No 94-5-00454-5

REPORT OF GAL SCHAFER'S INVESTIGATION AND ANALYSIS RELEVANT TO MOTION FOR RECUSAL

Douglas A. Schafer, appointed by order of 1/23/98 as Guardian ad Litem for ***** Inderbitzin the now 6-year old daughter of Petitioner Mark Inderbitzin (Mark) and Respondent Lynda J. Allen (Lynda), files this report of his investigation and analysis to date, to the extend relevant to Mark's Motion for Recusal filed herein on 1/30/98. The Commissioner of the Court of Appeals, Division II, entered an order on 2/4/98 temporarily and partially staying the trial court's order, but not restricting this trial court's authority to rule on the Motion for Recusal.

The Swanson Rules

In the course of researching issues in the appellate proceeding, I recognize the staggering significance of the very recent case of Marriage of Swanson, 88 Wn. App. 128 (Div.II, 9/24/97) (Exhibit A) in which the court emphatically held that achieving the best interests of the child was absolutely the highest priority of the courts and their judicial appointees. In Swanson, the appellate court, at pages 142-43, declared that a child's guardian ad litem may not assert, and a trial court "shall decline to apply" and defense, argument, or legal doctrine that is not consistent with the child's best interest. In Swanson, the issue was whether the child's guardian ad litem should have asserted, and whether the trial court should have applied, the defenses of res judicata collateral estoppel, and untimeliness to a father's motion to disestablish his parentage of the child, which motion the father brought under CR 60(b). The court held that the guardian ad litem could assert, and the trial court could recognize, those doctrines in defense of the motion only if doing so achieved the child's best interests. The rule of Swanson as applied to this case requires that (1) I, as ****** guardian ad litem, recommend to the court, based upon my investigation and analysis, whether I believe it is in the best interests of ****** for Judge Rudy Tollefson to recuse himself due to ex parte contacts with non-parties, and (2) that the trial court decline to grant the Motion for Recusal if I, as guardian ad litem, recommend, and the court agrees, that doing so would be inconsistent with the best interests of ******.

Investigation.

I have reviewed the court files from this case, as well as those of Mark's 1984 marital dissolution and child custody case, Inderbitzin v. Inderbitzin (Pierce County Superior Court No 84-3-00264-5). I have observed ***** with her mother, Lynda, at the latter's home, and I have spoken briefly with 6-year-old *****. I have spoken with Lynda, her mother Rose, with her husband, Patrick, and with her friend Jeannie Warner. I have spoken several times with Mark's former wife, Shari, and once briefly with their daughter, ******** (now age 16), who Mark was alleged in the 1984 case to have molested when she was age 2. I have spoken with Richard G. Peterson, Ph.D. (Clinical Psychologist) and his wife, Jaine Borowski-Peterson (Early Childhood Therapist), the former of whom was involved in both Mark's 1984 and his 1994 cases, and the latter of whom counseled ******* in 1984 and thereafter.

Psychological Evaluation Reports. I have reasons to believe, at this point, that Mark and his counsel, with possible assistance by the prior guardian ad litem, in 1994 tainted the independent, neutral objectivity that otherwise would guide an evaluation by the mental health professionals who evaluated Mark. Attached as Exhibit B are 25 pages from a 81-page compilation of materials that they provided early on---8/26/94---to Mr. Peterson's colleague, Richard W. Washburn, Ph.D. (Counseling Psychologist). Of particular significance, I note that
---the cover page gives the impression that the materials were filed in court (which would have required sharing them with opposing counsel), but they were not so filed;
---the 6-page "Background Information" summary asserts, at page 3, that "the guardian ad litem, Steve Downing, believes Mark",
---The Background Information summary, at page 5, assures the psychologist evaluator that he will "BE COMPENSATED AT AN ADEQUATE RATE FOR [HIS] TIME!" [emphasis in original] spent going over the "significant volume of documents comprising this packet" and following up with phone calls;
---included two copies of an alleged 1994 handwritten recantation by Mark's former wife, Shari Steinbacher, of her 1984 molestation accusations against Mark; and
---included a Declaration of Eric L. Allen (For Guardian ad Litem's Use Only), Lynda's older brother, berating her, signed 3-24/94 (2 days after GAL Downing was appointed).

Dr. Washburn's Psychological Evaluation report on Mark was completed 4/17/95, for he waited to see Dr. Julia F. Moore's report (fax-machine dated on 3/27/95) before preparing his. He then concluded that "the current charges of sexual abuse do not appear to have any credibility," but he still expressed concerns about Mark's lack of candor in the testing process and his pattern of behavior that in his relationships with women had lead to "serious consequences".

