APPELLATE REPLY BRIEF
[This may not be a true and accurate account]
INTRODUCTION
Appellant asserts in her Opening Brief that the trial court abused its discretion. It is illogical and against the available evidence to grant sole legal and physical custody to Respondent, especially considering that 15 year old Damon has consistently maintained that his father sexually abused him and adamantly stated his desire to live with Appellant.
Respondent answered in his Response Brief that the record on appeal is inadequate, and that there is substantial evidence in the record to support the trial court’s decision. He maintains this evidence is found in his Statement of Facts and Procedural Summary, in Dr. Raymond Murphy’s and Dr. William Dess’ evaluations, in supervised visitation records for Appellant, in Appellant’s efforts to get public support for protecting Damon, and in Appellant’s beliefs allegedly leading to an inability to co-parent.
This reply brief will address the issues brought up in the Response Brief, however, a few corrections to the Opening Brief are necessary to correct the record:
1. It was in early 2003 that Damon first reported the abuse, not mid 2004
[p. 6]
2. The hearing by the prior judge, Hon. Michael Smyth in January, 2004, which led to the finding of insufficient evidence was not a full evidentiary hearing [p.6]
3. The children were sent to reunification therapy, not Appellant [p.3-4]
4. The citation from Gary Plavnik’s report is: CT, Vol. 2, 361-367 (not 2010) [p.4]
DISCUSSION OF RESPONDENT’S ARGUMENT
1. Respondent’s Claim of Inadequate Record
Respondent contends that Appellant did not sufficiently designate the record on appeal. Appellant was in pro per at the time of designation and to the best of her knowledge she believes she has provided an adequate record. Respondent had opportunity to initially designate anything he thought was important and could have augmented the record at any time. He chose not to. However, Appellant will now augment the record with some of the documents he claims are missing.
At the same time, Respondent contends there is substantial evidence in the record to support the trial court’s decision to grant sole legal and physical custody to Respondent. Indeed, he is able to cite many places in the record to support his argument. Therefore, Appellant’s burden of providing an adequate record is met.
2. Respondent’s Evidence from his Statement of Facts and Procedural Summary
Respondent states that there is evidence supporting his position in his Statement of Facts and Procedural Summary. However, his Statement is full of false and misleading statements and misrepresentations.
Respondent pointed out that the transcript of the audiotape of Damon’s first report of abuse was missing from the record, implying it was omitted deliberately since it supposedly supported his position.[1] [Response Brief, p. 2] Respondent contends that Appellant “led” Damon and “directed” (i.e. coached) him to say what he said. Appellant acknowledges she inadvertently led Damon in a few places, as she had heard the account of the incident once before she taped it. However, it is significant to note that Appellant did not lead on the important aspects of the incident: Damon’s brother initiated the discussion saying that his father had come into the room in the middle of the night and gotten up into Damon’s top bunk, which prompted Damon to spontaneously begin talking about a “metal thing” which hurt and distressed him. Thus, the main issue—Respondent putting something hard on Damon’s backside, was not a result of Appellant “leading” him. Damon counting to seven during the incident, his father breathing hard, father’s hands being on the “back corner of me” and on the “two sides of his head”, it feeling like “the walls of the house”, the metal thing going in a “straight line” from his bottom up his “whole body”, were not results of being led. Appellant was not “interviewing” the boys, but simply trying to find out what happened and record it so she could ask other people what they thought about it.
The CPS Worker is forensically trained and certainly did not “lead” Damon to say what he told them: someone had touched him in a way that made him feel uncomfortable; he felt his father’s hands on his head; his father was waving a metal thing up and down his back, which really woke him up; he felt something “moist”; he stated, “my dad was carrying an orange water bottle and shaking it very fast” (note that it was dark); and “there was “a lot of movement” after which he fell back asleep.[2] Damon said that Respondent never took Damon to the bathroom, which was Respondent’s explanation for the abuse. After that, the detective made a special trip to Damon’s school to ask him if his father had taken him to the bathroom and Damon said no. Most of what Damon says, both to his mother and to the CPS worker, is clearly a six year old way of describing an incident and for Respondent to focus on a few leading questions is to distract from the main issue and attempt to cast Appellant as having coached Damon.
In fact, Respondent admits the incident happened so it is irrelevant that a few insignificant questions were leading. What is more important is that Damon continued to report many more places he felt his father do the “metal thing” every night in his father’s bed, at both of his grandmothers’ house while sleeping with Respondent, and on Respondent’s lap in various places.[3] [CT: 27-46, 36]
Respondent explains away that first disclosure as Damon feeling the bar on the bunk when Eric took Damon to the bathroom three times in the night. Judge Smyth said he did not accept that explanation since it does not take 7 seconds to get a child over a bunk bar and he did not believe a father would wake up three times in the night to take a child to the bathroom. [RT, 1/22/04 ]
Respondent stated that CPS, the police and Chadwick Center “all concluded that there was no abuse.” [Response Brief, p. 2] That is patently false.[4] CPS believed there was enough credible evidence to refer the case to the police, strongly recommended supervised visits be continued, and only closed the investigation as “inconclusive” because Respondent refused to cooperate with their investigation.[5] The police did not believe Respondent’s account of the abuse and placed him on the Child Abuse Central Index. So although it was a substandard investigation, they still believed there was credible evidence. The Chadwick Center also showed concern. They reported, “When he [Damon] spent the night at his father’s house he felt something like metal scraping on his back. He said it hurt and lasted for seven seconds.” [Police Report, augmented] The Chadwick Center later stated that, “To the contrary, however, what cannot be ignored are the concerning details that Damon did provide, to include multiple incidents, in multiple, detailed locations, the punishment technique Damon indicted his father used when he’d hide from him to avoid the abuse, the specific, ‘scariest’ incident that occurred in the canyon, and his father’s threat to kill him if he told.” [Chadwick Report, 5/20/08, Confidential file]
Respondent claims Judge Smyth made a factual determination that Damon had not been abused by Respondent and that the transcript is not included in the record [Response Brief, p. 3]. This is also patently false. Judge Smyth made it clear that he would not make that factual finding and the Reporter’s Transcript is part of the record. [RT, Vol. 1, 1/22/04]
Respondent quotes Judge Alksne saying that Damon made one allegation of abuse before they went into hiding which turned into 400 and a completely different belief system when they came back, implying that was a result of coaching/influencing by Appellant. [Response Brief, p. 6] First, this shows there is a misunderstanding of the facts in the previous court. In fact, Damon had told about many incidents of abuse before fleeing the jurisdiction to safety, some of which were in the CPS records, the Chadwick Center and declarations by Appellant. [CT, Vol. 1, 27-46, 36]
Second, there is a good explanation for new and different incidents being disclosed after returning from hiding. After unsupervised visits were reinstated in the previous court, Respondent began threatening to kill him, so he was too afraid to tell about these incidents until he was safe in hiding. Further, Respondent had moved to a new house, where there were new places to abuse Damon, like the pool and the canyon. It is very common for child molesters to threaten victims and escalate abusive behavior over time, especially when not stopped or held accountable. If there had been a hearing and an expert in child abuse allowed to testify, this could have been confirmed.
