____ _ _ | _ \ _____ _| |__ (_)_ __ | | | |/ _ \ \/ / '_ \| | '_ \ | |_| | (_) > <| |_) | | | | | |____/ \___/_/\_\_.__/|_|_| |_|
Title:0x03 Ewhore Ran
Created:May 10th, 2022
Created by: rees
Views: 1,069
Comments: 15
Username: Anonymous - (Login)
Please note that all posted information is publicly available and must follow our TOS.
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https://rain.kys/
‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾
rees >< slit >< cult >< cpp >< mdma
‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾
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███████████████████ █████ ███████████████████
███████████████████ Rain █████ BY: rees, slit, cult, cpp ███████████████████
███████████████████ ▄███████▄ ███████████████████
███████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████
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██████████ Reasoning
████████ ‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾‾
Hello fellow com kids, This whores dox is being dropped because she runs around doxing and packing com being a ewhore and talks to guys because
they are desperate for esex..
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Full Name: Meredith Annemarie Cottrell
Age: 16
Gender: Female
Ip: 69.115.137.60
Number: (732) 363-2154
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267 Maxim Rd, Howell, NJ 07731 (current address)
10 Pinehurst Dr Apt 3, Lakewood, NJ 08701
13815 E 107th Ave, Commerce City, CO 80022
404 Arcadia Ct, Jackson, NJ 08527
313 Friendship Rd, Howell, NJ 07731
58 Seminole Dr, Lakewood, NJ 08701
72 Cherry St, Lakewood, NJ 08701
1107 Deer Path, Lakewood, NJ 08701
30312 PO Box, Bethesda, MD 20824
1101 Robin Dr
Lakewood, NJ 08701
(Jul 2001 - Dec 2016)
801 Park Ave
Lakewood, NJ 08701
(Feb 1995 - Dec 2016)
PO Box 122
Lakewood, NJ 08701
(Nov 1993 - Dec 2016)
69 Old Tavern Rd
Howell, NJ 07731
(Aug 2014)
313 Friendship Rd
Howell, NJ 07731
(Aug 2012 - Sep 2012)
900 River Ave
Lakewood, NJ 08701
(May 2002 - May 2012)
160 Chestnut St
Lakewood, NJ 08701
(Sep 2009)
1153 Anthony Ct
Lakewood, NJ 08701
(Jan 2008)
1525 Prospect St #3
Lakewood, NJ 08701
(May 2007)
29 Cherry St
Lakewood, NJ 08701
(Nov 2000)
58 Seminole Dr
Lakewood, NJ 08701
(Mar 1999)
1094 Brook Rd
Lakewood, NJ 08701
(Mar 1998 - Dec 1998)
244 Joe Parker Rd
Lakewood, NJ 08701
(Dec 1998)
1317 Marshall St
Lakewood, NJ 08701
(Nov 1997)
1 Ventura
Lakewood, NJ 08701
(Oct 1992 - Dec 1996)
72 Cherry St
Lakewood, NJ 08701
(Mar 1996 - Jul 1996)
1 Ventura Dr
Lakewood, NJ 08701
(Oct 1992 - Feb 1996)
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(732) 363-2154
(718) 338-6059
(718) 338-5043
(917) 687-4058
(732) 363-2154 - Landline
(848) 448-1768 - Wireless
(848) 333-7223 - Wireless
(732) 942-8036 - Landline
(732) 675-8962 - Wireless
(732) 742-8132 - Wireless
(732) 942-8799 - Landline
(732) 675-8962 - Wireless
(732) 942-8036 - Landline
(732) 942-8036 - Landline
(732) 938-5793 - Wireless
(732) 742-8132 - Wireless
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mcottrell85@gmail.com ~ mcottrell85@gmail.com,69.115.137.60,rentownhomelistings.com,2015-09-09 11:56:30,Melissa,Cottrell,,,Brooklyn,NY,11225,,,,
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mcottrell85@gmail.com:nov192005
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{"_id":{"$oid":"57b91ed58f3712e07a1749aa"},"updatedAt":{"$date":"2016-08-28T09:43:00.103Z"},"createdAt":{"$date":"2016-08-21T03:24:05.155Z"},"email":"mcottrell85@gmail.com","ip":"173.199.122.70","first_name":"melissa","last_name":"cottrell","address1":"","city":"","state":"","zip":"","__v":0,"gender":"F"}
babyb1aze@aol.com ~ babyb1aze@aol.com:melissa
26569949:babyb1aze@aol.com:msboss85:0x322B96AED7817234C0986080F3C7E417C85FC197:''
babyb1aze@aol.com:alexis0553
babyb1aze@aol.com:0bf1fa68ada5e4c9ad56efc3ee2b5deabf54e0e0:4164cde629561bcbde81ac2ca3db51f600377a19:20061112192458
(77907693,'babyb1aze@aol.com','JMH7uMgyOrs=','Cook')
babyb1aze@aol.com:delmar
racer53t@aol.com ~ (100141525,'racer53t@aol.com','cN4sJBSMK6Y=','jordan')
racer53t@aol.com:balla420
racer53t@aol.com:hope7472
racer53t@aol.com:$2a$10$ulDc3/0sGF4idv4xb9P2C.QBl8oExbN.o0652PSho9qQCti0RTdIa
54815543:racer53t@aol.com:54815543:0x72D4EBC0F6348C7C2EC5F8E8B19B772141E6C2AA:''
100141525,,racer53t@aol.com,cN4sJBSMK6Y=,jordan
racer53t@aol.com:jayda72
(7059562,'Terri','Cottrell',NULL,'racer53t@aol.com','!eb72af028d05e4c045ff6a77eb11ab65','0000-00-00','2016-11-06',1000,0,0,0,0.00,1,'us',20,'check',0,0,'',0,'267 Maxim rd','','Howell','NJ','07731',0,0,1,1,1,1,1,0,0)
3468290 | racer53t@aol.com | 2017-04-23 01:04:47
(526651,0,1,'racer53t@aol.com','','',NULL,'852ff516f2152f96098afab634d72604fad3fc66','','','','','',NULL,NULL,NULL,'2015-08-03
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Associates
of Thomas Cottrell in Howell, NJ
Christopher Clarke
Bonnie Gist
Frank Clarke
Gregory Cooke
Gregory Durst
Ilona King
Laurence Clayton
Relatives
of Thomas Cottrell in Lakewood, NJ
Amanda Cottrell
Jessica Cherboni
Kristina Cottrell
Melissa Cottrell
Ryan Cottrell
Samuel Cottrell
Terri Cottrell
Thomas Cottrell
Albert Cottrell
David Cottrell
Deborah Pryor
Francis Cottrell
George Cottrell
Gloria Cottrell
Hope Cottrell
Jennifer Barker
Jessica Cottrell
John Roberts
Joseph Cottrell
Justin Roberts
Justin Roberts
Mary Cottrell
Megan Cottrell
Ray Cherboni
William Cottrell
Brittany Sprewell
Christopher Cottrell
David Barker
David Barker
James Morey
John Roberts
Jourdyn Sprewell
Lorraine Cottrell
Lorrie Cottrell
Marcia Roberts
Maria Roberts
Monica Watson
Richard Cottrell
Terran Sprewell
Thomas J Cottrell is 29 years old. Currently Thomas lives at the address 900 River Ave, Lakewood NJ 08701. Thomas has lived at this Lakewood, NJ address for about 9 years, after moving in around May of 2012. Thomas previously lived at 313 Friendship Rd, Howell NJ 07731, starting in September of 2011.
Public records do not indicate that Thomas J Cottrell is currently married. The following people are relatives or close associates of Thomas: Amanda Cottrell, Jessica Cherboni, Kristina Cottrell, Melissa Cottrell, Ryan Cottrell, Samuel Cottrell, Terri Cottrell, Thomas Cottrell, Albert Cottrell, David Cottrell and Deborah Pryor.
Thomas's current phone number is (732) 675-8962. This Wireless number was issued by 'Cellco Partnership dba Verizon Wireless - NJ', first reported in public records on September of 2011. Past phone numbers for Thomas include (732) 942-8036.
Neighbors
of Thomas Cottrell living at
267 Maxim Rd, Howell NJ 07731
Elizabeth Sullivan
276 Maxim Rd
Howell NJ 07731
Barbara Ebner
(732) 887-8851
277 Maxim Rd
Howell NJ 07731
Louie Chiang
(732) 938-9688
256 Maxim Rd
Howell NJ 07731
Victor Keys
(732) 919-0659
244 Maxim Rd
Howell NJ 07731
William Johnson
(732) 938-7758
291 Maxim Rd
Howell NJ 07731
Jillian Gibb
(908) 415-3923
238 Maxim Rd
Howell NJ 07731
Zachary Hj
299 Maxim Rd
Howell NJ 07731
John Martin
232 Maxim Rd
Howell NJ 07731
Daniel Timmerman
(732) 239-0812
229 Maxim Rd
Howell NJ 07731
Neighbors
of Thomas Cottrell living at
900 River Ave, Lakewood NJ 08701
Co Flooring
916 River Ave
Lakewood NJ 08701
Lalia Ellington
925 River Ave
Lakewood NJ 08701
Med Lakewood
(908) 363-9440
870 River Ave
Lakewood NJ 08701
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Parcel ID 1321_51_33
Parcel Address 267 MAXIM RD
Parcel Address City HOWELL
Parcel Address Zip Code 07731-8739
Owner Information
Owner Name COTTRELL, THOMAS & RYAN
Mailing Address
Mailing Address 267 MAXIM RD
Mailing Address City HOWELL
Mailing Address State NJ
Mailing Address ZIP Code 07731
Property Sales & Value
Last Sale Price $390,000
Last Sale Date 2016-07-27
County Provided Values
Parcel Value Type NET TAXABLE VALUE
Total Parcel Value $501,800
Improvement Value $356,900
Land Value $144,900
Tax Information
Annual Tax Bill 12,981.89
Zoning, Land Use & Vacancy
Parcel Use Code 2
Standardized Land Use Codes
Land Use Code: Activity 1100
Land Use Code Description: Activity Household
Land Use Code: Function 1100
Land Use Code Description: Function Private household
Land Use Code: Structure 1000
Land Use Code Description: Structure Residential buildings
Land Use Code: Site 6000
Land Use Code Description: Site Developed site with buildings
CASS Error Codes Unlock with Pro
Structure Details
Structure Details
Structure Year Built 2003
Loveland Calculated Data
Loveland Calculated Building Count Unlock with Pro
Loveland Calculated Building Footprint Square Feet Unlock with Pro
Geographic Information
County-Provided Acres 5
Centroid Coordinates 40.153904, -74.178996
Opportunity Zones
Federal Qualified Opportunity Zone No
Census Geographies
Census 2010 Blockgroup 340258115022
Census 2010 Tract 34025811502
Loveland Calculated Data
Calculated Acres 4.95358
Calculated Parcel Sq Ft 215,872
Plat, Block, Lot, Legal Data
Book 9188
Page 2213
Block 51
Lot 33
Additional Items
Primary Address Source county;accuzip
Latitude 40.153904
Longitude -74.178996
County/Municipality Code 1321
Building Description 1SF
Land Description 5.0 AC
Building Class 17
Number of Residential Dwelling Units 01
Mailing Address City and State HOWELL NJ
LL_UUID 72e231ed-df33-4150-a6d1-5e49ab6ce586
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IP Location via IP2Location(PRODUCT: DB, MAY 01 2022)
IP: 69.115.137.60
COUNTRY: United States of America
COUNTRY ISO: US
STATE: New Jersey
CITY: Trenton
POSTAL CODE: 08601
LATITUDE: 40.2170
LONGITUDE: -74.7429
ORGANIZATION: Optimum Online
ISP: Optimum Online
view map
IP Location via DB-IP(PRODUCT: API, REAL-TIME)
IP: 69.115.137.60
COUNTRY: United States
COUNTRY ISO: US
STATE: New Jersey
CITY: Jackson Township
POSTAL CODE: N/A
LATITUDE: 40.0919
LONGITUDE: -74.3587
ASN: 6128
AS-Name: CABLE-NET-1
IS PROXY: No
IS CRAWLER: No
THREAT LEVEL: low
ORGANIZATION: Cablevision Systems Corp.
ISP: Cablevision Systems Corp.
view map
IP Location via IpInfo(PRODUCT: API, REAL-TIME)
IP: 69.115.137.60
COUNTRY: United States
COUNTRY ISO: US
STATE: New Jersey
CITY: Toms River
POSTAL CODE: 08753
LATITUDE: 39.9537
LONGITUDE: -74.1979
ASN: AS6128
ORGANIZATION: Cablevision Systems Corp.
view map
IP Geo Location via IPGeoLocation.io(PRODUCT: API, REAL-TIME)
IP: 69.115.137.60
COUNTRY: N/A
COUNTRY ISO: N/A
STATE: N/A
CITY: N/A
POSTAL CODE: N/A
LATITUDE: N/A
LONGITUDE: N/A
ASN: N/A
IS BOT: N/A
IS PROXY: N/A
PROXY TYPE: N/A
IS SPAM: N/A
IS TOR: N/A
ORGANIZATION: N/A
ISP: N/A
# start
NetRange: 69.112.0.0 - 69.127.255.255
CIDR: 69.112.0.0/12
NetName: NETBLK-OOL-6BLK
NetHandle: NET-69-112-0-0-1
Parent: NET69 (NET-69-0-0-0-0)
NetType: Direct Allocation
OriginAS: AS6148
Organization: Optimum Online (OPTO)
RegDate: 2004-01-15
Updated: 2012-03-02
Comment: ADDRESSES WITHIN THIS BLOCK ARE NON-PORTABLE
Ref: https://rdap.arin.net/registry/ip/69.112.0.0
OrgName: Optimum Online
OrgId: OPTO
Address: 111 new south RD
City: Hicksville
StateProv: NY
PostalCode: 11801
Country: US
RegDate: 1999-07-29
Updated: 2011-12-20
Ref: https://rdap.arin.net/registry/entity/OPTO
OrgAbuseHandle: OOLAB-ARIN
OrgAbuseName: OOL Hostmaster
OrgAbusePhone: +1-516-803-2400
OrgAbuseEmail: abuse@cv.net
OrgAbuseRef: https://rdap.arin.net/registry/entity/OOLAB-ARIN
OrgTechHandle: OH4-ORG-ARIN
OrgTechName: OOL Hostmaster
OrgTechPhone: +1-516-803-2300
OrgTechEmail: hostmaster@cv.net
OrgTechRef: https://rdap.arin.net/registry/entity/OH4-ORG-ARIN
RTechHandle: OH4-ORG-ARIN
RTechName: OOL Hostmaster
RTechPhone: +1-516-803-2300
RTechEmail: hostmaster@cv.net
RTechRef: https://rdap.arin.net/registry/entity/OH4-ORG-ARIN
# end
# start
NetRange: 69.115.136.0 - 69.115.143.255
CIDR: 69.115.136.0/21
NetName: OOL-CPE-JCSNNJ-69-115-136-0-21
NetHandle: NET-69-115-136-0-1
Parent: NETBLK-OOL-6BLK (NET-69-112-0-0-1)
NetType: Reassigned
OriginAS: AS6128
Customer: Optimum Online (Cablevision Systems) (C05182611)
RegDate: 2014-07-23
Updated: 2014-07-23
Ref: https://rdap.arin.net/registry/ip/69.115.136.0
CustName: Optimum Online (Cablevision Systems)
Address: 111 New South Road
City: Hicksville
StateProv: NY
PostalCode: 11801
Country: US
RegDate: 2014-07-23
Updated: 2014-07-23
Ref: https://rdap.arin.net/registry/entity/C05182611
OrgAbuseHandle: OOLAB-ARIN
OrgAbuseName: OOL Hostmaster
OrgAbusePhone: +1-516-803-2400
OrgAbuseEmail: abuse@cv.net
OrgAbuseRef: https://rdap.arin.net/registry/entity/OOLAB-ARIN
OrgTechHandle: OH4-ORG-ARIN
OrgTechName: OOL Hostmaster
OrgTechPhone: +1-516-803-2300
OrgTechEmail: hostmaster@cv.net
OrgTechRef: https://rdap.arin.net/registry/entity/OH4-ORG-ARIN
RTechHandle: OH4-ORG-ARIN
RTechName: OOL Hostmaster
RTechPhone: +1-516-803-2300
RTechEmail: hostmaster@cv.net
RTechRef: https://rdap.arin.net/registry/entity/OH4-ORG-ARIN
LOCATION
City
Cassville
Region
New Jersey (NJ)
Postal code
08527
Country
United States (US)
Continent
North America (NA)
Metro code
501
Coordinates
40.1243 (lat) / -74.3022 (long)
Time
2022-05-09 21:08:03 (America/New_York)
NETWORK
IP address
69.115.137.60
Hostname
ool-4573893c.dyn.optonline.net
Provider
CABLE-NET-1
ASN
6128
# end
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https://www.tiktok.com/@his_babygirl126
https://www.facebook.com/terri.cottrell
https://www.youtube.com/user/mcottrell85/videos
https://story.snapchat.com/@mcottrell85
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BIRTH NAME : COTTRELL THOMAS
SBI NO : 975370A
BIRTH YEAR :
1962
SEX: M
COUNTY CASE NO : 97082896
OCN CASE INIT DATE : 08 04 1997
DEFN NO : 001 DEFN'S CASE NAME : COTTRELL THOMAS
CHARG DOC : IN
INDIC/ACC NO: 99-08-01159-I DISP DATE : 01 18 2000 ACTION : GT
REASON : GUILTY PLEA AS CHARG SENTENCE DATE: 03 17 2000
RECEIVED
SUPREME COURT
STATE OF WASHINGTON
CLERK'S OFFICE
Dec 16, 2016, 2:47pm
RECEIVED EtECTkONICALLY
t:JLr:n
suPREME couRT oF THE sTATE oF wAsHINGToN Dtc 2 £__
------------------"ll'A.Si-1/tv' l t0f6
S(JpRE: G Ia tv S
DONALD R. SWANK, Individually and as Personal Representative 'Me Cou~A If:
of the ESTATE OF ANDREW F. SWANK, and PATRICIA A. SWANK, h /
Petitioners, 7 ')
v.
VALLEY CHRISTIAN SCHOOL, a Washington State Non-Profit
Corporation, JIM PUR YEAR, MIKE HEDEN, and DERICK TAB ISH,
individually, and TIMOTHY F. BURNS, M.D., individually,
Respondents.
BRIEF OF AMICUS CURIAE
WASHINGTON DEFENSE TRIAL LAWYERS
Christopher W. Nicoll, WSBA #20771
Noah S. Jaffe, WSBA #43454
Nicoll Black & Feig PLLC
1325 Fourth Avenue, Suite 1650
Seattle, WA 98101
Telephone: (206) 838-7555
Facsimile: (206) 838-7515
cnicoll@nicollblack.com
Stewart A. Estes, WSBA #15535
Keating Bucklin &
McCormack, Inc., P.S.
800 Fifth Avenue, Suite 4141
Seattle, W A 981 04
Telephone: (206) 623-8861
Facsimile: (206) 223-9423
sestes@kbmlawyers.com
Attorneys for Amicus Curiae Washington Defense Trial Lawyers
~ ORIGINAL
TABLE OF CONTENTS
I. IDENTITY AND INTEREST OF AMICUS CURIAE .......................... 1
II. STATEMENT OF THE CASE ............................................................... I
III. ARGUMENT .................................................................................. 2
A. The Trial Court and Court of Appeals Properly Recognized
that the Exercise of Personal Jurisdiction over Dr. Burns
Would be Inconsistent with Constitutional Due Process
Rights and Clear U.S. Supreme Court Precedent. .............. 4
I. Walden v. Fiore precludes the exercise of specific
personal jurisdiction over Dr. Burns ....................... 6
2. Walden's principles apply in the medical malpractice
and common law negligence contexts .................. 12
3. The Lystedt Law does not alter defendants' due
process rights nor impact the personal jurisdiction
analysis .................................................................. 16
IV. CONCLUSION ............................................................................. 18
TABLE OF AUTHORITIES
Cases
Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511,55 S. Ct. 497,79 L. Ed. 1032
(1935) .................................................................................................... 17
BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134
L. Ed.2d 809 (1996) .............................................................................. 17
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed.
2d 528 (1985) ................................................................................ 4, 5,11
Daimler AG v. Bauman, U.S._, 134 S. Ct. 746, 187 L. Ed. 2d 624
(2014) ...................................................................................................... 6
Gelineau v. New York Univ. Hasp., 375 F. Supp. 661 (D.N.J. 1974) ....... 14
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S.
Ct. 2846, 180 L. Ed.2d 796 (2011) ......................................................... 5
Grange Ins. Ass'n v. State, 110 Wn.2d 752, 757 P.2d 933 (1988) ............ 4
Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 96 S. Ct. 923,
47 L. Ed.2d 55 (1976) ........................................................................... 17
Green v. United States, 14-CV-119-NJR-DGW, 2016 WL 6248281 (S.D.
Ill. Oct. 26, 2016) ............................................................................ 13, 15
Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed.2d 1283
(1958) ...................................................................................................... 4
Healy v. Beer Institute, Inc., 491 U.S. 324, 109 S. Ct. 2491, 105 L. Ed.2d
275(1989) ....................................................................................... 17, 18
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.
Ct. 1868, 80 L. Ed.2d 404 (1984) ............................................... 8, 12, 17
Lewis v. Bours, 119 Wn.2d 667,35 P.2d 221 (1992) ....................... 2, 3, 15
Monkton Ins. Servs., Ltd v. Ritter, 768 F.3d 429, 434 n.2 (5th Cir. 2014)
.............................................................................................................. 13
Nat'! Solid Wastes Mgmt. Ass'n v. Meyer, 165 F.3d 1151, 1153 (7th Cir.
1999) ..................................................................................................... 17
Presby Patent Trust v. Infiltrator Sys., Inc., 14-CV-542-JL, 2015 WL
3506517 (D.N.H. June 3, 2015) ............................................................ 13
Pub. Impact, LLC v. Boston Consulting Grp., Inc., 117 F. Supp. 3d 732,
742 (M.D.N.C. 2015) ............................................................................ 13
ii
Ruhe v. Bowen, 2:15-CV-03792-DCN, 2016 WL 5372555 (D.S.C. Sept.
26, 2016) ................................................................................... 11, 13, 14
Shute v. Carnival Cruise Lines, 113 Wn.2d 763,783 P.2d 78 (1989) ........ 4
Sutcliffe v. Honeywell Int'l, Inc., CV-13-01029-PHX-PGR, 2015 WL
1442773 (D. Ariz. Mar. 30, 2015) ........................................................ 13
Swank v. Valley Christian School, 194 Wn. App. 67, 374 P.3d 245
(20 16) ...................... " .. " ......... ". """"""'" ... "." ..... " ..... """""" ... """'. 2, 6
Tackett v. Duncan, 376 Mont. 348, 334 P.3d 920 (2014) ......................... 13
Waggaman v. Arauzo, 117 A.D.3d 724, 985 N.Y.S.2d 281 (N.Y. App.
Div. 20 14) ....................................................................................... 13, 14
Walden v. Fiore, U.S. _, 134 S. Ct. 1115, 188 L. Ed. 2d 12
(2014) ...................................... 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18
Walker v. Bonney-Watson Co., 64 Wn. App. 27,823 P.2d 518 (1992) ..... 4
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559,
567, 62 L. Ed.2d 490 (1980) ............................................................. 5, 11
Yates v. Muir, 492 N.E.2d 1267 (Ill. 1986) ................................................. 2
Statutes
Idaho Code § 3 3-1625 ............................................................................... 1 7
RCW 4.28 ................................................................................................... 4
iii
I. IDENTITY AND INTEREST OF AMICUS CURIAE
The Washington Defense Trial Lawyers Association (WDTL),
established in 1962, includes more than 750 Washington attorneys
engaged in civil defense litigation and trial work. The purpose of WDTL
is to promote the highest professional and ethical standards for
Washington civil defense attorneys and to serve our members through
education, recognition, collegiality, professional development and
advocacy. One important way in which WDTL represents its member is
through amicus curiae submissions in cases that present issues of
statewide concern to Washington civil defense attorneys and their clients.
The appeal in this case implicates applicable concerns for WDTL
and for foreign defendants generally, who would benefit from a clear and
reliable articulation of law on the often vexing issue of specific personal
jurisdiction, particularly in light of recent United States Supreme Court
jurisprudence. For the reasons set forth below, WDTL respectfully
requests that this Court affirm the Court of Appeals' and the trial court's
dismissal of Dr. Burns for lack of personal jurisdiction.
II. STATEMENT OF THE CASE
WDTL generally relies upon the facts set forth in Respondent Dr.
Burns' briefing.
III. ARGUMENT
The Court of Appeals concluded that the "dispositive case" on the
personal jurisdiction issue presented by the facts of this case is Lewis by &
through Lewis v. Bours, 119 Wn.2d 667,673,835 P.2d 221 (1992). Swank
v. Valley Christian School, 194 Wn. App. 67, 89, 374 P.3d 245 (2016),
review granted, 186 Wn.2d 1009, 380 P.3d 498 (2016). In Lewis, this
Court "align[ ed] ourselves with the Illinois Supreme Court" in Yates v.
Muir, 492 N.E.2d 1267 (Ill. 1986). While the Illinois court did not
squarely address the Due Process Clause, it observed "that the conclusion
we reach in favor of the defendant is consistent with decisions under the
due process clause that residents of one State who travel to another
jurisdiction for medical treatment cannot prosecute a malpractice action in
their State of residence for injuries arising out of that treatment." Lewis,
119 Wn.2d, at 672 (quoting Yates, supra at 1269).
As Dr. Burns' briefing succinctly lays out, Lewis directly controls
the court's jurisdictional analysis here. 1 Dr. Burns' Response Brief, 15-21.
