PETITION FOR REHEARING

This document is for the purpose of pointing out the errors made by the Appellate Court in affirming Judge Alksne giving full custody to Eric on the basis that Cindy coached/influenced Damon to report the abuse.  The biggest error is that their opinion is based on Judge Alksne's findings (for which she gives no supporting evidence), which were made without Cindy getting due process (a fair legal proceeding).  The fact that the law (FC 3118) was not followed in gathering the minimum evidence and that critical evidence was suppressed means that Cindy did not get her day in court, so any opinions, findings, or decisions made in either court are therefore INVALID.  This document may not be an exact duplicate of the filed document.

Appellant, Cindy Dumas, hereby respectfully petitions the Court, pursuant to Rule 8.268 of the California Appellate Rules of Court, to grant rehearing of its decision in this case filed on September 28, 2011, for each of the following independently sufficient reasons.

I.                    APPELLATE COURT EXCLUDED THE ISSUE OF THE TRIAL COURT NOT COMPLYING WITH FAMILY CODE 3118, A VIOLATION OF DUE PROCESS

II.                 APPELLATE COURT EXCLUDED THE ISSUE OF THE TRIAL COURT’S DENIAL OF AN EVIDENTIARY HEARING WITH ALL RELEVANT EVIDENCE—A VIOLATION OF DUE PROCESS

III.               APPELLATE COURT CONCEALED EVIDENCE VIOLATING THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT

IV.              APPELLATE COURT HAS GROSSLY MISSTATED FACTS FOR THE PURPOSE OF JUSTIFYING AND AFFIRMING THE TRIAL COURT’S DEPRIVATION OF CUSTODY TO APPELLANT, I.E., “INSUFFICIENT EVIDENCE” DOES NOT TRANSLATE TO “NO ABUSE” OR EVEN “NO CREDIBLE EVIDENCE OF ABUSE”

V.                 APPELLATE COURT EXCLUDED THE ARGUMENT THAT THE TRIAL COURT FOUND IT WOULD BE A DETRIMENT FOR DAMON TO LIVE WITH A PARENT WHOM HE BELIEVES MOLESTED HIM.

VI.              APPELLATE COURT EXCLUDED THE ARGUMENT THAT DEPRIVING APPELLANT OF CUSTODY VIOLATES FAMILY CODE 3027.5
 

INTRODUCTION

Appellant has contended that the trial court erred in granting full legal and physical custody to Respondent.  This court affirmed the trial court’s decision on September 28, 2011. 

Appellant hereby petitions the court for a rehearing on the grounds that the Appellate Court has excluded important arguments raised by Appellant and has made major misstatement of facts and errors of law.

I.  APPELLATE COURT EXCLUDED THE ISSUE OF THE TRIAL COURT NOT COMPLYING WITH FAMILY CODE 3118, WHICH WAS AN ABUSE OF DISCRETION AND VIOLATED APPELLANT’S DUE PROCESS

Appellant did not get a proper review of the trial court’s error in not having conducted an investigation as per FC 3118.  This Court did not explain why it was OK to violate FC 3118 either in the instant case or when Appellant raised the issue with a writ, which was denied without explanation. [See Petition for Writ of Mandate To Stay Proceedings Until FC 3118 is complied with, filed 9/8/2009]

It is not a discretionary law; it is mandatory, and it was specifically enacted by the legislature to ensure children’s safety.  The Judiciary does not have the right to ignore or violate this law. 

Without the 3118 investigation having been done, no valid opinions or findings by ANY court may be made regarding the sufficiency of evidence in either a) proving by preponderance of evidence the abuse occurred or b) proving by clear and convincing evidence that Damon’s reports of abuse are a result of “undue influence” (alienation) by Petitioner.  This is because the legally mandated minimum means of gathering sufficient evidence specified by FC 3118 was not followed.  This is clearly an abuse of discretion and action in excess of jurisdiction.  [Points and Authorities in Support of Motion to Set Aside Judgment, 10/04, noticed] [Reply brief p. 12]

There were two psychologists, Dr. Raymond Murphy in 2003 and Dr. William “Jay” Dess in 2008, who were legally mandated to complete a 3118 investigation.  They did not comply, in violation not only of the law and rules of court (CRC 5.220), but of their professional and ethical codes [See confidential lodgments] 

Judge Alksne stated at first that there would be an investigation as per 3118 [RT, 2/08] and later changed her mind.  Appellant requested a Statement of Decision as to why the 3118 was not done [p. 215].  Judge Alksne did not issue one, so that should be taken by this court as an admission that she did in fact abuse her discretion and act in excess of jurisdiction by making findings without having complied with the law.