Dr. Peterson's 1995 evaluation of Mark began with a meeting (with Dr. Washburn, Mark, Kristina, and Shari's hostile sister Kellie) on 3/16/95, which was summarized in the letter by Marks lawyer to GAL Downing of that date (Exhibit C). Dr. Peterson prepared a Declaration on 6/8/95 (Exhibit D), explaining why he had been persuaded to change his opinion of Mark from the adverse one he had reported in 1984. He relied greatly upon parts of a 2/18/85 report by Richard W. Traywick, Ph.D. (Exhibit E), who had said his psychological testing of Mark did "not necessarily point toward a sex offender" and who had questioned Shari's veracity, even though Dr. Traywick had concluded from Dr. Peterson's earlier 1984 reports that ******** had been molested and would be at risk in Mark's care. (Dr. Traywicks report was never filed in either court file.)

Dr. Peterson eventually reported, on 12/19/95, concerning Mark based upon interviewing him in 1995 and upon reviewing other materials, by stating the evaluation could not, with the information he then had, conclude that Mark was guilty of sexually abusing his daughter ******; and said that "to the extent that an evaluation of this type is helpful [Mark] does not pose a risk of sexually abusing ****** that is significantly greater than any other non-offending father." Given the great variations in the three psychological evaluation reports on Mark, I have great doubts about how truly "helpful" any of them are in determining ****** best interests, particularly now knowing that they did not result from untainted and objectively reliable testing (if such psychological testing even exists, of which I personally have doubts).

I have not contacted Julia F. Moore M.D., the child psychiatrist whose report of 3/27/95 was very critical of Lynda and supportive of Mark. Because her involvement began in December of 1994, I suspect that she was given the same pro-Mark compilation of materials and memoranda as Mark and his attorney earlier gave to Dr. WAshburn in August of 1994.

1984 Molestation Accusations, I disbelieve the handwritten recantation by Mark's former wife and 1984 accuser, Shari, because she personally told me repeatedly in a face-to-face meeting on 2/1/98 and in several conversations from 1/23/98 to 2/11/98 that Mark indeed had committed the sexual assaults of their daughter as she alleged in 1984. She never wavered with me in her conviction as to the truth of those accusations, though she wavered considerably as to whether or not she would "get involved" in the present case (due to various emotions ranging from anger toward Lynda to fear of Mark). She consistently told me that Mark was rich, manipulative, and had always been able to get whatever he wanted. She also reported that he was mean and dangerous, and she appeared genuinely fearful of him for both herself and for her daughter, ********. At one point she openly pondered what Mark might be willing to payer her to stay out of this case, to which I responded that she would need to speak privately to a lawyer of her own about such matters (though I informed her I thought such an agreement would be unlawful, and that the law generally does not enforce unlawful agreements).

After Mr. Fuhrman faxed me a copy, on 2/4/98, of Shari's alleged 1994 handwritten recantation with Kellie's appended supporting declaration and after I mailed them to Shari, she still denied to me having ever recanted or having handwritten the alleged recantation. She told me she would be discussing the recantation papers with Kellie, her sister whom she appeared by then to have reconciled. Shari expressed to me some concern of her or Kellie's risk of perjury charges, and I again told her that she needed guidance from an attorney of her own. I then sent Mr. Fuhrman and Mr. Downing a letter (Exhibit F) asking them to provide information relating to Shari's alleged recantation and information relating to Dr. Peterson's changed opinion about Mark, to which they have not, as of yet, responded.

From my conversations with Shari, I believed that ****** best interests would be served simply by having Shari tell the truth about Mark, and I believe that getting a lawyer of her own to privately advise her would best secure that. I called a few local attorney's seeking one who would give Shari some free, confidential legal advise, and sent Shari a letter on 2/12/98 (Exhibit G) advising her of one who offered, to some extent, to do so. I do not know if Shari ever accepted that offer. After I contacted Kellie directly (contrary to Shari's wishes) on 2/11/98, Shari was angry and directed me not to contact her further. Mr. Fuhrman informed me by letter of 2/17/97 that he met with Shari on 2/14/98 and that she then signed a new declaration he had prepared recanting her 1984 allegations against Mark.

Frankly, I wonder if Shari sought or received payment from Mark for her new 1998 recantation, or (if genuine) her last August 1994 handwritten recantation. I note that though ****** left Shari's home and had moved in with Mark in about March 1994, Mark still wrote a number of checks to Shari (from his truck repair business account) well after that time and continuing at least into early 1995. The expert who Mr. Fuhrman recently retained to authenticate Shari's 1994 handwritten recantation used Shari's endorsements on the 1994 and 1995 checks that Mark had given her from his truck repair business account as handwriting samples. The 2 relevant pages of that expert's letter of 2/12/98 listing those checks by date (but not giving their amounts) are attached as Exhibit H.

