State high court alters child placement criteria

CARSON CITY — In what is being called a precedent-setting decision, the Nevada Supreme Court has ruled that judges must consider the best interests of the child over other factors in deciding where to place children 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.

In a 7-0 decision filed Thursday, the court ordered Clark County District Judge Gerald Hardcastle to drop his decision to place a now 4-year-old girl with her aunt and uncle.

The judge still could decide to place the girl with her relatives. Under the high court’s decision, however, such an order must be based on whether it is in the girl’s best interests.

Hardcastle no longer handles such cases so the case might be referred to another judge.

His placement decision came after a couple, identified only as Mario C. and Gena C., had been appointed as foster parents and told the Clark County Department of Family Services that they wanted to adopt the girl.

The Supreme Court stayed the decision, pending the appeal by Mario and Gena, so the child never was removed from their home.

“My clients are very happy with the decision,” said their Las Vegas lawyer, Paul Gaudet, on Friday. “They have every intention to adopt the child. They love the child.”

But Marvin Longabaugh, the lawyer for Michael R. and Teresa R., the child’s aunt and uncle, said that as a baby the child was placed with another foster family in Clark County.

That first foster family was able to dictate to the Department of Family Services that the child when she was 1 year old should be moved to new foster parents, Mario and Gena, who live in Texas, he added.

“She was moved from one foster family to another in another state when her relatives were willing and able to take her,” Longabaugh said. “This is an absolute mess for my clients. They realize the child has bonded with the foster parents, but that bonding was created by screw-ups by DFS. The bonding was created by DFS that ignored the relatives.”

The child’s aunt and uncle live in New York and never have seen the child.

Gaudet said neither he nor the foster parents bear any animosity toward Hardcastle over his decision.

In his order, Hardcastle wrote that it would be in the child’s best interests to remain with the foster parents, but that he could not make that decision because of the legal presumption that such children must be placed with relatives, according to Gaudet.

Longabaugh, however, said Hardcastle stated his decision on where to place the child was “an excruciatingly close call,” but he noted the child had bonded with the foster parents.

He added that his clients had not decided yet whether to continue to fight for the child. They realize the foster parents fell in love with the girl and it would be “horrible for them” if the child was given to the relatives.

The aunt and uncle are not rich or poor, but middle-class people who also would be good parents for the girl, Longabaugh said.

“DFS has butchered them,” he added.

According to a legal source, the decision will have at least a peripheral effect on a celebrated case involving 15-year-old Brittney Bergeron.

Bergeron, paralyzed from the waist down in a 2003 attack by Beau and Monique Maestas, has announced she wants to be adopted by her foster parents.

But Hardcastle, the judge presiding over her case, has refused to extinguish the parental rights of her mother, Tamara Schmidt, who is serving a four- to 10-year term in prison for neglect and leaving her children alone in an RV.

Brittney was paralyzed and her 3-year-old sister, Krisyanna, was killed when the Maestas siblings busted into their RV in Mesquite. They 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.

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

Hardcastle’s decision in that case also has been appealed to the Supreme Court.

The decision in the 4-year-old child’s case clarifies an earlier Supreme Court decision that a legal source said caused family court judges to reject the “best interests” factor and almost always place a child with relatives of parents whose parental rights have been extinguished.

In that case, the mother of the child suffered from drug addiction and the father was in prison.

While acknowledging that there is a family preference, Justice Nancy Saitta wrote in the decision that “when placement with non-relatives best serves the child’s best interest, the familial preference is negated.”

Saitta checked records of a 1991 legislative hearing on the family preference bill and found legislators still gave judges “discretion not to use the preference.”

“The Legislature’s use of the word ‘preference,’ rather than ‘presumption,’ suggests its concern that relatives who are ‘ready, willing and able’ to keep a family together be favored for placement over non-relatives, but that suitable relatives are not necessarily entitled to custody,” Saitta stated.

The decision does not require Hardcastle or another judge to return the child to the foster parents but to reconsider facts and circumstances and determine which placement would be in the “child’s best interest.”

Based on how Hardcastle mentioned in his order that the best interests of the child would be a placement with the foster parents, Gaudet said he is confident the judge now will make that placement.

Child advocates and representatives from the state Division of Family Services and Clark County Legal Services declined comment, saying they had not yet reviewed the decision.

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