Third, Damon did not have a “completely different belief system” when he returned from hiding. He still “believed” he had been abused. What was different was only new places he said he was abused, the threats to kill him and his mother if he told, and the form of punishment used when Damon would resist—being locked outside in the backyard cold and afraid, being almost drowned in the pool, being duct-taped. The threats to kill him are why he did not reveal these incidents before being safe in hiding. These are indeed horrific as Respondent states in his brief, but they are certainly believable for someone capable of sexually assaulting a child and needing to silence him about it. [Response Brief, p. 4]
Respondent includes a quote from the trial court which clarifies and supports what was stated in Appellant’s Opening Brief [p. 9], and justifies immediate reversal of custody by this court: The court definitively found it is a detriment to place Damon in the custody of Respondent because Damon “believes” he sexually abused him.
“The Court is going to make a finding under 3041 that it would be detrimental to have Damon live in your [Respondent’s] residence because of Damon’s belief system. Not because of any conduct of yours, not based on any conduct that the court finds against you, but your son is psychologically impaired on this issue…” [Response Brief, p. 7]
The Response Brief also quotes from the trial court’s orders [Response Brief, p. 9]:
“In making its finding of detriment relative to Father’s physical custody of Damon, the court further finds that the finding of detriment is based upon the child’s perception that he would be in danger in the care of Father as opposed to the child actually being in danger in the presence of Father.”
This is in addition to the statement quoted in Appellant’s Opening Brief: “Granting custody of the minor child, Damon Moelter to Father would be detrimental to this child as there would be a substantial danger to the child if he were returned to Father.” [Opening Brief, p. 9]
This finding that it would be a detriment for Damon to live with Respondent due to his belief that he was abused, is made by clear and convincing evidence. [CT, Vol. 2, 256-257] The trial court thereby makes it absolutely clear that even if no sexual abuse occurred, it would still be detrimental to Damon to be placed with Respondent whom he “believes” molested him.
This finding of detriment is supported by the Chadwick Center Report in which it states that Damon truly believes he was abused and, “With this in mind, forcing Damon to see his father, whom he believes to be his abuser could be clearly emotionally detrimental/damaging to him.” [Chadwick Report, 5/20/08, Confidential file]
What is the evidence that Damon still “believes” he was abused, that the “reunification/deprogramming” did not work in changing his belief? In his final interview with his Minor’s Counsel of two and a half years in June ’10, just before the trial court granted sole custody to Respondent, Damon stated that he was afraid to be alone with Respondent and was “vehemently opposed to being placed in the custody of his father.” [CT, Vol. 2, 361-367] Damon gave a talk to his class about how he was abused, but the worst thing that ever happened to him was being taken away from his mother and had run away to his mother’s house twice. [CT, Vol. 3, 370-387, 380] Also, Damon made recent youtube videos informing Dr. Phil and President Obama that he had been sexually abused and wanted to live with Appellant and family court officials were not listening to him. He begged them for help in getting back with his mother.[6] [CT, Vol. 3, 431-440, 440] Additionally, there is new evidence that it was detrimental to place him with Eric because Damon ran away from Respondent’s house 12 days ago.[7]
Of significant concern is that the court suggests sending Damon to a “boarding school” to change his “belief” that he was abused. [Response Brief, p. 8]. These schools/camps are known to use various forms of tortuous punishment to achieve this goal. This form of coercion is unethical and damaging, which is why they are not legal in California anymore. Children have a fundamental human right to their “beliefs” and Appellant requests that this court make it clear that action would be prohibited.
This “cure” of a child from “believing” he was abused by sending him to a camp is consistent with “parental alienation” (PA) remedies prescribed by the discredited Dr. Richard Gardner. In fact, this case is a typical PA case. As the product of a warped perspective, the child’s allegations of abuse are discounted and even completely dismissed, while the mother is blamed for “alienating” (or other versions of it, like “coaching”) and punished with a restricted relationship with her children.
Although the trial court avoided the use of the term “parental alienation”, its decision reveals strict adherence to tenets of PA. The actions taken and language of its judgment clearly demonstrate that the court relied heavily on and applied the principles of PA when the court ordered “reunification therapy” and gave Respondent full custody of the children. The trial court based its decision in large part on facts allegedly indicative of PA: mother is coaching, influencing, a danger to her children because she believes the abuse occurred, etc. [Response Brief, p. 5, 9], The “cure” for PA was invoked: many months of maternal deprivation while the children were “deprogrammed” by a “reunification therapist”, and years of supervised visits with mother so the deprogramming would not be disturbed.
PA smacks of gender bias as it is used almost exclusively against women. A California Task Force found serious gender bias in California Family Courts. Negative stereotypes about women encourage judges to disbelieve women’s allegations of child sexual abuse. The report stated: “One striking example is the tendency to doubt the credibility of women who make these allegations, and to characterize them as hysterical or vindictive even when medical evidence corroborates a claim of child abuse.” [Advisory Committee on Gender Bias in the Courts, July, 1996, p. 149-150].
The failure of the trial court to exclude PA principles from its decision-making resulted in the award of full custody of the three children to Respondent and restrictions on the Mother’s visitation. Because it has not been accepted or endorsed by any professional organization or association in the fields of psychology or psychiatry, Gardner’s PA theory is inadmissible under either the Frye test or the more recent standard established by the United States Supreme Court. [See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923); Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).]
Respondent quotes Judge Alksne, “The court finds after consideration of all the evidence presented to the court there is no credible evidence that Father has abused the minor child, Damon Moelter.” [Response Brief, p. 9].
The court is not positioned to make this finding since she declared the sexual abuse issue in Res Judicata having been decided by Judge Smyth in January, ’04. She made it absolutely clear that she would not be hearing the sexual abuse issue or making findings on it, only custody/visitation issues. [RT, Vol. 6, 8/20/08] Judge Alksne asserted that Judge Smyth had found there was no credible evidence and no abuse, however, she is mistaken. Judge Smyth specifically found that the abuse may have occurred, but Appellant simply had not met her burden of proving it (even though Appellant was not allowed to gather any evidence to meet her burden). [RT: Vol. 1, 1/22/2004] This mistaken assumption has infected all of her findings and orders.