No proper adjudication was or is possible without the evidence from the 3118 investigation.  The court is silent on this crucial issue. 

II. APPELLATE COURT EXCLUDED THE ISSUE OF THE TRIAL COURT’S DENIAL OF AN EVIDENTIARY HEARING WITH ALL RELEVANT EVIDENCE—A VIOLATION OF DUE PROCESS

It is a gross misstatement of fact for this Court to say: 

“After an evidentiary hearing, the court found the evidence was insufficient to support mother’s claim of sexual molestation of Damon by Father.” [Opinion, p. 2]

In fact, as was pointed out not only in Appellant’s Reply Brief [p. 9, 10, Reply Brief], but at oral arguments, there was no evidentiary hearing on the one material issue of abuse. The court is referring here to the primary hearing on the abuse, which was on January 22, 2004, which was not an evidentiary hearing. 

Since Appellant had raised this issue, this court should have cited the facts and evidence which support their assertion that there had been an evidentiary hearing.   The transcript is in the record [RT, Jan. 2004].  It is clear from the transcript that were no witnesses, discovery, depositions, cross-examinations, lodging of evidence, etc.  The case was decided on declarations and inadequate and faulty reports from a psychologist [Dr. Murphy, Confidential Lodgment] and minor’s counsel [CT, p. 12-18], who threatened Appellant that she would lose her children if she did not accept that there was not enough evidence BEFORE the hearing.  The Elkins Commission put an end to Minor’s Counsels abusing their discretion in that manner, precisely because it interferes with due process.  [Elkins Task Force]  [Family Code 217]

Under extreme duress Appellant acquiesced and did not get discovery, call witnesses, present evidence or do anything else to litigate for gaining supervised visits with Respondent due to her belief in her son.  This clearly sabotaged her due process.  Cases of this import should not be decided on declarations alone.  [Elkins v. Superior Court, 41 Cal.4th 1337]

            Appellant explained during oral arguments that the reason there was no evidentiary hearing was that she had been threatened with loss of custody and visitation if she did not accept that there was not enough evidence of abuse and agree to unsupervised visitation with Respondent BEFORE the hearing. 

When asked by Justice Huffman where that was in the record, Appellant replied that one threat by Minor’s Counsel was on p. 14 of the record.  Justice Huffman asked Appellant if Judge Smyth was aware of the threats.  Appellant stated he was, and is hereby including this as supporting evidence:

                         COURT:   …you’re fearful you’re going to lose your kids… 

                         COURT:  …you’re changing your tune because you’re scared you’re going to lose your kids.

                        COURT:  There’s truly a great risk you’re going to lose your kids.

                        COURT:  So I need to have something to have as a safety net for the kids and for the Respondent and for yourself to make sure that you don’t engage in any further conduct or statements that continue this allegation.  And that’s true even if it happened.  [emphasis added]. The only way this family is going to move forward and you’re going to keep these kids is if from here on out, you’re acting like it didn’t happen. And that’s probably—that’s going to be very difficult for you to do that.  I think the only way you’re going to be able to do that is if you know you’re going to lose these kids if you don’t. [RT, January 22, 2004]

This Court is condones, and in fact uses, the same argument—that since Appellant believes what her son reported to officials and continued to report until the day the trial court granted full custody to Respondent (and still to this very day continues to say happened to him) [RT, p. 440 and DVD augmented], namely that her son is telling the truth about the abuse and threats to kill him and Appellant, that she should lose her children.

“Despite the overwhelming evidence refuting Mother’s claim of sexual molestation against Father, Mother continues to reject the findings of no sexual abuse…Damon’s ability to “move forward and put the past behind him” is contingent of Mother’s understanding and acceptance that Father did not molest Damon.”  [which implies that[Opinion, p.5]            First, it is false that there was overwhelming evidence the abuse did not happen, as made clear above, and that there was “no abuse”.  All professionals involved said there was “insufficient evidence”, not that there was “no abuse”, which, as also pointed out above, was due to not following FC 3118 and concealing important evidence.  So the court is not positioned to demand that Appellant disbelieve her son and cannot be basing their opinion on that misstated fact unsupported by the evidence.

These threats lead to a violation of the due process clause of the Fifth Amendment.  It is egregious that Judge Smyth literally said that even if Damon were being molested, Appellant would have to allow it, if she wanted to keep her children.  This requires Appellant to break the law and allow her child to be abused and puts Appellant in a double bind:  If she doesn’t protect her children, she will lose them, and if she does act to protect them, she will lose them. 

