was also based on the fact that, with few restrictions, the Welfare Act overrules state custody decisions.

On Dec. 28, 2016, Franklin County Guardian ad Litem Brian Furniss filed a motion for an emergency stay in the case, that was granted by the court of appeals the following day.

For over a year, the case went through one appeal after another. Meanwhile, the child remained with the Braxtons who maintained a relationship with the biological mother until her death on March 18, 2017.

SEE ALSO: Family fights to keep tribe from taking child

The Braxtons could not publicly comment on the court's most recent decision but expressed excitement that they had taken another positive step.

Goldwater Institute attorney Aditya Dyner, who presents Furniss, called the ruling a major victory for the rights of children across the country.

Dyner argued that because this child fell under the Welfare Act, the best interest of the child rule that applies to children of all other races, did not apply to him. Last week he told the court that if this child was of any other race, his wishes and best interest would matter.

Thomas Murphy, deputy general council for Gila River Indian Community, said the tribe will continue to pursue participation in the case. He told the court that if Ohio child welfare agencies had properly notified the tribe after the boy was placed in foster care in 2015, this would not be an issue now.

"By disregarding the law, basically the child was not placed with relatives when he should have been," Murphy said.

Murphy said the child's only living parent - his father - joined Gila River Indian Community in requesting transfer of the case to the Gila River courts and placement with his family members in Arizona.

Dyner argued that the case is more about race than the child's best interest.

Dyner said the state doesn't race-match children in the foster care system. "That's a big no-no in any other case," Dyner said. "That's the fundamental significance of this."

cschultz3@gannett.com

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Twitter: @infoobtainer1