Judge orders home study of family

Wednesday, Feb. 2, 2005 | 11:06 a.m.

The destiny of Shiloh Edsitty hinges heavily on whether the Navajo Nation believes that the non-American Indian family that is seeking permanent guardianship of the 13-year-old will raise him in an environment that encourages his Indian heritage and culture.

To that end, Clark County Family Court Judge Gerald Hardcastle on Tuesday ordered a home study of Edsitty. Vivian Powell, a college professor who is seeking permanent guardianship of Edsitty, who she previously had raised for nine years, agreed to pay for sending two Child Protective Service agents to her home in upstate New York to conduct the study, sparing taxpayers the expense.

Hardcastle allowed Powell to continue to serve as temporary guardian until the Family Court and Navajo Nation review the findings of the study and the local court reaches a final decision on guardianship.

Powell said after the hearing she is confident that her experience as a teacher of American Indian children for several years in Utah -- one of her students was Edsitty's late mother, Teresa Tilden -- and her longtime relationship with Edsitty will satisfy the concerns of the Navajo tribe.

Hardcastle said he would pick the two Child Protective Services social workers to conduct the investigation.

Before the decision about Edsitty's long-term future was postponed to Feb. 28, a Child Protective Services worker currently assigned to his case stomped around the courtroom and refused to answer some of the judge's questions details of her investigation.

While Edsitty, wearing a pinstripe suit and a a fresh haircut that left his hair spiked on top, was polite and respectful to the judge, social worker Antonia Marcune was just the opposite.

When Hardcastle asked Marcune who she had talked to in preparing the recommendation that Powell be named Edsitty's permanent guardian, she said "I'm not prepared to ... disclose (that) at this time."

At times she sighed in apparent disgust over being questioned, rolled her eyes and walked around in circles stomping her boots on the floor. She did turn her notes over to the judge, however.

Deputy Attorney General Brigid Duffy, representing the state worker, told the judge she had not had an opportunity to talk to Marcune about her apparent concerns or to determine if Marcune's concerns warranted a request to the judge to close the hearing so as not to risk the release sensitive information.

The incident further escalated when Marcune's cell phone went off -- prior to the hearing court officials warned everyone in the courtroom to turn off their cell phones -- and she removed it from her purse and stared at it as it continued ringing for several seconds before she apologized for the delay.

Also, Marcune got into a whispering match with Powell's attorney Fran Fine, who pleaded with Marcune to "calm down" and told her "I cannot afford to lose this case."

Hardcastle asked them, "Why do I get the feeling there are secrets here?"

Lacking cooperation from the state, Hardcastle decided to go forward settling what issues he could at that hearing.

Hardcastle said the matter boiled down to who had the right to be Edsitty's guardian, ranking them in this order: Edsitty's natural father; Edsitty's other relatives; the Navajo Nation, which he said could take jurisdiction in the matter, followed by Powell.

Hardcastle said because Edsitty's father and other relatives had signed documents that they received notice of Tuesday's hearing but failed to show, the field was narrowed to the Navajo Nation and Powell.

Hardcastle said he would consider a letter he received recently from Navajo tribal officials as an official intervention on behalf of the tribe. The letter did not ask that the matter be turned over to the tribe, but rather requested the home study that Hardcastle approved.

Edsitty, who had been directed by the judge to leave the courtroom while his fate was decided, was called back after the proceedings and told what had happened. Edsitty also was appointed an attorney from the Children's Attorney Project to further look after his rights.

Shiloh has said that if prosecutors need him, he will return to a Las Vegas courtroom again to point at the man he says killed his mother.

Hardcastle told Edsitty: "I think this whole town is real proud of you.... You are a hero."

After the hearing, Fine said she believes the report will find that the Powell family and Edsitty are "a perfect match."

Powell, a professor at St. Bonaventure University, said after the hearing that "the Navajo Nation wants to be sure Shiloh understands his culture and heritage and that is understandable."

Daniel and Julia Smallcanyon, Navajos who are longtime friends of Powell, said the concerns expressed by their tribe are standard for these type of cases.

"I do not think they (Navajo officials) will have any concerns with Vivian," he said. "We have always considered her part of our family and the Navajo Nation is well aware of her work teaching Indian children. I have sent a letter supporting her to the Navajo Nation."

Powell also confirmed after the hearing that she had received the $11,050 donated by Las Vegans to Edsitty following the Nov. 8 attack in which he was stabbed six times and was transported to the University Medical Center with a 10-inch butcher knife protruding from his chest.

She said the money will be used in part to pay for the home study and cover the family's flights to and from Las Vegas.

Edsitty was born in St. George, Utah, where Tilden attended a private school for American Indians and where Powell was her teacher. Powell said Tilden approached her when Editty was five months old and asked Powell to care for the baby because she could not take the pressure of single motherhood.

Edsitty stayed with the Powells until he was 10. Two years ago, he asked the Powells to allow him to return to his birth mother to "get to know her."