WDTL agrees with Dr. Burns' analysis and with the Court of Appeals'
holding on this point, and expands upon the constitutional due process
1 In Lewis this court expressly held that a nonresident physician's alleged malpractice in
another state against a Washington State resident, standing alone, does not constitute a
tortious act committed in Washington, even when the Washington resident suffers
injury upon his or her return to Washington. ld. at 673. Accordingly, without more,
there can be no personal jurisdiction over such an out of state defendant. /d.
2
constraints addressed in the case law relied upon by the Court of Appeals,
governing the inquiry of a forum state's assertion of personal jurisdiction
over a nonresident defendant. The 2014 Supreme Court decision in
Walden v. Fiore offers clear and decisive guidance on the relationship
required between a foreign defendant and the forum in order authorize
jurisdiction. Walden v. Fiore,_ U.S._, 134 S. Ct. 1115, 188 L. Ed. 2d
12 (2014). Under Walden, the focus must be on the defendant's suitrelated conduct, and whether that conduct creates a substantial connection
with the forum state. Id. at 1121. The contacts must be those that the
"defendant himself' creates with the forum, rather than connections via
the plaintiff or a third party. Id. at 1122.
Even in the absence of a controlling case such as Lewis, the due
process inquiry applied by the unanimous Court in Walden makes plain
that the exercise of personal jurisdiction over Dr. Burns-or indeed, any
similarly situated, nonresident-would offend traditional notions of fair
play and substantial justice, and undermine constitutional due process
rights. Dr. Burns' connections to the forum state were driven solely by the
plaintiff or third parties, not through Dr. Burns' suit-related conduct. The
Court should affirm.
3
A. The Trial Court and Court of Appeals Properly Recognized
that the Exercise of Personal Jurisdiction over Dr. Burns
Would be Inconsistent with Constitutional Due Process Rights
and Clear U.S. Supreme Court Precedent.
Washington's long-arm statute, chapter 4.28 RCW, authorizes the
court to exercise jurisdiction over a nonresident defendant to the extent
permitted by the due process clause of the United States Constitution.
Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 766, 783 P.2d 78 (1989).
To determine whether the exercise of specific jurisdiction over a foreign
corporation will comport with due process, courts apply a three-part test:
( 1) that purposeful "minimum contacts" exist between the
defendant and the forum state; (2) that the plaintiff's
injuries "arise out of or relate to" those minimum contacts;
and (3) that the exercise of jurisdiction be reasonable, that
is, that jurisdiction be consistent with notions of "fair play
and substantial justice."
Grange Ins. Ass'n v. State, 110 Wn.2d 752, 758, 757 P.2d 933 (1988)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-78, 105 S,
Ct. 2174, 85 L. Ed. 2d 528 (1985)).
Federal and state law requires that the defendant must have done
some act by which it "purposefully avails itself of the privilege of
conducting activities within the forum state, thereby invoking the benefits
and protections of its laws." Walker v. Bonney-Watson Co., 64 Wn. App.
27, 34, 823 P.2d 518 (1992) (citing Hanson v. Denckla, 357 U.S. 235,253,
78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958)). Foreseeability of causing injury
in another state is not a "sufficient benchmark" for exercising personal
4
jurisdiction. Burger King Corp., 471 U.S. at 474 (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S. Ct. 559, 567, 62
L. Ed. 2d 490 (1980)). "Instead, 'the foreseeability that is critical to due
process analysis ... is that the defendant's conduct and connection with the
forum State are such that he should reasonably anticipate being haled into
court there."' Burger King Corp., 471 U.S. at 474. '"[l]t is essential in
each case that there be some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum
State."' Id. at 474-75. "This 'purposeful availment' requirement ensures
that a defendant will not be haled into a jurisdiction solely as a result of ...
the 'unilateral activity of another party or a third person.'" !d. at 4 75
(internal citations omitted). "Jurisdiction is proper 'where the contacts
proximately result from actions by the defendant himself that create a
'substantial connection' with the forum State." !d. (emphasis in original,
citation omitted).
Recent U.S. Supreme Court activity in the jurisdiction arena has
served to tighten the personal jurisdictional requirements that must be met
in order to satisfy due process, Two cases concerned general jurisdiction.
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924,
131 S, Ct. 2846, 180 L. Ed. 2d 796 (20 11) ("For an individual, the
paradigm forum for the exercise of general jurisdiction is the individual's
5
domicile; for a corporation, it is an equivalent place, one in which the
corporation is fairly regarded as at home" in the forum State.); Daimler
AG v. Bauman,_ U.S._, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014)
(re-emphasizing the "at home" requirement for general jurisdiction and
rejecting the Ninth Circuit's approach to agency.)2 The third, and most
germane case to Dr. Burns' circumstance, is Walden v. Fiore, which
expressly addressed the relevant contacts to be assessed when deciding
whether the exercise of case-specific jurisdiction comports with due
process. 134 S. Ct. at 1121.
1. Walden v. Fiore precludes the exercise of specific
personal jurisdiction over Dr. Burns.
In Walden, the Supreme Court considered whether a police officer
whose suit-related conduct occurred in Georgia could be haled into court
in Nevada, where his alleged victims suffered injury caused by his
conduct. Id. at 1119. The defendant officer seized plaintiffs' propetty
while they were in a Georgia airport. I d. After the defendant helped draft a
probable cause affidavit supporting the forfeiture of the funds and
2 The Swanks make only a passing and undeveloped argument that general personal
jurisdiction exists. See Petitioners' Opening Brief, 47. In a footnote, the Swanks simply
allege that Dr. Burns' contacts with Washington "would also appear to subject him to
general jurisdiction in the state," ld. Here, where Dr. Burns is domiciled in Idaho, only
sees patients in Idaho, and does not solicit any patients or business in Washington,
there is simply no basis to assert general jurisdiction over him. See CP 285-87, 331,
The Court of Appeals reached essentially this same conclusion, declining to consider
the Swanks' general jurisdiction argument, where it appeared solely in a footnote and
was therefore not meaningfully or adequately briefed, Swank v. Valley Christian Sch,
194 Wn. App. 67, 88, n.6, 374 P,3d 245, 256, n.6 (2016).
6
forwarded that to prosecutors in Georgia, the plaintiffs filed suit against
the officer in federal court in Nevada. !d. at 1120. The trial court initially
dismissed the case for lack of personal jurisdiction, but the Ninth Circuit
applied a so-called "effects test" and reversed the trial court's dismissal
for lack of jurisdiction, finding that the Georgia-based defendant knew the
plaintiffs had a residence in Nevada and should have anticipated that the
effects of his conduct would be felt there, despite the fact that none of the
defendant's suit-related conduct occurred in Nevada. !d. at 1120. The
Supreme Court found the Ninth Circuit's "approach to the 'minimum
contacts' analysis impermissibly allows a plaintiffs contacts with the
defendant and forum to drive the jurisdictional analysis." !d. at 1124-25.
The Court ruled that "a defendant's relationship with a plaintiff or third
party, standing alone, is an insufficient basis for jurisdiction." Id. at 1123.
Instead, "[fJor a State to exercise jurisdiction consistent with due process,
the defendant's suit-related conduct must create a substantial connection
with the forum State." Id. at 1121.
The Court made clear that "suit-related conduct" is the defendant's
"challenged conduct." Walden, 134 S. Ct. at 1125 ("[The Ninth Circuit's
approach] also obscures the reality that none of petitioner's challenged
conduct had anything to do with Nevada itself.") (emphasis added)).
Walden thus requires courts to focus on the defendant's suit-related, or,
7
"challenged," conduct, and whether that conduct created a substantial
connection with the forum?
The Swanks seek to establish personal jurisdiction over Dr. Burns,
but their only alleged basis for doing so (Dr. Burns' knowledge that their
son played football for a private high school across the border in
Washington state) is precisely what the Supreme Court rejected in
Walden.
a. The "suit-related" or "challenged" conduct
consists of the treatment Dr. Burns provided to
Drew Swank in Idaho.
The conduct that petitioners challenge is Dr. Burns' treatment of
Drew Swank, and the subsequent medical release he provided, based on
the Swanks' self-reported condition. Petitioners allege that Dr. Burns
knew Drew attended high school in Washington and would be playing
football there. Yet, there is no serious dispute that all of Dr. Burns'
challenged conduct occurred in Idaho, not Washington.
Dr. Burns treated Drew Swank, himself an Idaho resident, since his
birth, solely in Idaho. CP 223. In fact, Idaho was the only place that Dr.
Burns saw patients at all; he had not seen patients in Washington State
since 1993, some 16 years before the events at issue. CP 258-259; 286;
3 This comports with the Supreme Court,s consistent rejection of"attempts to satisfy the
defendant focused 1
minimum contacts' inquiry by demonstrating contacts between the
plaintiff (or thil·d parties) and the forum State." !d. at 1122 (citing He/icopteros
Nactonales de Colombia, SA. v. Hall, 466 U.S. 408, 417, 104 S. Ct. 1868, 80 L. Ed. 2d
404 (1984)).
8
331. Dr. Burns' examination of Drew following the concussion that gave
rise to these events, occurred in Dr. Burns' Idaho office on September 22,
2009. CP 3. He advised the Swanks that Drew should not return to football
until his self-reported symptoms had resolved. CP 374. When the Swanks
reported that the symptoms had resolved, Dr. Burns' wrote a note
releasing Drew to return to football and left that note at his office in Idaho.
CP 320-21. Mrs. Swank picked up the note, gave it to Mr. Swank, and Mr.
Swank in turn delivered it to the school in Washington. CP 174.
The Swanks set forth facts they allege establish Dr. Burns'
contacts with Washington, and allege further that those contacts are
sufficient to support the exercise of personal jurisdiction here. Petitioners'
Opening Brief, 16-19; 4 7-50. But, as Respondent Burns points out, those
contacts deal primarily with Dr. Burns' employer, Ironwood. Dr. Burns
Response Brief, 30. The Swanks have not sued Ironwood, only Dr. Burns
in his individual capacity. Id. Under Walden the various alleged contacts
between Dr. Burns and Washington are irrelevant, insofar as they are not
suit-related. For example, Petitioners allege that Dr. Burns would
sometimes send prescriptions for patients to pharmacies in Washington;
send appointment reminders or place reminder phone-calls to patients in
Washington; use labs based in Washington; maintain a website accessible
and hosted in Washington; and others. Petitioners' Opening Brief, 16-19.
9
But these acts are not Dr. Burns' challenged conduct-that is, they do not
include Dr. Burns' allegedly negligent treatment of Drew Swank, nor are
they Dr. Burns' release for Drew to play footbalL Because those contacts
are not Dr. Burns' suit-related conduct, they are not relevant to the key
jurisdictional question, i.e., whether Dr. Burns' suit-related conduct
created a substantial relationship between Dr. Burns and Washington state.
b. Dr. Burns' Suit-Related Conduct Did Not Create
a Connection to Washington, Let Alone the
"Substantial" Connection that Due Process
Requires.
Petitioners argue that Dr. Burns knew, or should have known, that
Drew would go on to play football in Washington after being medically
released. They contend that Dr. Burns' knowledge alone somehow creates
the substantial connection required under the due process analysis.
Supplemental Brief of Petitioners, 15-16. Dr. Burns contests whether such
knowledge is established under the facts,4 but even assuming that he did
know, or that he should have known Drew would be returning to play
football in Washington, under the Walden test such knowledge is
insufficient for the exercise of personal jurisdiction. "A defendant's mere
knowledge that a plaintiff will suffer negative effects in a given forum is
insufficient to support jurisdiction; the defendant's intentional contacts
4 Dr. Burns testified that at the time of the exam he was not aware what school Drew
attended or where it was. CP 317-18.
10
must connect it with the forum state." Ruhe v. Bowen, 2:15-CV-03792-
DCN, 2016 WL 5372555, at *4 (D.S.C. Sept. 26, 2016) (citing Walden v.
Fiore, 134 S. Ct. at 1126 ("[T]he mere fact that his conduct affected
plaintiffs with connection to the forum State does not suffice to authorize
jurisdiction.")).
Even before Walden, though, mere foreseeability of causing injury
in another state has not been a "sufficient benchmark" for exercising
personal jurisdiction. Burger King Corp., 471 U.S. at 474 (quoting WorldWide Volkswagen Corp. v. Woodson, 444 U.S. at 295). Instead, the
defendant must have taken some act to purposefully avail himself of the
privilege of conducting activities within the forum State. Id. at 474-75.
Dr. Burns' mere knowledge that Drew would potentially return to play
football in Washington is not a purposeful availment by Dr. Burns of the
privilege of conducting activities in Washington. The only connection
between Dr. Burns' suit-related conduct and Washington is supplied by
Drew Swank, an Idaho resident who, presumably along with his parents,
made the decision to attend school and play football in Washington,
subsequently suffering his fatal injuries there. Dr. Burns did not draft the
medical release in order to access any rights or privileges in Washington;
he did so simply as part of his care for Drew, which occurred solely in
Idaho. Drew's team could have traveled to play a game anywhere- Idaho,
II
Montana, or Oregon. Drew could have played and not suffered injury, or
suffered injury without playing. The fact that Drew suffered his tragic
injuries at a game in Washington has nothing to do with any of Dr. Burn's
challenged conduct. Consequently, Dr. Burn's suit-related conduct did not
create a connection with Washington, much less a substantial one; the
Washington connection was made by Drew Swank and his parents.
Under Walden, it is only the defendant's contacts with the forum
that may support specific personal jurisdiction, and the Supreme Court has
rejected "attempts to satisfy the defendant focused 'minimum contacts'
inquiry by demonstrating contacts between the plaintiff (or third parties)
and the forum State." Id. at 1122 (citing Helicopteros, 466 U.S. at 417).
Here, petitioners attempt to do precisely that which the Supreme Court has
rejected, relying on contacts with Washington that were driven by the
Swanks, or the school, not Dr. Burns.
2. Walden's principles apply in the medical malpractice
and common law negligence contexts.
Walden is an intentional tort case, but it addresses principles of
specific jurisdiction that the Court characterizes as applicable to all
specific personal jurisdiction cases. Id. at 1123. Indeed, subsequent cases
to consider the issue consistently demonstrate that Walden's focus on
"whether the defendant's actions connect him to the forum ... [,]" Id. at
1124, is applied in a wide variety of litigation settings, including common
12
law negligence and medical malpractice. See, e.g., Green v. United States,
14-CV-119-NJR-DGW, 2016 WL 6248281 (S.D. Ill. Oct. 26, 2016)
(medical malpractice); Ruhe v. Bowen, 2:15-CV-03792-DCN, 2016 WL
5372555 (D.S.C. Sept. 26, 2016) (medical malpractice); Sutcliffe v.
Honeywell Int'l, Inc., CV-13-01029-PHX-PGR, 2015 WL 1442773 (D.
Ariz. Mar. 30, 2015) (negligence); Waggaman v. Arauzo, 117 A.D.3d 724,
726, 985 N.Y.S.2d 281 (N.Y. App. Div. 2014) (medical malpractice).5
In each of these cases, the courts applied the reasoning and holding
in Walden, and have gone on to recognize a lack of personal jurisdiction.
For example, in Ruhe v. Bowen, 2016 WL 5372555, plaintiffs alleged
personal jurisdiction in South Carolina over a non-resident physician who
treated the plaintiff in Colorado, but issued prescriptions electronically to
pharmacies in South Carolina. !d. at *I. The Court looked explicitly to
Walden, finding that the doctor's knowledge of potential negative effects
in the forum state were insufficient to support jurisdiction, and did not
amount to purposeful contacts between the doctor and the forum state. !d.
at *4. The Court was also persuaded by reasoning that medical services
5 Lower courts are applying Walden in various types of litigation. Monkton Ins. Servs.,
Ltd. v. Ritter, 768 F.3d 429, 434 n.2 (5th Cir. 2014) (breach of contract); Presby Patent
Trust v. Infiltrator Sys., Inc., 14-CV-542-JL, 2015 WL 3506517, at *3 (D.N.H. June 3,
2015) (patent infringement); Pub. Impact, LLC v. Boston Consulting Grp., Inc., 117 F.
Supp. 3d 732, 742 (M.D.N.C. 2015) (trademark infringement); Tackett v. Duncan, 376
Mont. 348,334 P.3d 920 (2014) (tort).
13
are not directed to any particular place, but to the patient himself. Id. at *5
(citing Gelineau v. New York Univ. Hasp., 375 F. Supp. 661 (D.N.J.
1974)). Under that reasoning, it would be fundamentally unfair to permit
suit against a physician in whatever jurisdiction the patient may travel to
and suffer the consequences of treatment. !d. "It was [plaintiffJ's, not Dr.
Bowen's, actions that brought Dr. Bowen into contact with South
Carolina-had [plaintiff! not moved to South Carolina, Dr. Bowen would
have no reason to be in contact with South Carolina." !d. Here, Dr. Burns'
alleged knowledge that Drew would return to play football in Washington
is analogous to Dr. Bowen's knowledge that, by filling prescriptions in
South Carolina, some harm may follow his patient there. But mere
knowledge that a patient would or might travel to another jurisdiction and
suffer consequences there does not amount to the physician purposefully
directing his suit-related conduct at the jurisdiction; any connection
formed was through the action of the patient himself.
In another analogous and instructive case, Waggaman v. Arauzo,
the New York plaintiff filed medical malpractice claims in New York,
alleging personal jurisdiction over a non-resident physician who was
licensed in Texas and provided the challenged treatment in Texas and
Florida. 117 A.D.3d at 725. The court applied Walden, noting that it
served to refine Supreme Court's "minimum contacts" analysis. !d. at 726.
14
The court concluded that treatment provided to a New York resident
outside the forum was exactly the type of attenuated connection to a forum
state that the Supreme Court holds violates due process, because the
connection to New York is driven by the plaintiff, not by the defendant's
conduct. Id.
Similarly, in Green v. United States, the court ruled against
specific personal jurisdiction over a doctor, finding that the doctor did not
purposefully direct his activities to the forum. 2016 WL 6248281, at *3.
Concluding that an injured patient's residence in the forum cannot support
the exercise of jurisdiction over the doctor, the court dismissed the action
for lack of personal jurisdiction. I d.
These cases collectively illustrate that the analysis set out in
Walden, and its focus on the defendant's suit-related conduct as the proper
basis for conducting the minimum contacts analysis, is appropriately and
readily applicable in contexts like the one at issue here. Unlike those
cases, though, here the plaintiffs and the doctor are all residents of Idaho;
Washington is simply the location where Drew Swank sustained his
injuries following issuance of the medical release. Thus, to find
jurisdiction, a court would have to ignore both Walden and Lewis v. Bours,
and conclude that an Idaho doctor who treated a long-standing Idaho
resident patient can be subject to jurisdiction in Washington simply
15
because his patient voluntarily traveled to Washington and suffered injury
here allegedly as a result of the doctor's negligence.
3. The Lystedt Law does not alter defendants' due process
rights nor impact the personal jurisdiction analysis.
Finally, petitioners argue that Washington's passage of the Lystedt
Law should support an independent implied cause of action. Petitioners
suggest this law therefore imposes additional duties on Dr. Burns, or that it
impacts and broadens the court's jurisdictional analysis, creating a
condition that would satisfy the exercise of due process here. Petitioners'
Opening Brief, 35-39, 46; Petitioners' Supplemental Brief, 15-16. In short,
petitioners contend that the Lystedt Law is an articulation by the
legislature of an important safety concern, and that Dr. Burns' treatment of
Drew Swank with knowledge he would return to Washington to play
football here, amounts to a tacit agreement by Dr. Swank to be bound by
the Lystedt Law.
WDTL agrees with Dr. Burns' analysis that the Lystedt Law does
not create any implied cause of action. Supplemental Brief of Dr. Burns,
12-17. Beyond that, however, there is nothing in the act that should or can
change the constitutional due process analysis for the exercise of case
specific personal jurisdiction. Since 1993, Dr. Burns had practiced
medicine solely in Idaho. CP 258-59. He was licensed only in Idaho, and
only saw patients in Idaho. CP 286; 331. While Dr. Burns had once held a
16
Washington medical license, he let that license lapse in 2003, more than
six years before the events in question (and long before the Lystedt Law
was passed). CP 253. The Lystedt Law did not have an analog in Idaho at
h . 6 t at time.
Under petitioner's proposed argument, a physician would be
required to assume he was subjecting himself to the laws-and
subsequently to the expectation of being haled into court-anywhere that
his patients might subsequently travel. This approach is contrary to
controlling Washington and Supreme Court precedent. Moreover, contrary
to Walden and prior Supreme Court decisions, it would render an out-ofstate physician subject to jurisdiction in other states based upon the
conduct of third parties: the patient who traveled to the other state, and the
legislatures of other states who pass laws regarding how certain types of
injuries are to be addressed within their borders. Walden, 134 S. Ct. at
1122; Helicopteros, 466 U.S. at 417.7
6 Idaho's law relating to head injuries and concussions sustained by youth athletes was
passed in 2012 and is found in Idaho Code§ 33-1625. 7 Although WDTL acknowledges that none of the parties have argued under the
Commerce Clause, U.S. Canst. art. I, § 8, cl. 3, against the exportation of the Lystedt
Law to physicians practicing in Idaho, it nevertheless bears mentioning that even if
Washington's legislature intended the Lystedt Law to somehow govern the conduct of
physicians practicing medicine in other states, "[n]o state has the authority to tell other
polities what laws they must enact or how affairs must be conducted outside its
borders." Nat'/ Solid Wastes Mgmt, Ass'n v. Meyer, 165 F.3d 1151, 1153 (7th Cir.
1999) (citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 571, 116 S. Ct, 1589,
134 L. Ed. 2d 809 (1996); Healy v, Beer Institute, Inc., 491 U.S. 324, 109 S. Ct. 2491,
105 L. Ed. 2d 275 (1989); Great Atlantic & Pacific Tea Co. v, Cottrell, 424 U.S. 366,
17
IV. CONCLUSION
The petitioners' attempt to establish personal jurisdiction over Dr.
Burns runs counter to the personal jurisdiction analysis set forth in Walden
and its progeny, as well as to prior controlling Washington case law. Dr.
Burns' challenged conduct-the treatment and eventual release of Drew
Swank to return to football-occurred entirely in Idaho. Even assuming
Dr. Burns knew that Drew planned to return to play in Washington and
could be injured there, such knowledge is insufficient to establish personal
jurisdiction under the reasoning in Walden. The assertion of personal
jurisdiction in this case would violate Dr. Burns' due process rights and
break with established federal law. The trial court and the Court of
Appeals properly recognized and upheld the lack of personal jurisdiction
in this case, and this court should affirm.
Ill
Ill
379-80, 96 S. Ct. 923, 47 L. Ed. 2d 55 (1976); Baldwin v. G.A.F. Seelig, Inc., 294 U.S.
511, 55 S. Ct. 497, 79 L. Ed. 1032 (1935)). Furthermore, "the 'Commerce Clause ...
precludes the application of a state statute to commerce that takes place wholly outside
of the State1
s borders, whether or not the commerce has effects within the StateD' .... "
Healy v. Beer Inst., Inc., 491 U.S. 324, 336-37, 109 S. Ct. 2491, 2499-500, 105 L. Ed.
2d 275 (1989) (citing cases). The notion that the Washington legislature has authority
to regulate the conduct of an Idaho physician delivering medical treatment in Idaho to
Idaho residents is one that this Court should approach with considerable caution.
Furthermore, it hardly makes sense that the Washington legislature would imply a
cause of action against an Idaho physician under a Washington law that cannot
permissibly govern the Idaho physician's conduct in the first place.
18
Respectfully submitted this 16th day of December, 2016.
By: /s/ Cristopher W. Nicoll
Christopher W. Nicoll,
WSBA#20771
Noah S. Jaffe, WSBA #43454
Nicoll Black & Feig PLLC
1325 Fourth Avenue, Suite 1650
Seattle, W A 981 0 I
Telephone: (206) 838-7555
Facsimile: (206) 838-7515
cnicoll@nicollblack.com
By: /s/ Stewart A. Estes
Stewart A. Estes, WSBA #15535
Keating Bucklin &
McCormack, Inc., P.S.
800 Fifth A venue, Suite 4141
Seattle, W A 98104
Telephone: (206) 623-8861
Facsimile: (206) 223-9423
sestes@kbmlawyers.com
Attorneys for Amicus Curiae Washington Defense Trial Lawyers
19
DECLARATION OF SERVICE
The undersigned does hereby declare and state as follows:
On the date set forth below, I caused to be served:
• BRIEF OF AMICUS CURIAE WASHINGTON DEFENSE
TRIAL LA WYERS
in the within matter by arranging for a copy to be delivered on the
interested parties in said action, in the manner described below, addressed
as follows:
Patrick J. Cronin VIA FACSIMILE
Winston Cashatt VIA U.S. MAIL
601 W. Riverside Ave., Ste. 1900
X VIAE-MAIL
Spokane, WA 99201 VIA HAND DELIVERY
(Email Qjc@winstoncashatt.com)
Attorney for Respondent Jim
Puryear
Gregory M. Miller VIA FACSIMILE
Melissa J. Cunningham (Email VIA U.S. MAIL
cunningham@carneylaw.com) X VIAE-MAIL
Carney Badley Spellman, P .S. VIA HAND DELIVERY
70 I Fifth Ave., Ste. 3600
Seattle, WA 98104-7010
(Email millerlalcarneylaw .com)
Attorneys for Respondent Timothy
F. Burns, M.D.
William C. Schroeder VIA FACSIMILE
Gerald Kobluk VIA U.S. MAIL
KSB Litigation, P .S. X VIA E-MAIL
221 N. Wall, Ste. 210 VIA HAND DELIVERY
Spokane, WA 99201
(Email WCS@ksblit.legal)
(Email gkobluk@ksblit.legal)
Attomcy for Respondent Valley
Christian School
20
Edward J. Bruya VIA FACSIMILE
Eric R. Byrd VIA U.S. MAIL
Bruya &Associates, P.C.
