IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION ONE

CINDY J. DUMAS Appellant and Petitioner v. ERIC MOELTER Respondent ______________________________

Court of Appeal No. D058634

(Superior Ct. Nos. D477012 and DV014964

Appeal From a Judgment Of The Superior Court, County of San Diego Hon. Lorna Alksne, Judge _____________________________________ APPELLANTS OPENING BRIEF _____________________________________

J. P. Miller, Jr., Bar # 188266 Attorney for Appellant 183 Rea Ave., Ste. 101 El Cajon, CA 92020 (619) 590-0383

I. TABLE OF CONTENTS. Table of Authorities Nature of the Action Relief Sought in the Trial Court Judgment Appealed Summary of Significant Facts Argument: 2 3 3 5 6 7

THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING SOLE PHYSICAL & LEGAL CUSTODY OF 14 YEAR OLD DAMON TO HIS FATHER, INSTEAD OF PLACING HIM PRIMARILY IN HIS MOTHERS LEGAL AND PHYSICAL CUSTODY, WHERE 1) THERE IS INSUFFICENT EVIDENCE IN THE RECORD SUPPORTING THAT THE CUSTODY TRANSFER TO HIS FATHER IS IN HIS BEST INTERESTS, 2) DAMON HAS REPEATEDLY STATED HIS STRONG DESIRE TO LIVE WITH HIS MOTHER, AND 3) DAMON HAS CONSISTENTLY MAINTAINED THAT HIS FATHER SEXUALLY MOLESTED HIM. Certificate of Compliance 11

II. TABLE OF AUTHORITIES CASES: In re Maria P., 185 Cal.App.4th 48 (4th Dist. 2010) In re J.K., 174 Cal.App.4th 1426 (2nd Dist. 2009) In re P.A., 144 Cal.App4th 1339 (2nd Dist. 2006) Mark T. v. Jamie Z., 194 Cal.App.4th 1115 (4th Dist. 2011) CODES: Fam. Code 3011 Fam. Code 3027.5 Welfare & Inst. Code 300 (b) & (d) LAW REVIEW ARTICLES: Kathleen C. Faller, Ph.D., Child Maltreatment and Endangerment in the Context of Divorce, 22 U. of Ark.Little Rock L.Rev. 429 (Spring, 2002) 7 8 9 9 9 9 7

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Paula D. Salinger, True or False Allegations?: Protecting Victims of Child Sexual Abuse During Custody Disputes, 32 McGeorge L. Rev. 693 (Winter, 2001)

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III. NATURE OF THE ACTION This is a child custody case originally involving the parties three sons, Evan, Ryan, and Damon. Damons sole legal and physical custody is now granted to his father, Appellee Eric Moelter. Appellant Cindy Dumas, the childrens mother, is appealing the

custody award concerning Damon, now 14 years old. The custody of the other two children is moot because of their ages.

IV. RELIEF SOUGHT IN THE TRIAL COURT On March 2, 2010, the trial court entered a final order [CT, Vol. 2, 298-306] relative the custody of the parties two older sons, Evan and Ryan, placing them in Mr. Moelters sole legal and physical custody. In the same order, but on an interim basis, the parties youngest son Damon (now 14 years old), was placed in the joint legal custody of Mr. Moelter and his friends, Kurt and Leslie Leinbach 1, with the Leinbachs maintaining sole physical custody of Damon. Ms. Dumas was only granted supervised visitation, and was sent to
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The children were first temporarily placed in the Leinbachs home at the February 1, 2008, hearing. [RT, Vol. 3, 188-220]. The Leinbachs were then granted sole legal and physical custody of the children in an order on October 27, 2008 [CT, Vol. 2, 228-237]. On October 27, 2009, in a non-final order, Mr. Moelter was granted sole physical and legal custody of Ryan and Evan, but Damon remained in the sole physical custody of the Leinbachs, and the joint legal custody of the Leinbachs and Mr. Moelter [CT, Vol. 2, 255-263]. 3