The trial court also maintains that none of the court appointed professionals thought there was any credible evidence of abuse. [Response Brief, p. 7]. Again, she is mistaken. In fact, none of the professionals said there was “no credible evidence” or “no abuse”. Most of the professionals expressed concern, and simply said there was not enough evidence to substantiate. Unsubstantiated does not mean that no abuse occurred or that there is no credible evidence. (Even “unfounded” does not mean no abuse occurred.)
Further, the trial court is not positioned to make any findings related to the abuse because she declared it in Res Judicata and there has never been an evidentiary hearing on this material issue. The reason for this is that in both courts, the minor’s counsels made premature “findings” (before the hearing) that the abuse did not likely occur and pressured Appellant to agree to “put the events behind her”, “back off” and accept unsupervised visitation for Respondent. If she did not, they warned that she would lose custody and/or visitation. [CT, Vol. 1, 65-74]
Under this extreme duress, Appellant capitulated and effectively waived her right to an evidentiary hearing, agreeing to stay quiet about the abuse and “cooperate” with unsupervised visits and “reunification” with Respondent, to avoid losing custody. That is why there were no depositions, testimony, or any other evidence of abuse presented at either of the two primary hearings, January 2004, in Judge Smyth’s court and August/September, 2008, in Judge Alksne’s court. [RT: ’04 and ‘08] This misuse of minors’ counsels’ role is apparently a pattern throughout California as the Elkins Commission thought it was deemed a serious enough problem to recommend minors’ counsels not be able to engage in those tactics anymore.
“Because minor’s counsel is acting in the role of an attorney, he or she should not make “recommendations,” file a report, testify, or present anything other than proper pleadings.” [Elkins Family Law Task Force: Final Report]
No evidentiary hearing on the abuse issue was allowed in Judge Alksne’s court anyway, as she declared the material issue in Res Judicata with reliance on Judge Smyth’s finding of January, 2004. First, she mistakenly thought that there had been a full evidentiary hearing and mistakenly stated his finding as “no abuse occurred”, when actually he only found there was insufficient evidence. [RT, Vol. 1, 1/22/04; Vol. 6, 8/20/08] Respondent also misinterprets Judge Smyth’s findings as “no abuse occurred”. [Response Brief, p. 4]
Respondent states that the court disregarded Damon’s preference to live with Appellant (quoting Judge Alksne) “…in light of mother’s conduct during this proceeding, including coaching the children…” [Response Brief, p. 9] In fact there was never any evidence of coaching and even Dr. Dess, on whom she relied, testified that he did not believe Damon was coached. [RT: Vol. 6, 8/20/08]
It is significant to note the contradictory nature of the various accusations and findings about Appellant. Appellant has been said to be coaching, influencing, making suggestions, leading, lying, helping Damon imagine the abuse, and at the same time, truly believing that the abuse occurred. These are for the most part mutually exclusive. Dr. Dess says: “Coaching in my definition, is where one sets out to achieve a goal and that it is designed to have the child believe that his father molested him. In my opinion, Miss Dumas believes that the father molested the child…” [RT: Vol. 6, 8/20/08]
However, to use the loss of custody of children to punish a mother for her “conduct” is not complying with the Best Interest of the Child standard [FC 3011]. Indeed, at a later hearing Judge Alksne states: “And part of it is I’ve got to do what’s in the children’s best interest, and mom’s conduct, at some level, is not as important as what the children need…” [Response Brief, p. 11]
Because there was no evidentiary hearing, there was no opportunity for victim or witness testimony. The victim’s testimony is the most important source of evidence in sexual abuse cases, since there are rarely eye witnesses. In a criminal court, children can testify as young as 5 years old, yet at almost 14 years old, Damon was prohibited from testifying. After many requests by Appellant to allow the children to testify, Judge Alksne allowed the boys to speak to her in chambers. She used this evidence in her custody determination, but she did not allow Appellant to hear or use that evidence, a violation of FC. [See Motions to Augment and Reconsideration]
Appellant was denied exculpatory evidence, including the Chadwick Center videotape of the May 20th report, which clearly states: “This report is not intended as a substiture for viewing the entire viedeotape.” [Chadwick Report, 5/10/2008, Confidential File] Also, the in chambers testimony of the children was suppressed, even though by law it must be at the very least read to the parties. [Fam. Code 7892] It is a violation of her Constitutional right to all evidence which could exonerate her and prevent the deprivation her of custody of her children, another right afforded her by the Constitution.
3. Evidence from Dr. Raymond Murphy’s Report
Respondent cites Dr. Murphy’s report as evidence supporting Respondent being granted full custody of the children. However, Dr. Murphy thought Appellant was a good mother and recommended primary residence with her. Dr. Murphy acknowledges that the finding of abuse is “inconclusive” and confirms that Appellant believes Damon rather than making a false allegation. However, he says, “Ms. Dumas has not been successful in proving in any fashion that Damon has been molested by Mr. Moelter.” It is ironic that Dr. Murphy chastises Appellant for not getting enough evidence, “despite her heroic efforts”, when it was HIS job to acquire that evidence and comply with FC 3118 and CRC 5.220 in doing so. The tests he used are not valid for sex abuse, sex offenders or custody. Appellant was not allowed to do anything to acquire evidence, but was told that she hadn’t met her burden, an impossible bind to put a mother in. [CT, Vol. 3, 525-526] The trial court was in excess of jurisdiction when it accepted and relied on this report which did not comply with the law.[8]
4. Evidence from Dr. William Dess’ Report
Respondent cites evidence by Dr. Dess as supportive of full custody to Respondent. In fact, Dr. Dess did not do a 3118 investigation, nor did he comply with 5.220 or interview Appellant, so his opinions about the abuse or about Appellant are not valid and cannot be relied on. Dr. Dess makes it clear that if Appellant does not cooperate with “reunification”, she should have no contact with her children. Absent his invalid report, the court has nothing to justify taking the children away from their mother.