X VIAE-MAIL
601 W. Riverside, Ste. 1600 VIA HAND DELIVERY
Spokane, WA 99201
(Email ed@bruxalawfirm.com)
(Email eric@bruxalawfirm.com)
Attorney for Respondent Timothy
F. Burns, M.D.
Steven R. Stocker VIA FACSIMILE
Stocker, Smith, Luciani & Staub VIA U.S. MAIL
312 W. Sprague Ave. X VIAE-MAIL
Spokane, W A 9920 I VIA HAND DELIVERY
(Email sstocker@sslslawfirm.com)
Attorney for Respondent Jim
Puryear
Mark D. Kamitomo VIA FACSIMILE
Collin M. Harper VIA U.S. MAIL
The Markam Group, Inc., P.S. X VIAE-MAIL
421 W. Riverside, Suite I 060 VIA HAND DELIVERY
Spokane, W A 9920 I
Attorney for Petitioners
George M. Ahrend VIA FACSIMILE
Ahrend Law Firm PLLC VIA U.S. MAIL
100 E. Broadway Ave. X VIAE-MAIL
Moses Lake, WA 98837 VIA HAND DELIVERY
Attorney for Petitioners
Valerie McOmie VIA FACSIMILE
Amicus Co-Coordinator VIA U.S. MAIL
WSAJ Foundation X VIAE-MAIL
Tel. (360) 852-3332 VIA HAND DELIVERY
valeriemcomie@}gmail.com
I declare under penalty of perjury that the foregoing is true and
correct, and that this declaration was executed on December 16, 2016 at
Seattle, Washington.
Is/ Stewart A. Estes
Stewart A. Estes
21
OFFICE RECEPTIONIST, CLERK
From:
Sent:
To:
Cc:
Subject:
Mr. Estes:
OFFICE RECEPTIONIST, CLERK
Friday, December 16, 2016 4:05PM
'Stewart A. Estes'
'Valerie McOmie (valeriemcomie@gmail.com)'; 'danhuntington@richter-wimberley.com';
'Bryan Harnetiaux'; 'collin@markamgrp.com'; 'mark@markamgrp.com'; 'Miller, Greg'; 'George
Ahrend'; 'sstocker@sslslawfirm.com'; 'pjc@winstoncashatt.com'; 'wcs@ksblit.legal';
'ed@bruyalawfirm.com'; 'Chris Nicoll'; 'Melissa O'Loughlin White'; 'Norgaard, Cathy'; 'Ed Bruya
';'Cunningham, Melissa J.'; 'gkobluk@ksblit.legal'
RE: Swank v. Burns, et al. - WSC No. 93282-4
We corrected the case number from 90733-1 to 93282-4 on the Brief of Amicus Curiae and the Appendix to
Brief of Amicus Curiae by writing it in on the documents. We will let you know if we need corrected pages
sent.
Supreme Court Clerk's Office
Please note that any pleading filed as an attachment to e-mail will be treated as the original. Therefore, if a filing is byemail attachment, it is not necessary to mail to the court the original of the document.
Questions about the Supreme Court Clerk's Office? Check out our website:
http://www.co u rts.wa.gov /appellate trial courts/supreme/clerks/
Looking for the Rules of Appellate Procedure? Here's a link to them:
http://www.courts.wa.gov/court rules/7fa=court rules.list&group=app&set=RAP
Searching for information about a case? Case search options can be found here:
http:// dw.cou rts.wa .gov I
From: Stewart A. Estes [mailto:sestes@kbmlawyers.com]
Sent: Friday, December 16, 2016 3:22PM
To: OFFICE RECEPTIONIST, CLERK <SUPREME@COURTS.WA.GOV>
Cc: 'Valerie McOmie (valeriemcomie@gmail.com)' <valeriemcomie@gmail.com>; 'danhuntington@richterwimberley.com' <danhuntington@richter-wimberley.com>; 'Bryan Harnetiaux' <bryanpharnetiauxwsba@gmail.com>;
'collin@markamgrp.com' <collin@markamgrp.com>; 'mark@markamgrp.com' <mark@marl<amgrp.com>; 'Miller, Greg'
<miller@carneylaw.com>; 'George Ahrend' <gahrend@ahrendlaw.com>; 'sstocker@sslslawfirm.com'
<sstocl<er@sslslawfirm.com>; 'pjc@winstoncashatt.com' <pjc@winstoncashatt.com>; 'wcs@ksblit.legal'
<wcs@ksblit.legal>; 'ed@bruyalawfirm.com' <ed@bruyalawfirm.com>; 'Chris Nicoll' <cnicoll@nicollblack.com>; 'Melissa
O'Loughlin White' <MWhite@cozen.com>; 'Norgaard, Cathy' <Norgaard@carneylaw.com>; 'Ed Bruya '
<ed@bruyalawfirm.com>; 'Cunningham, Melissa J.' <cunningham@carneylaw.com>; 'gkobluk@ksblit.legal'
<gl<obl uk@ l<sbl it.legal>
Subject: RE: Swank v. Burns, et al.- WSC No. 93282-4
Dear Clerk:
I apologize for the confusion.
1
A number of the briefs filed earlier use No. 90733-1. But, the BRIEF OF RESPONDENTS VALLEY
CHRISTIAN SCHOOL AND DERICK T ABISH, filed May 8, 2015 appears to change the cause number to
93282-4 (see cover page).
http://www.courts.wa.gov/content!Briefs/A08/932824%20COA%20-
%20Resp%20Brief%20(Valley%20Christian%20and%20Tabish).pdf#search=swank
We updated the reference line in this email, but not on the brief. Should we file a corrected brief using 93282-
4?
Thanks, Stew
From: OFFICE RECEPTIONIST, CLERK [mailto:SUPREME@COURTS.WA.GOV]
Sent: Friday, December 16, 2016 2:59PM
To: Stewart A. Estes <sestes@kbmlawyers.com>
Cc: 'Valerie McOmie (valeriemcomie@gmail.com)' <valeriemcomie@gmail.com>; 'danhuntington@richterwimberley.com' <danhuntington@richter-wimberley.com>; 'Bryan Harnetiaux' <bryanpharnetiauxwsba@gmail.com>;
'collin@markamgrp.com' <collin@markamgrp.com>; 'mark@markamgrp.com' <mark@markamgrp.com>; 'Miller, Greg'
<miller@carneylaw.com>; 'George Ahrend' <gahrend@ahrendlaw.com>; 'sstocker@sslslawfirm.com'
<sstocker@sslslawfirm.com>; 'pjc@winstoncashatt.com' <pic@winstoncashatt.com>; 'wcs@ksblit.iegal'
<wcs@ksblitkW>; 'ed@bruyalawfirm.com' <ed@bruyalawfirm.com>; 'Chris Nicoll' <cnicoll@nicollblack.com>; 'Melissa
O'Loughlin White' <MWhite@cozen.com>; 'Norgaard, Cathy' <Norgaard@carneylaw.com>; 'Ed Bruya'
<ed@bruyalawfirm.com>; 'Cunningham, Melissa J.' <cunningham@carneylaw.com>; 'gkobluk@ksblit.iegal'
<gkobluk@ksblit.iegal>
Subject: RE: Swanl< v. Burns, et aL- WSC No. 93282-4
We noticed the e-mail reference says case number 93282-4 but the Brief of Amicus Curiae, Washington
Defense Trial Lawyers says No. 90733-1. Please advise.
Supreme Court Clerk's Office
Please note that any pleading filed as an attachment to e-mail will be treated as the originaL Therefore, if a filing is byemail attachment, it is not necessary to mail to the court the original of the document
Questions about the Supreme Court Clerk's Office? Check out our website:
http://www .courts. wa.gov /appellate trial courts/supreme/clerks/
Looking for the Rules of Appellate Procedure? Here's a link to them:
http:/(www .cou rts.wa .gov /court rules/?fa=co u rt rules.list&group=a pp&set= RAP
Searching for information about a case? Case search options can be found here:
http://dw.courts.wa.gov/
From: OFFICE RECEPTIONIST, CLERK
Sent: Friday, December 16, 2016 2:53 PM
To: 'Stewart A. Estes' <sestes@kbmlawyers.com>
Cc: Valerie McOmie (valeriemcomie@gmail.com) <valeriemcomie@gmail.com>; danhuntington@richterwimberley.com; Bryan Harnetiaux <brvanpharnetiauxwsba@gmail.com>; collin@markamgrp.com;
mark@markamgrp.com; Miller, Greg <miller@carneylaw.com>; George Ahrend <gahrend@ahrendlaw.com>;
sstocker@sslslawfirm.com; pjc@winstoncashatt.com; wcs@ksblit.legal; ed@bruyalawfirm.com; Chris Nicoll
2
<cnicoll@nicollblack.com>; Melissa O'Loughlin White <MWhite@cozen.com>; Norgaard, Cathy
<Norgaard@carneylaw.com>; Ed Bruya <ed@bruyalawfirm.com>; Cunningham, Melissa J.
<cunningham@carneylaw.com>; gkobluk@ksblit.legal
Subject: RE: Swank v. Burns, et al.- WSC No. 93282-4
Received 12-16-16.
Supreme Court Clerk's Office
Please note that any pleading filed as an attachment to e-mail will be treated as the original. Therefore, if a filing is byemail attachment, it is not necessary to mail to the court the original of the document.
Questions about the Supreme Court Clerk's Office? Check out our website:
http://www.courts.wa.gov /appellate trial courts/supreme/clerks/
Looking for the Rules of Appellate Procedure? Here's a link to them:
http:ljwww .courts. wa.gov I court rules/?fa=court rules.list&group=a pp&set= RAP
Searching for information about a case? Case search options can be found here:
http://dw.courts.wa.gov/
From: Stewart A. Estes [mailto:sestes@kbmlawyers.corn]
Sent: Friday, December 16, 2016 2:47PM
To: OFFICE RECEPTIONIST, CLERK <SUPREME@COURTS.WA.GOV>
Cc: Valerie McOmie (valeriemcomie@grnail.com) <valeriemcomie@gmail.com>; danhuntington@richterwimberley.com; Bryan Harnetiaux <bryanpharnetiauxwsba@gmail.com>; collin@markamgrp.com;
rnark@markamgrp.com; Miller, Greg <miller@carneylaw.com>; George Ahrend <gahrend@ahrendlaw.com>;
sstocker@sslslawfirm.com; pjc@winstoncashatt.com; wcs@ksblit.legal; ed@bruyalawfirm.com; Chris Nicoll
<cnicoll@nicollblack.com>; Melissa O'Loughlin White <MWhite@cozen.com>; Norgaard, Cathy
<Norgaard@carneylaw.com>; Ed Bruya <ed@bruyalawfirm.com>; Cunningham, Melissa J.
<cunningham@carneylaw.com>; gkobluk@ksblit.legal
Subject: Swank v. Burns, et al. - WSC No. 93282-4
Dear Ms. Carlson:
Pursuant to the Court's prior permission, please find attached WDTL's Amicus Curiae Brief and
Appendix in the above matter.
I am hereby contemporaneously serving electronically, by copy of this message, counsel for the
parties, and to the Washington State Association for Justice Foundation who by agreement have
accepted this method of service.
Thank you,
Stew
Chair, WDTL Amicus Committee
571,.W ]:.571,.5
Keating, Bucklin & McCormack, Inc., P .5.
3
800 Fifth Avenue, Suite 4141
Seattle, WA 98104-3175
KliATtNG, BUO.'UN ,., /<.'II:COJlM,\CK
(206)623-8861 desk
(206) 719-6831 cell
Firm Website
Personal Bio
This message is confidential, and is intended only for the named recipient. It may contain information that is attorney client privileged, attorney work
product or exempt from disclosure under applicable law. If you are not the intended recipient1 you are notified that the dissemination, distribution or
copying of this message Is strictly prohibited, If you receive the message in error, or are not the named recipient, please notify the sender immediately,
Thank you,
NO. 99344-1
SUPREME COURT OF THE STATE OF WASHINGTON
IN RE THE PERSONAL RESTRAINT PETITION OF
ROBERT R. WILLIAMS
Petitioner.
DEPARTMENT OF CORRECTIONS’ ANSWER TO MOTION
FOR DISCRETIONARY REVIEW AND RESPONSE TO AMICUS
ROBERT W. FERGUSON
Attorney General
HALEY BEACH
WSBA #44731
Assistant Attorney General
Corrections Division
P.O. Box 40116
Olympia, WA 98504
(360) 586-1445
FILED
SUPREME COURT
STATE OF WASHINGTON
112112021 4:26 PM
BY SUSAN L. CARLSON
CLERK
i
I. TABLE OF CONTENTS
I. TABLE OF CONTENTS .................................................................. I
II. INTRODUCTION.............................................................................1
III. ISSUES PRESENTED FOR REVIEW.............................................2
IV. STATEMENT OF THE CASE.........................................................3
V. REASONS THE COURT SHOULD DENY REVIEW....................8
A. Consistent with Colvin and All Other Court of Appeals
Decisions Considering this Question, the Court of
Appeals Correctly Ruled the Department’s
Comprehensive Response to Covid-19 Cannot Support a
Claim of Unlawful Restraint under the Eighth
Amendment................................................................................9
B. Consistent with Colvin and All Other Court of Appeals
Decisions Considering this Question, the Court of
Appeals Correctly Ruled the Department’s
Comprehensive Response to Covid-19 Cannot Support a
Claim of Unlawful Restraint under the Washington
Constitution..............................................................................12
VI. RESPONSE TO AMICUS ..............................................................17
VII. THERE IS NO LAWFUL BASIS FOR EARLY RELEASE.........19
VIII. CONCLUSION ...............................................................................20
ii
TABLE OF AUTHORITIES
Cases
Colvin v. Inslee,
195 Wn.2d 879, 467 P.3d 953 (2020)............................................ passim
Estelle v. Gamble,
429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)...................... 15, 16
Farmer v. Brennan,
511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).................... 11
Gomez v. United States,
899 F.2d 1124 (11th Cir. 1990) ............................................................ 19
Gregg v. Georgia,
428 U.S. 153, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976)................ 16
In re Det. of Turay,
139 Wn.2d 379, 986 P.2d 790 (1999)................................................... 19
In re Gronquist,
138 Wn.2d 388, 978 P.2d 1083, 1093 (1999)....................................... 13
Kusah v. McCorkle,
100 Wash. 318, 170 P. 1023 (1918) ..................................................... 15
Matter of Cook,
114 Wn.2d 802, 792 P.2d 506 (1990)................................................... 10
Matter of Cottrell,
No. 37654-1-III (Dec. 22, 2020) (unpublished).................................... 11
Matter of Demos,
No. 81362-5-I (Jul. 1, 2020) (unpublished), review denied, No.
98758-1 (Sep. 23, 2020) ....................................................................... 11
Matter of Gorski,
No. 37589-7-III (Dec. 8, 2020) (unpublished)................................ 11, 12
----
iii
Matter of Hargrove,
No. 37572-2-III (Dec. 10, 2020) (unpublished).............................. 11, 12
Matter of Pauley,
13 Wn. App. 2d 292, 466 P.3d 245 (2020), review denied, No.
98586-3 (Aug. 6, 2020).................................................................. passim
Matter of Taylor,
No. 81679-9-I (Dec. 9, 2020) (unpublished) ........................................ 11
Matter of Williams,
No. 54629-9-II, 476 P.3d 1064 (2020) ........................................... 10, 11
State v. Bassett,
192 Wn.2d 67, 428 P.3d 343 (2018)..................................................... 13
State v. Dodd,
120 Wn.2d 1, 838 P.2d 86 (1992)......................................................... 15
State v. Gregory,
192 Wn.2d 1, 427 P.3d 621 (2018)....................................................... 13
State v. Gunwall,
106 Wn.2d 54, 720 P.2d 808 (1986)..................................................... 14
State v. Smith,
150 Wn.2d 135, 75 P.3d 934 (2003)..................................................... 15
State v. Valentine,
132 Wn.2d 1, 935 P.2d 1294, 1301 (1997)........................................... 15
Woods v. Burton,
8 Wn. App. 13, 503 P.2d 1079 (1972).................................................. 14
Statutes
RCW 72.09.010 ........................................................................................ 14
RCW 72.09.010(5).................................................................................... 14
RCW 72.09.010(9).................................................................................... 15
iv
RCW 9.94A.728........................................................................................ 19
RCW 9.94A.745........................................................................................ 20
Restatement (Second) of Torts § 314A..................................................... 15
Rules
RAP 13.4(b).................................................................................... 8, 10, 20
RAP 13.4(b)(3) .......................................................................................... 9
RAP 13.4(b)(4) ........................................................................................... 9
RAP 13.5A.................................................................................................. 8
Constitutional Provisions
U.S. Const. Amend. VIII ................................................................... passim
Wash. Const. Article I, Section 14..................................................... passim
Wash. Const. Article III, Section 9........................................................... 19
1
II. INTRODUCTION
Eight months have passed since Williams filed his personal restraint
petition, asking for his immediate release from prison based on speculation
and conjectures about the Department’s response to the unprecedented
Covid-19 pandemic. Since that time, the Department has continued its
strong and comprehensive Covid-19 response. One third of Department
prisons have had no positive Covid-19 cases among the incarcerated
population and the mortality rate among incarcerated individuals who have
contracted Covid-19 is 0.17%1
, far lower than the 1.3% death rate in
Washington.
2 Despite Williams’ claim that the Department would not
provide him adequate medical care should he test positive for Covid-19, the
Department in fact provided Williams an extraordinary level of care—
transferring him to a community hospital the day after he reported a
symptom; monitoring him in the prison infirmary upon his return, with
round-the-clock medical care; and then transferring him to a special medical
isolation unit in accordance with the Department’s Covid-19 protocol,
where he continued to receive round-the-clock medical observation and
care until he was cleared to return to general population.
1 https://www.doc.wa.gov/corrections/covid-19/data.htm#confirmed
2 https://www.doh.wa.gov/Emergencies/COVID19/DataDashboard
2
Currently, Williams is able to reside in general population and
receives medical care as needed, including evaluation and care in the local
hospital as appropriate. He has returned to the Coyote Ridge Corrections
Center (Coyote Ridge), which had no active Covid-19 cases among the
incarcerated population from mid-August to mid-November 2020, and
which has had only 34 active Covid-19 cases in the last 30 days.
3
The Court of Appeals granted accelerated review of Williams’
petition and carefully considered the parties’ briefing, evidence, and
multiple supplemental filings. The Court of Appeals correctly determined
Williams had not demonstrated that he is under unlawful restraint. And
there is no basis for ordering Williams’ early release from prison. The Court
should deny his motion for discretionary review.
III. ISSUES PRESENTED FOR REVIEW
1. Whether the Court of Appeals correctly held that Williams
failed to demonstrate unlawful restraint because his conditions of
confinement do not violate the Eighth Amendment.
2. Whether the Court of Appeals correctly held that Williams
failed to demonstrate unlawful restraint because his conditions of
confinement do not violate article I, section 14 of the Washington
3 https://www.doc.wa.gov/corrections/covid-19/data.htm#confirmed
3
Constitution, which is not more protective than the Eighth Amendment in
this context.
IV. STATEMENT OF THE CASE
Williams is serving a 22.5-year sentence for attempted murder. He
entered prison at age 66, is now 78 years old, and will be 85 years old at the
time of his earned release date on April 30, 2028. Williams first asked this
Court for an emergency release from prison on May 15, 2020, over eight
months ago. This Court transferred the matter to the Court of Appeals. The
Court of Appeals granted Williams accelerated review of his petition.
In mid-June 2020, the Department filed its response, outlining the
extensive efforts the Department had undertaken to combat the introduction
and spread of Covid-19 in its prisons and other facilities. See Response, at
3-33. This information covered in detail the Department’s early
identification of the risk of Covid-19, including its robust Health Services
and infectious disease prevention program; the early February 2020
activation of the Emergency Operations Center and early March 2020
activation of Incident Command Posts at each prison; the early March 2020
suspension of all in-person visitation and volunteer programs; the Chief
Medical Officer, Infectious Disease Physician, and Health Services’
creation of the WA State DOC COVID-19 Screening, Testing, and Infection
Control Guideline (currently in Version 23); Covid-19 testing performed in
4
compliance with Department of Health guidelines, then greatly expanded to
include serial testing at Coyote Ridge and other prisons; staff and new
system intake screening efforts; the reduction of inter- and intra-system
transfers; the early April 2020 mandatory face-covering requirement for all
staff and incarcerated individuals; the comprehensive personal protective
equipment (PPE) requirements; the strict cleaning, disinfection, and
hygiene protocols; the widespread social distancing measures; the special
precautions for units housing vulnerable populations; the creation of
multiple regional care facilities to provide an intermediate level of care to
individuals with Covid-19; its substantial compliance with the CDC
Correctional Facility Guidelines; the Governor’s emergency proclamation
and commutation, which allowed for the discretionary early release of over
1,000 incarcerated individuals; and the widespread Covid-19 testing of
incarcerated individuals at Coyote Ridge. Response, at 3-28.
This information reiterated and expanded on what this Court
considered in Colvin v. Inslee, 195 Wn.2d 879, 467 P.3d 953 (2020), and
what the Court of Appeals considered in Matter of Pauley, 13 Wn. App. 2d
292, 313, 466 P.3d 245 (2020), review denied, No. 98586-3 (Aug. 6, 2020).
As this Court noted in Colvin, the Department developed a multistep plan
to combat Covid-19; it “issued social distancing guidelines to offenders in
early March 2020, started screening visitors on March 6, and stopped visits
5
on March 13, all in an effort to prevent the virus from spreading into
facilities.” Colvin, 195 Wn.2d at 886. Additionally, “the Department has
tried to follow United States Center for Disease Control and Prevention
guidelines by administering screening protocols, creating special
procedures for transporting offenders, implementing physical distancing
protocols, providing free soap and handwashing facilities, and issuing
instructions for facility cleaning and sanitizing” and imposed “an order that
all facilities ensure that all staff and offenders wear face coverings.” Id. at
888. The Court noted that the prison population had been reduced from
around 18,000 to just over 16,000.
4
Id. at 889. “The Department has
implemented a multifaceted strategy designed to protect offenders housed
at various facilities, increasing those protections as more information
becomes available about the virus and its risks.” Id. at 901.
In Pauley, the Court of Appeals similarly recognized that “[t]he
record shows that DOC has taken the threat of COVID-19 seriously and
taken reasonable and appropriate steps to mitigate the risk to incarcerated
individuals.” Pauley, 13 Wn. App. 2d at 316.
DOC has taken significant steps to mitigate the risk to
[Petitioner]—including screening everyone entering the
facility for symptoms, mandating that staff wear a mask or
face covering at all times, providing face coverings for
4 The most recent Average Daily Population of those in total and partial
confinement was 15,111, with 14,626 individuals in prison facilities.
www.doc.wa.gov/docs/publications/reports/400-RE002.pdf, last accessed Jan. 21, 2020.
6
inmates to wear whenever they are unable to social distance,
providing unrestricted access to soap and water,
implementing PPE requirements for staff when working
with symptomatic inmates, reducing the number of inmates
congregating in any one common area, isolating people who
have confirmed or suspected COVID-19, quarantining those
who had contact with confirmed or suspected COVID-19
cases, and increasing the frequency of cleaning common
areas. [Petitioner] has not demonstrated why all these safety
precautions are inadequate steps to prevent, to the extent
possible, the spread of infection in the [prison].
Id.
Here, the Court of Appeals allowed multiple supplemental filings.
As a result, the Department provided even more evidence of its robust and
thoughtful response to Covid-19, and in particular of the high level of
medical care provided to Williams. This included the testing of all staff and
incarcerated individuals in the Medium Security Complex at Coyote Ridge
in June 2020, the implementation that month of serial testing of all staff,
issuing surgical masks, and issuing N95 respirators to staff. In July 2020,
the Department expanded serial staff testing and now conducts serial staff
testing in all prisons. Supp. Response, at 4-6.
Williams tested positive for Covid-19 in early June 2020, at which
point he transferred to a community hospital for treatment, then released to
the Airway Heights infirmary. When medically appropriate, he transferred
to the Covid-19 medical isolation unit at the Monroe Correctional Complex
until he was cleared to return to general population. Supp. Response, at 9.
7
He has received a high level of medical care since returning to Coyote Ridge
in early August 2020, being seen in the Coyote Ridge infirmary, and
transferring to a local hospital for testing and observation as appropriate. He
has had multiple negative Covid-19 tests. Supp. Response, at 9-10.
In November 2020, multiple staff members at Coyote Ridge tested
positive through the Department’s serial staff testing. Mot. Supplement, at
2-4. Through contact tracing and widespread serial testing, positive cases
were identified and the number of active cases reached 69 before declining
to two. Answer to Motion for Release, Exhibit 1, at 2. There have been 34
active cases at Coyote Ridge in the past 30 days.
In his petition, Williams argued that the conditions of confinement
in prison amount to an unlawful restraint because he alleges the Department
was deliberately indifferent to the risk of Covid-19 in prisons in violation
of the Eighth Amendment and that this also violated article I, section 14 of
the Washington Constitution. The only remedy he sought was early release
from prison to live in Florida at his sister’s home. The Court of Appeals
granted accelerated review. After reviewing the parties’ extensive briefing,
including multiple supplemental submissions, the Court of Appeals
dismissed the petition. It determined the Department effected reasonable
and adequate measures to mitigate the risks of Covid-19, that Williams has
received quality medical care, and that he is not entitled to an early release.