Yet this is the same thing Appellant was faced with in Judge Alksne’s court.  In overt and covert ways throughout the record, she gave the same message to Appellant as Judge Smyth and now this court:  either “move on”, “put the abuse in the past” and allow the abuser unsupervised access, or lose custody of them—BEFORE ANY DUE PROCESS HAS BEEN AFFORDED APPELLANT. 

Under this duress Appellant agreed to unsupervised access in both courts and did cooperate, but she went public and began protesting after she lost them anyway.  This is an untenable position in which to place a mother and it justifies her having taken the children into hiding.  The Appellate court should provide oversight for such egregious conduct on the part of judges, not participate in it.

III.  APPELLATE COURT CONCEALED EVIDENCE

Both the trial and appellate court concealed critical evidence which could have been used at an evidentiary hearing to help prove her case.  This includes two items which were requested to be augmented:  the Chadwick Center videotape and the in chambers testimony. [Motion to Augment, May 16, 2011] The Court denied Appellant the Chadwick Center videotape, which is the single most important piece of evidence, as it is Damon himself disclosing the years of abuse and threats to kill him.  Even the report states on it that the report should not be used as a substitute for watching the entire video.  Judge Alksne wrongly disallowed this evidence and this court should have recognized. This is especially important as Judge Alksne would not allow Damon to testify on the stand and she denied Appellant a transcript of the in chambers testimony.  The Appellate Court viewed the in Chambers testimony.  It was used against her, but she was not allowed to have it.  This is a fundamental violation of Appellant’s right to any evidence which could help in her defense.  Appellant is being accused of having coached/influenced Damon to say he was abused and is being severely punished for it with loss of custody of her three children.  According to the Brady decision it violates the due process clause of the Fifth Amendment if the accused is not given all material evidence that is exculpatory.  A Brady claim arises where the accused has asked for specific exculpatory evidence but the government did not provide it.  Appellant has asked for the in chambers testimony and the Chadwick Center videotape, both of which are favorable and exculpatory.  Brady v. Maryland, 373 U.S. 83 (1963)             All the following arguments in this Petition are unnecessary because the opinion was based on proceedings which seriously violated Appellant’s due process.  Since Petitioner was not allowed the evidence mandated by FC 3118; the trial court and this court concealed crucial evidence; and there was never an evidentiary hearing on the abuse issue with all the relevant evidence available to Appellant, nothing the court opines on or finds is valid.

Elkins Task Force confirmed that access to justice requires that the parties be able to appropriately address the court and present their cases.  This became Family Code Section 217.   

All the following gross misstatements of fact and errors which justify this court falsely accusing Appellant of alienating conduct and using that to justify affirming the deprivation of any custody to Appellant are premised on the assumption that Appellant was afforded due process. 

IV.  APPELLATE COURT HAS GROSSLY MISSTATED FACTS FOR THE PURPOSE OF JUSTIFYING AND AFFIRMING THE TRIAL COURT’S DEPRIVATION OF ANY CUSTODY TO APPELLANT, I.E., “INSUFFICIENT EVIDENCE” DOES NOT TRANSLATE TO “NO ABUSE” OR EVEN “NO CREDIBLE EVIDENCE OF ABUSE”

“Following the court’s finding of no sexual abuse, Mother took her three children and went into hiding.” [Opinion, p. 2].

This is a gross misstatement of fact.  Respondent lied about this “fact” as well. [Respondent’s Brief, p.4] In fact, Appellant did not take her children into hiding after the court found there was no sexual abuse.  The court had never made a finding of “no abuse” only “insufficient evidence of abuse” because that is what the evidence supported.  The police, CPS, and Chadwick Center, etc., all determined there was “insufficient evidence”, not “no abuse” and that was after substandard investigations.

In fact the Appellate court engages in gross misstatements of fact on this issue in an attempt to support it.  At oral arguments, Justice O’Rourke stated that “18 mental health professionals” found there was no abuse, and Appellant corrected him on the record.  First of all, there were not 18 mental health professionals on this case and I corrected them and stated that no professionals had found that there was “no abuse” or “no credible evidence of abuse”.   Even after being made aware of this in the briefing and oral arguments, the Appellate court continued to rehash Respondent’s false statement and did not cite any evidence or professional who has supported either one of those findings.  BECAUSE THERE IS NONE.

