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IN THE COURT OF APPEAL STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION 1
CINDY J. DUMAS Petitioner, In Pro Per (858)776-8725 v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO Respondent ERIC MOELTER Real Party in Interest
HON. LORNA ALKSNE, JUDGE SUPERIOR COURT SAN DIEGO COUNTY Family Court Division, #D477012, Dept. F5 (619) 450-7705
PETITION FOR WRIT OF MANDAMUS; MEMORANDUM OF POINTS AND AUTHORITIES (STAY REQUESTED FOR SEPT. 11, 2009 HEARING ON CUSTODY AND VISITATION; EXPIRES AFTER COMPLIANCE WITH FC 3118)
TABLE OF CONTENTS
PAGE I. INTRODUCTION A. Nature of the Proceeding B. Why Relief by Writ is Warranted II. PETITION A. Name and Status of Each Party B. Background and Procedural History C. Action of Trial Court D. Necessity of Writ with Stay E. Prayer III. VERIFICATION IV. MEMORANDUM OF POINTS AND AUTHORITIES V. CONCLUSION VI. CERTIFICATE VII. DECLARATION RE: DOCUMENTS IN SUPPORT OF WRIT 1 1 2 2 4 5 6 7 8 12 13 14
TABLE OF AUTHORITIES STATUTES Family Code Section 3118 Welfare and Institutions Code Section 300 Page 1–5 12
I. INTRODUCTION A. NATURE OF THE PROCEEDING Minor Damon Moelter, now 13 years old, is reporting very serious, longterm sexual, physical and emotional abuse by his father, Eric Moelter. Family Code Section 3118 is mandatory, not discretionary, and must be followed when there is a serious allegation of child sexual abuse. The Court has no discretion to act contrary to the statute. However, the Trial court has stated it will give custody to the alleged abuser on September 11, 2009, despite the fact that it has not complied with Section 3118. This Petition for Writ of Mandate requests that this Court issue an immediate Stay of Proceedings before the custody hearing set for Sept. 11th and that supervised visitation between the alleged abuser and three minor children be reinstated. This Stay should only expire at such time as FC 3118 is complied with and there is a full and proper evidentiary hearing on the abuse matter with testimony from the minors. B. WHY RELIEF BY WRIT WITH STAY IS NECESSARY This court should grant this petition with immediate stay of proceedings due to the irreparable nature of the injury which may occur if such relief is not granted. The alleged abuse is extremely serious and includes not only hundreds of incidents of sexual assaults in many places, but physical and emotional abuse and threats to kill Damon and Petitioner if he told anyone about the abuse. Damon has told many people about the abuse, so he may be in danger, not only of continuing assaults, but of being punished, or even killed, if custody is granted to his named abuser. Damon stated on September 3, 2009, that he would kill himself if he was made to go overnight with his father. The other children are also reporting the abuse. Damon is still saying that he is very afraid to be alone with his father, but his father may be granted custody on September 11, 2009. WHEREFORE, a Writ of Mandamus, with an immediate Stay of proceedings, is the only adequate remedy. II. PETITION
A. NAME AND STATUS OF EACH PARTY Cindy Dumas Hon. Lorna Alksne Eric Moelter Kurt and Leslie Leinbach Gary Plavnik Dave Schulman Tim Smith Petitioner, Mother Respondent, Superior Court Judge Real Party in Interest, Father Claimants (Guardians) Minor’s Counsel for Damon Moelter Minor’s Counsel for Ryan Moelter Minor’s Counsel for Evan Moelter
B. BACKGROUND AND PROCEDURAL HISTORY Petitioner and Real Party in Interest, Eric Moelter, are the parents of the three minor children whose custody and best interest are the subject of the proceeding: Damon, age 13, DOB 8/29/96 Ryan, age 15, DOB 2/6/94 Evan, age 17, DOB 9/5/96 Divorce was granted in August, 2002 in Hawaii, with Petitioner receiving sole physical custody and both parents sharing joint legal custody. Petitioner resided in San Diego with the children at the time of divorce and Moelter moved to San Diego in October, 2002, at which time regular visitation commenced every other weekend and Wednesday evenings. Minor Damon Moelter began reporting abuse by his father Feb. 23, 2003. The abuse was first reported to CPS, who interviewed the children, ordered supervised visits and referred the case to the police department. The detective ultimately decided that there was not enough evidence to prosecute, but placed MOELTER on the Child Abuse Central Index. Domestic Violence Court Judge Hightower issued a TRO and continued it. The case was transferred to Family Court under Judge Michael Smyth. An evaluation was ordered to investigate the abuse, but did not meet the requirements
of FC 3118. At the hearing on the abuse on Jan. 22, 2004, it was found that Petitioner had not met her burden of proof. Damon subsequently continued to report and show severe signs of abuse, but the court still did not order an evaluation according to FC 3118. Ryan also reported abuse. Petitioner was therefore forced to leave the jurisdiction on Nov. 5, 2004 to protect her children. In 2007, the D.A. reviewed the case, dismissed all charges of abduction and assured Petitioner that if they returned to San Diego, the new family court judge would order a proper evaluation according to FC 3118 and have a hearing with testimony from the children. Petitioner returned to San Diego with the children on Feb. 1, 2008, with the understanding that the new family court judge, Judge Lorna Alksne, would conduct an investigation according to FC 3118 and allow the children to testify. Petitioner was told by the court that the children would stay with guardians for two weeks while Damon reported the abuse. The court appointed Dr. William Dess as evaluator, and Damon