TERENCE M. CHUCAS
State Bar No. 74255
3111 Camino del Rio North
Suite 400
San Diego, CA 92108
Tel: 619-528-2364
Fax: 619-528-2366

Attorney for Minors

		       SUPERIOR COURT OF CALIFORNIA

		     	   COUNTY OF SAN DIEGO

In re			)  CASENO.D477012
			)
Petitioner: CINDY   	)  REPORT OF MINORS' COUNSEL
			)
and			)  Date:  11/10/04
			)  Time:  9:00AM
Respondent: ERIC        )  Dept:  F5
_______________________

     I was appointed to represent Damon (DOB 8/29/96) on August 3, 2003 by the Honorable Michael T. Smyth. Subsequent to this appointment, I was appointed to represent Damon's siblings, Ev (DOB 9/5/92) and Ry (DOB 2/6/94). I filed my first report with the Court on November 12, 2003 and I participated in the hearing that took place on January 22, 2004. At the conclusion of the 1/22/04 hearing, the Court made a series of findings.

These included:

  1. Petitioner failed to meet her burden to show by a preponderance of the evidence that Respondent sexually molested, abused or assaulted Damon, or that Respondent touched Damon inappropriately in any other way. The weight of the evidence suggests that it is unlikely that Respondent molested or sexually battered Damon.

  2. The Court finds that a request for a finding of actual innocence is not properly before the Court. Further, the Court finds that a request that it order Respondent's name be removed from the Child Abuse Central Index maintained by the California Department of Justice ("the Index") is not properly before the Court. Even if such a request were properly before the Court. the Court lacks jurisdiction to order that Respondent's name be removed from the Index. If the Court had the ability to order Respondent's name removed from the Index, the Court would do so. Based on the information before the Court, which is substantial, the Court does not see a basis for having Respondent included on a child molester index.

  3. Petitioner's initial response to the statement of the child was not unreasonable, nor was it unreasonable that she would follow up on the statement. Although her initial questions to the children were leading, the Court does not find that the questions were intentionally leading. In light of the information available to Petitioner in the beginning, the Court does not find that there is substantial evidence that Petitioner reported this incident of alleged sexual abuse with the intent to interfere with Respondent's lawful contact with the minors in this case, as is contemplated by Family Code Section 3027(b). While there is some evidence, and probably a good deal of evidence, that her intent was to interfere, it is not substantial evidence.

  4. As for Petitioner's subsequent behavior, at some point her actions became unreasonable. However, the Court cannot determine with certainty at which exact point Petitioner's actions and beliefs turned unreasonable. Although a reasonable person may well have sought an explanation, Petitioner pursued this matter with a zeal that was eventually probably uncalled for and beyond what a reasonable parent might do.

     At the hearing on 1/22/04, the Court expanded the father's visitation to three weekends per month from Friday after school until Sunday at 5:30 PM. Additionally, the Court gave the father a Tuesday after school visit and every Thursday overnight. The non-school time was substantially split between the parties.

     On February 12, 2004, I was notified by Dr. Gang, the children's therapist, that the father had slept with Damon during the first overnight visit that the father had with Damon following the hearing on 1/22/04. Between February 12 and May 25, 2004, I devoted considerable time to addressing the mother's concerns that Damon had been either molested by the father or that the father had used Damon to meet his emotional needs when he slept with him. I was contacted by attorney Chip Hernholm who indicated that he was reviewing the matter for the mother and that he had retained Dr. Ruth Roth as an expert to analyze whether the previous investigation that had been conducted was thorough.