Appellant refused to meet with Dr. Dess when she discovered his bias—that he had a history of supporting the use of parental alienation theory against mothers and disbelieving children who reported sexual abuse. [CT, Vol. 1, 105-123] Of note is that Dr. Dess did not say Appellant coached Damon, but actually believed him. [RT, Vol.6, 8/20/08]
The trial court states, “He [Dr. Dess] is not appointed under 3118…It was not the court’s intention to make him a 3118 to evaluate the sexual abuse claims because those have been evaluated. Judge Smyth evaluated and entered an order in February, and I have the order here. They had a full investigation. January 22nd, 2004. And they were unsubstantiated and no findings, so I did not repeat that order. So this line of questioning is irrelevant to this witness. He is not a 3118 evaluator. He is an evaluator to assist the court in custody and visitation…it has already been found and is Res Judicata in this case that no molest occurred. So I don’t need to make that finding again today. It has been found. Judge Smyth made that finding… “…but this court has already ruled by Judge Smyth that no molest occurred. It is not what I am going to be ruling on in this case. There is already a finding…It was never the court’s intention [to have the sexual abuse issue looked at]. [RT, Vol.6, 8/20/08]
The essential problem in this case is made clear in this dialogue. Judge Alksne contradicts herself both on the 3118 investigation and the findings. In fact, she did order Dr. Dess to be a 3118 evaluator [RT, Vol. 3, 2/1/08]. His report clearly says he is addressing the sexual abuse and he makes opinions on it, so he is mandated to do a 3118 investigation. [See Petition for Writ of Mandate, September 8, 2009]
Dr. Dess recommended Appellant have no contact with the children (i.e. no custody) unless she cooperated with the “reunification” and agreed to unsupervised access by Respondent. The Minors’ Counsels quickly got on board with recommendations based on his faulty recommendations. Appellant realized she once again was up against a court that had led her to believe there would be a proper investigation and fair hearing, but instead she was facing losing her children if she did not agree to forego a proper investigation and hearing and allow Damon to be unsupervised with his named abuser. At this point, Appellant did what she did in the previous court, she agreed to unsupervised visits in order to have at least partial custody. The court did not keep its side of the deal.
5. Evidence from Supervised Visitation Report
Respondent argues Appellant did not behave well at a supervised visit. Appellant was very disturbed that she should have to endure supervised visits with her children as she had been assured by the D.A. and by the trial court that if she came back from hiding, the children would be listened to, protected and allowed to live with her. She was traumatized by not having any meaningful relationship with her children and the unfair supervised visits were very difficult to bear.
6. Public Support
Under the previously described duress of losing her children, Appellant agreed to stay silent about the abuse and cooperate with the Reunification, on the condition she would get at least partial custody. When that did not happen, Appellant had no choice but to go public with the truth: Family Courts are routinely dismissing children’s reports of abuse, taking them away from their protective mothers and coercing them to live with their named abusers. Friends and family of Damon started the SavingDamon.com website when Appellant was in hiding.
Damon has gained support from across the country. Over 15,000 messages were sent to the judiciary and legislators in support of protecting him in one campaign alone. Appellant met with top White House officials and with Dr. Phil who are watching the case. Appellant believes the gag order is unconstitutional and was issued specifically to prevent scrutiny of the court. The benefit of getting public support in order to get Damon safe outweighs any negativity that may come about due to privacy concerns. Keeping the abuse secret hurts a child more than speaking about it when the child is forced to live with his named abuser. If, however, Damon were allowed to come home where he feels safe, then Appellant agrees it would be better to stay quiet about the abuse.
7. Co-Parenting
Respondent states that Appellant has had a “mantra” for eight years: “How can I co-parent with a child molester?” In fact, Appellant said that once eight years ago in a moment of confusion and despair, freshly traumatized by what her child had told her his father was doing to him.
“Parallel parenting” with communication by email, rather than co-parenting, is now the accepted practice in DV cases and for older children in high conflict cases, so this should not be used against Appellant.
CONCLUSION
Respondent claims in his Response Brief that the record is insufficient, but there is sufficient evidence in the record to justify granting sole legal and physical custody to him. (Appellant will therefore be filing a motion to augment.) However, Appellant asserts herein that the existing evidence does not support his contention, exculpatory and favorable evidence to Appellant was suppressed. Further, the abuse issue has never been investigated or adjudicated as per the law and rules of court, so critical evidence that could have been gathered was not.
The instant case entered the San Diego court system in 2003 on one material issue: the alleged sexual abuse of minor Damon. Prior to that, in Hawaii, Appellant had been granted primary custody, so custody was only secondary to the abuse issue.
The present trial court declared the abuse issue in Res Judicata and based all of its actions, findings, and orders on the erroneous assumption that the previous trial court on which she relied had made a finding that there was no abuse after a proper investigation and full evidentiary hearing. In fact, as made clear in this Reply Brief, there was never a proper investigation as per Family Code 3118, never a full evidentiary hearing, and the finding by Judge Smyth was “insufficient evidence”, not “no abuse” or even “no credible evidence of abuse”.
Because custody is dependent on the abuse issue having been adequately addressed and Appellant’s contention, supported herein, that it has not been properly adjudicated, the findings and orders should be rendered invalid. In particular, the main finding on which Appellant was deprived of custody is that she is a “danger” to her children. Appellant requested a Statement of Decision [augmented] to clarify the reasoning and logic behind this, however, the Statement was woefully inadequate and shed no light on this extremely vague and ambiguous finding.
It is illogical to state that Appellant is a danger to children who want to live with her, and to then give her unsupervised visits with them. If she were truly a danger, unsupervised visits would not have been granted.
The trial court also erred in not following Family Code 3027.5, which provides that Appellant not lose custody for her good faith efforts to protect her child.
On that basis, all findings and orders should be struck and a trial de novo begun. However, a trial de novo is not necessary if this court recognizes what the trial court previously found: If Damon “believes” he was abused, it is a detriment to place him with Respondent. Since Damon is still saying that Respondent molested him and has once again run away from Respondent’s house, it is absolutely clear Damon himself considers it a detriment to live there.
Therefore, Appellant hereby requests that this court immediately grant 15 year old Damon’s fervent desire to live in the custody of his mother and be able to go freely for visitation with Respondent when he feels safe and wants to.
That is what is in Damon’s best interest.
[1] Appellant will augment with the transcript to resolve this issue.
[2] This is all contained in the Police Report which will be augmented.
[3] Much of this is in a CPS report which was requested by Appellant and denied. That would included in a 3118 investigation, if one had been done.
[4] The Police Report includes the first CPS Report.
[5] Appellant is unable to augment with the full CPS records of 5 referrals as the trial court would not grant her a continuance to do so. [RT: 7/15/2010]
[6] The DVD apparently did not make it to the Appellate Court from Superior Court. If the Appellate Court cannot get the DVD, Appellant will augment with the transcript.
[7] Appellant will be filing a Supplemental Declaration with recent relevant events.
[8] The document which explains excess of jurisdiction will be augmented: Points and Authorities in Support of Motion to Set Aside Judgment, 9/04.
