No. 94-5-00454-5

This is a Motion for the court to recuse itself based on ex parte contacts that the court made regarding this case,

I first heard a motion on this case on October 17, 1997. I first heard a motion in this case on October 17,1997. The motion was for the purpose of Revision, and removing the Guardian ad Litem, and was brought by Lynda Allen (pro se). I read her motion, the response by Mark Inderbitzin's attorney, the Guardian ad Litem's report, and other pleadings.

I denied her motion. And initially agreed with the GAL's report, and the psychological evaluation of Lynda Allen. She then filed a Motion for Reconsideration, and brought up allegations about the GAL, and his failure to consider a 1984 case involving Mark Inderbitzen and his former wife and daughter.

I reread the GAL's report and the psych evaluation of Lynda Allen. Neither of these reports mentioned anything about the 1984 case, even though Lynda Allen had told the GAL about the 1984 case.

I had my J.A. retrieve the 1984 case files from archives and was astounded at I what I found. The case was a Dissolution case between Mark Inderbitzen and Shari Inderbitzen. The reason for the Dissolution was that Mark Inderbitzen had sexually molested his daughter, who was 2 1/2, at the time. The parallel between the 1984 case (84-3-00264-5) and the 1994 case are truly eerie and raised many red flags in my mind.

Judge Verharen granted the Dissolution and ordered that Mark Inderbitzen have only supervised visitation with his daughter. He also ordered that Mark pay child support and, in addition, that he pay for Counseling for his former wife and daughter.

Keep in mind, the facts in this 1984 case were not considered to be relevant by the GAL in the present case. All of these facts can be found in Case Number 84-3-00264-5. I have these files in my chambers.

Mark met Lynda in 1985, He was 32 years old at the time and she was 19. The age difference is virtually the same as the 1984 case. Eventually, they had a daughter, ***. The parties separated and Mark was granted visitation.

After one of these visits, *** told Lynda that her father had touched her in her privates." *** was about 3 to 4 years old at the time. There was a medical examination done, which was inconclusive. Julia Moore, M.D., did a diagnosis of Mark which did not include any analysis of the 1984 case.

Three polygraph tests were done on Mark. The GAL failed to mention the polygraph test of July 8, 1994, which Mark failed. The other two tests are mentioned by the GAL. These were given on July 12, 1994 and July 14, 1994. He passed one test and the other was inconclusive.

Lynda took two polygraphs. She passed one and one was inconclusive. The GAL fails to mention the test that she passed in his report to the court.

The GAL, in his final report, states that he had spoken to the ex-wife, Shari, and that she had recanted any accusations of child molestation by Mark Inderbitzen. I believe this statement to be false based on personal knowledge and from speaking with the new GAL, Doug Schafer.

The GAL also states that Mark Inderbitzen was given series of questions by polygraph, and his answers "clearly" indicate that he was telling the truth, and that he is not deviant in any way. This statement is not true. Mark Inderbitzen took three polygraph tests. He passed one, one was inconclusive, and one indicated that he was lying.

Based on the above information and the complete files of the 1984 and 1994 cases, I amended the court order regarding visitation by Lynda Allen. I granted her supervised visitation on the weekends and ordered that Mark Inderbitzen complete a full PsychoSexual evaluation. I further ordered that the GAL be replaced by a new GAL, and that a report be given to the court considering all of the facts in the 1984 and the 1994 cases. I did this based on CR 60(b)(c).

I made contact with Dr. Traywick to get a copy of his 1984 evaluation of Mark Inderbitzen. This was mentioned in the 1984 file, but the report was not in the file. Dr. Traywick told me that he would supply a report if it was subpoenaed. Eventually, I found a summary of the report in the 1994 case file, and had no further contact with Dr. Traywick.

I left a message at Dr. Washburn's office to get a copy of copy of his evaluation. When reviewing the file for the first time, I could only find the cover sheet of his evaluation. Upon further review, I found the full report and had no further contact with his office.

I called Dr. Moore to clarify her evaluation of Lynda Allen. It was unclear from her evaluation whether she considered the 1984 case at all. She informed me that she did not consider the 1984 case in her evaluation and I had no further contact with her.

Richard Peterson submitted a Declaration in the present case dated June 8, 1995.

In his declaration, he states that he and his wife believed that ******** would be traumatized by contact with Mark lnderbitzen. They believed that there was evidence of molestation in the 1984 case.

He went on to say in his declaration that Allen Traywick, Ph.D., thoroughly evaluated the matter and recommended to the court that evidence was insufficient to conclude that Mark Inderbitzen had molested ********. He also stated that Dr. Traywick pointed to characteristics of Shari that suggested that she was unreliable and possibly manufactured the accusations.