     I interviewed my clients in the father's home on March 11, 2004. On March 18, 2004 I interviewed the following professionals at Jarabek Elementary School: Victoria Peterson, vice principal; Meg Kaufman, school counselor; Tracy McMillan, Damon's then second grade teacher; Marilyn Dunn, Damon's first grade teacher; Katherine Reid, Ry's third grade teacher; Kathy Myers, school nurse. On April 15, 2004, I met with attorney Hernholm, Dr. Roth and the mother in Mr. Flernholm's office and gave them a detailed oral report on the steps that I had taken since I was first advised that the father had slept with Damon. During this period (2/12 - 5/25/04), I also had a number of telephone conversations with Dr. Gang, attorney Hernholm, Dr. Roth, and attorney Henrich, keeping them advised as to the steps that I was taking. After I interviewed the boys at the father's home on March 11, attorney Hernholm requested that 11 reinterview the boys at the mother's home. I volunteered to do this and arrived at the mother's home on March 16, but the boys, pursuant to the underlying order, were at the father's home for visitation. On March 16, the mother was upset and wanted me to have the boys brought back from the father's home so that the interview at her home could take place. I declined to do this but did tell her that I would interview the boys at school on March 18. On March 18, after interviewing the professionals listed above. I left Jarabek Elementary for another meeting. I told the school officials that I would return in about an hour to interview Damon. When 1 returned at approximately 11:00 AM, I was advised that the mother had come to school and had requested that the school counselor interview Damon. The mother's concern was that the father's spring vacation time with the boys was about to start and she did not want Damon to be left alone with the father. The school counselor did interview Damon. pursuant to the mother's request. When I returned, after learning that Damon had already been interviewed, I declined to conduct another interview.

     My interview of Damon and the boys did not reveal any information that led me to believe that Damon had been sexually molested nor had the father used Damon to meet his emotional needs when Damon slept with the father after the 1/22/04 hearing. The school counselor's interview reached the same conclusion. All of this information was reported to the mother at the meeting with attorney Hernholrn and Dr. Roth. All of this information was given to the Court orally at the hearing on May 25, 2004.

     On September 21, 2004, the mother filed a motion with the Court requesting that the orders from the 1/22/04 hearing be set aside based upon the mother's belief that the evaluation conducted by Dr. Murphy was flawed. On October 7, 2004, Damon made statements to his current third grade teacher, Ellen Warren. to the effect that he was sexually molested. Ms. Warren. as a mandatory reporter, contacted the authorities. A new investigation, both by the San Diego Police Department headed by Detective Brady and by Health and Human Services (CPS) headed by Drew Cabral. commenced. The children were taken to Polinsky on the evening of October 7 and were released to the mother's care on October 8. Mr. Cabral has filed with the Court a letter outlining the steps that he took in investigating the matter and the conclusions that he reached. Mr. Cabral's statement speaks for itself.

     I spoke with Detective Brady on October 8 and November 3, 2004. Detective Brady's conclusion is similar to Mr. Cabral's conclusion and that is that there was nothing new in Damon's revelations to his teacher. Detective Brady also told me that the mother has been very aggressive with her in seeking to have the police take action against the father. Detective Brady indicated that the mother not only has contacted her on repeated occasions, but has contacted other detectives and has contacted a number of officials in the District Attorney's office seeking to have the father prosecuted.

     On November 1, 2004, I interviewed my clients in the mother's home. I interviewed each of the boys outside the presence of any other person. All of the boys are bright, articulate and easy to communicate with. Ev is 12 years old and in the 6th grade at Marshall Middle School. He told me that he only wants to see the father on a supervised basis. When I asked him why, he told me it was because the father had sexually molested Damon. In response to the question of what made him believe this, he told me that he had seen Damon jumping up and down on the father's lap while they were playing a video game and that Damon had told him that he had felt the hard thing. He told me that the mother had indicated to him that this was sexual abuse. I had previously interviewed Ev, not only on March 11 but also on August 31, 2003 arid January 21, 2004. In none of these earlier interviews had Ev given me this information. I asked him if he had been sexually abused or improperly touched by the father and his answer was No. I also asked him if he had seen the father do anything inappropriate to Ry and the answer was No. He told me that Damon had told him, Ry and the mother that the father had on multiple occasions sexually molested Damon when they slept together. I specifically asked Ev if the father was sleeping with Damon since he slept with him in late January or early February of 2004. The answer was No. Ev told me that he no longer sleeps with Damon which he was previously doing, but he sleeps in the same room with Damon when they visit the father. His explanation on why he does this is that his presence in Damon's bedroom is necessary in order to protect Damon from being sexually molested. Ev was adamant that he does not want to have to spend overnights at the father's home and he does not want to see the father unless the contact is supervised.

     Ry told me that he does not want to see his father. When I asked him why, he told me that it is because of what his father had done to Damon. He went on to explain that the father had done the "hard thing" to Damon. He also told me that this meant that Damon had been sexually abused by the father. When I asked him how he knew this, he told me that his mother had told him. When I asked Ry if he would consider having supervised visits with the father, he reluctantly agreed. I asked Ry a series of questions concerning whether he had been in any way inappropriately touched by the father and his answer was No. When I asked him if he had ever seen the father do anything to Damon that was unusual, he repeated the video game explanation that Ev told me. In my previous interviews with Ry, he did not tell me this.