Appellant asserts in her Opening Brief that the trial court abused its discretion. It is illogical and against the available evidence to grant sole legal and physical custody to Respondent, especially considering that 15 year old Damon has consistently maintained that his father sexually abused him and adamantly stated his desire to live with Appellant.
Respondent answered in his Response Brief that the record on appeal is inadequate, and that there is substantial evidence in the record to support the trial court’s decision. He maintains this evidence is found in his Statement of Facts and Procedural Summary, in Dr. Raymond Murphy’s and Dr. William Dess’ evaluations, in supervised visitation records for Appellant, in Appellant’s efforts to get public support for protecting Damon, and in Appellant’s beliefs allegedly leading to an inability to co-parent.
This reply brief will address the issues brought up in the Response Brief, however, a few corrections to the Opening Brief are necessary to correct the record:
1. It was in early 2003 that Damon first reported the abuse, not mid 2004
[p. 6]
2. The hearing by the prior judge, Hon. Michael Smyth in January, 2004, which led to the finding of insufficient evidence was not a full evidentiary hearing [p.6]
3. The children were sent to reunification therapy, not Appellant [p.3-4]
4. The citation from Gary Plavnik’s report is: CT, Vol. 2, 361-367 (not 2010) [p.4]
DISCUSSION OF RESPONDENT’S ARGUMENT
1. Respondent’s Claim of Inadequate Record
Respondent contends that Appellant did not sufficiently designate the record on appeal. Appellant was in pro per at the time of designation and to the best of her knowledge she believes she has provided an adequate record. Respondent had opportunity to initially designate anything he thought was important and could have augmented the record at any time. He chose not to. However, Appellant will now augment the record with some of the documents he claims are missing.
At the same time, Respondent contends there is substantial evidence in the record to support the trial court’s decision to grant sole legal and physical custody to Respondent. Indeed, he is able to cite many places in the record to support his argument. Therefore, Appellant’s burden of providing an adequate record is met.
2. Respondent’s Evidence from his Statement of Facts and Procedural Summary
Respondent states that there is evidence supporting his position in his Statement of Facts and Procedural Summary. However, his Statement is full of false and misleading statements and misrepresentations.
Respondent pointed out that the transcript of the audiotape of Damon’s first report of abuse was missing from the record, implying it was omitted deliberately since it supposedly supported his position.[1] [Response Brief, p. 2] Respondent contends that Appellant “led” Damon and “directed” (i.e. coached) him to say what he said. Appellant acknowledges she inadvertently led Damon in a few places, as she had heard the account of the incident once before she taped it. However, it is significant to note that Appellant did not lead on the important aspects of the incident: Damon’s brother initiated the discussion saying that his father had come into the room in the middle of the night and gotten up into Damon’s top bunk, which prompted Damon to spontaneously begin talking about a “metal thing” which hurt and distressed him. Thus, the main issue—Respondent putting something hard on Damon’s backside, was not a result of Appellant “leading” him. Damon counting to seven during the incident, his father breathing hard, father’s hands being on the “back corner of me” and on the “two sides of his head”, it feeling like “the walls of the house”, the metal thing going in a “straight line” from his bottom up his “whole body”, were not results of being led. Appellant was not “interviewing” the boys, but simply trying to find out what happened and record it so she could ask other people what they thought about it.
The CPS Worker is forensically trained and certainly did not “lead” Damon to say what he told them: someone had touched him in a way that made him feel uncomfortable; he felt his father’s hands on his head; his father was waving a metal thing up and down his back, which really woke him up; he felt something “moist”; he stated, “my dad was carrying an orange water bottle and shaking it very fast” (note that it was dark); and “there was “a lot of movement” after which he fell back asleep.[2] Damon said that Respondent never took Damon to the bathroom, which was Respondent’s explanation for the abuse. After that, the detective made a special trip to Damon’s school to ask him if his father had taken him to the bathroom and Damon said no. Most of what Damon says, both to his mother and to the CPS worker, is clearly a six year old way of describing an incident and for Respondent to focus on a few leading questions is to distract from the main issue and attempt to cast Appellant as having coached Damon.
In fact, Respondent admits the incident happened so it is irrelevant that a few insignificant questions were leading. What is more important is that Damon continued to report many more places he felt his father do the “metal thing” every night in his father’s bed, at both of his grandmothers’ house while sleeping with Respondent, and on Respondent’s lap in various places.[3] [CT: 27-46, 36]
Respondent explains away that first disclosure as Damon feeling the bar on the bunk when Eric took Damon to the bathroom three times in the night. Judge Smyth said he did not accept that explanation since it does not take 7 seconds to get a child over a bunk bar and he did not believe a father would wake up three times in the night to take a child to the bathroom. [RT, 1/22/04 ]
Respondent stated that CPS, the police and Chadwick Center “all concluded that there was no abuse.” [Response Brief, p. 2] That is patently false.[4] CPS believed there was enough credible evidence to refer the case to the police, strongly recommended supervised visits be continued, and only closed the investigation as “inconclusive” because Respondent refused to cooperate with their investigation.[5] The police did not believe Respondent’s account of the abuse and placed him on the Child Abuse Central Index. So although it was a substandard investigation, they still believed there was credible evidence. The Chadwick Center also showed concern. They reported, “When he [Damon] spent the night at his father’s house he felt something like metal scraping on his back. He said it hurt and lasted for seven seconds.” [Police Report, augmented] The Chadwick Center later stated that, “To the contrary, however, what cannot be ignored are the concerning details that Damon did provide, to include multiple incidents, in multiple, detailed locations, the punishment technique Damon indicted his father used when he’d hide from him to avoid the abuse, the specific, ‘scariest’ incident that occurred in the canyon, and his father’s threat to kill him if he told.” [Chadwick Report, 5/20/08, Confidential file]
Respondent claims Judge Smyth made a factual determination that Damon had not been abused by Respondent and that the transcript is not included in the record [Response Brief, p. 3]. This is also patently false. Judge Smyth made it clear that he would not make that factual finding and the Reporter’s Transcript is part of the record. [RT, Vol. 1, 1/22/04]
Respondent quotes Judge Alksne saying that Damon made one allegation of abuse before they went into hiding which turned into 400 and a completely different belief system when they came back, implying that was a result of coaching/influencing by Appellant. [Response Brief, p. 6] First, this shows there is a misunderstanding of the facts in the previous court. In fact, Damon had told about many incidents of abuse before fleeing the jurisdiction to safety, some of which were in the CPS records, the Chadwick Center and declarations by Appellant. [CT, Vol. 1, 27-46, 36]
Second, there is a good explanation for new and different incidents being disclosed after returning from hiding. After unsupervised visits were reinstated in the previous court, Respondent began threatening to kill him, so he was too afraid to tell about these incidents until he was safe in hiding. Further, Respondent had moved to a new house, where there were new places to abuse Damon, like the pool and the canyon. It is very common for child molesters to threaten victims and escalate abusive behavior over time, especially when not stopped or held accountable. If there had been a hearing and an expert in child abuse allowed to testify, this could have been confirmed.