told him in detail about four years of abuse. However, the children were not returned to Petitioner. Dr. Dess’ report did not meet the requirements of FC 3118, specifically Section 3118 (b) 1-6. At the custody hearing on August 20, 2008, Dr. Dess was asked why he had not complied with FC 3118, but the Court stopped the line of questioning, stating that it was not the court’s intention to do a 3118 due to Res Judicata. [Exhibit A: p.44] Another psychological examination was ordered at a hearing on September 30, 2008, which was done by Dr. Randy Robinson. Although the court stated, “Damon is to have full psychological testing in this case. I think that’s warranted in light of the evidence that the court has,” it was a brief two page report, which did not comply with any of the requirements of FC 3118. However, Dr. Robinson did state that Damon reported sexual contact with his father between the ages of 5 and 8, at which time he left with his mother. [Exhibit B: p.162]
A Request for Statement of Decision as to why Section 3118 had not been complied with was filed on October 10, 2008 [Exhibit C]. There was no response by the Court. The children were ordered into reunification therapy with their father and he was granted partial legal custody. In sessions with the reunification therapist between October, 2008 and August, 2009, the children confronted their father about much of the abuse, which was later testified to by the psychologist, Dr. Breffni Barrett. Petitioner began conjoint sessions in February, 2009 at which Damon stated many times that he is afraid of being alone with his father. Dr. Barrett has confirmed that Damon is afraid of being alone with his father. Petitioner filed an Ex parte Application for Stay of Custody on June 16, 2009 [Exhibit D]. It was denied and the hearing on the motion was continued to September 11, 2009, the same date as the custody hearing. The court stated it was unlikely to grant the request to do an investigation according to FC 3118. As recently as Sept. 3, 2009, Damon again reported in a conjoint therapeutic session that he is very afraid to go alone or overnight with his father, was being heavily pressured to do so, but that he would kill himself if he was made to go. At that time, Petitioner decided to file a Writ of Mandate to attempt to stop the court from giving custody of the children to the father on September 11, 2009 until a full investigation according to FC 3118 is done. The guardians presently have legal and physical custody and father has partial legal custody and unsupervised visitation [Exhibit D]. Petitioner has no custody and is presently allowed allowed one supervised and one therapeutic visit a week. C. ACTION OF TRIAL COURT The trial court has erred in not complying with Family Code 3118 and having made findings about fitness to parent, custody and visitation without having done so. To the best of Petitioner’s knowledge there is no specific court order denying the
investigation according to FC 3118. There are, however, many times in the course of the hearings since Jan. 31, 2008, in which it was stated that it was not necessary to follow Section 3118 and her requests were denied. The most recent denial [Exhibit E: p. 171, 172] is evidence of that and can be construed as an admission that it has not been and will not be done: PETITIONER: Your Honor, I would like to clarify also why – when I filed the ex parte yesterday [for Motion to Stay] [Exhibit D], I was not allowed to give you the reasons why it was an emergency that the minimum requirements of the Family Code 3118 had not been [met] – I was not given a chance. Is there some reason that I was not given a chance to argue that yesterday? THE COURT: There was nothing to put on the record yesterday, Ma’am. The court has ruled on that request 10, 15 times. D. NECESSITY OF WRIT WITH STAY OF PROCEEDINGS This is an urgent matter which cannot wait for the regular appeals process due to the irreparable nature of the injury which may occur if an immediate Stay of Proceedings is not issued. The alleged abuse is extremely serious and includes not only hundreds of incidents of sexual assaults in many places, but physical and emotional abuse and threats to kill Damon [Exhibit I: p. 265] if he told anyone about the abuse. Damon has told many people about the abuse, so he may be in danger, not only of continuing assaults, but of being punished or even killed by his named abuser if custody. Damon has consistently stated to the present day that the abuse occurred and that he is afraid to go overnight or alone with his father. He stated on September 3, 2009, at a conjoint session with Dr. Barrett that he would kill himself if made to go with his father. The trial court is set to determine the Stay of Custody motion and custody on Sept. 11, 2009 without having complied with the mandatory statute, Family Code Section 3118. The court’s stated intent is to grant custody to the father. The
Petitioner will not have time to do a regular appeal and the children may be endangered by being placed under the custody and control of an abuser. Therefore, an immediate Stay of custody proceedings is necessary until the proper evaluation according to law is completed with a subsequent full evidentiary hearing. E. PRAYER WHEREFORE, Petitioner prays that this Court: 1. Issue an immediate Stay of Proceedings until an investigation according to Family Code Section 3118 is completed with a subsequent full and proper evidentiary hearing. 2. Issue a Peremptory Writ of Mandate ordering the trial court to complete an investigation according to FC 3118 and have a full and proper evidentiary hearing on the matter with minors’ testimony.