Dr. Traywick, in his report, recommended that a conservative approach be taken and that any visitation between Mark and Kristina be done only under supervision. He also felt that the conclusions to be drawn was that ******** was molested and is at risk if in the care of her father.

No characteristics in Shari were even pointed out by Dr. Traywick in his evaluation. He makes an unsupported statement that serious questions can be raised regarding her veracity and no further supporting information is supplied in his evaluation of Mark Inderbitzen.

"I believe that Mark Inderbitzen was cleared of any wrong doing by Polygraph investigation conducted by the Pierce County Sheriff's Office and no charges were filed."

This statement is totally misleading, if not completely false. Mr. Inderbitzen took the following Polygraph tests with the following results:

On January 13, 1984, Norm Matzke, Seattle, Washington, saw Mr. Inderbitzen for polygraph examination. At that time Mr. Matzke asked the following questions:

Upon completing the examination on Mr. Inderbitzen, Mr. Matzke concluded that the client was attempting deception on the questions, which had been posed.

Following the above assessment, Mr. Inderbitzen was seen by Windson L. Olson, who is a Seattle polygrapher. Mr. Olson asked the following questions of the client:

1. Have you ever put your mouth on ******** vagina or rear?
(Answer: No)

2. Have you ever had sexual fantasies about ********?
(Answer: No)

3. Regarding any sexual molestation of your daughter, ********, have you told your wife the complete truth?
(Answer: Yes)

4. Have you ever sexually shown ******** your penis?
(Answer: No)

Upon completing the evaluation, Mr. Olson concluded that Mr. Inderbitzen was being truthful and did not molest his daughter.

Finally, reference is made to a polygraph examination conducted by William Ruddell on January 27, 1984, At that time, Mr. Inderbitzen was asked to write a statement regarding sexual contact with his daughter and the following questions, were asked:

At that time, Mr. Ruddell concluded that the client was being deceptive on each of the questions, which were formulated. Mr. Inderbitzen denied deception and indicated he was confused over formulation of the questions. In response, Mr. Ruddell again tested Mr. Inderbitzen and asked the following questions.

Upon concluding the above examination, Mr. Ruddell indicated that his findings were inconclusive. However, it is noted that Mr. Ruddell obtained a consultation from Mr. John Clark, Pierce County Sheriffs Department who reportedly indicated that the client was leaning toward deception. Finally, Mr. Ruddell obtained consultation, from Theodore Ponticelli, who is with the National Academy of Lie Detection and California Polygraph Licensing Board. He concluded that Mr. Inderbitzen was being deceptive.

Richard Peterson makes the following statement in his declaration of June 8th 1995.

"Mr. Inderbitzen was awarded visitation with ******** and had regular visitation after the divorce was finalized."

If I'm not mistaken, it was Lord Byron that said, "The blackest of all lies is in the half truth" and this is an example of a of truth designed to mislead the court.

Judge Verharen granted the Dissolution and Ordered that Mark Inderbitzen have only supervised visitation with his daughter. He also ordered that Mr. Inderbitzen pay child support, and in addition, that he pay for counseling for his first wife and daughter.

The GAL in his report to the court, filed April 17, 1995, makes the following statements:

"******** and her father had alternating weekend visitation and with open and routine visitation after an allegation of sexually inappropriate conduct was fully investigated and Mr. Inderbitzen found innocent of that allegation.

This statement is completely false and misleading.

Supervised visitation, as ordered by Judge Verharen, can hardly be termed routine. In addition, Mark was ordered to pay for counseling for his ex-wife and daughter *******. Nowhere was Mr. Inderbitzen ever found to be innocent of the allegations. All the evidence points to the conclusion that he was guilty of the allegations and this conclusion was supported by Judge Verharen's decision and order.

The GAL, in his report, state that he asked Mr. Inderbitzen to undergo a polygraph, and he did so on July 12, 1994. The GAL mentions only 2 polygraph test results. These were performed on August 18, 1994 and July 14, 1994. Mr. Inderbitzen passed the August 18, 1994 test and the July 14, 1994 test was inconclusive.

The GAL failed to mention a July 12, 1994 polygraph test which addressed the same subject matter as the August 18, 1994 test which he, not surprisingly, passed.

The GAL, in his report to the court, completely failed to mention the July 8, 1994 polygraph test which Mark Inderbitzen failed.

This is another example of the GAL misleading the court and perpetrating a fraud on the court.

The GAL sought a polygraph test from Lynda Allen.

He states in his report to the court that she took the polygraph test on October 10, 1994 and that the results were inconclusive.

This is another example of the half-truths perpetrated on this court by the GAL, in an attempt to commit fraud and misrepresentation.