Third, Damon did not have a “completely different belief system” when he returned from hiding. He still “believed” he had been abused. What was different was only new places he said he was abused, the threats to kill him and his mother if he told, and the form of punishment used when Damon would resist—being locked outside in the backyard cold and afraid, being almost drowned in the pool, being duct-taped. The threats to kill him are why he did not reveal these incidents before being safe in hiding. These are indeed horrific as Respondent states in his brief, but they are certainly believable for someone capable of sexually assaulting a child and needing to silence him about it. [Response Brief, p. 4]
Respondent includes a quote from the trial court which clarifies and supports what was stated in Appellant’s Opening Brief [p. 9], and justifies immediate reversal of custody by this court: The court definitively found it is a detriment to place Damon in the custody of Respondent because Damon “believes” he sexually abused him.
“The Court is going to make a finding under 3041 that it would be detrimental to have Damon live in your [Respondent’s] residence because of Damon’s belief system. Not because of any conduct of yours, not based on any conduct that the court finds against you, but your son is psychologically impaired on this issue…” [Response Brief, p. 7]
The Response Brief also quotes from the trial court’s orders [Response Brief, p. 9]:
“In making its finding of detriment relative to Father’s physical custody of Damon, the court further finds that the finding of detriment is based upon the child’s perception that he would be in danger in the care of Father as opposed to the child actually being in danger in the presence of Father.”
This is in addition to the statement quoted in Appellant’s Opening Brief: “Granting custody of the minor child, Damon Moelter to Father would be detrimental to this child as there would be a substantial danger to the child if he were returned to Father.” [Opening Brief, p. 9]
This finding that it would be a detriment for Damon to live with Respondent due to his belief that he was abused, is made by clear and convincing evidence. [CT, Vol. 2, 256-257] The trial court thereby makes it absolutely clear that even if no sexual abuse occurred, it would still be detrimental to Damon to be placed with Respondent whom he “believes” molested him.
This finding of detriment is supported by the Chadwick Center Report in which it states that Damon truly believes he was abused and, “With this in mind, forcing Damon to see his father, whom he believes to be his abuser could be clearly emotionally detrimental/damaging to him.” [Chadwick Report, 5/20/08, Confidential file]
What is the evidence that Damon still “believes” he was abused, that the “reunification/deprogramming” did not work in changing his belief? In his final interview with his Minor’s Counsel of two and a half years in June ’10, just before the trial court granted sole custody to Respondent, Damon stated that he was afraid to be alone with Respondent and was “vehemently opposed to being placed in the custody of his father.” [CT, Vol. 2, 361-367] Damon gave a talk to his class about how he was abused, but the worst thing that ever happened to him was being taken away from his mother and had run away to his mother’s house twice. [CT, Vol. 3, 370-387, 380] Also, Damon made recent youtube videos informing Dr. Phil and President Obama that he had been sexually abused and wanted to live with Appellant and family court officials were not listening to him. He begged them for help in getting back with his mother.[6] [CT, Vol. 3, 431-440, 440] Additionally, there is new evidence that it was detrimental to place him with Eric because Damon ran away from Respondent’s house 12 days ago.[7]
Of significant concern is that the court suggests sending Damon to a “boarding school” to change his “belief” that he was abused. [Response Brief, p. 8]. These schools/camps are known to use various forms of tortuous punishment to achieve this goal. This form of coercion is unethical and damaging, which is why they are not legal in California anymore. Children have a fundamental human right to their “beliefs” and Appellant requests that this court make it clear that action would be prohibited.
This “cure” of a child from “believing” he was abused by sending him to a camp is consistent with “parental alienation” (PA) remedies prescribed by the discredited Dr. Richard Gardner. In fact, this case is a typical PA case. As the product of a warped perspective, the child’s allegations of abuse are discounted and even completely dismissed, while the mother is blamed for “alienating” (or other versions of it, like “coaching”) and punished with a restricted relationship with her children.
Although the trial court avoided the use of the term “parental alienation”, its decision reveals strict adherence to tenets of PA. The actions taken and language of its judgment clearly demonstrate that the court relied heavily on and applied the principles of PA when the court ordered “reunification therapy” and gave Respondent full custody of the children. The trial court based its decision in large part on facts allegedly indicative of PA: mother is coaching, influencing, a danger to her children because she believes the abuse occurred, etc. [Response Brief, p. 5, 9], The “cure” for PA was invoked: many months of maternal deprivation while the children were “deprogrammed” by a “reunification therapist”, and years of supervised visits with mother so the deprogramming would not be disturbed.
PA smacks of gender bias as it is used almost exclusively against women. A California Task Force found serious gender bias in California Family Courts. Negative stereotypes about women encourage judges to disbelieve women’s allegations of child sexual abuse. The report stated: “One striking example is the tendency to doubt the credibility of women who make these allegations, and to characterize them as hysterical or vindictive even when medical evidence corroborates a claim of child abuse.” [Advisory Committee on Gender Bias in the Courts, July, 1996, p. 149-150].
The failure of the trial court to exclude PA principles from its decision-making resulted in the award of full custody of the three children to Respondent and restrictions on the Mother’s visitation. Because it has not been accepted or endorsed by any professional organization or association in the fields of psychology or psychiatry, Gardner’s PA theory is inadmissible under either the Frye test or the more recent standard established by the United States Supreme Court. [See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923); Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).]
Respondent quotes Judge Alksne, “The court finds after consideration of all the evidence presented to the court there is no credible evidence that Father has abused the minor child, Damon Moelter.” [Response Brief, p. 9].
The court is not positioned to make this finding since she declared the sexual abuse issue in Res Judicata having been decided by Judge Smyth in January, ’04. She made it absolutely clear that she would not be hearing the sexual abuse issue or making findings on it, only custody/visitation issues. [RT, Vol. 6, 8/20/08] Judge Alksne asserted that Judge Smyth had found there was no credible evidence and no abuse, however, she is mistaken. Judge Smyth specifically found that the abuse may have occurred, but Appellant simply had not met her burden of proving it (even though Appellant was not allowed to gather any evidence to meet her burden). [RT: Vol. 1, 1/22/2004] This mistaken assumption has infected all of her findings and orders.
