Right path to child custody decisions eludes judge handling Bergeron case

Family Court Judge Gerald Hardcastle is 0-2 with the Nevada Supreme Court on whether, after parents are found unfit, child custody decisions should favor placement with a family member or be in the child's best interests.

Each case centers on a baby girl born to a drug-abusing mother, taken by authorities and placed with foster parents who wanted to adopt her.

And each time, Hardcastle's subsequent ruling was overturned by the high court.

In 2005, he ruled it was in Nathaly Sosa's best interests to live with foster parents rather than with Maria Lopez, her grandmother, a kitchen worker already caring for five grandchildren. Hardcastle said caring for six grandchildren would overwhelm Lopez.

The Supreme Court said he was wrong and should have taken into account the law giving preference to suitable family members after a parent's rights are terminated. So Nathaly was taken from the foster parents and given to the grandmother to rear.

And she's happy, healthy and doing well, according to Clark County Legal Services Executive Director Barbara Buckley, who represented the grandmother and successfully argued the law's intent was to give consideration to placement with a family member, plus it was in the girl's best interests to live with her family. "The best interests of the child and family preference are not mutually exclusive," Buckley said.

But they seemed to be for Hardcastle.

In this second case, Hardcastle said an infant who in 2005 had been placed with foster parents in Texas should instead be given to a paternal aunt and uncle in New York.

There was some attitude in his written opinion. The judge cited the earlier opinion and said he was complying with "the Legislative scheme."

"The law requires that the relatives be given placement of the child regardless of the child's best interest," Hardcastle wrote, making it clear he didn't agree with that.

But the Supreme Court said on Sept. 20 that Hardcastle was wrong again. It was in the child's best interest to stay with and be adopted by the foster family, especially because the child's natural aunt and uncle waited more than a year to seek custody, which their attorney, Marvin Longabaugh, disputes.

Supreme Court Justice Nancy Saitta, who wrote the opinion, said the record was muddy about exactly when the aunt and uncle expressed interest in adopting the child. Saitta said the aunt and uncle should have come forward earlier if they wanted to adopt the girl because they knew she had become a ward of the county.

The child's father is in prison. He initially denied paternity, but three months later said he was the father and proposed the baby girl go to his mother or his sister.

To clarify the standard in child custody cases, Saitta said judges in the future must consider whether a family member would be the preferred choice, and if they're suitable. However, the justice wrote: "The district court's primary focus should remain on the child's best interest."

Buckley, who is also Assembly speaker, said she might have legislators look at the child custody laws, which Saitta wrote were ambiguous when they were rewritten in 1991. However, Saitta also said the Supreme Court's earlier opinion might have been unclear as well. Seems there's plenty of blame to share between ambiguous laws and a confusing Supreme Court opinion.

Now Hardcastle is in the unusual position of having been overturned twice by the Nevada Supreme Court after ruling on both sides of a similar child custody issue.

Hardcastle might be 0-3 if the high court rules he was wrong in the Brittney Bergeron case. In that case the judge refused to terminate the parental rights of Tamara Schmidt, whose actions led to the death of one daughter and the permanent injury of Brittney.

Many find it hard to forget Brittney, then 11, trying to protect her baby sister from the knife attack of two drugged crazies seeking revenge on Schmidt by attacking her children in a trailer in Mesquite.

Public opinion sides with Brittney, now 15, who wants her foster parents to adopt her.

Who knows what the Supreme Court will decide in that controversial Hardcastle case, with all these confusing laws, confusing opinions and confused judges.

Jane Ann Morrison's column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call 383-0275.