     Damon told me that he does not want to see his father and that he would run away if he was forced to have any contact with the father. He told me that he is afraid that the father would do the hard thing to him. He told me that the father had done the hard thing to him on multiple occasions in multiple locations. He told me that it happened in his grandmother's house in Salinas when his father slept with him. He told me that it happened five or six times a night every night that he slept with his father at his grandmother's. One time a night he felt some wet stuff on his back. Damon was clear when he said five or six times a night that these were distinct times each night. He also told me that he felt the hard thing when the father lived at their condo prior to moving to the new home. He told me that he felt the hard thing every night, five or six times, and every night on one occasion he felt the wet stuff. He told me the last time that this had happened was prior to the supervised visitation with the father which started in the spring of 2003. Damon's revelations to me on November 1, 2004, were inconsistent with the statements he made to me in my previous interviews with him. When I last interviewed Damon prior to November 1, he indicated to me that he wanted to live with the father. He is now indicating that he doesn't want to see the father. When I reminded Damon of what he had previously told me. he said that he had never said that he wanted to live with his father and he wanted to know "why nobody will believe me".

     On October 26, 2004 at an ex parte hearing, the Court ordered that the father have visitation from after school on Thursday, October 28 until the morning of November 1. The father picked up the children on the afternoon of October 28 and, according to Damon and Ry, they ran away from the father's home shortly after arriving at the father's home. They made their way to the mother's home and took steps to hide from the father as he searched for them. The next morning they returned to school. On Friday afternoon, the father picked up Ry but Damon walked away from the school and refused to get into the father's car. The mother was at the school on Friday afternoon and Damon got into her car. Ry returned to the father's home and some time around 7:00 PM, with Ev's help, Ry again ran away. He called the mother from his cell phone and made his way to the mother's home. He indicated that the mother told him that the back door was open and that he should go into the house. According to Ry, when he made the call, the mother and Damon were at Boston Market and the mother took Ry's dinner order and brought Ry a dinner. Ry and Damon spent the weekend with the mother in direct violation of the Court's order.

     On November 4, I returned to Jarabek Elementary School and met with the school principal, Thomas Liberto; the vice principal, Victoria Peterson; the school nurse, Kathy Myers; the school counselor, Meg Kaufman; Damon's third grade teacher, Ellen Warren; Ry's fifth grade teacher. Kathy Lloyd; and Damon's second grade teacher, Tracy McMillan. I had requested that these individuals be present for my meeting.

     The school is aware of the conflict between the parents and the mother's concern that the father is a sexual predator. When I visited the school on March 18, 2004, the school officials expressed concern with both Damon and Ry's behavior. Both boys, while doing well academically, were behaving in a very immature fashion. Damon in particular was manifesting symptoms of severe stress. He routinely would curl himself up under the teacher's desk in a fetal position. On November 4, I was advised that these past immature behaviors are no longer present. Both boys are doing well in class, they have a cooperative attitude and appear well-focused. A significant problem concerns the completion of homework. This problem occurs when the boys go to the father's home with their backpacks which includes their homework and then run away. When this happens, their homework is not done and both boys feel badly when they come to school with the work not done. When I asked the school officials to what they attributed the significant improvement in the boys' overall behavior in class, they cited that the father had become much more involved in the boys' school after the spring break in 2004. Early in 2004, the father had moved to his new home which is in the same general neighborhood as the mother's home and this was viewed as a positive factor. The school steps at the start of the current school year to place Damon and Ry with their strongest and most nurturing teachers. This school decision was based upon the school's view that the boys were experiencing significant stress related to the parental conflict. The strength of the boys' current teachers undoubtedly is a significant factor in the boy's overall classroom improvement. Damon has expressed to his teacher, when he is in the presence of his mother, that he does not want to visit his father. Classroom writings of both Ry and Damon also make clear to the school professionals that the parental conflict is exacting an emotional toll on the boys. The good news is that the school nurse and the school counselor have had no contact with either boy during the current school year. This is in marked contrast to last year when both the nurse and the counselor had much contact with both boys.