The trial court also maintains that none of the court appointed professionals thought there was any credible evidence of abuse. [Response Brief, p. 7]. Again, she is mistaken. In fact, none of the professionals said there was “no credible evidence” or “no abuse”. Most of the professionals expressed concern, and simply said there was not enough evidence to substantiate. Unsubstantiated does not mean that no abuse occurred or that there is no credible evidence. (Even “unfounded” does not mean no abuse occurred.)
Further, the trial court is not positioned to make any findings related to the abuse because she declared it in Res Judicata and there has never been an evidentiary hearing on this material issue. The reason for this is that in both courts, the minor’s counsels made premature “findings” (before the hearing) that the abuse did not likely occur and pressured Appellant to agree to “put the events behind her”, “back off” and accept unsupervised visitation for Respondent. If she did not, they warned that she would lose custody and/or visitation. [CT, Vol. 1, 65-74]
Under this extreme duress, Appellant capitulated and effectively waived her right to an evidentiary hearing, agreeing to stay quiet about the abuse and “cooperate” with unsupervised visits and “reunification” with Respondent, to avoid losing custody. That is why there were no depositions, testimony, or any other evidence of abuse presented at either of the two primary hearings, January 2004, in Judge Smyth’s court and August/September, 2008, in Judge Alksne’s court. [RT: ’04 and ‘08] This misuse of minors’ counsels’ role is apparently a pattern throughout California as the Elkins Commission thought it was deemed a serious enough problem to recommend minors’ counsels not be able to engage in those tactics anymore.
“Because minor’s counsel is acting in the role of an attorney, he or she should not make “recommendations,” file a report, testify, or present anything other than proper pleadings.” [Elkins Family Law Task Force: Final Report]
No evidentiary hearing on the abuse issue was allowed in Judge Alksne’s court anyway, as she declared the material issue in Res Judicata with reliance on Judge Smyth’s finding of January, 2004. First, she mistakenly thought that there had been a full evidentiary hearing and mistakenly stated his finding as “no abuse occurred”, when actually he only found there was insufficient evidence. [RT, Vol. 1, 1/22/04; Vol. 6, 8/20/08] Respondent also misinterprets Judge Smyth’s findings as “no abuse occurred”. [Response Brief, p. 4]
Respondent states that the court disregarded Damon’s preference to live with Appellant (quoting Judge Alksne) “…in light of mother’s conduct during this proceeding, including coaching the children…” [Response Brief, p. 9] In fact there was never any evidence of coaching and even Dr. Dess, on whom she relied, testified that he did not believe Damon was coached. [RT: Vol. 6, 8/20/08]
It is significant to note the contradictory nature of the various accusations and findings about Appellant. Appellant has been said to be coaching, influencing, making suggestions, leading, lying, helping Damon imagine the abuse, and at the same time, truly believing that the abuse occurred. These are for the most part mutually exclusive. Dr. Dess says: “Coaching in my definition, is where one sets out to achieve a goal and that it is designed to have the child believe that his father molested him. In my opinion, Miss Dumas believes that the father molested the child…” [RT: Vol. 6, 8/20/08]
However, to use the loss of custody of children to punish a mother for her “conduct” is not complying with the Best Interest of the Child standard [FC 3011]. Indeed, at a later hearing Judge Alksne states: “And part of it is I’ve got to do what’s in the children’s best interest, and mom’s conduct, at some level, is not as important as what the children need…” [Response Brief, p. 11]
Because there was no evidentiary hearing, there was no opportunity for victim or witness testimony. The victim’s testimony is the most important source of evidence in sexual abuse cases, since there are rarely eye witnesses. In a criminal court, children can testify as young as 5 years old, yet at almost 14 years old, Damon was prohibited from testifying. After many requests by Appellant to allow the children to testify, Judge Alksne allowed the boys to speak to her in chambers. She used this evidence in her custody determination, but she did not allow Appellant to hear or use that evidence, a violation of FC. [See Motions to Augment and Reconsideration]
Appellant was denied exculpatory evidence, including the Chadwick Center videotape of the May 20th report, which clearly states: “This report is not intended as a substiture for viewing the entire viedeotape.” [Chadwick Report, 5/10/2008, Confidential File] Also, the in chambers testimony of the children was suppressed, even though by law it must be at the very least read to the parties. [Fam. Code 7892] It is a violation of her Constitutional right to all evidence which could exonerate her and prevent the deprivation her of custody of her children, another right afforded her by the Constitution.
3. Evidence from Dr. Raymond Murphy’s Report
Respondent cites Dr. Murphy’s report as evidence supporting Respondent being granted full custody of the children. However, Dr. Murphy thought Appellant was a good mother and recommended primary residence with her. Dr. Murphy acknowledges that the finding of abuse is “inconclusive” and confirms that Appellant believes Damon rather than making a false allegation. However, he says, “Ms. Dumas has not been successful in proving in any fashion that Damon has been molested by Mr. Moelter.” It is ironic that Dr. Murphy chastises Appellant for not getting enough evidence, “despite her heroic efforts”, when it was HIS job to acquire that evidence and comply with FC 3118 and CRC 5.220 in doing so. The tests he used are not valid for sex abuse, sex offenders or custody. Appellant was not allowed to do anything to acquire evidence, but was told that she hadn’t met her burden, an impossible bind to put a mother in. [CT, Vol. 3, 525-526] The trial court was in excess of jurisdiction when it accepted and relied on this report which did not comply with the law.[8]
4. Evidence from Dr. William Dess’ Report
Respondent cites evidence by Dr. Dess as supportive of full custody to Respondent. In fact, Dr. Dess did not do a 3118 investigation, nor did he comply with 5.220 or interview Appellant, so his opinions about the abuse or about Appellant are not valid and cannot be relied on. Dr. Dess makes it clear that if Appellant does not cooperate with “reunification”, she should have no contact with her children. Absent his invalid report, the court has nothing to justify taking the children away from their mother.