3. Issue an order that visits between the minors and the father be supervised
until such time as the relief requested by this Writ has been granted. 4. Grant any further relief as this Court may deem just and proper.
September 8, 2009
______________________________ Petitioner, Cindy Dumas
III. VERIFICATION I, Cindy Dumas, am the Petitioner. I have personally reviewed and am familiar with the records, files and proceedings described in and the subject of the present petition and know the facts set forth to be true and correct. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. September 8, 2009 ____________________________________ Petitioner, Cindy Dumas
IV. MEMORANDUM OF POINTS AND AUTHORITIES Family Code Section 3118 states in pertinent part:
Family Code Section 3118 states in pertinent part:“(a) In any contested proceeding
involving child custody or visitation rights, where the court has appointed a child custody evaluator or has referred a case for a full or partial court-connected evaluation, investigation, or assessment, and the court determines that there is a serious allegation of child sexual abuse, the court shall require an evaluation, investigation, or assessment pursuant to this section. When the court has determined that there is a serious allegation of child sexual abuse, any child custody evaluation, investigation, or assessment conducted subsequent to that determination shall be considered by the court only if the evaluation, investigation, or assessment is conducted in accordance with the minimum requirements set forth in this section in determining custody or visitation rights, excepy as specified in paragraph (1).” The language of this Statute is mandatory; therefore, the Court has no discretion to act contrary to the statute. When the language is clear and unambiguous, there is no need for construction or resort to the legislative history, and the court should apply its plain meaning. The language of Section 3118 is clear: if the Court appoints an evaluator and determines that there is a serious allegation of child sexual abuse, then it shall require an evaluation, investigation or assessment pursuant to Section 3118. Furthermore, the statute states that it shall only consider the evaluation if it satisfies the minimum requirements of the statute. The Court in the instant case took the sexual abuse allegations seriously and appointed Dr. Dess to evaluate those allegations. Once that happens, the Court is mandated to follow the procedure set forth in Section 3118. The evaluation must comport to the requirements of the statute. If is does not, it cannot be accepted. Dr. Dess’ report was woefully inadequate and did not comply with the requirements of Section 3118 (b) 1-6.
When asked why he did not comply with FC 3118, the Court would not allow that line of questioning. “He [Dr. Dess] is not appointed under 3118…He is not a 3118 evaluator.” [Exhibit A, p. 44] The Court, therefore, did not have the authority to accept Dr. Dess’ report and consider it in granting Moelter partial legal custody and visitation and to deny Petitioner any custody or visitation. The Court determined there was a serious allegation of abuse n Jan. 31, 2008): “I have a teenager that is saying that he watched you [Respondent] rape your son. I have to give that some evidence when I am making my initial cautionary approach in this case.” “It is a very, very serious case where if any of the facts are true, it is a punishable offense by criminal charges.” [Exhibit F, p. 184] And: “I can’t place the children with you [Respondent] because they [the children] are now asserting in written declarations [Exhibit G] which the oldest child has signed and Damon has signed. I have declarations from these children saying they were molested. So I can’t give the children back to the dad even though that’s what Judge Smyth ordered.” [Exhibit H: p. 230] The Chadwick Center also took the abuse seriously: “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 indicated 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.” [Exhibit I, p. 265] The court has stated that the reason for non-compliance with the statute and refusal to have a hearing on the sexual abuse is that the issue is in Res Judicata due to the finding by the previous court on January 22, 2004. The Trial Court stated, “…it has already been found and is in 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…this court has already ruled by Judge Smyth that no molest occurred. It is not what I am going to be ruling on…It was never the court’s intention [to do a 3118]…” [Exhibit A, p. 45]
Firstly, Judge Smyth did not find that the abuse did not occur. He found that Petitioner had not met her burden of proof, despite the fact that an investigation according to FC 3118 had not been done. He also found that he “did not have sufficient evidence to find that it did not in fact occur.” Secondly, Res Judicata does not apply to abuse issues since abuse can happen at any time after an unsubstantiated finding. In Damon’s case, Res Judicata cannot apply because much of the abuse he is reporting occurred after the finding of Jan.22, 2004. The reasons it is clear that abuse occurred after the Jan. 2004 hearing is: 1) Damon reported the abuse happening right up until they left the jurisdiction in November, 2004, and 2) the father had rented a new house after January, 2004, which had characteristics his old residences did not have. Damon reported the abuse in the canyon adjacent to the new