The GAL's statement is true as far as it goes. However, he failed to mention that Lynda Allen took another polygraph on October 14, 1994, with the same questions asked as in the final exam. She passed this exam. No deception was indicated. The GAL did not include the results of this exam in his report nor did he mention it in his report.

In the final report by the GAL, filed on March 5, 1996, the GAL, dismisses the 1984 case by saying that the ex-wife Shari recants any accusations that she made years ago. He goes on to say, referring to the 1984 case, "Mr. Inderbitzen was again given a series of questions by polygraph and his answers clearly indicate that he was telling the truth and that he is not deviant in any way".

This could not be farther from the truth.

Mark Inderbitzen took a polygraph test by Mr. Matzke on January 13, 1984 which indicated deception. He took a polygraph test by Windsor Olson which indicated no deception.

He took a third test on July 27, 1924 conducted by William Ruddell. He was found to be deceptive on this test by William Ruddell.

He was tested again by Ruddell. Ruddell indicated that his findings on this test were inconclusive. The test was reviewed by John Clark, of the Sheriff's Office. Mr. Clark indicated that Mr. Inderbitzen was leaning toward deception.

Theodore Ponticelli, who is with the National Academy of Lie Detection and California Polygraph Licensing Board reviewed the test results and concluded that Mr. Inderbitzen was being deceptive.

Of the four polygraph tests given to Mr. Inderbitzen in 1984, he failed three. None of this was mentioned in the GAL's initial report or the final report. In fact if you were to believe the GAL, Mr. Inderbitzen passed the tests in 1984. This is clearly an attempt by the GAL to mislead the court and perpetrate a fraud on the court.

The GAL further fails to mention the medical report from the 1984 case which indicated that ****** had a torn vagina.

In cases such as this, where the custody of a young, child is at issue, the best interests of the child are what control. The role of the Guardian is to investigate the relevant facts concerning the child's situation. It is also the role of the Guardian to provide accurate and complete information to the court so that the court can make an informed decision. It is important that the propriety of the Guardian's performance show on the record.

The Court, in an attempt to review this case and the 1984 case, has the right to have before it all Of the documents and information mentioned in those files, and which, are a part of the record of those cases. The court has a right to have this information in order to make an informed decision as to the best interests of the child. Any attempt to withhold such information or to mislead the court is to be construed as to be a fraud on the court.

In reviewing the 1984 case, mention was made repeatedly of the psychological evaluation on Mark Inderbitzen performed by Dr. Allen Traywick. I searched the files completely and could not find such a document. In an effort to obtain the document, I called Dr. Traywick. Dr. Traywick told me that he would supply such a report if it was subpoenaed.

I sought no new information from him, but rather, sought only the psych evaluation that was supposed to be in the 1984 file. I was not seeking to supplement the existing record but only to complete the existing record by retrieving a document that was supposed to be there in the first place. This does not constitute improper ex parte contact as contemplated by the Rules of Court or any court decision.

In reviewing the 1994 case, I could only find a cover sheet of Dr. Washburn's evaluation. I called his office and left a message for him to call me regarding his evaluation. Upon further review of the files, I found his full report and had no further contact with Dr. Washburn. I never personally spoke with Dr. Washburn nor sought any additional information from him. Since I never talked with him or had any actual contact with him in any way, this could hardly be seen as improper ex parte contact since no contact occurred.

I called Dr. Moore to clarify her evaluation of Lynda Allen. It was unclear from her evaluation whether she considered the 1984 case at all. She informed me that she did not consider the 1984 case, and in fact, did not even know about the 1984 case. This can hardly be termed improper contact since the court sought no new information from Dr. Moore, but merely sought to determine the basis of Dr. Moore's opinion.

The court must have such information in order to make and informed evaluation of Dr, Moore's evaluation of Lynda Allen.

The final report of the GAL, dated March 5, 1996, indicated that two documents were attached to the report. They were the evaluation of Mr. Inderbitzen, conducted by Dr. Richard Peterson and the Psych Evaluation of Lynda Allen, conducted by Dr. McCollom.

On page eight of that report, he states that Shari, Mark's first wife, recants the allegations she made regarding child abuse in the 1984 case.

The report contained no attached declaration of Shari. Since this statement appeared out of nowhere in his report, and was not supported by any attached, sworn declaration of Shari, this court, naturally became cautious as to the veracity of such a statement.

I had Shari call me and I asked her if she had ever recanted her accusations against Mark. She stated to me that she had not and I gave her the telephone number of Doug Schafer and asked her if she would talk to him, as I had appointed him to replace the existing GAL. She stated that she would and I had no further contact with her.

This does not amount to improper ex parte contact. This court was not seeking any new information, but was seeking to confirm an unsupported statement by the GAL in his report to the court. The court has the right and the duty to insure that statements made to the Court are accurate and not false. Given the number of deceptive and false Statements made to the court by the GAL, the Court, naturally, doubted that this statement was accurate or truthful.