This is another example of how the court transmuted insufficient evidence into no credible evidence: 

“The court found no credible evidence of abuse.  This finding was corroborated by 18 mental health professionals, psychological evaluations, witness interviews, the court’s interview with Damon, Damon’s counsel, CPS, and the Chadwick Center, which found the evidence was insufficient to substantiate Mother’s claim of sexual molestation against Father.”  [Opinion, p. 4]

The fact that there is credible, but insufficient evidence, is abundantly supported by the record, which Appellant cited [Reply Brief, p.3, 4, 5, etc.], but was ignored by this court.  Neither Respondent nor this court cited one place in the record where a professional states that there is no credible evidence or no abuse.  Therefore Judge Alksne abused her discretion when she continually stated that there is no credible evidence without having ever provided evidentiary support for it.

The reason for the trial court’s spontaneous finding later in the proceedings after it was stated there would be no findings regarding the abuse, is that justification was necessary for depriving Appellant of custody.  That is why this “fact” was deliberately misconstrued and transmuted. 

Judge Alksne has stated “no credible evidence” repeatedly with no facts or evidence to back it up.  When she issued her Statement of Decision [Motion to Augment, 5/16/2011], where she is supposed to provide the factual and legal basis, she does not.  Further, although this court has falsely relied on the Respondent and trial court, it completely ignores the evidence which Appellant HAS cited that there is credible evidence of abuse, though insufficient:  the police, psychologists, Chadwick reports to support that the disposition has always by everybody been “insufficient evidence”. 

“INSUFFICIENT EVIDENCE” DOES NOT MEAN “NO ABUSE”

--IT MEANS THAT THE ABUSE MAY HAVE OCCURRED.

MANY MISSTATED FACTS RELYING ON PARENTAL ALIENATION THEORY:      

Although Appellant attempted to make the court aware of the misuse of the parental alienation theory in her reply brief and at oral arguments, the opinion is replete with grossly misstated facts about Appellant’s conduct which are consistent with Parental Alienation theory.  The court finds that Damon’s reports of abuse are a result of Appellant exerting “undue influence” over Damon and because of Appellant’s hostile conduct and resentful attitude towards Respondent [Opinion, p. 3].  In fact there is no evidentiary support for that “finding” by any professional.  Neither the Respondent, nor the courts cite any evidence or professional when making that false accusation against Appellant, BECAUSE THERE IS NONE.  There is absolutely NO CREDIBLE EVIDENCE, AND CERTAINLY NOT CLEAR AND CONVINCING EVIDENCE THAT DAMON’S REPORTS OF ABUSE ARE A RESULT OF APPELLANT INFLUENCING OR COACHING DAMON.  Therefore, since the decision is based on this false “fact”, it is invalid.

MISSTATED FACTS THAT DAMON WANTED TO LIVE WITH RESPONDENT

            Right up until the month that the trial court granted full custody to Respondent, Damon’s minor’s counsel of two and a half years stated that Damon wanted to live with his mother and that he was afraid to be alone with Respondent. This clearly shows fear and this was after two and a half years of supervised visits, so that could not be a result of Appellant’s “influence.”

More importantly, as stated above, the reason that there is not sufficient evidence is that due process was violated.

 

V. APPELLATE COURT EXCLUDED THE ARGUMENT THAT THE TRIAL COURT FOUND IT WOULD BE A DETRIMENT FOR DAMON TO LIVE WITH A PARENT WHOM HE BELIEVES MOLESTED HIM.

As stated in Appellant’s Reply Brief, [p. 6], repeatedly found that it was a detriment for Damon to live with Appellant since he “believed” he was abused.  Damon still believes he was abused as is evidenced by the last report of his Minor’s Counsel in June, 04 [CT, p 400.], his youtube video [CT, DVD augmented].

The court tried to say that Damon wanted to live at his father’s which is another gross misstatement of fact.  A friend of Respondent’s was quoted by the court, hardly an objective witness.  Damon did not feel good at the guardians anymore, as attested to by his teacher’s letter; his brothers had already been coerced to live full time with Respondent, so he missed them; Respondent had agreed to not be alone with Damon; and Damon was not given his preferred choice of living with Appellant.  That is a form of psychological coercion which was completely mischaracterized by the court.

Since the court falsely stated that the most recent evidence shows that Damon wants to live with his father, it opens the door to admitting the most recent evidence:  Damon ran away from Respondent’s three months ago and is refusing to come back until he can live with Appellant.  The court should admit this new, more recent evidence before making its final decision.

 

VI.  APPELLATE COURT EXCLUDED THE ARGUMENT THAT DEPRIVING APPELLANT OF CUSTODY VIOLATES FAMILY CODE 3027.5

 

CONCLUSION
The Appellate Court has excluded important arguments raised herein by Appellant and has made major misstatement of facts and errors of law.

Due to the aforementioned errors, Appellant was denied due process in this court.  Therefore, the Appellate Court’s decision is INVALID and must be set for rehearing.