8
On December 28, 2020, the Department began administering Covid19 vaccines to eligible incarcerated individuals and staff, in accordance with
the Department of Health’s recommendations for vaccine prioritization and
the Centers for Disease Control and Prevention’s vaccine guidance. Answer
to Motion for Release, Exhibit 1, at 2-3. The Department expects to make
the Covid-19 vaccine available to all staff and incarcerated individuals in
the coming weeks and months, though this of course depends on the vaccine
supply available. At his age, Williams is eligible to receive a vaccine under
Washington’s Phase 1-B1, now underway.
5
V. REASONS THE COURT SHOULD DENY REVIEW
This Court will review the denial of a personal restraint petition only
if the decision below conflicts with precedent or raises issues of significant
constitutional law or substantial public interest. RAP 13.4(b); RAP 13.5A.
Here, the Court of Appeals decision is consistent with all the decisions of
this Court and the Court of Appeals to consider conditions-of-confinement
personal restraint petitions in the context of Covid-19.
As outlined above, this Court considered a substantially similar
factual record in Colvin. The only difference since then is an expansion of
the Department’s Covid-19 response, intensifying its initial efforts by
5https://www.doh.wa.gov/Portals/1/Documents/1600/coronavirus/VaccinationPh
asesInfographic.pdf
9
increasing testing, updating its guidance and procedures based on scientific
and medical developments, and recently beginning administration of the
Covid-19 vaccine. When denying the Colvin petitioners’ request to convert
the writ petition to a personal restraint petition, this Court ruled that, “no
evidence here shows that the respondents have acted with deliberate
indifference.” Colvin, 195 Wn.2d at 901. The same is true here.
The narrow, fact-specific questions in this case do not present a
significant question of law under the Constitution or Washington
Constitution, nor an issue of substantial public issue warranting this Court’s
review. The application of the Eighth Amendment and Washington
Constitution to one unique personal restraint petition does not in itself
present a significant question of law under either provision. See RAP
13.4(b)(3). This case involves a narrow, highly fact-specific inquiry that is
only of interest to the Petitioner himself and is therefore not an issue of
substantial public interest that would allow for review by this Court. See
RAP 13.4(b)(4). The Court should deny discretionary review.
A. Consistent with Colvin and All Other Court of Appeals
Decisions Considering this Question, the Court of Appeals
Correctly Ruled the Department’s Comprehensive Response to
Covid-19 Cannot Support a Claim of Unlawful Restraint under
the Eighth Amendment
Williams does not meaningfully argue in his motion for
discretionary review that there is any ground for this Court to review the
10
Court of Appeals decision denying Williams’ Eighth Amendment claim. He
merely argues that this Court should reach a different result than it did in
Colvin and a different result than the Court of Appeals reached below. But
this is not a justifiable basis for discretionary review. See RAP 13.4(b).
Williams’ entire argument regarding deliberate indifference relates
to incidents and decisions that occurred in the past, not any aspect of his
current conditions of confinement. As the Court of Appeals correctly noted,
“when evaluating a PRP alleging unlawful conditions of confinement, we
look to the petitioner’s current conditions of confinement.” Matter of
Williams, No. 54629-9-II, 476 P.3d 1064, 1075 (2020); see RAP 16.4(c)(6)
(“The conditions or manner of the restraint of petitioner are in violation of
the Constitution of the United States or the Constitution or laws of the State
of Washington”) (emphasis added). This is further reason to deny review.
And even if the Court were to reconsider the question of deliberate
indifference, there would be no basis to overturn the Court of Appeals
decision. In a personal restraint petition, Williams bears the burden of
proving by a preponderance of evidence that his restraint is unlawful.
Matter of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). On his Eighth
Amendment claim, Williams must demonstrate that the Department has
recklessly disregarded or ignored a substantial risk to him. See Colvin, 195
Wn.2d at 900 (citing Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct.
11
1970, 128 L. Ed. 2d 811 (1994)). The Court of Appeals considered the
Department’s comprehensive response to Covid-19 over nearly the entire
year of 2020 and correctly determined, consistent with this Court’s decision
in Colvin and at least six other Court of Appeals decisions,
6
that this
response cannot support a claim of deliberate indifference. Specifically:
[T]his record shows numerous new restrictions, protocols,
and policies that the Department has implemented since the
emergence of COVID-19 in Washington, and even since the
Colvin and Pauley courts found no deliberate indifference.
The record shows that the Department’s response has
expanded and evolved as the risk posed by COVID-19 has
grown, and the Department managed to control an outbreak
at Coyote Ridge through aggressive testing, contract tracing,
and quarantining. This is not deliberate indifference.
¶99 Further, when Williams exhibited symptoms of COVID19, he was promptly transported to a hospital where he
received medical care that enabled his survival and recovery.
Then Williams was transported to an infirmary where he
received constant nursing care. The Department’s response
to [his] infection does not reflect deliberate indifference or
reckless disregard to the risk of harm he faced.
Williams, 476 P.3d at 1085-86. And although Williams discusses his
unsuccessful Extraordinary Medical Placement application at length, the
denial of a favorable exercise of purely executive discretion, even one that
could have resulted in release from total confinement, does not demonstrate
6 Matter of Cottrell, No. 37654-1-III (Dec. 22, 2020) (unpublished); Matter of
Hargrove, No. 37572-2-III (Dec. 10, 2020) (unpublished); Matter of Taylor, No. 81679-9-
I (Dec. 9, 2020) (unpublished); Matter of Gorski, No. 37589-7-III (Dec. 8, 2020)
(unpublished); Matter of Demos, No. 81362-5-I (Jul. 1, 2020) (unpublished), review
denied, No. 98758-1 (Sep. 23, 2020); Pauley, 13 Wn. App. 2d 292.
12
deliberate indifference. See Colvin, 195 Wn.2d at 901. Williams does not
otherwise challenge that decision. On this record, there is no basis for this
Court to grant discretionary review of the Court of Appeals’ decision on
Williams’ Eighth Amendment claim or to reach a different conclusion.
B. Consistent with Colvin and All Other Court of Appeals
Decisions Considering this Question, the Court of Appeals
Correctly Ruled the Department’s Comprehensive Response to
Covid-19 Cannot Support a Claim of Unlawful Restraint under
the Washington Constitution
Although the Department disagrees with the Court of Appeals’
conclusion that article I, section 14 of the Washington Constitution is more
protective than the Eighth Amendment in this specific circumstance, review
is not warranted. The Court of Appeals reached the same conclusion as
every Washington court to consider the question of whether the
Department’s response to Covid-19 violates the Washington Constitution,
and it correctly concluded that it does not.7 And the review of an inmate’s
personal restraint petition alleging unlawful confinement as a result of an
unprecedented global pandemic and his particular age, race, and disability
is a narrow and fact-specific inquiry. One decision applying a specific
standard or test in response to a unique situation is not a basis for this
7 Matter of Hargrove, No. 37572-2-III; Matter of Gorski, No. 37589-7-III; Pauley,
13 Wn. App. 2d 292.
13
Court’s immediate review. At this time, there is no significant constitutional
question or issue of substantial public interest such that review is warranted.
If the Court were to grant review, it should conclude that prison
conditions of confinement are a category of cases in which article I, section
14 does not provide greater protection than the Eighth Amendment and
should not apply the test adopted by the Court of Appeals. In the context of
a conditions-of-confinement personal restraint petition, cases which do “not
address the unique circumstances and considerations of the prison
environment . . . [are] inapplicable.” In re Gronquist, 138 Wn.2d 388, 406,
978 P.2d 1083, 1093 (1999). This Court has acknowledged “that the
Washington State Constitution’s cruel punishment clause often provides
greater protection than the Eighth Amendment.” State v. Gregory, 192
Wn.2d 1, 15, 427 P.3d 621 (2018) (emphasis added). But the Court has also
ruled in multiple instances that Washington’s cruel punishment clause does
not always provide greater protection than the Eighth Amendment. See, e.g.,
State v. Bassett, 192 Wn.2d 67, 78, 428 P.3d 343, 348 (2018) (collecting
cases). “We recognize that article I, section 14 is not per se broader than the
Eighth Amendment. Under certain contexts, the court may have good
reason to interpret the state and federal constitutions synonymously rather
than independently.” Gregory, 192 Wn.2d at 16, n.6.
14
In Woods v. Burton, 8 Wn. App. 13, 16-17, 503 P.2d 1079 (1972),
in the context of a jail habeas petition, the Court of Appeals considered
article I, section 14 and the Eighth Amendment and concluded: “The
standards to be applied in interpreting these provisions, of both
constitutions, have not been precisely delineated . . . . The common thread
running through their interpretations, however, relates to the deprivation of
human dignity by conditions primarily related to sanitation and hygiene
which are so base, inhumane and barberic [sic] they offend the dignity of
any human being.” This suggests equivalence between the two standards.
The fourth and sixth factors under State v. Gunwall, 106 Wn.2d 54,
720 P.2d 808 (1986), most strongly favor reading the constitutional
provisions coextensively. The fourth factor—preexisting state law—does
so for two principal reasons. First, in 1981—well after the Woods
decision—the Legislature expressed its legislative intent regarding the
statewide system of corrections. RCW 72.09.010. This section lists a
number of objectives, including that this “system, as much as possible,
should reflect the values of the community.” RCW 72.09.010(5). These
values emphasize work, self-improvement, and thrift, but not heightened
protections regarding conditions of confinement. Id. Importantly, the last
objective ties the Washington correctional system expressly to “those
national standards which the state determines to be appropriate.” RCW
15
72.09.010(9). This objective underscores that Washington does not intend
to chart its own course regarding conditions of confinement.
Second, this Court held in Kusah v. McCorkle, 100 Wash. 318, 323,
170 P. 1023 (1918), that the state statutes imposing a duty on jailers “are
but declaratory of the common law” going as far back as Blackstone’s
Commentaries. Id. at 322 (quoting federal and state cases); see Restatement
(Second) of Torts § 314A (discussing special relations giving rise to duty to
aid or protect). The Supreme Court noted in the landmark decision Estelle
v. Gamble, 429 U.S. 97, 103-04, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976),
that society’s evolving standards of decency defining the objective prong of
an Eighth Amendment claim are expressed in state laws and regulations that
codify the common law on this point. As such, the common law also favors
reading the provisions as coextensive in this context.
And the prevention of cruel punishment is not a local concern—
avoiding unconstitutionally cruel punishment is a general concern of
litigants nationwide. See State v. Smith, 150 Wn.2d 135, 152, 75 P.3d 934
(2003); State v. Dodd, 120 Wn.2d 1, 22, 838 P.2d 86 (1992). This Court has
recognized that it was only in the 1970s that courts began to establish certain
constitutional standards for prisons, under the Eighth Amendment
standards. State v. Valentine, 132 Wn.2d 1, 16, 935 P.2d 1294, 1301 (1997)
(“jails themselves are no longer the pestilential death traps they were in
16
eighteenth century England. Recent Eighth Amendment litigation of
prisoners’ claims of cruel and unusual punishment has established certain
constitutional standards for prisons) (citing Estelle, 429 U.S. at 104-05;
Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S. Ct. 2909, 2925, 49 L. Ed.
2d 859 (1976)). This suggests the Washington Constitution is not broader
in scope than the Eighth Amendment in this context because the Eighth
Amendment was the first provision to set standards for prison conditions
and did so nationwide.
Williams urges review because he alleges that the Court of Appeals
should have used a different test to evaluate his state constitutional claim.
The Court should deny review because Williams’ claim would fail under
any plausible test, given the Department’s robust response to the pandemic
and the high level of care it has provided to Williams. And the Department
has demonstrated good reason to interpret the constitutional provisions
synonymously in the context of prison conditions of confinement.
Even assuming greater protections apply under the Washington
Constitution, Williams cannot demonstrate that his sentence is
disproportionate now, simply because there is a risk of Covid-19 in prison.
The courts determined that he should enter prison at age 66 and serve a 22.5-
year sentence for a brutal violent crime. His earned release date is in seven
years. There are a number of medical ailments that may disproportionately
17
affect older individuals, or individuals with specific racial or ethnic
backgrounds. But just like heart disease or diabetes or cancer does not
automatically render an otherwise valid prison sentence unconstitutional,
nor does Covid-19. The Department has mounted a comprehensive systemwide response and provided Williams in particular with a high level of care
and consideration. There is no basis for further review in this circumstance.
VI. RESPONSE TO AMICUS
The amicus brief filed in this matter similarly identifies no basis for
discretionary review. The amici primarily argue that the pandemic has
changed since the Court issued its decision in Colvin, and that the Court of
Appeals should have adopted a different test under article I, section 14.
The amici support the first part of their argument by pointing to
nationwide data and Washington Department of Health data for nonincarcerated individuals and using it to support a conjecture that although
Covid-19 infection rates in Department show a disproportionately lower
rate of infection for Black inmates than White inmates, the virus could still
have disproportionate impacts on Black incarcerated individuals. But this
loses sight of the specific question at issue in a personal restraint petition:
whether this particular petitioner is under unlawful restraint as a result of
the Department’s response to the Covid-19 pandemic. As recognized by the
Court of Appeals and demonstrated above, he is not. The Department has
18
engaged in a comprehensive and sustained response to Covid-19. As with
many organizations and institutions, there have been setbacks despite the
Department’s best efforts and the cooperation of most incarcerated
individuals. But even so, Williams’ prison currently has a limited number
of active cases and one third of Department prisons have had no active
Covid-19 cases among the incarcerated population at all.8 Williams
received a high level of care and recovered from Covid-19. He has an ADA
cell with access to medical care at all times. Covid-19 has not changed his
sentence, and the Department has taken great care to keep him safe.
Amici also argue that the Court of Appeals should have weighed
evidence differently. Particularly, amici seem to argue that the Court of
Appeals should have based its decision about Williams’ conditions of
confinement on an Office of Corrections Ombuds report on its opinion of
events in May and June 2020. That is merely a difference of opinion with
the Court of Appeals’ consideration of the evidence. And it sheds no light
on Williams’ current conditions and if he is under unlawful restraint. For
both reasons, it demonstrates no basis for discretionary review.
Finally, amici disagree with the Court of Appeals’ test under article
I, section 14. Their arguments are identical to Williams’ arguments
8 https://www.doc.wa.gov/corrections/covid-19/data.htm#confirmed
19
regarding the Court of Appeals’ determination of the article I, section 14
standard. For the same reasons outlined in response to Williams’ argument,
the amici’s duplicate argument provides no reason to grant review.
VII. THERE IS NO LAWFUL BASIS FOR EARLY RELEASE
This Court should also deny review because the remedy Williams
seeks is unavailable to him. In the context of a personal restraint petition
challenging an allegedly unconstitutional condition of confinement, the
Court can only order removal of the illegal restraint. When an incarcerated
individual shows that his conditions of confinement are unlawful, the
remedy is not release from confinement but an order remedying the
unconstitutional conditions. In re Det. of Turay, 139 Wn.2d 379, 420, 986
P.2d 790 (1999) (footnotes omitted); see Gomez v. United States, 899 F.2d
1124, 1125-26, 1127 (11th Cir. 1990). Absent an infirmity or change to his
sentence, Williams is not entitled to simply leave prison early. See generally
RCW 9.94A.728. The courts have no authority commute a prison sentence.
Colvin, 195 Wn.2d at 897 (“like the governor’s emergency powers, the
governor’s power to release inmates by commuting sentences or pardoning
offenders is exclusive and discretionary”) (citing Wash. Const. art. III, § 9).
Even if Williams were ordered released, the Department does not
expect that he would be eligible to transfer his supervision to Florida under
the Interstate Commission for Adult Offender Supervision (ICAOS). He
20
notes that electronic monitoring is available in Florida, but that is not the
challenge he faces. The Compact excludes individuals “released from
incarceration under furlough, work-release, or other preparole program.”
ICAOS Rule 2.107, available at https://www.interstatecompact.org; see
RCW 9.94A.745. Even if he were eligible to seek to transfer his supervision
to Florida under ICAOS, he would need permission from Florida to do so;
he has presented no evidence of such. Williams has not demonstrated that
inmates released from confinement to serve a prison sentence on electronic
home confinement are eligible under ICAOS rules, and he has presented no
in-state release plan. This is further reason to deny review and deny release.
VIII. CONCLUSION
This case does not meet the criteria for discretionary review under
RAP 13.4(b) and does not warrant further consideration. The Court should
deny review.
RESPECTFULLY SUBMITTED this 21st day of January, 2021.
ROBERT W. FERGUSON
Attorney General
s/ Haley Beach
HALEY BEACH, WSBA #44731
Assistant Attorney General
Corrections Division OID #91025
PO Box 40116
Olympia, WA 98504-0116
(360) 586-1445
Haley.Beach@atg.wa.gov
21
CERTIFICATE OF SERVICE
I certify that on the date below I caused to be electronically filed the
DEPARTMENT OF CORRECTIONS’ ANSWER TO MOTION FOR
DISCRETIONARY REVIEW AND RESPONSE TO AMICUS with the
Clerk of the Court using the electronic filing system and I hereby certify
that I have mailed by United States Postal Service the document to the
following participants:
KAYLAN LEE LOVROVICH
ATTORNEY AT LAW
4293 MEMORIAL WAY NE
SEATTLE WA 98195-0001
JACQUELINE MCMURTRIE
UW LAW CLINIC – WA INNOCENE PROJECT
4293 MEMORIAL WAY NORTHEAST
SEATTLE WA 98195-0001
ROBERT S. CHANG
MELISSA R. LEE
JESSICA LEVIN
RONALD A. PETERSON LAW CLINIC
SEATTLE UNIVERSITY SCHOOL OF LAW
1112 E. COLUMBIA ST.
SEATTLE, WA 98122
AMY MUTH
NATALIE FINDLEY-WOLF
LAW OFFICE OF AMY MUTH, PLLC
1000 2ND AVE., STE. 3140
SEATTLE, WA 98104
22
NEIL M. FOX
LAW OFFICE OF NEIL FOX, PLLC
2125 WESTERN AVE., STE. 330
SEATTLE, WA 98121
ANTOINETTE M. DAVIS
NANCY TALNER
JAIME HAWK
AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION
P.O. BOX 2728
SEATTLE, WA 98111
NICHOLAS ALLEN
NICHOLAS B. STRALEY
JANET S. CHUNG
COLUMBIA LEGAL SERVICES
101 YESLER WAY, STE. 300
SEATTLE, WA 98104
CINDY ARENDS ELSBERRY
ALEXANDRIA HOHMAN
WASHINGTON DEFENDER ASSOCIATION
110 PREFONTAINE PL. S., STE. 610
SEATTLE, WA 98104
I certify under penalty of perjury under the laws of the State of
Washington that the foregoing is true and correct.
EXECUTED this 21st day of January, 2021, at Olympia, WA.
s/ Cherrie Melby
CHERRIE MELBY
Legal Assistant 4
Corrections Division
PO Box 40116
Olympia WA 98504-0116
Cherrie.Melby@atg.wa.gov
CORRECTIONS DIVISION ATTORNEY GENERAL'S OFFICE
January 21, 2021 - 4:26 PM
Transmittal Information
Filed with Court: Supreme Court
Appellate Court Case Number: 99344-1
Appellate Court Case Title: Personal Restraint Petition of Robert Rufus Williams
Superior Court Case Number: 07-1-03073-7
The following documents have been uploaded:
993441_Answer_Reply_20210121162454SC880739_0245.pdf
This File Contains:
Answer/Reply - Answer to Motion for Discretionary Review
The Original File Name was AnswerMDR-marked.pdf
A copy of the uploaded files will be sent to:
ali@defensenet.org
amy@amymuthlaw.com
changro@seattleu.edu
cindy@defensenet.org
ian@amymuthlaw.com
jackiem@uw.edu
jaimehawk@hotmail.com
janet.chung@columbialegal.org
jhawk@aclu-wa.org
kaylan.lovrovich@wainnocenceproject.org
leeme@seattleu.edu
levinje@seattleu.edu
natalie@amymuthlaw.com
nf@neilfoxlaw.com
nick.allen@columbialegal.org
nick.straley@columbialegal.org
pleadings@aclu-wa.org
talner@aclu-wa.org
tdavis@aclu-wa.org
Comments:
and Response to Amicus
Sender Name: Cherrie Melby - Email: CherrieK@atg.wa.gov
Filing on Behalf of: Haley Christine Beach - Email: haley.beach@atg.wa.gov (Alternate Email: )
Address:
Washington State Attorney General, Corrections Division
P.O. Box 40116
Olympia, WA, 98504-0116
Phone: (360) 586-1445
Note: The Filing Id is 20210121162454SC880739
Melissa Eckstrom
Respondent,
v.
Sigurd Hansen
Petitioner.
PETITION FOR REVIEW
Lafcadio Darling,
WSBA No. 29963
HOLMES WEDDLE &
BARCOTT, P.C.
999 Third Avenue, Suite 2600
Seattle, WA 98104
(206) 292-8008
Michael D. Helgren,
WSBA No. 12186
Matthew J. Campos,
WSBA No. 40777
MCNAUL EBEL NAWROT &
HELGREN PLLC
One Union Square
600 University Street, 27th Fl.
Seattle, WA 98101-3143
(206) 467-1816
Attorneys for Petitioner Sigurd J.
Hansen
FILED
Court of Appeals
Division I
State of Washington
812912018 4:27 PM
96259-6
i
TABLE OF CONTENTS
I. IDENTITY OF PETITIONER, CITATION TO
APPELLATE DECISION & INTRODUCTION ........................... 1
II. ISSUES PRESENTED FOR REVIEW .......................................... 3
III. STATEMENT OF THE CASE ....................................................... 3
IV. ARGUMENT WHY REVIEW SHOULD BE GRANTED ........... 7
A. Standard for Discretionary Review ..................................... 7
B. The Decision is in Direct Conflict with
this Court’s Precedent ......................................................... 7
1. This Court’s black letter collateral
estoppel precedent. .................................................. 7
2. The decision conflicts with this Court’s
precedent regarding when a minor
represented by a GAL is bound by the
outcome of a proceeding. ........................................ 8
3. The decision conflicts with this Court’s
precedent regarding the participation
and privity elements. ............................................. 13
4. The decision is contrary to this Court’s
precedent regarding the justice element
of collateral estoppel. ............................................ 16
C. The Decision Conflicts with a Published
Appellate Decision ............................................................ 18
D. This Case Raises Issues of Substantial Public
Interest that Should be Determined by this
Court—at this Time .......................................................... 18
E. This Court Should Apply Any Rule
Change Prospectively........................................................ 19
IV. CONCLUSION ............................................................................. 20
ii
TABLE OF AUTHORITIES
Cases
Beal for Martinez v. City of Seattle,
134 Wn.2d 769, 954 P.2d 237 (1998) ............................................. 12, 17
Bordeaux v. Ingersoll Rand Co.,
71 Wn.2d 392, 429 P.2d 207 (1967) ............................................... 13, 14
Christensen v. Grant County Hosp. Dist. No. 1,
152 Wn.2d 299, 96 P.3d 957 (2004) ....................................... 2, 8, 16, 18
Doe v. Corp. of President of Church of Jesus
Christ of Latter Day Saints,
141 Wn. App. 407, 167 P.3d 1193 (2007) ...................................... 12, 13
Feature Realty, Inc. v. Kirkpatrick & Lockhart
Preston Gates Ellis, LLP,
161 Wn.2d 214, 164 P.3d 500 (2007) ............................................. 14, 15
Guardianship of Robinson,
9 Wn.2d 525, 115 P.2d 734 (1941) ................................................ passim
McDevitt v. Harbor View Med. Center,
179 Wn.2d 59, 316 P.3d 469 (2013) ..................................................... 19
Nielson v. Spanaway General Medical Clinic, Inc.,
135 Wn.2d 255, 956 P.2d 312 (1998) ..................................................... 8
Quesnell v. State, 83 Wn.2d 224,
517 P.2d 568 (1973) ........................................................................ 12, 17
Robinson v. City of Seattle,
119 Wn.2d 34, 830 P.l2d 318 (1992) .................................................... 19
State v. Williams,
132 Wn.2d 248, 937 P.2d 1052 (1997) ............................................. 8, 18
Thompson v. State Dept. of Licensing,
128 Wn.2d 783 (1999) .......................................................................... 16
iii
Wagner v. McDonald,
10 Wn. App. 213, 516 P.2d 1051 (1973) .............................................. 18
Statutes
RCW 26.09.002 .............................................................................. 4, 13, 15
Other Authorities
(SECOND) OF JUDGMENTS, § 41 (1982) ....................................................... 9
FRANCIS C. AMENDOLA, 50 C.J.S. JUDGMENTS § 1116 (SEPT. 2016) .......... 9
Rules
RAP 13.4(b) ...................................................................................... 2, 7, 18
I. IDENTITY OF PETITIONER, CITATION TO APPELLATE
DECISION & INTRODUCTION
Defendant/Appellant Sigurd J. Hansen (“Father”) seeks review in
Eckstrom v. Hansen, Washington State Court of Appeals No. 76571-0-I
(published July 30, 2018) (“Op.”). The decision is attached hereto as
Appendix A.
The Court of Appeals announces a new rule breaking unbroken
Washington precedent: a minor may relitigate the central question of fact
resolved at a full trial in which the minor was separately represented by an
independent GAL, after the minor becomes an adult after and material
evidence has been destroyed. If this is to be the new rule, it should be
prospectively applied and should come from this Court.
More than 25 years ago—in the midst of a bitter and acrimonious
dissolution, and after making other false accusations against Father—
Respondent’s mother (“Mother”) falsely accused Father of sexually
abusing their then two-year-old daughter, Plaintiff/Respondent Melissa
Eckstrom (“Daughter”). The sole foci of the six-day trial in 1992 were to
determine whether the abuse allegations were true and to protect
Daughter’s best interests. To that end, the court considered evidence and
testimony from both sides, including from Daughter’s court-appointed
Guardian Ad Litem (“GAL”); the court-appointed independent expert (a
psychologist); and the social workers who supervised visitation – all of
whom believed the abuse allegations were false. The court also heard
Daughter’s testimony, through conversations between Daughter and her
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therapist and court-appointed independent expert. Judge Peter Steere
concluded that Father had not abused Daughter.