residence, the pool, the “beer room,” being dragged upstairs in the middle of the night to his father’s bedroom, being locked out in the backyard in the middle of the night when he refused his father’s sexual advances, etc., all characteristics of the new residence. Although the siblings have not reported sexual abuse, there was some emotional abuse [Exhibit G] and they have consistently said that they do not want to live with their father. The Violence Against Women Act and California Welfare and Institutions Code 300(j) both state that siblings of abused children should not be in the custody of the abuser. There is a recent high-profile criminal case in San Diego (Parsons/Murphy) in which another mother had taken her child out of the jurisdiction after family court dismissed the mother’s attempts at protection. When she returned, Family Court gave custody of the child to the alleged abuser and placed the protective mother on supervised visits for six years. The father recently pled guilty to molesting three children outside the family. The case has many similarities to the instant case and should be taken as a cautionary tale. The research demonstrates that it is rare for mother’s to make false allegations and even rarer for children to falsely report abuse. Additionally, there is
much research, including the studies by Geraldine Stahly, Ph.D., showing that when mothers attempt to protect children from abuse in family courts, they lose custody the majority of the time. They are placed in a double bind. The law [WIC 300 (d)] (and human instinct) requires that mothers protect their children or they will be removed from them. However, when mothers try to protect their children in Family court, they are often accused of “alienating” the children from the father and get custody taken away. The concept of “alienation” has been thoroughly debunked scientifically, but is continuing to be used, in the instant case under the guise of “undue influence,” although there was no evidence to support that finding. Petitioner was also found to be a “danger to the children” because she believes what her children have told her and others about the abuse. These findings with regards to Petitioner are dependent on whether the abuse is properly found to ave been more likely to have occurred or not. Since the Trial Court has not followed the law in determining this critical matter, the Court did not have the authority to make those findings. Child abuse is known to cause mental illness, criminal behavior, and to continue the cycle of abuse. It is, therefore, prudent to err on the side of caution for children’s and society’s sake.
The court has admitted to not doing an investigation according to FC 3118 and has stated that there will not be a hearing on the abuse issue. This violates the law and due process rights of the children. The legislative intent of FC 3118 is for one person who is an expert in sexual abuse to put ALL the pieces together with regards to the abuse from the beginning to the present time and come up with an opinion as to whether the abuse is more likely than not to have happened. To date, nobody in the instant case has done that. Even though there were people who looked into this case, none of them met the minimum requirements of FC3118. The procedural protections of Section 3118 are calculated to protect children who are victims of child abuse. This not only reflects a substantial public interest, it is the paramount concern of the entire proceeding.
Petitioner hereby certifies that pursuant to Rule 8.484(a)(6) of the California Rules of Court, the enclosed Petition for the Writ of Mandamus was produced using Times New Roman type style, Font 13, and contains approximately 3,364 words. In arriving at that estimate, Petitioner relied on the Word Count function of Microsoft Word which was used to prepare the document.
September 8, 2009
______________________________________ Petitioner Cindy Dumas
CINDY J. DUMAS P.O. Box 501744
San Diego, CA 92150 (858) 776-8725 In Pro Per COURT OF APPEALS STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION 1 In re the Matter of: Petitioner: v. CINDY DUMAS ) ) ) ) ) DECLARATION RE: SUPPORTING DOCUMENTS FOR PETITION FOR ) WRIT OF MANDATE
Superior Court: HON. LORNA ALKSNE ) ___________________________________ ) I, Cindy Dumas, Petitioner, declare as follows: I am In Pro Per and am unsure of which documents are necessary to support the Petition for Writ of Mandate. I have included the ones that I think are most necessary to support my argument. I am hereby requesting that this Court inform me of any other documents or research it may wish to review, or, in the alternative, to review the file. I do not have an unmarked copy of the report by Dr. William Dess, which was lodged with the trial court in July, 2008. If the Court wishes to review this document, please access the lodged documents or inform me of how to get it. I hereby request that this Court view the videotape made by the Chadwick Center as an important adjunct to their report of 5/20/08 [Exhibit I]. In the report it states: “This report is not intended as a substitute for viewing the entire videotape.” Although I have not been able to view the tape, I believe it will provide significant, direct evidence that Damon’s reports of abuse are, in fact, very serious.
I declare under penalty of perjury under the laws of California that the foregoing is true and correct.
September 8, 2009
____________________________ Cindy Dumas, Petitioner