Scope of ruling by high court limited

CARSON CITY -- The lawyer for Brittney Bergeron said Tuesday he doubts a new Supreme Court decision will have any effect on his 15-year-old client's efforts to be adopted by her foster parents.

Steve Hiltz, a lawyer for the Children's Attorney Project, said the decision won't affect Brittney because it applies only to cases where courts already have terminated parental rights.

In a decision Thursday, the court ruled unanimously that judges must consider the "best interest" of the child over other factors in deciding where to place children permanently removed from their parents. Judges in the past have relied on a 1991 law that relatives of children permanently removed from their parents should be given a "family preference" in determining where children should be placed.

"It has an effect only after the child has been taken from her mother," Hiltz said. "Brittney's mother hasn't lost her rights. That case is still before the Supreme Court."

But Justice Nancy Saitta examined records of legislative hearings in 1991 and found legislators gave judges "discretion not to use the preference."

Under the decision, judges still can decide to place children with foster parents, rather than relatives, but they must determine such a placement would be in the "child's best interest."

Hiltz has appealed a decision by District Judge Gerald Hardcastle, who ruled against terminating the parental rights of Brittney's mother, Tamara Schmidt.

Brittney's foster parents, Judy and Bill Himel, want to adopt her.

Hardcastle refused to terminate Schmidt's rights despite the fact that the woman is serving a four-year to 10-year term in prison for neglect and leaving her children alone in an RV in Mesquite.

Brittney was paralyzed and her 3-year-old sister, Kristyanna, was killed when Beau and Monique Maestas busted into their RV in Mesquite in 2003.

The Maestases contended that Schmidt had burned them in a methamphetamine deal.

Beau Maestas received the death penalty, while his sister must spend at least 67 years behind bars.

Hiltz said he filed his appeal of Hardcastle's decision early this year, but to this point he has not heard when the Supreme Court will review the case.