Daughter now seeks to re-litigate these same disproven allegations.
She alleges no new claims, offers no new evidence, and seeks the very
outcome rejected in 1992. The only difference now is that memories have
faded, evidence has been lost, and important witnesses are unavailable.
This Court’s precedent is clear that collateral estoppel “bars
relitigation of an issue in a subsequent proceeding involving the same
parties.” Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299,
305, 96 P.3d 957 (2004). This Court’s precedent is also clear that a minor
represented by a GAL at a proceeding is bound by the outcome. See
Guardianship of Robinson, 9 Wn.2d 525, 536, 115 P.2d 734 (1941).
This Court should grant review under RAP 13.4(b) because the
decision is contrary to this Court’s and the Court of Appeals’ wellestablished precedent and involves important issues of public interest. If
this Court does not accept review, the decision’s error will cause
irreparable damage to Father that cannot later be undone, even if a jury
finds again that he did not abuse Daughter, or if this Court determines later
that collateral estoppel bars Daughter’s claims here.1
1
By contrast, no harm will come to Daughter by this Court’s decision to accept
review beyond, at most, a modest delay in pursuing her already stale claims.
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Indeed, if the well-settled rules of collateral estoppel were to be
changed as the Court of Appeals proposes, this Court should apply any
such changes prospectively to future cases, not to this one. At the time of
the 1992 trial, the rules of collateral estoppel precluded relitigation of the
issue of whether Father abused Daughter. Because of this, Father relied
on the court’s finding of no abuse in not preserving critical evidence and
exhibits. It would be manifestly unfair to force Father to relitigate these
disproven allegations 25 years later when important evidence is no longer
available because of reliance on the then-existing law.
II. ISSUES PRESENTED FOR REVIEW
Should Daughter’s claims have been dismissed under collateral
estoppel where the same allegations underlying these claims were litigated
and rejected in 1992, after a six-day trial held to resolve the same issues, at
which the abuse claims were aggressively pursued, an independent expert
was appointed by the Court, a GAL was appointed for Daughter, and
where crucial evidence is no longer available?
III. STATEMENT OF THE CASE
Over 25 years ago, Mother became pregnant with Daughter and
she and Father married. See CP at 128-35. Mother filed for dissolution
shortly after their wedding. Id; Appendix B (“App.”) at 16. After Mother
made other false and disproven allegations against Father, Mother falsely
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claimed that Father had sexually abused Daughter. Id; CP at 382-86; 359-
380; App. at 41-45; 49-80; 92-105. The social workers who assisted with
Daughter’s visitation with Father expressed concerns—even before
Mother made these abuse allegations—that Mother would falsely accuse
Father of abusing Daughter to prevent him from having a relationship with
her. CP at 382-86.
Unfortunately, this prediction came true. Even though Daughter’s
pediatricians had never seen evidence of abuse, App. at 40, Mother took
Daughter to Harborview Medical Center and had her examined. Id. at
38. While the results of the physical examination were not themselves
indicative of sexual abuse, Mother falsely told the Harborview doctors that
Father had a history of abusing Daughter. App. at 38-40; 49-80; 92-
105. This false statement tainted the doctor’s examination and resulted in
a CPS investigation. Id. While Daughter made no allegations at the time
of her initial Harborview examination, see App., at 38-39, she later (after
more time alone with Mother) made statements that could suggest possible
abuse, though her statements were interpretable and unclear. Id. at 49-80.
The dissolution litigation focused on custody, which turned solely
on the issue of whether Father had abused Daughter (and Daughter’s best
interests, see RCW 26.09.002). CP at 128-35. The court appointed a
GAL to independently protect Daughter’s separate interests, investigate
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the allegations of abuse, and provide a report to the court. CP at 311-
13. The GAL conducted a 20-month investigation and concluded that
Father had not abused Daughter. App. at 81-89; CP at 128-35.
The court also appointed an independent expert (a child
psychiatrist), Dr. Dunne, to determine if Father had abused Daughter. CP
at 128-35; 359-80; App. at 49-80; 92-105. Dr. Dunne conducted
numerous interviews with the family including Father, Mother, Daughter,
and Father’s and Mother’s parents. Id. He concluded that the probability
that Father had abused Daughter was “extremely low.” CP at 130-31. On
the other hand, he found that Mother had significant psychological
problems, could have invented the abuse, and that there was an “extremely
high” possibility that Mother had influenced Daughter against Father. Id.
Judge Steere held a six day trial and considered evidence and
testimony from Mother (who aggressively pursued the abuse claims
through multiple attorneys), Daughter (through her conversations with her
therapist and Dr. Dunne), Daughter’s GAL, the treating physicians at
Harborview, the independent court-appointed expert, the social workers,
Daughter’s pediatrician, and others. CP at 123-35; App. 40. After
considering all of the evidence—and Mother’s motion for
reconsideration—Judge Steere concluded that Father (and Father’s
parents, whom Mother also accused of abuse) had not abused Daughter,
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and that the Court could not and should not terminate his parental rights.
Id. Had Judge Steere harbored doubt about Mother’s claims of sexual
abuse, he would not have upheld Father’s parental rights. Instead, he
specifically ruled: “Neither Sigurd J. Hansen nor Respondent’s parents …
sexually abused Melissa.” Id. at 131.
Because of the unfortunate but lasting impact Mother had on
Daughter’s perception of Father, and on the advice of professionals
working to repair the relationship between Father and Daughter, Father
voluntarily relinquished his parental rights on November 16, 1993, long
after the trial was over. App. at 106-108.2
In 2016, Daughter filed the instant lawsuit. Father brought a
Motion to Dismiss Daughter’s new action because collateral estoppel
precludes Daughter from relitigating allegations that were conclusively
determined to be not true after a full trial on the merits. CP at 96-102. The
trial court denied Father’s motion but granted his Motion for Certification
Per RAP 2.3(b)(4) and stayed the proceedings. Id. at 17-18; 83-85. The
Court of Appeals accepted review, but upheld the trial court’s decision in
violation of this Court’s precedent, and its own. See Op. at 9.
2
After Father did so, Father and Daughter did not have contact until 2010 when
Daughter was in her early twenties. CP at 450-60.
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IV. ARGUMENT WHY REVIEW SHOULD BE GRANTED
A. Standard for Discretionary Review
This Court will accept review of a decision of the Court of Appeals
if it is in conflict with a decision of this Court or a published decision of
the Court of Appeals or if it “involves an issue of substantial public
interest that should be determined by the Supreme Court.” RAP 13.4(b).
B. The Decision is in Direct Conflict with this Court’s Precedent
The decision correctly applied this Court’s precedent in finding:
(1) that the identical issue to be decided here—whether Father abused
Daughter when she was two years old—was decided at the 1992 trial; and
(2) that Judge Steere’s decision was a final judgment on the merits. Op. at
5. However, the decision conflicts with this Court’s precedent in holding
that Father had not established that: (1) Daughter was a party or in privity
with a party to the 1992 trial; and (2) no injustice would result by applying
collateral estoppel here. Id. at 5-9.
1. This Court’s black letter collateral estoppel precedent.
This Court has issued numerous rulings on the importance and
application of collateral estoppel. As this Court recognizes:
Collateral estoppel … stands for an extremely important principle
in our adversary system of justice. It means simply that when an
issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.
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State v. Williams, 132 Wn.2d 248, 253-54, 937 P.2d 1052 (1997). “The
collateral estoppel doctrine promotes judicial economy and serves to
prevent inconvenience or harassment of parties. It also implicates
important principles of repose….” Christensen, supra, at 306-07; see also
Nielson v. Spanaway General Medical Clinic, Inc., 135 Wn.2d 255, 262,
956 P.2d 312 (1998) (collateral estoppel “encourages respect for judicial
decisions … by providing for finality in adjudications”).
This Court has explained that the requirements of collateral estoppel
are: “(1) the issue decided in the prior adjudication must be identical with
the one presented in the second; (2) the prior adjudication must have ended
in a final judgment on the merits; (3) the party against whom the plea of
collateral estoppel is asserted must have been a party or in privity with a
party to the prior litigation; and (4) application of the doctrine must not
work an injustice.” Williams, supra, at 254.
2. The decision conflicts with this Court’s precedent
regarding when a minor represented by a GAL is
bound by the outcome of a proceeding.
This Court’s precedent is clear that where a person attempts to
relitigate issues subject to collateral estoppel, the fact that the person was a
minor in the previous case does not change the application of the doctrine
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if the minor was represented by a GAL.3
In Robinson, supra, this Court
addressed the application of res judicata to two minors whose estate was
represented by a GAL. Id. at 527-29. Originally, the minors were
represented by GAL Hussey. Id. But, Hussey sought to transfer his duties
to a new GAL, Terhune. Id. The trial court held a hearing on an
accounting of the estate, Hussey’s management of it, and the transfer of
his GAL duties to Terhune. Id. A separate GAL was appointed to protect
the minors’ interests in the matter and to provide a report to the court. Id.
After the minors’ separate GAL submitted his report, the trial court
entered an order discharging Hussey, approving his final accounting, and
approving the appointment of Terhune as GAL. Id.
After reviewing subsequent reports from Terhune, the minors later
claimed that the accounting filed with the court was false and that Terhune
should be removed as GAL. Id. This Court held that because the minors’
claims were based on the accounting accepted by the trial court (in
connection with which the minors were represented by a GAL who
3
Indeed, it is black letter law that “[a]n infant properly represented is bound by
an adjudication to the same extent that he or she would have been had all the
parties been adults.” FRANCIS C. AMENDOLA, 50 C.J.S. JUDGMENTS § 1116
(SEPT. 2016). And where, as here, a GAL is appointed for the minor, re-litigation
is barred by collateral estoppel and/or res judicata. (SECOND) OF JUDGMENTS,
§ 41 (1982) (“A person who is not a party to an action but who is represented by
a party is bound by … [it] as though he were a party … Such is the case in the
appointment of a guardian ad litem for a minor”).
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submitted a report on the matter), the minors were barred from pursuing
such claims. Id. As the Court explained: “All of the matters which
appellant now seeks to raise … could have and should have been raised at
the hearing.” Id.
Although, unlike Daughter here, the minors in Robinson never
participated directly in the previous proceedings or had the benefit of a
trial on the merits (or, indeed, any substantive review of their claims) this
Court held that the minors there were nonetheless bound to the rulings in
the earlier proceedings and were barred from relitigating issues that were
determined in those earlier proceedings. Id. This Court’s binding
precedent is clear: where a minor is represented by a GAL, the minor is
bound by the rulings of the court. See Robinson, 9 Wn.2d at 536.
The decision conflicts with this precedent in holding that collateral
estoppel cannot apply to Daughter because she was not a party to the 1992
case. Op. at p. 7-8. Daughter was represented by a GAL in connection
with the 1992 case on the subject of whether Father abused Daughter.
Daughter’s GAL spent 20 months investigating the allegations of abuse
(including conducting interviews of the parties and witnesses and
reviewing court documents and depositions) and provided a report to the
court that Father had not abused Daughter. App. at 81-89. Daughter’s
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GAL is the only person, other than Mother, Father, and their attorneys,
whom the court provided access to the sealed files. See CP at 232-33.
The Court of Appeals ignores this precedent in holding that
collateral estoppel cannot apply to Daughter because, according to it, she
was not a party to the 1992 case. Op. at 7-8. This holding is based on the
Court of Appeals’ determination that the GAL for Daughter did not have
the authority to accept service for Daughter or assert a personal injury
claim on her behalf and that, therefore, Daughter was not a party. Id. But,
Robinson did not hold that collateral estoppel depends on the scope or
context of the GAL appointment. See Robinson, supra, at 534-7. The
Court of Appeals’ analysis does not arise from Robinson itself. Id. This
Court should accept review to determine whether the Robinson holding
should be so limited, when on its face it is not.
Moreover, it is entirely irrelevant whether the GAL had the power
to perform those tasks at the time the 1992 trial occurred (though the
Court of Appeals is mistaken—the GAL was served with court papers and
was the only other person aside from Mother, Father, and their counsel, to
be given access to the sealed file). CP at 135; 232-33; 311-13. The
GAL’s duty with regard to the 1992 case was to protect Daughter’s best
interests. See CP 311-13. “Best interests” by any common sense and
legal standard means the GAL had a fiduciary duty—the highest duty—to
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do all that was necessary to protect the Daughter from harm. See Beal for
Martinez v. City of Seattle, 134 Wn.2d 769, 780-81, 954 P.2d 237 (1998)
(GAL has a fiduciary relationship with minor). Indeed, this Court has
approvingly quoted from another case that “it is the duty of a guardian ad
litem to submit to the court all relevant defenses or legal claims his client
may have.” Quesnell v. State, 83 Wn.2d 224, 236, 517 P.2d 568 (1973)
(citation omitted). The “best interests” order was not, as the decision
mistakenly concluded, a limitation on the GAL’s powers, but rather a
broad grant of powers to do that which is necessary to protect Daughter’s
interests. And, of course, a GAL can always take action to pursue legal
claims—if there is a factual basis—and may be duty-bound to do so. See
id. GALs can and often do pursue lawsuits, including personal injury
lawsuits, on behalf of those they represent. See e.g., Doe v. Corp. of
President of Church of Jesus Christ of Latter Day Saints, 141 Wn. App.
407, 420, 167 P.3d 1193 (2007).
As such, the Court of Appeals’ reasoning is flawed. It puts the cart
before the horse. To hold that there cannot be collateral estoppel because
the GAL did not file a claim for monetary damages ignores that a GAL
can take action to pursue claims for damages on behalf of those the GAL
represents, but that the GAL in this case did not, because the conclusion of
his investigation and the result of the six day trial were that Father had not
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abused Daughter. The Court of Appeals’ analysis confuses the GAL’s
decision not to seek to have a claim filed because the GAL concluded that
Father had not abused Daughter, with the mistaken notion, see Doe, supra,
at 420, that the GAL lacked the authority to do so. The threshold
question—which had to be answered before the GAL took any further
action—was whether Father had abused Daughter. The GAL determined
that Father had not abused Daughter and acted accordingly.
Daughter was represented by a GAL at the 1992 proceedings—the
focus of which was Daughter’s right to be free from abuse and Daughter’s
best interests, see RCW 26.09.002; CP at 128-35; 311-13—and Daughter
is therefore a party to that proceeding and bound under this Court’s
precedent by the court’s 1992 judgment. See Robinson, supra, at 536.
3. The decision conflicts with this Court’s precedent
regarding the participation and privity elements.
Collateral estoppel is established if Daughter was “a party [to the
prior proceedings], a participant, or in privity with either.” Bordeaux v.
Ingersoll Rand Co., 71 Wn.2d 392, 396, 429 P.2d 207 (1967). Collateral
estoppel is satisfied through participation because the rationale underlying
the doctrine is that “a stranger’s rights cannot be determined in his absence
from the controversy.” Id. Daughter was unquestionably a participant
in—and was certainly no stranger to—the 1992 trial. The allegation that
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Father abused Daughter was the entire focus of, and reason for, the trial.
See App. at 81-89; CP at 128-35. Not only were Daughter’s interests
separately represented by a GAL and an independent expert (as well as by
Mother and Mother’s attorneys’ advocacy), but Daughter participated and
offered testimony in the 1992 trial as her ambiguous statements regarding
potential abuse—including those highlighted in Daughter’s prior briefing
(as well as Daughter’s statements to experts, made outside Mother’s
presence, that her Father had not harmed her)—were admitted through
Daughter’s therapist and the independent expert. See e.g., CP 511-14.
Because Daughter participated in the 1992 proceedings, collateral estoppel
applies. See Bordeaux, supra, at 396. The decision fails to address her
participation and, thus, conflicts with this Court’s precedent.
The decision also fails to recognize that Daughter was also in
privity with Mother under this Court’s precedent. “A nonparty is in
privity with a party if that party adequately represented the nonparty's
interest in the prior proceeding.” Feature Realty, Inc. v. Kirkpatrick &
Lockhart Preston Gates Ellis, LLP, 161 Wn.2d 214, 224, 164 P.3d 500
(2007). Here, Mother and her attorneys vigorously pursued the allegation
that Father abused Daughter, retained experts, and called numerous
witnesses in support of their case during the six day trial on the matter.
See CP at 123-35. Mother and her attorneys could not have done anything
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more to represent Daughter’s interests (as she now asserts those interests
to be) at the 1992 trial than they did. Thus, under this Court’s precedent,
Daughter is bound by collateral estoppel because she is in privity with
Mother. See Feature Realty, supra, at 224.
The Court of Appeals also found privity did not apply because
Mother and Daughter’s rights were different—Mother’s right was to
prevent her Daughter from being abused and Daughter’s right was to not
be abused. See Op. at 8. But, even assuming that was correct—and it is
not4
—the decision fails to acknowledge that the privity requirement is met
because Mother adequately represented Daughter’s interests at the earlier
proceedings. See Feature Realty, supra, at 224.
The decision is also in conflict with this Court’s precedent, in
that—when applying the third criteria of collateral estoppel—the decision
used res judicata, not collateral estoppel, law. The decision states that the
“party” and/or “privity” element of collateral estoppel was not satisfied
because the claim for relief sought in the 1992 trial was whether child
abuse precluded custodial/visitation rights and here is whether that same
4
The focus of the 1992 trial was the best interests of Daughter, not Mother’s rights. See
RCW 26.09.002. Mother’s right to the relief she was requesting—termination of Father’s
parental rights—could only be granted if Father violated Daughter’s right to be free from
abuse and it was in Daughter’s best interests. Id. Mother had no independent right to
restrict Father’s parental rights. Id. Mother and Daughter thus had a mutual relationship
in the same right at the 1992 trial.
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child abuse should support a monetary claim for damages, Op., 7-8. But,
while the nature of the relief sought can be relevant to res judicata (claim
preclusion), it is irrelevant to collateral estoppel (issue preclusion) in
which the question is whether the same issue—not the same claim or
requested relief—is at issue in the two proceedings. Christensen, supra, at
306. The question is whether the GAL was appointed to represent
Daughter on an issue common to both lawsuits, which he was.
4. The decision is contrary to this Court’s precedent
regarding the justice element of collateral estoppel.
In determining whether collateral estoppel would work an
injustice, this Court’s focus is on procedural fairness—Washington courts
typically do not look to the substance of the underlying decision in
determining whether the justice element is satisfied. See Thompson v.
State Dept. of Licensing, 128 Wn.2d 783, 795-96 (1999) (“collateral
estoppel calls for an examination primarily of procedural regularity”).
“Washington courts look to whether the parties to the earlier proceeding
received a full and fair hearing on the issue in question.” Id. The
allegation that Father abused Daughter was thoroughly litigated. Daughter
had not one, but three advocates at the 1992 trial: (1) her own independent
GAL; (2) Mother and her attorneys; and (3) an independent child
psychiatrist. CP at 123-35. The court carefully considered all of the
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evidence over the course of the six day trial and concluded Father had not
abused Daughter. Id. Under this Court’s precedent, Father established the
justice element. Id.
The Court of Appeals held that the justice element of collateral
estoppel is not met here because Daughter “was too young to testify, too
young to understand the nature of the legal proceedings, and too young to
be aware of her right to pursue a tort claim.” Op., at 8. Yet, this describes
nearly every minor involved in a legal proceeding, which is precisely why
GALs are appointed to protect minors’ interests. Here, Daughter’s GAL
did so by thoroughly investigating the abuse allegations over the course of
a 20-month investigation. The GAL concluded that Father had not abused
Daughter. The GAL clearly had the “power to act for her,” contrary to the
decision, because he had a fiduciary duty to investigate whether the
alleged abuse had occurred and to “represent” her best interests. See Beal,
supra, at 774; Quesnell, supra, at 236; CP at 311-13.
Under this Court’s precedent, there is no injustice in holding
Daughter to the outcome of a proceeding where the same abuse allegations
being alleged here were fully litigated and found to be not true, and where
Daughter’s separate interests were represented by a GAL. The 1992 trial
established that Mother’s allegations against Father—like Mother’s
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previous allegations against him—were false. Justice is not served by
breathing new life into Mother’s false allegations.
C. The Decision Conflicts with a Published Appellate Decision
This Court should also accept review because the decision
conflicts with Wagner v. McDonald, 10 Wn. App. 213, 214, 516 P.2d
1051 (1973), a published decision. See RAP 13.4(b). The decision
conflicts with Wagner’s holding that a minor represented by a GAL is
bound to the same extent as if the minor were an adult. Id.
D. This Case Raises Issues of Substantial Public Interest that
Should be Determined by this Court—at this Time
Child sexual assault is a very serious matter of substantial public
interest. See RAP 13.4(b). The principles underlying collateral estoppel
are also “extremely important” and matters of substantial public interest.
Williams, supra, 253-54. Indeed, while Washington has a strong interest
in ensuring that allegations of sexual abuse are reviewed by the courts, it
has at least as great an interest in finality and repose after those allegations
are proven to be untrue. See e.g., Christensen, supra, at 306-07.
Certainly, there is a substantial public interest in whether res judicata
principles should effectively nullify collateral estoppel, as the decision
did. Much unnecessary litigation will be pursued until this Court rules as
to whether the decision is now the new rule in this State. Whether that is
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the new rule, should be addressed sooner rather than later. Balancing such
concerns is a matter of public interest that this Court should address.
Finally, this Court should address such matters now, rather than
waiting until the outcome of a second trial. Father has already stood trial
once on these ugly allegations and was exonerated. The decision would
force Father to stand trial for these disproven allegations yet again—this
time without much of the evidence earlier weighed—and with all the
attendant harm a second trial could cause. If the decision is not corrected
now, Father will suffer these harms—even if it is later found that the
decision is erroneous. Collateral estoppel is designed to prevent a second
trial. This Court should accept review now to timely decide these
important issues before further harm occurs.
E. This Court Should Apply Any Rule Change Prospectively
Washington law permits an appellate court decision to be applied
prospectively, and not to the case at bar, when clear past precedent has
been overruled and “applying the new rule to parties who relied on the old
would offend basic notions of justice and fairness.” Robinson v. City of
Seattle, 119 Wn.2d 34, 830 P.l2d 318 (1992); McDevitt v. Harbor View
Med. Center, 179 Wn.2d 59, 316 P.3d 469 (2013) (concurrence).
Even if this Court were to overrule its past precedent, retroactive
application of the new rule would offend basic notions of justice and
- 20 -
fairness. Father, his counsel, other attorneys involved in the 1992
proceedings, and the Superior Court, all relied on black letter collateral
estoppel law in not preserving important evidence from the 1992 trial and
critical evidence and records were discarded over time. See CP at 308-57.
Father and his attorneys rightly believed, under the then-existing law, that
the maintenance of such evidence was no longer reasonably necessary.
The decision fails to acknowledge, let alone address, the injustice of its
ruling as to Father.
IV. CONCLUSION
Father respectfully requests that the instant Motion be granted.
RESPECTFULLY SUBMITTED this 29th day of August, 2018.
HOLMES WEDDLE & BARCOTT, P.C.
By: s/ Lafcadio Darling
Lafcadio Darling, WSBA No. 29963
999 Third Avenue, Suite 2600
Seattle, WA 98104
T: (206) 292-8008 / F: (206) 340-0289
ldarling@hwb-law.com
McNAUL EBEL NAWROT & HELGREN
By: s/ Matthew J. Campos
Michael D. Helgren, WSBA No. 12186
Matthew J. Campos, WSBA No. 40777
600 University Street, Suite 2700
Seattle, WA 98101
mhelgren@mcnaul.com
mcampos@mcnaul.com
Attorneys for Petitioner Sigurd Hansen
DECLARATION OF SERVICE
The undersigned declares under penalty of perjury under the laws
of the State of Washington that on August 29, 2018, I caused a copy of the
foregoing PETITION FOR REVIEW to be served on the following in
the manner indicated below:
Lincoln C. Beauregard
Connelly Law Offices
2301 North 30th Street
Tacoma, WA 98403
Telephone: (253) 593-0377
linco lnb@connell y-law .com
mfolsom@connelly-law.com
Attorneys for Daughter
Dean Standish Perkins
•
•
0
Via Messenger
Via U.S. Mail
Via Email (Per
Agreement)
Dean Standish Perkins and Associates
119 1
st A venue South, #310
•
•
0
Via Messenger
Via U.S. Mail
Via Email (Per
Agreement) Seattle, WA 98104
Telephone: (206) 467-0701
dean@deanstandishperkins.com
Attorneys for Daughter
Melissa Eckstrom
Eckstrom Law Firm, PLLC
119 1st Ave S., Suite 310
Seattle, WA 98104-3429
Telephone: (425) 879-2700
melissa@eckstromlawfirm.com
Pro Se
•
•
0
Via Messenger
Via U.S. Mail
Via Email (Per
Agreement)
DATED this 29th day of Augus~/-201~, at S/tle, Washington.
\ ~ / ·~
Th~ Legal A:rsistant
- 21 -
3608-001 hh27fx08mg 2018-08-29
APPENDIX
A
July 30, 2018
Lincoln Charles Beauregard Dean Standish Perkins, JR
Connelly Law Offices Dean Standish Perkins & Assoc
2301 N 30th St 119 First Ave S Ste 310
Tacoma, WA 98403-3322 Seattle, WA 98104
lincolnb@connelly-law.com dean@deanstandishperkins.com
Lafcadio H Darling Michael David Helgren
Holmes Weddle & Barcott, P.C. McNaul Ebel Nawrot Et Al
999 3rd Ave Ste 2600 600 University St Ste 2700
Seattle, WA 98104-4011 Seattle, WA 98101-3143
ldarling@hwb-law.com mhelgren@mcnaul.com
Matthew J. Campos
McNaul Ebel Nawrot & Helgren PLLC
600 University St Ste 2700
Seattle, WA 98101-3143
mcampos@mcnaul.com
CASE #: 76571-0-I
Melissa Eckstrom, Respondent v. Sigurd Hansen, Petitioner
King County, Cause No. 16-2-12120-9 SEA
Counsel:
Enclosed is a copy of the opinion filed in the above-referenced appeal which states in part:
“We affirm the trial court decision allowing her suit to go forward."