Appellant refused to meet with Dr. Dess when she discovered his bias—that he had a history of supporting the use of parental alienation theory against mothers and disbelieving children who reported sexual abuse. [CT, Vol. 1, 105-123] Of note is that Dr. Dess did not say Appellant coached Damon, but actually believed him. [RT, Vol.6, 8/20/08]
The trial court states, “He [Dr. Dess] is not appointed under 3118…It was not the court’s intention to make him a 3118 to evaluate the sexual abuse claims because those have been evaluated. Judge Smyth evaluated and entered an order in February, and I have the order here. They had a full investigation. January 22nd, 2004. And they were unsubstantiated and no findings, so I did not repeat that order. So this line of questioning is irrelevant to this witness. He is not a 3118 evaluator. He is an evaluator to assist the court in custody and visitation…it has already been found and is Res Judicata in this case that no molest occurred. So I don’t need to make that finding again today. It has been found. Judge Smyth made that finding… “…but this court has already ruled by Judge Smyth that no molest occurred. It is not what I am going to be ruling on in this case. There is already a finding…It was never the court’s intention [to have the sexual abuse issue looked at]. [RT, Vol.6, 8/20/08]
The essential problem in this case is made clear in this dialogue. Judge Alksne contradicts herself both on the 3118 investigation and the findings. In fact, she did order Dr. Dess to be a 3118 evaluator [RT, Vol. 3, 2/1/08]. His report clearly says he is addressing the sexual abuse and he makes opinions on it, so he is mandated to do a 3118 investigation. [See Petition for Writ of Mandate, September 8, 2009]
Dr. Dess recommended Appellant have no contact with the children (i.e. no custody) unless she cooperated with the “reunification” and agreed to unsupervised access by Respondent. The Minors’ Counsels quickly got on board with recommendations based on his faulty recommendations. Appellant realized she once again was up against a court that had led her to believe there would be a proper investigation and fair hearing, but instead she was facing losing her children if she did not agree to forego a proper investigation and hearing and allow Damon to be unsupervised with his named abuser. At this point, Appellant did what she did in the previous court, she agreed to unsupervised visits in order to have at least partial custody. The court did not keep its side of the deal.
5. Evidence from Supervised Visitation Report
Respondent argues Appellant did not behave well at a supervised visit. Appellant was very disturbed that she should have to endure supervised visits with her children as she had been assured by the D.A. and by the trial court that if she came back from hiding, the children would be listened to, protected and allowed to live with her. She was traumatized by not having any meaningful relationship with her children and the unfair supervised visits were very difficult to bear.
6. Public Support
Under the previously described duress of losing her children, Appellant agreed to stay silent about the abuse and cooperate with the Reunification, on the condition she would get at least partial custody. When that did not happen, Appellant had no choice but to go public with the truth: Family Courts are routinely dismissing children’s reports of abuse, taking them away from their protective mothers and coercing them to live with their named abusers. Friends and family of Damon started the SavingDamon.com website when Appellant was in hiding.
Damon has gained support from across the country. Over 15,000 messages were sent to the judiciary and legislators in support of protecting him in one campaign alone. Appellant met with top White House officials and with Dr. Phil who are watching the case. Appellant believes the gag order is unconstitutional and was issued specifically to prevent scrutiny of the court. The benefit of getting public support in order to get Damon safe outweighs any negativity that may come about due to privacy concerns. Keeping the abuse secret hurts a child more than speaking about it when the child is forced to live with his named abuser. If, however, Damon were allowed to come home where he feels safe, then Appellant agrees it would be better to stay quiet about the abuse.
7. Co-Parenting
Respondent states that Appellant has had a “mantra” for eight years: “How can I co-parent with a child molester?” In fact, Appellant said that once eight years ago in a moment of confusion and despair, freshly traumatized by what her child had told her his father was doing to him.
“Parallel parenting” with communication by email, rather than co-parenting, is now the accepted practice in DV cases and for older children in high conflict cases, so this should not be used against Appellant.
CONCLUSION
Respondent claims in his Response Brief that the record is insufficient, but there is sufficient evidence in the record to justify granting sole legal and physical custody to him. (Appellant will therefore be filing a motion to augment.) However, Appellant asserts herein that the existing evidence does not support his contention, exculpatory and favorable evidence to Appellant was suppressed. Further, the abuse issue has never been investigated or adjudicated as per the law and rules of court, so critical evidence that could have been gathered was not.
The instant case entered the San Diego court system in 2003 on one material issue: the alleged sexual abuse of minor Damon. Prior to that, in Hawaii, Appellant had been granted primary custody, so custody was only secondary to the abuse issue.
The present trial court declared the abuse issue in Res Judicata and based all of its actions, findings, and orders on the erroneous assumption that the previous trial court on which she relied had made a finding that there was no abuse after a proper investigation and full evidentiary hearing. In fact, as made clear in this Reply Brief, there was never a proper investigation as per Family Code 3118, never a full evidentiary hearing, and the finding by Judge Smyth was “insufficient evidence”, not “no abuse” or even “no credible evidence of abuse”.
Because custody is dependent on the abuse issue having been adequately addressed and Appellant’s contention, supported herein, that it has not been properly adjudicated, the findings and orders should be rendered invalid. In particular, the main finding on which Appellant was deprived of custody is that she is a “danger” to her children. Appellant requested a Statement of Decision [augmented] to clarify the reasoning and logic behind this, however, the Statement was woefully inadequate and shed no light on this extremely vague and ambiguous finding.
It is illogical to state that Appellant is a danger to children who want to live with her, and to then give her unsupervised visits with them. If she were truly a danger, unsupervised visits would not have been granted.
The trial court also erred in not following Family Code 3027.5, which provides that Appellant not lose custody for her good faith efforts to protect her child.
On that basis, all findings and orders should be struck and a trial de novo begun. However, a trial de novo is not necessary if this court recognizes what the trial court previously found: If Damon “believes” he was abused, it is a detriment to place him with Respondent. Since Damon is still saying that Respondent molested him and has once again run away from Respondent’s house, it is absolutely clear Damon himself considers it a detriment to live there.
Therefore, Appellant hereby requests that this court immediately grant 15 year old Damon’s fervent desire to live in the custody of his mother and be able to go freely for visitation with Respondent when he feels safe and wants to.
That is what is in Damon’s best interest.
[1] Appellant will augment with the transcript to resolve this issue.
[2] This is all contained in the Police Report which will be augmented.
[3] Much of this is in a CPS report which was requested by Appellant and denied. That would included in a 3118 investigation, if one had been done.
[4] The Police Report includes the first CPS Report.
[5] Appellant is unable to augment with the full CPS records of 5 referrals as the trial court would not grant her a continuance to do so. [RT: 7/15/2010]
[6] The DVD apparently did not make it to the Appellate Court from Superior Court. If the Appellate Court cannot get the DVD, Appellant will augment with the transcript.
[7] Appellant will be filing a Supplemental Declaration with recent relevant events.
[8] The document which explains excess of jurisdiction will be augmented: Points and Authorities in Support of Motion to Set Aside Judgment, 9/04.