Mark's Care of his daughter ******. ****** Inderbitzin, born 9/22/1981 (now age 16) to Mark and Shari, has had an unfortunate childhood that no child deserves to have. The court, by stipulation of Mark and Shari in their 1984 dissolution case in which Shari had alleged that Mark's molestation of ******, entered a decree on 4/5/85 (Exhibit I) awarding Shari custody of ******, subject to possible visitation by Mark under conditions to be determined by clinical psychologists Debrah and Philip Frank, with involvement by ****** therapist, Jaine Borowski-Peterson.

Thought I have not contacted Drs. Frank, I assume they did not permit Mark's unsupervised visitation of ******, for my review of court papers filed revealed a 2/25/87 statement by Shari's mother, Marjorie M. Roberts, that Mark assaulted her and threatened to kill her and her entire family and that he "was going to get his daughter back no matter what it took". The same date, Shari filed a related statement, saying "The Court ordered that he not see ****** unless it was with a psychologist and chaperoned visitation". The two statements are attached as Exhibit J. The apparent result of Marks demands for visitation of ****** was the entry on 4/24/87 of an Agreed Order (Exhibit K) permitting him to see ****** 2 hours every other Sunday under Shari's supervision.

GAL Downing appended to his 4/17/95 GAL Report a Child Protective Services (CPS) referral history dated 6/24/94, including a truncated 10-line summary of a referral of 1/27/93 (Exhibit L) that reads:

"****** has disclosed sexual abuse by her natural father. This took place between the ages of 1 and 5 YOA. Mother became aware of the molestation and this, in part, apparently precipitated a divorce.....****** now is experiencing recall of the molestations and has great concern for her half sister, the issue of her natural father's present marriage. Reffer has been assured [end of 10th line]"

****** has reported suicide (one report I read said she had made three attempts). Her mother, Shari, has a undisputable history of serious alcohol problems, at the least. When I spoke briefly with ****** --- Shari called her and handed me the phone while I was visiting Shari on 2/1/98 --- ****** strongly expressed her unwillingness to get involved at all in this case because "she was finally getting her life together". She said that she had attempted to speak out for her little sister a few years earlier, but she was not going to get involved again, even though she said that she "has suspicions" that her sister is at risk. She said she wanted to stay on good terms with her father's side of the family.

Shari told me that ****** was now living with her sister, Kellie, because Mark had "kicked her out" of his home and "disowned her" in the spring of 1996. Shari expressed to me that both she and ****** were very fearful of Mark. Shari reported that Mark was an anti government, militia-type person, who has a stash of illegal weapons. The next day, Shari called me to say that ****** nearly had a nervous breakdown after my conversation with her. I never attempted any further contact with ******.

The papers in this case file indicate that ****** moved in with Mark in March of 1994, about a month after Lynda and ****** moved out. She then was age 12 1/2, and in the 6th grade at Ford Middle School. The papers also indicate that she was interviewed by Drs. Washburn, Moore, and Peterson, and by GAL Downing, and consistently voiced for Mark as a good, caring father. Mark was given custody of ****** on 6/30/95. Dr. Peterson's report on Mark was completed 12/19/95. A short time later --- in the spring of 1996 when ****** was only 14 1/2 years old and in the 8th grade at Ford Middle School, however, Mark reportedly "disowned" ****** and "kicked her out" of his home --- LEAVING HIM ALONE THERE WITH ******.

On 2/21/98, I met with Cheryl Larson, whose son has been ****** boyfriend for several years. She reported to me that she allowed ****** to move into her home after Mark kicked her out in the spring of 1996 because ****** had no where else to go. She said that ****** resided with her for about 1 1/2 years --- until around the Christmas holidays in 1997 --- after which ****** moved in with her aunt Kellie. Ms. Larson reported that mark refused to provide any financial support at all for ****** while she resided with Ms. Larson. Reportedly, ****** declined herself, and discouraged Ms. Larson from taking measures, through the authorities to compel Mark to provide her financial support because ****** was afraid of her dad. Ms. Larson told me that she understood Mark's reason for kicking ****** out of his home was that she should get a job and support herself. Ms. Larson recalled that after one telephone argument that ****** had with erh dad, ****** told Ms. Larson that her dad had molested her when she was little, and said that he was "not a good person". Regardless of the truth of the molestation accusations, I would say that a father who kicks his 14 1/2 daughter out of his home and "disowns" her under the circumstances that I see here is indeed, not a "good person".