Counsel may file a motion for reconsideration within 20 days of filing this opinion pursuant to RAP
12.4(b). If counsel does not wish to file a motion for reconsideration but does wish to seek review by
the Supreme Court, RAP 13.4(a) provides that if no motion for reconsideration is made, a petition for
review must be filed in this court within 30 days.
In accordance with RAP 14.4(a), a claim for costs by the prevailing party must be supported by a cost
bill filed and served within ten days after the filing of this opinion, or claim for costs will be deemed
waived.
Sincerely,
Richard D. Johnson
Court Administrator/Clerk
Enclosure
c: The Honorable Suzanne Parisien
RICHARD D. JOHNSON,
Court Administrator/Clerk
The Court of Appeals
of the
State of Washington Seattle
DIVISION I
One Union Square
600 University Street
98101-4170
(206) 464-7750
TDD: (206) 587-5505
2018 JUL 30 AM 8: 31
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MELISSA ECKSTROM,
Respondent,
V.
SIGURD HANSEN,
Petitioner.
)
)
)
)
)
)
)
)
)
______________ )
No. 76571-0-1
DIVISION ONE
PUBLISHED OPINION
FILED: July 30, 2018
BECKER, J. - Respondent Melissa Eckstrom has filed a personal injury
claim against her father, petitioner Sigurd Hansen, alleging that he sexually
molested her when she was two years old. At the time of the alleged abuse,
Eckstrom's parents had just been through an acrimonious marriage and divorce.
Eckstrom's mother accused Hansen of molesting the child, and the court was
called on to decide whether Hansen should be allowed to continue having
residential time with her. After a full trial in March 1992, the court found that
Hansen had not abused Eckstrom. Hansen asserts that the 1992 finding of no
abuse estops Eckstrom from litigating the present claim. Because Eckstrom was
not a party to the 1992 proceedings, the trial court properly denied Hansen's
motion to dismiss.
No. 76571-0-1/2
FACTS
Eckstrom's parents married in 1987 and separated about a month later.
Eckstrom was born in 1988. The marriage was dissolved by decree in 1989.
Under the parenting plan, Eckstrom resided primarily with her mother. Hansen, a
commercial fisherman who spent several months per year in Alaska, exercised
his right to residential time when he was in town. Then, in 1990, the mother
began to accuse Hansen of. molesting the child. Although Hansen denied
wrongdoing, his residential contact with his daughter was suspended by
temporary order.
Eckstrom was assessed by a number of professionals during the ensuing
investigation. Sometimes she made statements that indicated Hansen had
molested her. In other interviews, she denied that he had touched her
inappropriately. A court-appointed psychiatrist concluded there was no
convincing evidence to support the allegations of sexual abuse. A guardian ad
litem appointed for Eckstrom filed a report stating his opinion that Hansen had
not abused Eckstrom and recommending that his visitation with her be
reinstated.
A trial occurred in 1992 on Hansen's motion to resume residential contact
with Eckstrom. The court made a finding that Hansen had not abused his
daughter. The court provided for gradual reinstatement of his residential time
with her, under therapeutic supervision intended to overcome the estrangement
that had developed and to promote a close parent-child relationship.
2
No. 76571-0-li3
Efforts to reunite father and daughter were unsuccessful. In 1993,
Hansen relinquished his parental rights. Eckstrom's mother assumed sole
custody and control of the child.
Eckstrom grew up having no contact with Hansen. In 2010, she reached
out to Hansen and told him that she was planning to go to law school. She
asked Hansen to give her money for tuition and other expenses, which she
estimated as more than $250,000. Hansen told her that he would first want to
get to know her better. They attended a joint counseling session. They had no
further contact thereafter. Eckstrom went to law school and is now a practicing
attorney.
This suit began in May 2016, when Eckstrom filed a complaint against
Hansen seeking damages for child rape and molestation. Eckstrom claimed to
have memories of Hanse.n's abuse and said that she was prepared to testify
about her experience. Hansen denied liability and asserted the defenses of res
judicata and collateral estoppel. He moved for dismissal in July 2016 on the
ground that the 1992 finding of no abuse precluded Eckstrom's suit. The trial
court denied the motion but granted Hansen's request for a certification under
RAP 2.3(b)(4). This court granted discretionary review. 1
1 Hansen attached to his opening brief an appendix containing relevant
documents filed in the earlier superior court action. These documents, originally
filed under seal, were unsealed by the superior court in the present action of
Eckstrom v. Hansen. Although the documents are not part of the record in this
current case, the court was aware of their contents. See, ~. Clerk's Papers at
285 n.2. We grant Hansen's request to take judicial notice that these documents
are, in fact, documents that were filed with the King County Superior Court in the
earlier proceedings. That fact, supported by a copy of the court's docket, is not
subject to reasonable dispute. ER 201 (b)(2).
3
No. 76571-0-1/4
ANALYSIS
Res judicata and collateral estoppel are kindred doctrines designed to
prevent repetitive litigation. Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 395,
429 P.2d 207 (1967). Whether an action is precluded by res judicata or collateral
estoppel is reviewed de novo. Ensley v. Pitcher, 152 Wn. App. 891, 899, 222
P.3d 99 (2009), review denied, 168 Wn.2d 1028 (2010); Christensen v. Grant
County Hosp. Dist. No. 1, 152 Wn.2d 299,305, 96 P.3d 957 (2004).
We have little difficulty concluding that res judicata does not apply here.
One of the requirements of res judicata is that the two suits involve the same
cause of action. Williams v. Leone & Keeble, Inc., 171 Wn.2d 726,730,254
P.3d 818 (2011). These two suits do not. The suit between the parents
addressed Hansen's right to have residential time with his daughter, whereas
Eckstrom now raises a claim for personal injury damages.
The closer question is the application of collateral estoppel, also known as
issue preclusion. Pederson v. Potter, 103 Wn. App. 62, 69, 11 P.3d 833 (2000),
review denied, 143 Wn.2d 1006 (2001 ). Collateral estoppel prevents relitigation
of a particular issue in a later proceeding involving the same parties, even if the
later proceeding involves a different claim or cause of action. Pederson, 103 Wn.
App. at 69. The requirements of collateral estoppel are: (1) the identical issue
was decided in the prior action; (2) the prior action resulted in a final judgment on
the merits; (3) the party to be estopped was a party or in privity with a party in the
earlier proceeding; and (4) precluding relitigation of the issue will not work an
injustice. Williams, 171 Wn.2d at 731. When the elements of collateral estoppel
4
No. 76571-0-1/5
are met, the doctrine serves to prevent inconvenience or harassment of parties
and provides for finality in adjudications. Christensen, 152 Wn.2d at 306-07.
The factual issue to be decided in Eckstrom's personal injury claim is
whether Hansen sexually abused Eckstrom during the same time period as
alleged in the 1992 proceeding. In the parenting plan trial in 1992, the trial court
was presented with the identical issue and decided Hansen did not sexually
abuse Eckstrom. The result was final judgment on the merits permitting Hansen
to resume residential contact with his young daughter. Because the first two
elements of collateral estoppel are satisfied, we must consider the third: whether
Eckstrom, the party to be estopped, was a party or in privity with a party in the
earlier proceeding.
Eckstrom was not a named party to the earlier action. The caption of the
case was "In Re the Marriage of Lisa Dawn Hansen, Petitioner, and Sigurd J.
Hansen, Respondent." Hansen argues that his daughter was nonetheless
"effectively a party" because a guardian ad litem was appointed for her.
Hansen cites Guardianship of Robinson, 9 Wn.2d 525, 536, 115 P.2d 734
(1941 ). Robinson exemplifies the general principle that a minor represented by a
guardian in an action is bound by the resulting judgment. RESTATEMENT
(SECOND} OF JUDGMENTS§ 41 (1982).
Robinson was an estate dispute. The George Washington Foundation,
' serving as guardian of the persons of three minors, petitioned for removal of
Robert Terhune, who was then serving as guardian of their estates. Robinson, 9
Wn.2d at 534. The trial court dismissed the petition, and the foundation
5
· No. 76571-0-1/6
appealed. The foundation argued that the trial court should have removed
Terhune because Terhune had allegedly filed a false final account overstating
the cash on hand when he took over from his predecessor, who had resigned.
At the earlier hearing on the final account, the foundation did not choose
to appear though it had notice. The minors were personally served with notice of
the hearing on the final account. A guardian ad litem was appointed "to appear
and represent their interests" at the hearing. Robinson, 9 Wn.2d at 528-29, 536.
The final account was approved, and no appeal was taken. Robinson, 9 Wn.2d
at 529.
The Supreme Court ruled that the claim of false reporting was no longer
available in the second proceeding as a ground for removing Terhune because it
could and should have been litigated at the earlier hearing on the final account.
Robinson, 9 Wn.2d at 536. The minors were held to be bound by the previous
order approving the final account. Robinson, 9 Wn.2d at 536.
Hansen argues that under Robinson, whenever a guardian ad litem is
appointed to protect a minor's interests, the minor is bound by the rulings of the
court and cannot relitigate the issues resolved by those rulings. Robinson does
not support stating the law so broadly. The effect of the appointment of a
guardian ad litem depends on the type of case and the authority given.
The Marriage of Hansen case, King County Superior Court cause number
87-3-09135-3, was a domestic relations matter. The order appointing a guardian
ad litem for Eckstrom in 1990 provided that the guardian ad litem "shall conduct a
reasonable investigation of the circumstances of the child in relation to Parenting
6
No. 76571-0-1/7
Plan matters and shall, in that capacity, represent the best interests of the minor
child."2 The order did not authorize the guardian ad litem to receive service of
process for Eckstrom or to assert claims and counterclaims on her behalf.
Nothing in the terms of the order of appointment authorized the guardian ad litem
to act for E.ckstrom so as to make her "effectively a party" as Hansen contends.
Even if the guardian ad !item had concluded that Hansen abused Eckstrom, he
did not have the authority to pursue a personal injury claim on her behalf. The
guardian ad litem was appointed to represent Eckstrom's interests only in
connection with the pending decision on whether her father should be allowed to
have residential time with her. This concern is immaterial to the present suit.
In addition, we find no authority permitting collateral estoppel to operate
against a minor who is represented by a guardian ad litem in an earlier
proceeding when the minor's interests in the second proceeding are not the
same as in the first proceeding. In Robinson, the foundation was asserting the
minors' interest in having their assets handled honestly. The exact same interest
was at stake at the earlier hearing on the final account. Here, the interest now
asserted by Eckstrom is to receive monetary compensation for the damages she
has allegedly suffered as the result of Hansen's conduct. This is different from
the Marriage of Hansen matter, where her interest was in being protected from
sexual abuse, not in receiving compensation.
2 Clerk's Papers at 113-14. ·
7
No. 76571-0-1/8
'l
We conclude that the appointment of the guardian ad litem did not make
Eckstrom a "party" to the dispute between her parents for purposes of collateral
estoppel.
Hansen next contends that Eckstrom, if not a party, was in privity with her
mother, who was a named party to the adjudication in Marriage of Hansen.
Privity denotes a mutual or successive relationship to the same right or property.
McDaniels v. Carlson, 108 Wn.2d 299, 306, 738 P.2d 254 (1987). Eckstrom's
mother was pursuing her right as a parent to protect her child from abuse.
Eckstrom did not have that same right. As a child, she had to depend on others
to protect her. And Eckstrom did not succeed to her mother's rights as a parent.
Eckstrom is pursuing her own distinct right as an adult to sue for personal injury
damages. The requirement for privity in collateral estoppel is "strict." McDaniels,
108 Wn.2d at 306. We conclude Eckstrom was not in privity with her mother.
The fourth requirement of collateral estoppel is that precluding relitigation
of the issue will not work an injustice on the party against whom the doctrine is to
be applied. McDaniels, 108 Wn.2d at 303. Washington's case law on the
injustice element "is most firmly rooted in procedural unfairness." Thompson v.
Dep't of Licensing. 138 Wn.2d 783, 795, 982 P.2d 601 (1999). It would be
procedurally unfair to Eckstrom to bind her to the outcome of an earlier
proceeding that occurred when she was unrepresented by anyone with the
power to act for her in litigation. At the time, she was too young to testify, too•
young to understand the nature of the legal proceeding, and too young to be
aware of her right to pursue a tort claim.
8
No. 76571-0-1/9
As noted by the trial court, the injustice of precluding Eckstrom from
bringing her own suit is underscored by the public policy of RCW 4.16.340(1).
The statute provides "a broad and generous application of the discovery rule to
civil actions for injuries caused by childhood sexual abuse." C.J.C. v. Corp. of
the Catholic Bishop of Yakima, 138 Wn.2d 699,712,985 P.2d 262 (1999). It
recognizes that victim~ may for many years "repress the meaning of the abuse or
be unable to connect the abuse to any injury." C.J.C., 138 Wn.2d at 712-13.
We conclude Eckstrom is not collaterally estopped by the earlier finding
that Hansen did not abuse her. She is entitled to her own day in court to try to
prove that he did. We affirm the trial court decision allowing her suit to go
forward.
WE CONCUR:
::ii
9
APPENDIX
B
- 23 -
APPENDIX B1
Custody and Visitation Report by Michele Gregg,
dated January 20, 1989 ..................................................................................................... App. 1
Decree of Dissolution,
dated June 30, 1989......................................................................................................... App. 16
Harborview medical record,
dated July 8, 1990 ........................................................................................................... App. 32
Declaration of Elizabeth Stanton,
dated July 10, 1990 ......................................................................................................... App. 33
Harborview medical record by Mary Gibbons,
dated July 23, 1990 ......................................................................................................... App. 38
Letter by William Forney,
dated September 20, 1990 ............................................................................................... App. 40
Declaration of Elizabeth Stanton,
dated September 25, 1990 ............................................................................................... App. 41
Letter by Lynda Bridges,
dated November 5, 1990 ................................................................................................. App. 46
Psychological Evaluation of Sig Hansen,
dated November 19, 1990 ............................................................................................... App. 49
Psychological Evaluation of Lisa Eckstrom,
dated November 19, 1990 ............................................................................................... App. 53
Psychiatric Assessment of Melissa Eckstrom,
dated November 26, 1990 ............................................................................................... App. 57
Letter by John Dunne,
dated January 16, 1991 ................................................................................................... App. 80
Guardian Ad Litem Report by Victor Larson,
dated February 10, 1992 ................................................................................................. App. 81
1
The documents included in Appendix B were submitted to the trial court and Court of
Appeals and were encompassed within the Court of Appeals’ ruling taking judicial notice of such
documents. See Appendix A at p. 3, n. 1; Petitioner’s Motion for Judicial Notice filed on
August 9, 2017
- 24 -
List of Exhibits,
dated March 19, 1992 ..................................................................................................... App. 90
Supplemental Psychiatric Assessment of Melissa Eckstrom by John Dunne,
dated January 14, 1992 ................................................................................................... App. 92
Petition for Termination of Parental Rights,
dated December 17, 1993 ............................................................................................. App. 106
Order on Defendant’s Motion for Sanctions,
dated May 4, 2017......................................................................................................... App. 109
Stipulated Order on Fees Pursuant to Order Denying Motion to Compel,
dated June 16, 2017....................................................................................................... App. 112
3608-001 hh292r08k5 2018-08-29
App. 1
1H THE SUPERIOR COURT or TF.E STATE OP WASHJHGTON
['OR Knm COUNTY
FAMILY COURT SERVIC~S
Mother
ANb
Father
Re: Welfare of the
Minor Child
HO, 87-l-09135-3
FJ\MlLY COURT HO.&B-559 l
CUSTODY AND VISITATION RE.POR't
Melissa, ~.d, 4-22-88
This n,,tter wtis refen:ed t.o r'ami}y court Services in an 1::.r.der
signed by commi1:1!llonec Velate•;HJ,i 0:1 9-6-88. The
received for investigation by this worker on Ja a trial scheduled on the matter for 2-ZJ-89.
Lisa Eckstrom Jtansen, age 22, Is the natural tuother of Melissa,
age 9 rnon ths. Sigurd Hansen, age 22, is the alleged fathex, soon
to be deterrnined by results of blood test•. The partif'!s wore
mar.ried on 10-23-87 and separated on 11-24-13-7. A review 9f the
legal file indicates the following:,
1. tn an (Jt::der signed by Comrni$sioner V¢lategui on 9-6-88, thf!
mother- was awan.l~.a te.w.p,onn:y cust:oay of Melissa. The court
orde:r:ed that \./hen the father is in Seattle, rl(! shall bave
visitation w:ith Melissa t;.o times pnt: week, one vi,sit for
one' hour and the other visit fot one and on,; half hours upon
,a hours not:l.ce to the mother of his intent to e::q}tcise
vii,itaticn. Th-,, mother was ordered to cooperate to insure • aid visitation takes place.
2, The court further ordetej that ~hen the father is out of the
area that the paternal graLdparents may exercise visitation
w.ith Melis.sa in the mother's hot:1e subjBct to the cond.ltion
th2t the paternal gtat,dP1othe:: attend Alanon meetings 1 wo times per week pending further order of the court. ll the
p2ternal grano~1are1, ts comply "-'1th the al::ove condi tfon. they
may Lava visitation with their granddaughter two times per
week in the rnothet '::; home, one vis l t foi: one hC•'Jr; the other
for one and one half hours,
3. On 11-29u8g c,_,mmfasioner Velnte;mi ordered that both parties
sub.r,it Uvems~lves and Melissa for blood testing regardin9
par:enta~e.
!.b.1e~QJ'.~ruLr~!;.QI11mr:ndru:'J. (,t)f; a_r:.r: ba 5i':d umrL.tlt.e fo:! 1o .... 1_pg,,;_
l. Rev,ie,w 0f inforIDat I.m, L,rn1s cubrnittee b:' the mcthet and th0
father.
3. Review of the legal file.
4. Review of re1,;:,rts
a. 9-36-88 dr~g/~lcohol report regardjny the fLth~r by
Stilt ley E. tettett.on, CCD".:' H), rfo~;_s case ll:li!tiage:.
App. 2
HA.NStN REPORT
PAGE 2
b. Par:mer's Insurance report regarding father's ll-19-87
accident.
c. Letter of J -U-8.9 to roe from Jst;,rgatet Doy].1;1' FH:ipatrick
regarding the pat~rnal qranarather's boat.
d. M,:mntlake Terrace police reports dated S-19-Bfl; 9-25-
BB; 12-4-881 and 12-10-88.
5. Office intervie1>.•1;: on J?.--7-3$ with the mother; 12-H-88 \.lith
the father; and 1-12-89 with the rr1other.
£. Home visit::: oi1 J2-19·'BS with thi.:! paternal gr1n1dparent:;; 1-4-
89 'n'ith the fat:ht1r; and 1-7-89 with the mother and Melissa;
1.-7-SS with the :maternal grandrnothei:; atid 1-7-E:l with the
father and Melissa,
RE: MOTHER
The mother: was inlt ir.ll)' interviewed on 12-7-88. J.'he mother
states she was told by a gcne:tic specJaUst that tbere was a 99%
chance the father is not the father. 2'he b~by does not look
anything Hkc, th1;, father. He it very pale ti_mi the baby is
darker. The pecents dated foe two years pc1cc ta marriage'.· The
fath~r, a corn,neccial fisherman, is :in Ahs!-;a most of the time.
Mtei: an aigument with the father, the motbo.r sle:pt w:itb a man named Bi..11. Sha ilnd Bill were friends for four years. Melissa
lock;; like BilL Bill know;; he might b~ th£ father and he's
really excited about it.
'.l'he father has seen Mt1liGsa ,;;mly five to seven t.itnes. He has
supervised visitation because he's violent. He beat the mother
up several. tir.1es. After: the mother- i.'ln<l father were marr Jed, they
went to HawaH for two weeks, ht Baw!.lii the mother rarely sa,-,
the father and wi'Hin she did he was drunk, passed ot.tl: <Jt: thto1,dng
up.
The mother: states she ha:;; caUed the Police several times because
the father threatened to k.Hl her and to have someone l:;101-.• her
away. On one occasion, four months c>!:lo, the father broke into
her horN!, pushed 'her back and grabbed M.~lissa. MeLisaa 'h'as
bruised on her ribs. The father also i:i[:,1,rid the telephone ?ilt of:
the 11an. When the father beat the mother, he has given her
black eyei, and bl~,ody noses. 'l"he ;11,,t;her left the father becau:Je
he wan tea he.c to have an ab::n: tion and i:,.ecau$e he beat her.
The rnothec states the father is a drug addict: and alcoholic. Bhe
has seen him use rnar ijuana and cocv.ine. The father iz a chain
smoker, The father ddnks all di'!Y. The father has told tne
mothet !:.ha.t on his \.'<!)' to iUaska. he drops off drugs. The mother
states she 1foes not U$C dn1gs or alcohol with the· e:<ce1>ti.011 of one or twn sips of an alcoho!.ic beverage. She has an a1.:.e1•9ic
reaction to alcohol.
1'he mother further ::tates that the ;,atenrn.l gnmclmothet: mnokes
like a fiend, 'rhe inother has seen the pate--:ti:.1 grandrrv:,ther drunk
se,•eral times. The hmne of l he pc, tern;;,J r:undparcii ts is filthy.
The pat.em a) grandfather beat up the mothiJ:t' s sist;er · z mother~ inlaw. The father's yo1,.U1gdst htotIH:'r. is a Jmown drug addJc t. The
patenial gi:andhther is a knmm hrawh.r in !lallard. lltt "t,ariqs
out" at 1
;he Smokr::· Chop and Hattie'tr Hat. "'J'h('Y Hvc in U,cse
bars•·. ~'rhoy al,:, hate nie so I'm si.t:.e they ha1e ~he baby." N!lis
mom sah'l they'd put u knH£: to my thrn3t.". The moth12r reports
the patcrn.:il gr:<'}t1d111ot;lier also toJd her to abort H,t b11by.
App. 3
H7'.NSEN REPORT
PAGE 3
The mother states that when the father visits Me.Hssa, het mother
11nd sister su-pervize the v.isits. Melissa is aft:a,i,d oft.he
father. The father; does not look at Melissa, whim he cornea to
visit. "Be Hghts with me the whole time".
'lf the father is the father, the mother believes ttis contact witb
Melissa should alwil,ys bf! cruper;,ised. The rnothet does not want
!4e1Jssa z.t the honHi of the pat:ci:nal grandparnnts. Tho mother is
afraid Lhat the father and his paunts will take Malissa a.rid m:mcl
her to }b:rway. The father and paternal gr.andrnother told bg,r that:
the father and his fornH~· stole a baby from a mothiu: and helped
other pe,;p'.le take it to >Iorway.
In the ,nH:>thec' s parent questionnaire t~ceived i,n Family Court:
Service on 12-7-SS, the mother makes the followi11g additional
aUegatfom,;
) . The father-' s boat was taken away for a dr1J9 check.
2. The father has many PW!' s.
3. The fathet has insurance fraud charges pending from November
27 -
4. The father slept all day, threw up a:J.1 over everythJ.ng all
the tirne, ah,iays disappeared for day:; at a time, on drugs
w1th his friends.
5. The father likes to hit c:hHdren at the blink of fin eyelash.
ti. The father's family a.re all violent. !hey $nioke " lot, <lo
drugci a11d dr i_ni,: a lot. Their home is dangerous a:nd unsafe.
They have never wanted anythi111;r to do with his baby. ,
BB: F/'SHER
Th!?: father was foitially it1terviewed in this
When he is in town, the father resides with
grandparents.
The father believes he is the father bec;;use he doesn't think the
rnother was the tY!:_4i of person to "go out and fool around". · ..... 'the f!'lther is afraid the mother and her family will turn Me liss,a
against him. He believes they're sick. 'j.'hc father complains
about the fact tna t: the rnotbet refosed to Jet him take video
p;ii;::ture~ c,f Nelhaa, The father has not had wuch contact with
t-lelissa, When he calls the 1Tiother to schedule visits, she says
he's harassing hec or. one occasion, the: mother's mother and
sister s~id it was child abusa because he held Melissa and she
"''as cry in9 .
The rather :ls a cub fisherman and is gOM 7 - 9 months pee year.
Re is alway& home at Christ:-i1as time. Tbe sec•~nd season bf!gins
,January 15th ana lasts until approxitn;,itcly May. The father is
usually ho-roe in June and ,July._ He ·sometimes is gone in Auqust.
The father thinks that when be' s hon•t:: I he slwuld be able to see Me:H.ssa m,:;,re often. Wllen Melissa ill old enough, he ,..an\:s to have
her, for weekends.
'fhe fataf':r states that when he is fishing he dd.nks no alcohol.
H~ states he doi;:,s pot use Illegal drugs. ~ Alaska has a o
tokram:::e level for drugs~. People 1,>J,o l;iae drtJgs or <lr lhk otJ the
father's boat are sent bav;k. "H's a l\1011e)' max.i.ng boat. we're
not up there to screw around*. The falhec states that it '9 rare
that he J.r,.;ves the boat to Qt) into Dutch Harbor.
App. 4
HANSEN RE:POR'!'
Pl!!GE 4
When the £<1th er was home, be would go o\lt ,md have two to three
drink• with fr ienclrr. Be's had no PWI 's or other ;urests, '!'he
father states that his father and two brothers (a9ea Zl and 161
do not have problems with dr01;,s ,:n;d alcohol. He bas no aunts,
uncles, or grandparents with drug or alcohol probl~ms. The
father states that the mother does not dcink ver.y often and that
she uses no dcugs.
