Custody battle continues over 10-year-old stabbing victim

Erica D. Johnson

Thursday, Jan. 8, 2004 | 9:50 a.m.

A Family Court judge on Wednesday put off deciding who would get custody of the 10-year-old survivor of the stabbing attack that left her little sister dead in Mesquite last year.

Family Court Judge Gerald Hardcastle said Brittney Bergeron would remain in a Las Vegas-area foster home for at least more six months.

He said it would take additional court hearings to determine whether the paralyzed girl should be placed in the custody of her mother, Tammy Schmidt, or her father, Kevin Bergeron, who lives in California.

Kevin Bergeron failed two drug tests and recently refused to take a third as ordered by Brittney's state social worker, state officials said.

Robert Schmidt, Tammy Schmidt's husband, also has a history of drug use and has several arrest warrants pending in California on charges that include robbery and bouncing checks, officials said.

The girl is living in a state Division of Child and Family Services foster home. Hardcastle said Brittney would remain there until a status check, scheduled for July 15.

"In my opinion, at this point, both parents are unfit to have the child," Hardcastle said.

Brittney was placed in state custody after a Jan. 22 attack in a Mesquite trailer left paralyzed her from the waist down and killed her 3-year-old sister, Kristyanna Cowan.

Beau Maestas, 19, and his 17-year-old sister, Monique, are charged in the attack.

Police say Beau Maestas told detectives that Tammy Schmidt and Robert Schmidt, then her boyfriend, had orchestrated a bogus drug deal in which they sold him table salt instead of methamphetamine. The couple have denied that allegation.

Tammy and Robert Schmidt, who were married after the attack, had left the children alone and were in the CasaBlanca hotel the night the attack occurred.

District Attorney David Roger said Wednesday that authorities had not yet decided whether the mother would face child neglect charges in connection with the attack.

Tammy Schmidt attended Wednesday's hearing, flanked by Robert Schmidt and her attorney, Steve Wolfson. She addressed the court briefly and told Hardcastle that her main concern was the welfare of her daughter.

"I'm willing to do whatever it takes, to go to whatever measures, to be a better person and a better mother," she said.

Kevin Bergeron did not attend the hearing. His attorney said he was suffering with the flu.

Hardcastle said he met with Brittney on Wednesday morning before the hearing and that the girl was "doing just fine." State officials would not comment on the details of her medical recovery.

Despite her progress, "Brittney continues to express a desire to be returned to her mother," attorney Steve Hiltz, who represents Brittney, said.

But Hardcastle said both parents had a lot of work to do before the court would consider giving either of them custody of the child.

Hiltz also questioned Robert Schmidt's character. The lawyer accused Schmidt of offering his ex-wife $50,000 of the potential settlement in a proposed suit against the CasaBlanca if she promised not to sue him for back child support.

Schmidt's attorney denied the allegation.

While Tammy Schmidt has obtained employment and remained drug free, she has "failed to accept her responsibility for her role" in the events that led up to the stabbing, Hardcastle said.

Hardcastle warned Tammy Schmidt that her new husband could present an obstacle in her gaining custody of her daughter.

During the hearing attorneys for both sides tried to portray the other parent as unfit.

Kevin Bergeron's attorney, Radford Smith, said Tammy Schmidt had essentially "kidnapped" the child when she brought Brittney and her sister to Mesquite while in the middle of a messy divorce in California.

A California court had granted Tammy Bergeron custody of the child in March 2002.

Smith said Nevada's jurisdiction regarding Brittney's custody was only an emergency one and that the child should be returned to California authorities or placed in the custody of her father.

"It is now time to return jurisdiction to the state where the child resided for the bulk of her life," Smith said.