reunification therapy. The trial court then set a hearing to review Damons custody and visitation situation on April 30, 2010 [CT, Vol. 2, 298-306, 306]. It is from this review hearing, which was eventually held on July 15, 2010, and the resulting orders that this appeal is taken. Ms. Dumas set forth the relief she sought in the review hearing in her declarations filed on May 21, 2010, June 15, 2010, and Jul 2, 2010 [CT, Vol. 2, 309-321, Vol. 3, 370-387; Vol. 3, 427-4402], specifically that all three children be allowed to reside with her (or joint custody for Evan & Ryan), as they have consistently desired to do, with supervised visits between Damon and his father. Mr. Moelter in his May 25, 2010, declaration requested that Damon remain living with the Leinbachs and that his custody remain unchanged [CT, Vol.2, 322-326]. On June 11, 2010, Gary Plavnick, Esq., Damons minors counsel, filed a compelling declaration indicating that Damon wanted to engage his own attorney, Ethan Marcus, Esq., to represent him, and that he wanted to live with his mother [CT, Vol. 2, 2010]. At the July 15, 2010, review hearing, Ms. Dumas moved for a continuance, and essentially begged the trial judge to conduct a full
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She also asked that Damon be temporarily placed with his aunt and uncle, since the Leinbachs had abdicated their guardianship responsibilities. 4

evidentiary hearing on the factual question of whether Damon had been sexually abused by his father, as Damon had been reporting for several years [RT, Vol. 11, 679-686, 699-700]. The continuance was denied [RT, Vol. 11, 686]. She pressed her primary request that Damon be placed in her custody, sole or joint [RT, Vol. 11, 691-696]. Mr. Moelter stated no position on custody, but reported that Damon had been at his house since June 8 [RT, Vol. 11, 696-697]. No actual evidence was adduced at the hearing [RT, Vol. 11, 679-710]. V. JUDGMENT APPEALED Ms. Dumas appeals the final Findings and Order After Hearing entered on October 15, 2010, following the review hearing on July 15, 2010, by Judge Lorna A. Alksne, which granted sole legal and physical custody of the parties son Damon (age 14, DOB: 8/29/96) to Appellee, his father Eric Moelter, and granted Ms. Dumas a schedule of unsupervised visitation for the parties three minor children.3 [CT, Vol. 3, 446-450]. She is only contesting the custody award. Ms.

The order does not address the custody of the two other male children, since their custody was granted solely to Mr. Moelter in the prior final, unappealed order entered on March 2, 2010 [CT, Vol. 2, 298-306]. Their situations are essentially moot because of their ages. Evan is 18 years old now, born on November 5, 1992, and Ryan is 17 years old, born on February 6, 1994. Their custody has been at issue throughout the duration of the case, however. 5

Dumas noted her appeal on November 12, 2010 [CT, Vol. 3, 451452].

VI. SUMMARY OF SIGNIFICANT FACTS This case has been before this Court on three other occasions, all at Ms. Dumass initiation. In No. D054416, an earlier 2008 appeal was abandoned. In Nos. D055824 and D05657, writs seeking a stay, change of venue, and addressing a recusal motion were denied. In mid 2004, Ms. Dumas was alarmed by Damons reports of his father sexually molesting him. After an evidentiary hearing, the prior trial judge, Hon. Michael Smythe, found insufficient evidence regarding the sexual abuse issue. In response, Ms. Dumas secreted herself with the children for approximately four years, but returned to San Diego in January, 2008, and began fighting for custody of all thee children [CT, Vol. 2, 298-306]. The District Attorney for San Diego County refused to prosecute her for her four year disappearance with the children. The October 15, 2010, order on appeal is the

culmination of about six years of proceedings, which have been dominated by pleadings, declarations, and hearings for argument---but very light on evidence [CT, Vols. 1-3, RT, Vols. 1-11].