When 2iskec'l i.ibout the 1T1othcr • s parentJng .. biJ Uy, the father said
"1 haven't really seen het be a rootber, 1 don't think sbe' s a good m9lJ1c-a:· because r don't th int :::be.' s tr;e:;:,,:ting Yt¢Hs:1a as a person. She is tr.eat.1)ig her: ;'!S a doll". For example, li'hen
J•',eHss~ was a couple of months old, the niothec pierced Mt!lissa's
eats. Th,e father complains the mother spoils Melissa. She
wot des about silly things i.e. "1
,"1:1etner ther baby w:Ul be prntty
enough". When asked why the p;,,re,nts separated, tbe father
r,e,,pondeo that ona time when the panmts argued, he 1 eft. "i
like to drive ar.otrnd and think. '' The mother "calls her mothsit sa1·Jng things lik~ 'Re's left o'-dhin, makintJ a soap cpcrn out of
it and she starts believing it bacself.' 0
When f!ske:d about the mothl;\r • s statc1rn,mt that the father :md his
i'arnJ.ly helped kidnap and seru1 the baby tc, Nor,..•ay, t}1e futher said
lvz. thinks C:lsie, the mother's c1t1nt, p-;;r tici p~ted 1n the
kidnapping of the baby, When ask~td about the mother's statements
that he htjd bBen violent towctrd her, the father stated that on -onn occasion, the parents were ,tgulng in t:he car .and he slapped
the mnther ac::oss the face. Thi ti occurred prior to the maniagB.
When asked about the mother's statement that; he broke into her
house, the, father responded that he i.ws on time for a vis It .;mo
"I wB.sn' t ,;Jc)ing to let this brat tell me what tc:i do. 1 walked
in". The mother: started screaming for hiw1 to gGt out. lie left
and she then called the police.
on one oc~!auion, when the father; came for a ,;isit, the mother was angry ab-0u t some leg<ll papers ana said he couldn't come in. 'f:he
l;.st time the father went for a visit, the mother $i'lio his mother was a "flicking bitch" so he left, The fathei; states he t,as not
threatened to kill the mother1 that he did not grab and bruise
Melissa, and that he has not given the mother biack eyes ot
blt;<;i<ly t1oses, When asked if he bas eve:r used coct>ine, the father
responded "no''. The father states the only time he hasc ever: seen his ;itother di:-ink v"w at his ¼£:doing. 'l'he father desires that
Melissa spend half of her time w.ith him a.nd his family when he's
in town. !le would also like Melissa to spend time vi.lth his
family while he is fishing. He desires to have MeU.ssa on Decemher 24th.
I intervie~ed the father in the home of the paternal gcandparents on l-4-8~. 'r.'he fatter.view was scheduled on 1~3~89. The home
appeared clean and tmclvttered. on that date, the fa.thet to,id me that when he visited Mc1Jssa in the i,1othcr 's home. ln
appr.:o:dmately mid-octobar:: 1988. tbe mothec's mother and sir.ter were pre:sent. Someone checked HelJss;i ,tnd she ncedi;,d tc, bB:
chsangeil. 'th~ father sajd hi! •,rn.hted to change. her. 1'hc r:iother
said "No, so::r:y, you'd !,)rob-ably play ,dth her".
'l'hc J:a U1er 's parents ;,•ere t,,_,rn fn K;:irmoy, lllori.'.:;y. The fa U,er was
born in the United States and is Huen t in both ll).t1gt1agev. When
the father was younger he went to Moi::-way every ti..o to thr"e
years. !?'or the past th1·ee : eai;s, he has gone to 1lo::way every
year because h;ls granrlr,2iren,,t. ,ffC: getting old. the father otat.es
that May 17, Norwegian Independence Day ls "a bJg deal" in th~
fiorwegian culture. He ;,•;mts !:o be abJ~ l:o take l-¼eJiss.:1 1:o the
pu;.de in Ballard on thut date, When MeLissa is old enc,ugh, the
App. 5
RAJHlf.N REPOR2"
PAGE 5
father wants to be able to take her to Norway, lie also uants her
to learn to speak the Norwegi.ari la11g1.iagc. Re further wants to
have her on TJecei,1ber 24 Lh bccatLSe trw t • s ¼'hen }1or.-'egia.ns
celebra\;I?) Chris:tmas. The father b'Jlieves that when he returns
home from fishint:L H: will take a •,Hiile for Melissa to get used
to him again. :rbe father remembers his father bein9 gone for
Hve months at a time. 1t took him a while to get used to his
hther when he returned. The father states that it's now easier
foe fisherman to visit lx!:cause th1l!Y can fly home.
rf the father Pttrchases a home, he wonts Melissa to become
reac,:ciuainted with Mm at the home of the paternal grandparents.
•1 want to be fair with her, I don't want to cause her mental
confusion".
The father states the maternal qrandi:1other smokes. He harm• t
seen her: smoke .lround Melissa and he appi::eciates that. The
[&ther states that he and hls parents won't smoke around Melissa.
Melissa is an alert, appealing, nine nw:mt:h old child. She was observed with her: ,nothei:: at the ho:me or her: mother and with her
fath~r in her bedroom at the home of her mother. Ber mother
keeps her impeccably groomed and in ftilly cmtfHs. Th<;) mother
is very cautious regar;ding MeJissa's aoifety, She has !ili:lnY age
appropdate toys available for her, the mother was pl1ys kaUy
affectionate with Melissa.
1 bad requested of the mother that I observe the father with
MeHssa in Helisva • :1 be.dro-om. Shortly af-ter the father arr h•ed,
the mother told t:he father he coula take r,t;:;lissa into the
bedroom. The father waited a few minutes bef<,re doing so,
,.ppa:cently to be assured that t·lelissa was C•!llfortable with his
picking her up. During tha observation, Melissa appeared
cornfor table w;i th her tather. arid he wHh her:. :n,a father was careful regarding hec sa.fety. He as a i'fectiona.te with Melissa
and all observed father daughter action was appr<.,ptiate. wh:Ue
Melissa explot:i1:d her environwent, the father gtated "I just love
watching her".
•rh,e. patl';.rn21l grandparents "'ere interviewed Jn their: ht.'lne ott lZ19-SB. 'rhe home was clean and orderly. '.l'he p,aternal gr,mdmothot
stated she saw MeHss;:i for ten minutes when Melissa was three
weeks old_. at th1:1 home of the maternal aunt. the pate:i:nal
grandmother picked up Melissa and asked some q11estions abot-1!; her:
but the mr:,thei: did flOt answer. Thu paternal grandmothe:: states
she can't go back there. "They sat and starnd at me. 'l'hey
didn't say hi, I felt like a c:: iminal''.
After the par;;;ntz returned home from Ba1Jta.Li, the_ 1nother w¢rtt to
stay with he::- m<:>tber for approx.i1n;-1tely :five days and thB father
went to his apai: tment. The f)arentr· then both res iaed in their
apartrn1;:nt. The l'.'aternal 9rartdmother visited them at their
apartment and they :scem-ed to be fine.
The paternal grand!!lothet stat!:!s she's riever seen the fa.thee drunk
and that she never had any problews with him. He w;;is an averaoe
st:mknt. The father ls the oldest of three sons.. 21 ycnr oldtkir:rnal li vu at home and wot ks as a mech,mic. 18 Yenr old Edgar;
is till senJor in high .i:;chool. The paternal grandparents state
none of theJr !;ort,:; have hel.'ln an:e;,;tt?rL The patern.il 9randfuthei:
statt'G h,: does not il:Uow drinklng ot drug:;; on his b-o;,it. He bas
his ei11pJ oyees ld 911 n contract £::taling th<i!Y won't 1,.!0C al t"'l•h01 or
App. 6
HMlSEN Rt?ORT
PA.GE 6
dn1g::; on the bo.:iL 1'he pate:rn.iJ g:r;:indf.:lthei:- states he's had
thre¢ DWis in the past thirty years, the last one being ten ye;,,rs
ago. He states he's had no alcohol foe the last l 1/2 months
because ol a borderline diabetic condition. HJs physician
aovi.sed hiw, he. t.<;)U]d have a couple cf drints now nnd then but he
hasn't. Thi; paternal gr;,ndrnnther st.:ite.s she t1asn' t gone to
Alanon meeting"'. orJginalJy she 1J<1.id she would 90, but does nol
believe there ia a need foe it.
'..!'he paternal gra:;pj111ot.her states she dio r1Qt ca] 1 the mother: a
"fucking bitch'', ~she sald '1 don't want anything to do with you
guys'. I star tea to cry. That's when she said ! swore at her."
The TI,aternal grandmother states thllt she does net dr irik. When
asked about the mother's statement that he had be1ten up the
1w::,the1:' s :;,i ster 's mother-in-1 aw, the pa tern al gra,ndfathcr
responded that "·the wom2n js a bartender at R.itti.e' s }iat. Me and a friend had a couple of beers ~t Hattie's Hat, She said hi.
went ta lhe next bar. hater she and her husband came there. was three sheets to the wind. She laid a picture of the baby on the bar. Her husb.c1nd pulled m~ off the back of the bar stool.
There "tJil.S ;i_ i::m:\rns, 51'.m\ebody slapped her aci:oss the face, t
did11 't ~.
'The paternal gron<lparents state that, as an adolescent. the
father babysat friends' children and was popular as·a babysitter.
':!:be maternal gr<lndmother st;;tes she: has known the father three
years and ha.s seen him drunk many times. Srw has seen the father
grab the mother by the arms. She observed many verb1l threats.
The moth et c,1Hed her from H;i•,,.ai i , crying and upset., The father
J. e ft the m-0tt1er for t;.10 to th.: CJ:J, days at a time.
Regatdin9' l:hc father's visitation, the maternal grandmother
st;,tes, "He's been :fine as long sis somebody hl'JS been there." The
matetMl g1:andmother is conc{;tne<l about the f/ith1;;r having
unsui;H:la:vised cc,ntact. '.l'he father has two porsonalities. He is one person in front of hi.s father because he is scared of his
father. The maternal grandmother then stated ''l 'm sure he
'W"otildn' t hu::t the baby,'' She then staited she would hate foe the
father to ha'-'e }"ielissa in his own apatbilent r:!j;gUlatlY, "lir.:'s
drunk most every da.y of his Uf.e. lfe: told rrw, he loves to drink
and sees nothing ';,/tong with lt. '.the n<,,xt day he has black outs".
The rnaternnl grandmother stc1tos she us.:,d to go to the parenls'
apartment every day and ~•.;ery day the fathet 1-101,ld be gone. He'd come home at 2:00 arid 3:00 a.rn. and the maternal grandfather
would have to 9n to the c1part1m:mt because the fatf1er w;is fjgbtin9
14ith the mother. 'l'he maternal grandrnothet sti;tes that the
paternal gr.:i.ndfather brawls en s:tUard Avenue all the time.
:d,e fatbe:i: 1'/rec.i-u;;;d his car, He tPlo tht': 111<1!'.er.na.l grandmother
that he'd called the police and said the car ~as st0len. He then
got $10,000 from the im,ur:artcS! company. When asked ,,_-hat the
f;:ither has to of for :MeUstn as a father, the matetnaJ grandmother
:tesponde{J "he has nothing to of fer the baby; not 1noney, not love,
not nothing'', She ::ie-)J twes tht.t father wnnts to. get the baby for
Che: paternal grandrno!.:her:. When the ht her vi::.i.ted last n fght, he was a crank because be couldn't go out drJnkjng.
The matsrhal Orand~nther later ~tated that
f;,.t·,hir:.r, Ui«.n he r,honld .t1ec i.hir:. ,;hHd. Shf.l.
father should have Melissa in his car.
the father is Uic
n0t bel:i,rtvc the
App. 7
HANSEN REPORT
PA.GI;': 7
The matetn!!.l grandmoth~r fa third generation S1<•edish and the
matermil grandfather is second. generation sw~di.sh, 'J'he maternal
orandmother cl.dins the fol.hers· family is "so Norwe9i,::rn they
don't have anything to do with anybody outnide of their own
people." Furthei:trit:ire,"tha.t Norwegian C::!;'ap abt>ut the family being so close - the father rules the roost and they an sh8ke in thdr
bocits. '' The maternal grandmother state5 tbe father tolil her h;ir,
father be.it hia mother.
~fl)lJ...lif.illbJ:,,.J";;QRTl,.CT W11ll TILE 'f',l)RTIES
L ~lij&Q...J)lte~.Yj!'cw with the MQ.llmr • ..QD. )·•111,=1~
j.
l rc,;:ommcnded that tbe father: h.ivo a $ hour 1;,.1po::vi::;ed visit
i-:ith Meliss;.i. on 1-s~s9 at the home of the paternal
grandparents. The attorneys ugreedthat the supiarvisor would
be Blit;talieth Stanton, i\fter the 1nother was info.:med of this
teecmnrem:iaUon, she c211mi to this office ins:itting that my
secretary inter:rnpt my lntervi.,:w 1-:ith .,mother clienL on that date, the mother told me, ::;he wants to be nearby when
the fa.ther has Meliss;. bcca1.rne Melissa zcrcams and turns
blue. wheneVf¼t she sees the father:.
When tnc father a:ci:;ived for his visit with Melissa, the
mothe:: iromedJ.atelY said "are YOU in a betccr mood?" the
end of the visit when the father: brnught Melissa to
mother, the mo thee asked why MeHssa' s shoes were off. The
father rcwpondcd that he had taken her shoes and tights oH
when he changed h~t diaper . 'rhe mother responded Ui,.it
everybo<l:t tnows you <lon' t take il. baby's shoes off 1,/hen you
ch,;nge the dJ.apers, that you just pull down the tights.
Before leaving, the father re.guested Melissa's schedule so he would be prepared for the visit the folloving day which
·..itis to be supervised by Elizabeth Stanton. The mother
responded that Elizab~th Stanton had the schedule. l'i.ftec
Ut€ fathet left, the rnotl,e:r complained to me that she ha.d
wanted to give the father: the b<1by's schedule but he sa:hi
"'Liz ria.s it".
Jn het parent questionnaire submitted to Farnil:1 court
Set·,d..ces th-e mother sta.tes "ffis boat was taken aw,;3y for a dn.1g check", ln a. telep:1cme c:onvernation on 1-7-139, the
father told me his father's boat wa.li seized because of a diopute between his father and the company which installed an engfoe. 'l'he engine broke clown in Alazka and there is .in
ongoing dispute :cegac61ng how much the paternal gcandfather
owes the company,
hi a letter datc,:1 l~ll··l\9 to m'!! from ga_r:garct Doyle
Fitzpatrick, attotney for the patetnal grandfather. Ms.
Fitzpatrick states "This is to confirm thot the :,:dzur:c of
the vessel had ab§Siliilll.;:,.,,JJ.Q.t.hiJ)J:L...tU_Q....ld,ill]_di;:_~. Thirr
V'3sse1 was seize<l to enforce a mar Hime ].iEn for ncm-payment
of a repair bill, K.c. Machinery failed to propetly repair
and/or iristall an engine on board of the M-V tlorthwestern,
which caur;tSd a substuntial Josi:: to rlr, flanson. 'J'he:::cfore,
hn re.fui.;ed .to. p,iy the, bJ)l. ,.'J:11.f.~matter :ts in litigation in
(edcr0l coui::t .... f'urthenr,ore ,:-v ra;;s r1c,ver been Dilbject:· to
8Ci:;\:ro becauS\:! of drug$ oince it haz b,rnn owned by the
11nnscn!:i."1
A
App. 8
liAffSEN REPORT
:?.M;l:F; ll
n an ofU ce in tetv:iew ou l-J 2.-89, 1 told the mother about
Ks. Fitzpatrick's lettec, The mother denied she'd told me the htHit J;o.d 'been lr.k1:t1 due to di-\lge,, She s;,:ld :,he'd l0ld
me .schc'd heard from someOlH? :b snlhr<l the boat was taJ:en
becaur.e of drugs.
4 , hlJsli!J:ttj__l!L§lt¾~UL:JilJsi:
1.'he rnother sul::1/l\ittGd a p.;Jt:ent questionnaire to F.intiJy Court
servicfl:s on 12~17-88. in response to the questions, ''Does
eJtlrnr P<'lt!?nt have imy ct:hnina1 i:'i<::t:b:;,n pem:i:l,nr;.r":", the mc,ther
stated thtl t the hther has ~ insurance fraud from r,ov~mber
1987". The father told me he'd been racing and ,:recked hii;; car:.
!)ave l,nel], Pi,,rtaer 's 1 n1,urance ,1gent, submitted an insurance
statement to PamilY Court: Ser."vices. '.l'he father did ma!:rn a da.i.n regarding an ll-J9-87 i:!Ccldent. The fatiu:r's
statement to the lt1S1.1J:tmce coi11pany wac ''1 was traveling too
fa.st to negotiate th(:! cornt:c. 1 }oat control of the car and
went backwar:ds into a fence.•·.
On l.-l:Z-D9 1 discussed the insurance state.ment with the
mother. She responded "They are btiddies with the J.nstira.nce
cc>mµ,my".
5. t'at]~r's Drtnkim:r Behavtru::: at D\lfj,Y's:
On 1··7=t\9, the mother: told iws the father li'iled in bars., '.rhe
fath!.1'.t and his family arm frequently llt Duffy's. The father
is often at Duffy's firnt thing :in the morning drinking
vodka and water. The mo the:: does not thin~ the oi.•ner of
Duffy's would tell me the tcuth because he's friend with the
Hi'lnsene and the llansens br in9 m0st of the 1w::mey in there.
In a telephone conve~•ation 1-7-89, the father told me he
and his ''buadfos" go to rL He Hke to play pool .and
shuffleboard. on 1~13-89, ;,rnkecl Urn mother fot the
address of Duffy's. She responded "forget I said that-the
Ot,.,'ner is one of Sig's really good friend::;''.
On 1-13-89, r :interviewed Mr. Edward Duffy, owne:: of
Duffy's, at Duffy's, He stated th• father is a •nice kid.
He comas in oc'c;J;sionalJ.y and has maybe on~ dr inlc He dr: 5.rilrn
voc1k;, cokea", 1'he father "never getl, out of 1ine, never: causes $UY troutle." Also, he does not stay lot19. Sig
li<,nsen is the or.l'.i" Hansen who co111es to Duffy's. Mr. Duffy
has met the paternal grandfather a couple of timas but the
paterrrnl grandfather is not a customei: at Duffy• s. Mc
Duffy states he had seen the father perhaps 20 times. The
father does not come into Duffy's in the moi:ning.
1 also spcike with Margaret Moss, battem:ier. She states the
rather docs not come ;l;ti ln the wor:n:l.ng:. tlG dt inks vodka
cokes. !le comes in every two weeks or $0. Tbe father is
trying to learn to play pool. Soflletirnes he com~::, in in the
afternoon, drinks pl;,in coJ.;e1:1 and shoots pool. Ms. 1'\oss
states that father js "a very decent kid 0 ,
mother stated that tbe paternal grandmother
moth"'t WGuldn 't htive her baby for Jong
because the paternal 9randrnother would stoal her and take
ht'., to Nor.1.•ay. The mother stateii tr1e patcn1,;J gr ;;ndfatl'ler
told l:in they h0lµr.Hl !"h)uJ anoUicr bi.lbY and takt Jt to
App. 9
HANSEN REPOR'.I'
PAGE 9
Norway. '.l'hey laugh about it. 1n a telephone conversation on l-lZ-89, the paternal grandfather to]d me that 20 y~ars
ago, a Nor,,.·cg:lan man ;in New Bedford, Massachusetts, was going through a divorce and took his two children to Norwar.
'J'he man di.ed 1$ years ago.· '!'he B,msens knew the man but had
m:,thing to do with the childr<l!n going lo Norway.
7. Bcn.iseke~pino f,tand.nrds nf the PaJ:J'lLUJJll_Gr;andparen..t£.:
On vadous occasions the mother has describer] the paternal
grandparents' home as Hlthi' di::ty. During the vis.its to
this home on l::l-19-88 and lw•4~89, ! observed the home to be
c1ean and tidy. The visit on 1-4~&9 was.scheduled with
approximately 24 hours notice'. On 1-8-89, I <H.scussed with
thfi mother my observi3tion that on both occasions the home was clean and tJdy. The mother responded that the paternal
grandparents' home 1s filthy dirty and that there are little
thiJ1qs the baby can chol;e on. She ther, ;:rnked how c0111e 1
went-twice to the father's home and only onc.e to hers.
s. on 1-7-39. the mother: told me that Bl.H, the man she
believes to be Melissa's father, is ''quite ,often'' in het
home. Melissa gets really excited when she sees him. "iliH
buys Mel:issa diapers and clothes,•
9. o:n 1-12-8!1, the mother told me trial thl(l; pat~tnal grandfather
has beaten· all his child!.'.en and the pate:rnal gr:an<lrnother.
'fh¢ mother: is afraid to w;;,lk in her garage bEJcaune she's
afraid the paternal 9randrather will do something to her.
10, On J~H-89, the mother stated the following tf:'.garding
Norwegi$nS: ll "Norwegians ddnk a. lot more than normal
people•; 2) •No::wegiana all stick together like glue and lie
for each other".
lL On 1-1.2-89, the mother told me the fath1!!.t buy bartenders
cocaine. She stated that a week ago, the iathet bouqht
cocaine from a man who is an addict. '!im Ha:ctm.an, her
boyfriend told her this.
The mother further stated she did not tell the fother he
could not change Melissa's diaper:s bec~use he might play
with hflr. Thiz.. mother states the father made this up and
this shov4s how perverted be is.
12.. Or. 1-7-BS!, the fatJrn,r:; told me that the mother told him the
maternal grandmother wanted to divotcca the mat~rnal
grandfather because of his drinking, ·rhe !f1aternal
grandfat!v.:r \.las drinking at the father's bachelor party and
the mother told the father it was his fault the maternal
grandfather was drinking age.LIL
COI.!J.,ATERN,.; RBrOR'fSL_COLl,ATER~,k.CJ)!sJT11CTS /O'J"lJJ:;R Pll:kSJ)l{,'i...@JJ.'l'AC'J'ED
l. £-HHrn AJt:oho_l EvatvJa.t;Jon Rcgar:d:l,ntl~.E,@U10r CompleJ::.~!l-12:Y.
,Shir 1,;y E, Jl'ettertpJJ. t;;CDC_liL.:
The father report$ that in this last year he has cons\Jn1;;,d
a1cohol on three or four occasicms, consumilig approximately
to;10 ti) fom: be.err. per: occal'>h,n" The father submitted udne
Rnd breath E~mples far analysis on 9-16-BB, 9-19-BB, 9-21-Be
and 9-27-88. 'fhe results o.f an tests were negative. Ms,
Petter tori' .\Ldhgno:;;is .is .that the fiitther has rio apparent
ptohlcm with /Jlcoho1 and/or di:m;rn at thir, time. ShG. ·· rccommt·ndi; thot the father attend aJeohol/dru9 in! .;.rnati<>tl
~:chrxd.
App. 10
' H.MlSEN REPORT
PAGE 10
2.
lu these reports l Hno no :l.ndication that the mother told
the police the father had hurt Melissa and no indication ;;he
told the poUce he h;;d tipped the phc,nc off the well.
3, ivas~"I state T'a troJ Cr.imjnal Records Chfil;;.~ill'.Jii.ruLJ;JJ.~
father:
Results :received J-18-89 imHcated "li,o record WASJS filed
bci!:"Dd on descriptions provided.
~-"--:-'f:---::?~-J;'..Llh;:rn § Conver sa:tiQtL.!illh...12f~Jl~.U.rY.,Jili,.il~.,....fil.QJfil
c'an:
The father has been br. ltelfry's patient since 19156. The
fother ha.s esophagi.tis and has be~n sesln a number of tim(,!s
for stomach irritation. There is nothing to say that the
father's esophagi tis is caused by alcohol. The father• s
overall health i& good.
On 7-30-BB the father reguested a blood test for alcohol.
'The bloo<l was drawn ;:,3t; 3:44 P.M, and the blood alcohol'\.las
less than lG fl)g/dl whj.ch is essentially negative.
5. ;_:;}~&J~~.h.2!L,~ conv1>rp~ with Dr, CMr~
El, the r,,'.,_ti&Jlll,J:ie 1 o G
6'
Dr:. Dii!vis aaw the father approximately thte? time.s a month
fr,orn .July to the end of October 1988. The focus of
treatment -was to help the father deal wHh his feelfogs of
anger regarding the break up of the marriage and the way he
reports being ti:'.eated by his wife over tbe care of the
child. The father is critical of the mother. Dr" Davis
believes the parents have not treated each ether well. ln
the heat of anger the fath~r says some things which he later
wishes he hadn't.
Dr. i;avis does not think, at thLs time, the father is
di:-,inkin9 probJetnaticaHy. Dr David believes there is
absolutely no ·1:eIJBOt'l why the ct;n't have norin,;;;iztd
contact with Melissa.
Dr. :rnvidi state.:; th;,t when thri mother returned from ilm-1aii
Ghe was u;:,set ;;ind zaid hei: husband was abusing drugs and
alcohol, Dt. Travidi dof:s not recall for sure if the mother
said the father beat her. The mother told Dr:; Travidi sne was 9et.titJg a divorce becaum~ she had realized that the
father ;;,rn a tot;illy different i;.,euon i,ind that he ,h:anlL
7, J,-;H19 'l'eL<mhonJ;,.J;,~_aation%,1'3JJ)J,.1!2,l:'.O No~~
HS, }foc:dness states the fatbar b;;bysat her five children
•quite a few years ago•. Ms. Nordness used to live close to
the Hanaans and she used the father ns a babysitter quite
often over a period af a couple of year~. C~e had no pr9b)eu1$ '1iJh ... ll:iJ~ J.a\;he,r and her childr::en liked him a 0 He had a spe~ial way with the kids•.