     The question that the Court must address is where we go from here. My assessment is that all three boys' relationship with their father has been substantially destroyed. The change in the boys' demeanor and words they use to describe their father has changed dramatically for the worse. There is no doubt in my mind that this dramatic deterioration in the boys' relationship with their father is a direct result of the mother's obsession with the sexual molestation issues that first arose in early 2003. The mother continues to believe that the father molested Damon and that he is a clear and present danger to Damon and the other boys' safety. She lobbied Mr. Cabral strenuously to find that Damon had been molested. She has been extraordinarily aggressive with Detective Brady and law enforcement. She has filed another motion seeking to have the previous findings of the Court set aside. I believe the evidence is clear that certainly nothing has occurred since the father had supervised visits and the clear weight of the previous evidence and the findings of all investigations have shown that there is not enough evidence to conclude that Damon was molested. The Court's findings from 1/22/04 make this point clear.

     Dr. Gang saw the boys on a regular basis through October 2004. Attached as Exhibit "A" is Dr. Gang's letter to me dated October 28, 2004. Dr. Gang's letter is clear that she believes that the mother has undermined her relationship with the boys. Dr. Gang, at my instructions, contacted the mother and requested that the mother bring the boys to therapy sessions. The mother declined to do this. Dr. Gang does not believe that she is any longer effective in helping the boys and does not want to continue as their therapist. Attached as Exhibit "B" is Ry and Damon's school attendance since the start of the school year. Ry was absent on Friday, October 8; Thursday, October 14; Friday, October 15; Thursday, October 21; and Friday October 22. Damon was absent on the same dates. The underlying order is that the father is to have visitation with the boys on Thursday and on three weekends a month starting on Friday afternoon.

     I believe the Court has two options to choose from. It can do nothing and leave the underlying orders in place. If the Court selects this option, I believe that the father's relationship with all three children will cease. The second option is to remove the children from the mother. This option is not without risk. All three children, and especially Ry, are closely aligned with the mother. Separating the children from the mother will undoubtedly cause significant trauma. It is foreseeable that if the Court selects this option, Ry and Damon's behavior in school will decompensate. It is also foreseeable that all three boys will run away from home. There is no question that if they do this, they will run to the mother's home. Given the events of last weekend, it is also foreseeable that the mother will take no action to return the children to the father's home. This will most likely mean that law enforcement will need to become involved. This will further traumatize the children. We are left to pick from two poor options.

     My recommendation is that the Court remove the children from the mother and that she have no contact with them for at least 90 days. The children are going to have to become involved in counseling/therapy with a new therapist. Given the history in the case, I recommend that Dr. Yanon Volcani, Dr. Steven Sparta or Dr. John Parker become the boys' therapist. The boys need to see their therapist at least weekly.

    Recommendations:

    Findings:

    1. San Diego County, California, is the home state for Ev, Ry and Damon M.
    2. The parties were present in Court on November 10, 2004 and participated in the hearing.
    3. The parties have been advised that violation of the Court's orders may be punished by civil and/or criminal penalties.
    4. The USA is the country of habitual residence for all three children.

    Orders:

    1. The father shall have sole legal and sole physical custody of all three children.
    2. All three children shall enter into a course of individual therapy with Dr. Sparta, Dr. Volcani, or Dr. Parker. They shall see the therapist once a week for at least the next three months.
    3. The mother shall have no contact with any of the children until at least February 10, 2005, unless the boys' treating therapist believes that the boys should see the mother in a therapeutic setting prior to that date.
    4. The mother shall not go to Jarabek Elementary School or Marshall Middle School until approved by subsequent Court order.
    5. After February 10, 2005, the mother shall have supervised visitation with the children on a weekly basis for up to two hours. The supervisor shall be Dr. Patricia Colby, Catherine Fahey, MSW, or Sandra Girard, MSW. Supervised visitation may commence prior to February 10, 2005 if the children's treating therapist believes that it would be beneficial for the children. The cost of supervision shall be paid by the mother.
    6. The mother shall attend individual therapy with a Ph.D. level therapist on a weekly basis.
    7. A review hearing shall be held in mid-June 2005.

Dated: 11/4/04
Respectfully submitted,
Signature
TERENCE M. CHUCAS
Attorney for Minors

 
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