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Sep. 27, 2007
Copyright © Las Vegas Review-Journal

JANE ANN MORRISON: Right path to child custody decisions eludes judge handling Bergeron case

JANE ANN MORRISON
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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.

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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.

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Please enter your name Name: Please enter your email Email: Please enter a comment COMMENTS : (word count limit is 300) You have reached the maximum number of words allowed Current Word Count: RMJ wrote on September 27, 2007 11:31 PM: a judge would not be expected to terminate rights of a druggy parent right away, why should he be expected to rule differently in the same case simply b/c the ramifications were worse. the facts of this case are most unfortunate, but if we terminate tamara Schmidt's rights than we should terminate every parent who abuses drugs and has their child living in an unsafe location such as a trailer being watched by an older sibling at times. don't get me wrong; i think we should but we don't so we have to look at the facts of the case. as for the child's wishes - of course - that has to be taken into consideration, but don't forget how bruised (emotionally) this child is....she needs major counseling and she already lost her sister; i don't think she can afford to lose another person...despite what she says. having said that, however, i still think she should reside with the foster parents all the while mom still has visitaiton provided the two attend counseling (with a qualified therapist (good luck in this town - don't settle for a master's person, go for a PhD). there's no pretty way to "fix" this case, but punishing mom doesnt help anyone. as for public policy - i don't know... there could be something there. Mamamia wrote on September 27, 2007 09:48 PM: The attitude of our present day society and the primitive mind-set of the judicial system has run amok and both share equal blame for the heartache that has occurred in the nation's Family courts. The judges are pretending to be as wise as Solomon but are yet still as warily relunctant as Thomas the doubter to believe in the altrusitic motives of parents and grandparents and relatives of the children being victimized by the idiotic decisions of the Family courts by allowing strangers to have the child before its own blood kinfolk. It's wrong and it should be forbidden.The tragedy that allows such travesties is unjust and unconscionable.Is the "spirit of the law" outlawed too? Sure seems to be! We need to replace ALL of the Family court's judges with competent judges with hearts and a true feeling for the Spirit of the Law as well as The Law itself. Think about it, people! Timmy wrote on September 27, 2007 04:05 PM: In one of the cases Judge Hardcastle is on record stating to be unhappy with the decision is HAS to make, given existing case law from the Supreme Court. In that case the Supreme Court changed existing case law. Now, Hardcastle is free to do what he actually wanted to do. So, it appears that Judge Hardcastle at least does his best to following the law and not make it up as he goes along. Robert wrote on September 27, 2007 02:51 PM: I normally agree with you Ms. Morrison but this article seems as confused and contradictory as the District Court decisions which you are apparently assailing. You claim that Judge Hardcastle has some inability to follow the law and that the right path "eludes" him, then you write that the standard which he is to follow keeps changing. The facts are that there is no bright line in child custody decisions, what is right for one child under one set of facts is not necessarily right for another child. The only thing trial judges are supposed to have that is to be stable is precedent, which keeps moving according to your article. The one thing child custody decisions are not to be decided by is "public opinion" as indicated in your article. You took a very worthwhile topic and managed to turn it into a ridicule piece. Candy wrote on September 27, 2007 08:21 AM: Nancy Saitta needs to go.