Analysis. Attached as Exhibit M is my initial answer by Respondent Inderbitzin to Petitioner's Motion to Stay, filed 2/3/98, in the court of appeals, in which I briefly analyzed under the heading "ex parte communications" some of the issues relating to the pending recusal motion. I there asserted that a strict ex parte communications rule appears to me to be inconsistent with the courts mission in perens patriae cases ---that being to protect and serve the best interests of a child or a incapacitated adult. Attached as Exhibit N is a memo that had widely distributed in November 1997 attempting to enlighten judicial officers as to their "sacred responsibility" in parent patriae cases to be more that merely an "adjudicator" between disputing parties, but to be a "protector" of helpless parties --- including children --- who are unable to protect themselves.

The long-established ex parte communications taboo that applies to judges to "adjudicators" of disputed between parties has been recognized as inconsistent with the judges' roles as "protectors" of helpless children and adults. For example, RCW 26.09.210 (Exhibit O) specifically permits a judge to interview a child in a custody case in chambers - without the presence of the child's parents or their counsel. The same provision also permits the judge in such a case to "seek the advice of professional personnel" on matters relevant to the child's best interests.

The National Council of Juvenile and Family Court Judges has identified the "ex parte information" issue as one of three broad areas in which the roles of their members conflict with recognized ethical canons. In their national judicial college staff's report titled "Resolving the ethical, moral and social mandates of the juvenile and family court," (1993 Juvenile & Family Court Journal 3) they recommend, at 15;

Juvenile and family courts must be authorized by clear statute or rule to issue specific protective or restraining orders under emergency process which permits judicial decision-making to proceed without rigid adherence to the prohibition against the use of ex parte communications and information. The judge must be given the discretion to weigh the probative value of such ex parte information and to conduct whatever investigation and fact-finding is necessary to meet the emergency at hand and to issue a temporary order pending a formal proceeding".

In this case, a pleading filed 9/26/97 captioned "Respondent/Mother's Response to Petitioner's Response re: Visitation" (Page 1 of which is attached as Exhibit P), Lynda alleges that now retired Judge Waldo Stone, who presided over the custody trial of this case in October 1996, "stated during trial that he did not, and was not going to, read the court file, as it would take 2 weeks to do so". If true, that stands in stark contrast to what I recognized (in part from his "stick-pad" notes identifying and "tabbing" the documents in it) as the extraordinary time that judge Rudy Tollefson has spent reviewing the now 4-volume court file in this case and the 2-volume court file from Mark's 1984 dissolution/custody case. To the extent that Judge Rudy Tollefson may have contacted professionals and others involved those cases, it appears that he was motivated from a sincere desire to ascertain the truth about the accusations of extreme bias that Lynda had made against court-appointed GAL Downing, or to serve ****** best interests, or both. Judges do have an administrative responsibility recognized in the Code of Judicial Conduct, Canon 3 (B), to ensure that the court officials (which would include a court appointed guardian ad litem) perform their duties with "fidelity and diligence". The inquiries alleged to have been made by Judge Rudy Tollefson in this case appear to be consistent with his fulfillment of that duty.

Further, I believe that the new information I recently obtained concerning Mark --- particularly of his abandonment of his then 14 1/2 year old daughter, ******--is information that should be considered by judicial officers who's "sacred responsibility" is to protect ******. I fear that if Judge Rudy Tollefson does grant the motion for Recusal, or is otherwise unassigned from ****** case, her case might get assigned to a 5-hours a day judge who unthinkingly goes "by the book" and does not care enough about ****** or other helpless persons to get personally involved in their cases or in ensuring the integrity of the system that process them. (Attached as Exhibit Q is my letter of 12/27/95 to the then 18 Pierce County Superior Court judges, prior to several retirements and Judge Rudy Tollefson's election to the bench).

The Swanson case, at page 137-38, describes the role of parents and others in a case child guided by a child's best interest as follows; "The role of the other parties [other than the guardian ad litem], who often include the child's parents and the state, is to highlight and comment on deficiencies in the guardian's performance"

It appears that Lynda fulfilled that role. I submit that Judge Rudy Tollefson's alleged, or even admitted, limited acts of ex parte communications do not impair the ability of both parents of ****** in this case to carry out their role, as announced in Swanson.

RECOMMENDATION AS TO ****** BEST INTERESTS

As discussed above, the Swanson case requires that I, as guardian ad litem for ******, investigate, analyze the information obtained, and recommend to the court what I believe best promoted ****** best interests in any issue coming before the court. Based upon the limited investigation and the analysis described above, I believe that is in ****** best interests that the court deny the motion for recusal that was based upon ex parte communications. I believe that ****** best interests are served by having a judge who has taken a person interest in her case, in her welfare, and in the integrity of the system employed to protect her.

February 23, 1998
/s/
Douglas A. Schafer, Attorney/Guardian d Litem