Damons sexual abuse allegations have not abated, and he still wants to live with his mother. VI. ARGUMENT THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING SOLE PHYSICAL & LEGAL CUSTODY OF 14 YEAR OLD DAMON TO HIS FATHER, INSTEAD OF PLACING HIM PRIMARILY IN HIS MOTHERS LEGAL AND PHYSICAL CUSTODY, WHERE 1) THERE IS INSUFFICENT EVIDENCE IN THE RECORD SUPPORTING THAT THE CUSTODY TRANSFER TO HIS FATHER IS IN HIS BEST INTERESTS, 2) DAMON HAS REPEATEDLY STATED HIS STRONG DESIRE TO LIVE WITH HIS MOTHER, AND 3) DAMON HAS CONSISTENTLY MAINTAINED THAT HIS FATHER SEXUALLY MOLESTED HIM. This Court reviews the appealed order under a deferential abuse of discretion test, and discretion is so abused if there is no reasonable basis on which the trial court could conclude that the decision on appeal advances Damons best interests under the Fam.Code 3011 criteria. Mark T. v. Jamie Z., 194 Cal.App.4th 1115 (4th Dist.2011). Ms. Dumas respectfully asserts that Judge Alksne has indeed abused her discretion, and the sole custody award to Mr. Moelter must be reversed. Mr. Moelter did not ask the court to award him custody [CT, Vol. 2, 322-326, RT, Vol. 11, 696-697]. No evidence was taken on July 15 [RT, Vol. 11, 679-710]. Damon has consistently and compellingly complained of, and described sexual abuse by his father.
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Furthermore, he has maintained his strong desire to live with his mother [See: Confidential Lodgment in confidential envelope, CT, Vol. 2, 181-214; Chadwick Center Report, CT, Vol. 3, 493-494; Minors Counsel Plavnicks June 16, 2010, declaration, CT, Vol. 3, 400-4024; DVD Damon sent to White House & Dr. Phil, CT, Vol. 3, 440; Nov. 4, 2004, Report of Minors Counsel, CT, Vol. 1, 65-79; Declarations of Damon, Ryan, and Evan, CT, Vol. 1, 94-104; September 11, 2009, transcript of Damons sealed in camera testimony5]. Under Fam. Code 3027.5, Ms. Dumas cannot be deprived of custody because she has reasonably believed her sons sexual abuse claims and has acted appropriately.6 To the contrary, as the childs mother, she has an affirmative duty to strenuously protect her children from the fathers sexual abuse, and, if she fails, the children can be
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In response to Mr. Plavnicks declaration, he was relieved as Damons counsel, and the court appointed Judith Klein, Esq., in his place on June 17, 2010 [C.T., Vol. 3, 420-426].
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This sealed transcript was just added to the appellate record by this Courts June 14, 2011, order granting Ms. Dumass motion to augment, over Mr. Moelters objection. It has not yet been otherwise labeled or identified in any other citable way.
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See January 12, 2004, declaration of psychologist Erik Fox, Ph.D., explaining that there is substantial concerns regarding Damons sexual abuse, and that Ms. Dumas is trying to protect her son based on reasonable assessment of the evidence [CT, Vol. 1, 19-26]. 8

taken from her in a dependency proceeding. Welfare & Inst. Code 300 (b) & (d); In re Maria P., 185 Cal.App.4th 48, 109 Cal.Rptr.3d 882 (4th Dist. 2010). See also, In re J.K., 174 Cal. App.4th 1426, 95 Cal.Rptr.3d 235 (2nd Dist. 2009) [abuse remote in time still requires protection]; In re P.A., 144 Cal.App.4th 1339 (2nd Dist.2006) [all children at risk of abuse if one child sexually abused]. There was simply no evidence adduced to justify granting Mr. Moelter sole legal and physical custody, especially when Mr. Moleter himself never asked the court to make such a decision in his favor [CT, Vol. 2, 322-326; RT, Vol. 11, 696-697]. Furthermore, less than a year earlier, the same trial court found in its order on October 20, 2009, that, Granting custody of the minor child, Damon Moelter to Father woul be detrimental to this child as there would be a substantial danger to the child if her were returned to Father [CT, Vol. 2, 255-263, 256]. It is illogical, and untenable, to place Damon in his fathers custody, given his adamant position that he was abused by his father and that he wants to be in his mothers care. What has happened in this case is a clear example of the well-documented phenomenon of family courts discounting clear evidence of sexual abuse, improperly ascribing malevolent motives to mothers attempting

to protect their abused children, and then placing the children in the custody of the fathers who victimized them. See, Paula D. Salinger, True or False Allegations?: Protecting Victims of Child Sexual Abuse During Custody Disputes, 32 McGeorge L. Rev. 693 (Winter, 2001); Kathleen C. Faller, Ph.D., Child Maltreatment and Endangerment in the Context of Divorce, 22 U. of Ark.Little Rock L.Rev. 429 (Spring, 2002). There is no reasonable interpretation of the record to support the concept that the ruling on appeal advances Damons best interest. Accordingly, the Court is respectfully urged to first vacate and reverse the custody provisions of the October 10, 2010, order below, and either award sole legal and physical custody outright to Ms. Dumas, or remand the case to the trial court with instructions to conduct an evidentiary hearing to determine what legal and physical custody arrangement would be in Damons best interest, but first premised on Damon being placed in the primary physical custody of his mother. Costs should also be assessed against the Appellee.

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CERTIFICATE OF COMPLIANCE Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains 1,775 words, including footnotes. In making this certification, I have relied on the word count of the computer program used to prepare the brief.

________________________________________ J.P. Miller, Jr.

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