John Fuhrman supplied documents to Richard Washburn for Mark Inderbitzin's psychological evaluation. The way these documents were presented to Dr. Washbum would lead a person to believe that they were court documents and had been filed in court. These documents were not even filed in court and these were never shared with opposing counsel.

In those documents, John Fuhrman states that Mark had submitted to and passed his polygraph examinations. As noted before, Mark Inderbitzen took four polygraph exams. Two of those exams covered the same subject matter which he passed, Another exam was inconclusive and he completely failed one of the exams.

This is clear and blatant attempt by John Fuhrman to taint the credibility of Dr. Richard Washburn. As part of this information, John Fuhrman attached a hand written statement that recanted allegations made by Shari Inderbitzen in the 1984 case.

This statement as supposedly written by Shari Inderbitzen, but it is in no way authenticated by notary or otherwise. This document was never filed with the court and one can only surmise that it was not filed with the court because it was not genuine, and John Fuhrmnan did not want to risk the consequences of filing a false document with the court. However, the document was given to Dr. Washburn in a blatant attempt to taint his neutrality.

Both John Fuhrman and Steve Downing are lawyers and officers of the court. As such, they are governed by the Rules of Professional Conduct. As such they must follow RPC 3.3

In failing to submit complete and accurate information to the court, in withholding polygraph test results from the court, this court has serious concerns about the GAL conduct and possible violation of RPC 3.3

John Fuhrman failed to correct any of the misleading and false statements in Richard Peterson's declaration submitted to the court on June 13, 1995. Specifically, he failed to

John Fuhrman knew that these were false and misleading statements because his law firm represented Mark Inderbitzen in the 1984 case, and in fact he has appeared for Mark Inderbitzen in that case and submitted pleadings in that case. The facts that Mr. Fuhrman failed to disclose to the court can in no way be deemed to be protected under attorney/client privilege Since they are contained in the Court files of the 1984 case and he had a duty to this court to disclose any material fact to the court..

John Fuhrman submitted the declaration of Dr. Peterson of June 13, 1995 to the court without submitting the psych reports done by Dr. Peterson in the 1984 case. It Is clear from the declaration of Dr. Peterson that he never revievmd the 1984 case. His statement regarding Dr. Traywick's evaluation is false. His statement regarding the results of the polygraph exams in the 1984 case is false. His statement regarding visitation by Mark with ****** is false and misleading.

The failure of John Fuhrman to present these full psych evaluations done by Dr. Peterson in the 1984 case and to submit only a declaration of Dr. Peterson regarding those evaluations, amounts to a failure to disclose a material fact to this court.

The failure of John Fuhrman to correct false and misleading statements contained in Dr. Petersons declaration of June 13, 1995, when be knew those statements to be false and misleading, since he was the attorney, or someone from his firm was the attorney representing Mark Inderbitzen in the 1984 case, amounts to a failure to disclose a material fact to the court.

Neither John Fuhrman or Steve Downing disclosed to the court the results of the medical examination in the 1984 case, which indicated that ****** had a torn vaginal. The failure of either of these attorneys to disclose to the court this information constitutes a failure to disclose a material fact to the court. It is obvious that this fact is not in any way privileged and should have been disclosed to the court.

In Steve Downing's report to the court, filed April 17, he states that Dr. Makari performed an examination of Amy regarding the allegations of sexual abuse in the 1994 case. He further stated it was a normal genital exam.

Steve Downing, once again, has told this court a half-truth designed to mislead the court.

Dr. Makari went on to say in his report "Of note is that the presence of a normal genital exam does not exclude the possibility of child sexual abuses nor does it exclude the possibility of penetration to the hymen.

The failure to fully disclose the finding of Dr. Makari in the GAL's report to the court, constitutes a failure to disclose a material fact to this court.

On July 7, 1994, a judgement was Order Establishing Parentage was filed with the court establishing Mark Inderbitzin as the father of ***.

During the course of this case, there was a serious question raised by Lynda Allen regarding the parentage of ***. The GAL should have investigated the situation re paternity and make a recommendation in the best interests of the child. This issue was never addressed in either of the GAL reports to the court.

The court finds that when there are serious allegations of sexual molestation in a case such as this and there were questions raised regarding the paternity of the child, that it is the duty of the GAL to address these issues in the GAL's report to the court. The GAL has a duty to investigate and assess the child's best interest and he failed to do so.

The issue that this court must decide is whether there has been a fraud, misrepresentation or other conduct in violation of CR 60 which would necessitate vacating the Parenting Plan in this case and starting with a clean slate.

For these reasons, the court denies petitioners motion for recusal.