App. 11
HANSEN RtPORT
PNJE 11
Abou\: 7 yt1ars tigo Urn faU1ex h0bysat for three of Hs,
Nelson·s six children. De babysat for the children en sev,;;:r:al occasinru;, Ms. tleJson' G cMldr:en likca the hthii!r
at the time and they :.;till Hke hlm.
9. l -9-61._tQ].~QQITJL-'-~;:sat J oi::L~t!JJ..J;,UJ:;.~J;h.Ji1;_>\iJ.lt.QU.,,
fuIDll~~:i,:iQ.~
Ms, Stanton irnpcn;v:l sec a five hm,ir vis$ t between the father
and Melissa oo l,=8-89 on the hon,e of the paternal
gr.indpar;ents. Ms. Stilnton r-eparts that given what occurred on that visit, she believes the fathe~ is a competent patent
and has skills to provide adequate care for Melissa. In
addition, he has support frnm bis mother who !'ls. Stanton
repot ts ,in i.n te,ading atipropr UitfJ.lY with the baby .ind
leaving the primary care to the father. !'is. Stanton reports
that the NlernaJ grandmother was noUceably aggrie\red &t
the loss of 8 months without being ;:;ble to assume to tole of
grandmother wH:h her first grandchild.
i'is. Stanton notes that during this v.is.HaUon, the paternal
gtamHather \<'a.s a guiet soutr.::e of strength in the backgto,tna
and was ver.y i;eniiJ.U.ve to this being Melit.sa's first visit
iri the hems-a w:ith them. He cautfoned his wife about
overwhelmi:n9 Meli1:1sa with hei: attention or: the attention of
other people she didn't )rnow. Ms. St;;mton reports the
father genuinely enjoys children. He was teacful when
Mellssa left. He ilhtcd tc, J,.\:;. Gtantcm that .tt would vecy
hard to 7 :00 <1:.m. to ,::;.::, to 1\laska. He wa« th;;iJ,led
at any recogniUon Melissa gave to hitr1. Hs.
Stanton ~m,ftr•t~ the father "~•ae~.•• in a laving, genuin0
manner, expi:e;;;;ed fears all this upn;:,;;,r w,:ni)d c:au.se
Melissa to have mental problems.
Hs. 5t;int6n recommenJs that Helissa be provide<! ,,.,Jtb a smoke
fr.ee environment.
Melissa is developing mn:mally and appe.ars comfortable w:Hh both
parents. Eased on my interview w.H.:h !:he f,9ther, my observation
of him 'with tlieliss.i. i)ilO i.nfm;mation obtained from ~ollateral
contacts, 1 believe the fath~r has i::be potential to be an excellent parent. While. the fotbet' s statements to the
drug/alcohol counselor regarding his drinking differ fi::om hio
dtiti!titlg behavior as noted bt· the o¼'ner· and bar:te:m:1er of Duffy• s,
I find no evid'l:mce that he ls a, inking alcoholically.
The fathc.c acknowledges on one occasion slapping the mDtber and
the father's counselor indicates the father has says things to
the mother lie: ;,,• j shes he hadn • t. 1 t is vm:y much to the father 's
credit he has sought counaellng to help him deal with his anger
.regarding the mother. Jt is al::;o to hi.r- credit that he h<1n
conti111,1ed in coun.seUng with the therapist who is verv accountabi Hty or .iented. The father could i,eneU t Crom c,.,n tin•J,z:d
c:otmseling in ord,1r to lj deal with his anger regarding U1.e
rr,othet and Z} to learn more isffoc;tive ways to communicate with
her.
'rhe mother arid maternal grandmoi'.he:c appear to offor no s1.Jpport
for the fathttr:'s bonding w.ith this ch:f.ld. Because of this, I mn recommending thnt l'lelHsa hove ter,.rnlor contact wi.th the p&ternzil
gnmdparents so that she in fami] far with them and their home.
1.'1:1e paternal ;rca.ndpnrents ca.n i:11cn tw}p irc-;nl ro-d>.Jce Mc1:tss4· to
tlte f.:ither when hn rctu.:n::; frmn sea.
App. 12
HMSEN il.EPORT
'.E'A{;E 12
'l'he mother at,plolars to h;;ivc 1:tmi ted bu1i9ht into how her b12!rnv1,:.naffects others. I do believe she could benefit from counseU.ng
in order to l) cope with her anger .it the father. Z) le.arn 1w.:ire
eHecU.ve communictition with the father regarding i.ssues
affecting Melissa, l) develop techniques foe de-escalating the
,;ppusal conflict.
1 am coricenHed ::ibout the rnc,\:he:r • s cc,ntinuing <1ccusation5
regai:ding the: fa\;het' and the mother• s Cfi!nr,onses when I discuss
wj th he::' wy tindjngs .ifter investigating her accusatfons. :i am n,comroending that both parents submlt to a family psychiatric
evaluation by n mutually a9t11ed upon psychiatrist. The
!.!valuation should include the evaluator"s assessment of both
parties emotional health as it relates to patenting and an 1anessment of each party's abJllty to suppoct Melissa's
relationsMp with the other p.ar¢nt.
t>,d:issa ha.s "' rich cultural heritage wHh Swedish .a.ms1dcan on her::
mother's side: and Norwegian run~r,ican and Norweg5an on her
.father's side. She should have adequate 1;;)(posure to both
cultLlTes.
These ni.corrtt,e.ndaUons ;:u;e based on the assm11ption that Sig Hansen
is Melissa's father. They are subject to revision should they be
contraindicated by the findings noted in the family p.sychi;;.tric.
evaluation.
1. Cuar<l:i.an ad Htcm services shall C{)ntinue for this child,
The c;uard.ian shall further monitor for dn,ig/alcohol icsues
en both sides of the family, The guardian \s fee}? shaJl bE,
paid by the pai:en ts based on a petc!:\n tag!i!. of the parents'
income. -P,ff:l telephone conversations initiated to Uic
guan:H,m by a pat:ent shall be pa.id for by that parent.
2. 'rhe fa trier: .$hall continue in coumrnUng ~ith Dt. Davis in
order to address the: iseues outlined above.
3. The mother shall immediately b¢g.in co\.mse.ling in ottfor to
addcess the .issues outlined above.
4. noth ct,unselors shall b1~ provided " copy of thi.s report.
5. Both parents shall work with the.lr cot.mselors in order to
develop a wdtten plan foe pcotecting MeHssa from s)?ousa1
conflict and fo•· supporting Melissa's relationship with the
other parent. These plans shall he a ma:i,:imurn of :ZSO <;,.•or.ds
and shall not include complaints about: the other patent or an a5i:;essmcnt of the other par:1.mt' i; part in thiz proble:nL
These pl.ms shall include specific steps the parents pl;;rn to
ta.kc, The patents' plans @hall be submitted to •~he guardian
ad litea,.
fi, The father sh.ill complete drug/alcohol irtform.;itfon school,
7. No one 5hall ti::aru,port N!'!lissa if that per.son has const.rnt,<l
nlcoht;l in the preceding 12 hi::Hn's.
8. Residential, sch~dulc:
Mt:Hssa' s pr imm;y i;-esidenco :.hall be with the ru-0thr;n:. J;
t,he r,,,othcr: continues to wor.k m1t of tht home, the paterticil
grandparents r.h;,.11 provide p.irt of Melir:na'G <!ay cate when
the .fathr>r Js ouL to sea. UUJrr,2teJ y tlH?)' shed 1 havr
Meli.usu !or lwo d;;iyn per wtic1k l or cit;ht hours per day.
App. 13
HAt.SEN REPORT
PliGE 13
Com1nenc:ing fo'.illodl~tely, Uie:r nha]} :in.HialJy ht>ve MeJ:iss,:
for four houcs a day, two days pee week for two weeks. The
next two wec~:s they sh;,,:JJ have her for sh hours, two d;:rys
!c'Cr w~1ek. l'bere<lfter they shall have tier for e.Jght hours
per day, twice per weeL
In the event the mother does not work out a.f the home, the
paternal grandparents shall have Melissa ultimately two days
pee week for six hours per day when the father 1s out to
sea. Beginning ~-~~diately they shall have her for four
hours per day tw:13;:e a ;,1eek foe two weeks. Thereafter, they
shall have her foe six hours a day, two days per week.
Whc:1 the fat her Js home, be ahalJ have first option to
prov;i,Je day care. 1£ the mother: does not wotlt out of t:he
hoiM.:, tbc hther ~JH,11 have Melissa two 1<•eek days per week
for up ::.o clght hour:s. The ,:fay,; stiaTl be spent at the heme
of the pat~n:nal grandparents until !•lel.l:;;,:e;;; beci:.nnes
,6.acquaintea 'ill.Ith the father.
Tbn Eathet' shall a,lso have Melissa alternating weekends from
Saturday at 10:00 a.m. until Sunday at 4:00 P.M. Beginning
i\p:r,U ,i;;J:Jl, the father shall have: 11eHssa ;1ltetnating
wcetends from Friday at 5:00 P.M. until Sunday at 6:00 P.M.
- Be~inning summer of 1991, the f;,ther shall
extended suf!llner v;;.cation with ?>h::lissa; t1;10-
three weeks in 1193; four l.'Oeks in 1994; ana thereafter. Dudng blocb of two
longer, th,e; rw::ithet shall have Melissa 1.;tve,ry othet w~:e~:erid
During th!:: summer, the father shall have tr,<:~ first
opportunity to provide day care fot Melissa. If the mother
is not li'Otking out of the home, he nh.iH h1'lve her for two
weBk days per week for up to eight houcs per; day. lie shall
a.lso h"1Ve w•,Iekends as outlined J,:n the Beet ion above.
<1. Each Mother's Day weekend with the mottler and each
r'ather 's Day weekend with the father.
b, Pre:1:i,der1\;.' s Day weekend and Memot ial Day weekend iii odd
numbt'!red years with the mother and even numbered years ½' ith the father.
c. Martin Luther King Day weekend, 1..'.lbdt nay t-'eekend, and
Veteran• s bay weekend in odd nmnbe::ed years with the
father and eVem numbered years with the mother,
d, Thanksg,i v ,i,119 vacation from Wednesday before
Thanksgiving at 5:00 P.M. until Sunday at 6:0G r.M,
with the mother in odd nurnb".'l::cd years and with tho
father in av2n numbarad Yeats.
e. Horwegjan Independence Day (May 17) with the father
from 10:00 a.m. May 11 until 10:0Q a.rn. May JS. Jf the
father Ls not in town, tho paternal ,,n:a11dparenls sh,11
have Melissa.
f. Th~ (at;ner or the palcrn.il l,lraridparents, fr, his
absence, shall have Mc}jssa for the ble::isir,9 or the
fll~et. '.1'h"cY, ::in.a) 1 provide the mother with two weeks.
not[ce of when thls ls to occur.
App. 14
HANSE:N RE.PORT
Pt\GE H
Christmas Eve ~iLh the fnthet until 10:00 a.m. Chr.Lsti1ia.s Day. Chr iztmas Day with the mother. Dudng
the holiday i,enson, tho fnthm:: .r.ha} l hav~ two
addiUoMl dav.s from 10:00 a.m, th~ fit5t day until
f.:00 l'.M. UH/ second day until 199L HI December J.991.
the father ohall have five ;.ddlt:fonal days wltb Mclir;sa
during the lmhdays.
Beginr)ir,g fo December 1£<92, the father may take Melissa
to Norway for Chr:i.Rtrnas even' other year. Mellssa
shall be i:mm1 a maxjmu111 of 10 days, h1 order for the
mother to-be spared anxiety regarding Melis!a'9 return
from Non-1.iy, the attonie}'S should come up w:i.th a plan
that would irlsure the mother: that H the fothet refuses
to conic'! b;:,ck the incthec would have adequate legal fees
to obtain \:hf: child's return. The father shall provida
the mother w:i th the n.;;n1g, address and te lepl"wne numbfi:t:
of relative w1th whom he and Melissa vill be staying.
The father shall, at his expense, have Melissa call the
mother twfoe <lurixig the ttay 1n Nor•..1ay.
In the event that the father chooses not to ta.ke
MeH1HH.1 to Hocway dt11:in9 the holidays, the parents
iJhall aplit Chrintmas vacation.
h. The parents shall &?lit spring break.
The mother shaJ l make major ded.sfons as they c;eL,tc to
Melissa's reUgfous upbringing, eoucatiomil plans. and
medical cace. Except for routine &tld. emergency 111edic;,l
,.;:are, the rttuther 1,hall with the father prior to
making any major decisions financially obligate the
father. H the father does not ,Hitee with the mother's
decisfon regardin9 .J.st;ue which finam:ially obligate him, the
mother shall obtain a c,:i1Jrt ccdei:; prior to J.mplementing her
decision.
In l;he "!Vent that the parties do not agree 011 a decision
affectinq Melissa's wel fore, the mother shall make t.he
decishm with the father retaining the right to bring the
m,;,tter befo~e the ~:.ing county f.,mUy taw li\ptlon calendar.
:U.. The exchM1ge of Melissa between the pacties :ihalJ be tape
recorded by b-Oth partias. rr the parties ate dissatisf icd
regarding the communications that occurs during the
transfer, they shall take their tapes to their counselors
for assistance in learning rnoce effective co.1@mi:i.cat10n ,dth
the ot!'iei: parent.
12. If :-!t. Hansen Js Mclisss!'s father, M&J.icisa's name- :,htJJ be
Melissa Dawn tckstrom-Hansen.
13. 1 t th:l s pL:m is adopted, the court i1lw:u review the watter
in December 1989 in order to determine:
;;;. '.l'IN progrc:;;n in ri.J:J:mfrfog U,e fol her'$ re)aUonship
·,dth MeJi.:rnn.
b. 'l'he approprialeuess of· th~ re.rrh:fo:ntial ~chedule.
14. The parUt~!'> ::;h,tlJ GlJbn;H to a filmily pnychlatric cva]u;ition
by <> mutuaJ 1y a,;;i:eed 1.,1ptn'l ,:ir;ychJ att.in L The o.vn] uc1tor
App. 15
flhNS8N RE?ORT
PAGE 15
:,h;;J 1 bi: Pt•Ydd~d a copy of th.le report. Both seb of
gtandpacents shall ba interviewed,
.15. MeUssa sha.11 be provl<led with a mnokc free envii::ommmt,
MG;j,;,
.Janu;;.ry 2D, l'.?89
App. 16
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3: 23
l N 1HE SJPER IOR O)JRT CF lHE STATE Cf WASH I f'Gl"OO
IM 1W FDR THE COJNlY OF KI I\(;
IN RE lHE Mt'\RR I /.CE Cf:
USA DftWN H'.\NSEN,
Petitioner~
and
S IGro J. w..NSEN,
Respondent.
}
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Da::.l-'<EE Cf DI SSOWTtON
--~---------------)
'TI-HS MATIER having come co dJ!y and regularly before the mdersig,ed,
one of the judges/court comnissioners of the above-entitled Q:iurt 0!1 this date,,
and Petitioner Lisa Dawn Hansen appearing personally and through her attorney of
record Stuart W. Scarff; and r'espondent, not having appeared in person; or
through his attorney of r·ecord, David J. Ordel I, but having approved the Findings
f Fact and O>nclusions of wnv and Decree of Dissolution as is Indicated by his
ignature; and the st91ature of counset affixed hereto, arid the Court, having reand records herein, having heard the testimny of petitioner,
considered statenents of counse\, and the Court having heretoCf OISSOWTION - 1
L---l---tt--,rr i age of Hansen DAVID J. ORDES O
ATTORNtY AT LAW
se ~er: 87-3-09135-3
705 SECOND AVENUE
surrE 401 HOGE BUil.DiNG
SEATTLE. WASHli'IIG'fON 98104
(2061 624·0130
App. 17
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fore entered its Findings of Fact ctld Conclusions of Law, .nd deening itself
fut ly a:ivised in the premises, rov THEREFORE, it is hereby
OfOERID, /OJUXiID #.P DECREED that the marriage of the parties shal I be
ard hereby is dissolved; and it is further
OfOERED, ADJUXiED ttn oa::REED that the permanent parenting pla'i entered
into by and between the parties herein shall be fully effective aid each party
shalt coo:ply with each of the terms and conditions of said parentlng p\an; sa\d
parenting plan shal I be incorporated herein by this reference and each .nd every
provision thereof shat 1 becOl"lle oo Order of this Court b\nding 4'.)00 the parties
herein; aod it is further
Of<DERED, POJUXi8) IN) PECREED that the name of the parties' child sha\ 1
be d1anged to to t
1
Mel issa Dawn Hansen-Ed<strooi0 , and the parties shall take al I
steps necessary that said change of name is fully effectuated and that this shal 1
be the child's name for al I legal and educational r-urposes; and it is further
OffiERSJ, ADJu:GED IN) DB:.P,EED that an anended bi rth certificate sha I I
be issued herein, confirming the parentage of respondent and the change of name
of said dlild; and it is further
OIDER:EDT ADJUXE) ANJ DB:REED that the father, vsho resides at 18361
Eig,th Avenue Northwest, Seattle, \Yashington 98177, a-ad w,ose Social Security
N..¥rber is 533-88-6310, is a self-erployed fisherman, has been VtK>rking on the
fishing boat· N:Jrthwestern,. and earns approximately sixty thousand cbl lars to
sixty-five thousand dollars ($601 000.00 to $65,000.00) per year, adjusted gross
incane, and V\hose net inccme based i:..pon said figures, after deduct ion of selfDECREE a= DI SSOWT!ON - 2
Marriage of Hansen
Cause l'brber: 87-3-09135-3
DAVID J. 0ROELL
A"fl'OfmEY AT i.AW:
705 SECONO A'\IE~UE
surrE 401 HOGE BUii.DiNG
SEA1TJ£. WAS!-HN'GTON 98104
12061 624-0130 .',~
App. 18
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~loyment tax, federal income tax, will be appro:x:imatety three thousand three
hundred fifty to three thousand five hJndred c:bt tars ($3,350.00~$3,SOO.OO) per
month, shal I pay to the m:>ther, \'\hose residence ocldress is 54114 212th Street
Southitilest, K-204, illbunt I ake Terrace, Washington 98043, ,1J1ose Socia I SeCtJri ty
nlliber is 533=83-HOO,, was recently employed by Diamond Parking as a reception-
. ist, btit has been laid off within the last few days; but anticipates reemployment arid shou Id be i~iRd wi th a net incane of one thousand to one thousand two
hUhdred chi lars ($1,000.00-$1,200.00} per rmnth, the sum of six rundred twenty
dollars ($620.00) per rronth, payable on or before the first (1st) day of each
month, cOOYOOncing with the nonth of July 1989, and continuing on the same day of
each rronth thereafter, for the support of Mal i ssa Qcl'l{,/!l Hansen-Eckstn::rn,. born
2:Z J!,pri f 1988, oo Sociai Security rurrber. Said support pay.rents shall be !'fBde
to the Washington State Support Registry and each party will ccmptete such fonns
as necessary in order to faci1 hate said payrnent. 9wuld respondent be rrore
than fifteen (15} days past die in an anount equal to or greater than the support
payable for one (l) ®nth, a payrol I deduct ion may be issued or other payrol 1
withhoiding act ion imy be taken ..nder RCW' 26 .. 18 or O.apter 21+.23 RQ'I, withoUt
further notice to respondent. Each parent sha 11 not I fy the State of Washington
Support Registry of any changes in their residence address; and it is further
dental insurance coverage for W'el issa 1 s benefit,. if and as avai I able throug,
their ell)loyment or other organiz:at ion at reduced costs.. Respondent shal I be responsible for paying seventy-five percent (75%) of such reasonable insurance
DECREE CF DISSOWTION - 3
Marriage of Hansen
Cause ~~r 87-3-09135-3
0AVlO J. 0RDELL
ATTORNe:'!' AT I.AW
705 SECOND AV'ii'.NUE
SUIT£ 401 HOGE SUILDlNG
SEA:rrt::li; WASH lNGTON 98104
1200} 624-0130
App. 19
1 premiun, not paid by the ~toyer md directly related to insurance provided for
2
3
said dli Id ooly. The nnther sha 11 be responsible for paying the balance of said
premiu:n. Pddi t ional ly, aiy end at! reasonable and necessary expenses for rmdi4 cal, hospitalization, dental, orthodontai, phal"'!'naceuticaL optical and ~ntaJ
5 health care ,\hich are not covered by insurance, sha!1 be paid seventy-five per6 cent (75%) by the father, twenty-five percent (25%) by the ®ther. Each parent
7 shall provide the other 1 on a regufar basis with identification car-ds and claim
8 forms available through that parent for p.irposes of obtaining services aid making
9 cl~irns for rehrburs:ement. ln ackiitiora to the support set forth herein, each par10 ent sha It iro i nta in Weti ssa, or a trustee for We Ii ssa, as the exc I us i ve benefi11 ciary oo all life insurance coverage a:s is available throog-i their enployer or
12 other ~loyment-retated organlzatioos; provided., rowever, that at such time as
13 either parent remarries, the coverage ptovided for the exclusive b:i:neflt of
14 Me I i ssa :my be reduced to one-ha I f ( 1 / 2) of the ava i tab I e benef f ts. Each par15 ent 's <bl igat ion to provide support for /1/r:J:I i ssa sha I l survive that parent ts m16 timely death a,d shal I be a charge and continuing daim against that parent's
17 e5tate to the extent that the support obi igations are not discharged by payments
18 from insurance proceeds, Social Security and/or any other death related benefits;
19 and it is further
20 ORJERID, IOJUXi.£:D IN:) DECREED that the parties have acquired certain
21 items of real and personal property as set forth on Exhibits A and B* Petition22 er shal I be awarded those items of property oo Exhlbi t A, free and clear of a1y
23 interest of respondent. Respondent shall be awarded those items of property set
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26 DECREE CF Dl S~WTION - 4
~4arriage of Hansen
Cause !'urber: 87-3-09135-3 DAVID J. 0RDE:LL
ATTORNEY AT LAW
705 SECOf•ID AVE:NUE
St.HT£ 401 HOGE BU\LOiNG
SEATTLE. WASHINGTON 98104
\206) 62;4-0130
App. 20
I forth on Exhibit B, free and clear of any interest of petitioner. 91ould either
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, party fa i 1 to de l t ver items vki i ch were awarded to the other that ar"e or \11K:lre in
3 , their care or possession, said party shall be required to pay the other the rea4 sonable replaanent costs of said property; and it is further
5 OIDERED, /\DJU,X;EO A'O DECREID that each of the parties sha 11 be a.varded
6 each and every legal riglt of action that said party has acquired against aiy
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individual, unless said rig1t of action has been othenvise av.'arded herein. Further, each party shal I be awarded those ri <;;,ts and benefits not otherwise awarded herein \'lhich were derived as a result of hi5 or her past or present anptoyment¥ mion affiliation, military service (United States or other), citizenship
and/or residencey within a state, al\ of ,-.hlch include, but are not I imi ted to:
Various forms of insurance, ri91ts of social security payments1 1Ne:dfare payments, unempf oyement o::>mpensat ion ri g,ts, disahi Ii ty
benefits,. rmdkare and rredicaid beneflts, retirement oonefits, sick
leave benefits, educational benefits and grants, and all other legislated; contractual a1d/or donated benefits, 'Ahether vested or non-vested
and/or directly or indirectly derived through the act lvi ty of that specific party; provided, activity of that specific party; provided, however# that said benefit or benefits have not othen~ise specifically been
awarded herein; and provided, further, that marriage of the party
thrrug1 '.-.hose act hr i ty said benefits have been accrued sha 11 not be an
indirect basis for an av1ard of that benefit; and it is further
OR:>ERID, /OJIJ)GB) PN:> DECREED that the the parties have acquired doots
, DECREE a= 01 SSOUJTlOl'-4 - 5
Marriage of Hansen
Cause hllrtber: 87-3-09135-3
DAVID J. OR0ELl
705 SECONO AVENUE
surrE 40t HOGE SUILOING
$EATT~i:f. WASHINGTON 98104
12oe1 s24-01:~o
App. 21
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l and ool igations as set set forth on Exhibits C cl')d D,, ,,hidi are incorporated
2 herein by this reference. Petitioner shal r be req..1ired to pay those det>ts crid
3 obi igat ions set forth on Exhibit C, and respondent shal I be required to pay those
4 I debts and obi igations as set forth on Exhibit D. Each party shal I pay those
5 ' da::its and cbl igations assig1ed to them, ood hotd the other party hanliless there6 from. Should either pa,·ty fail to pay a debt or ool igaHon assi~d to said
7 party, then. in that event, said party shall be required to indernify the other
8 for ooy reasonable expenses or costs incurred as a result of the other party's
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failure to pay said debts or obi igations v.hen d..te. Said expense and costs snal 1
include reasonable attorneys' fees \'\here appropriate; and it is further
OIDffiED, ADJtDGBJ PN:J Dl:CREED that respondent shalt be entitled to claim
a tax exerrpt ion for ~ 1i s sa. Pet i ti oner shat \ be requ \ red to execute any ood
at l fonns required by the lnternat Revenue Service in order to effectuate this
14 t prov i s ion; and i t is fur" ther
15 11 OIDERBJ, AD.JUJGID flW DECRtlD that each party shal I notify the other of
16 I any change in e,pl O)lll"nt status, inc I ud i ng the name and address of e,pl oyer, ood
17 telephone rurber at place of erptoyment~ or reasonable rressage nurber to be used
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for eoorgency pJrposes, pn:mpt ly 1.900 the change occurring in the ~toyrrent status. For the ("rposes hereof, change fron enµJoyment to me;1ployrrent status or
from unBrptoyment to ~loyroont status constitutes a change in e~loyment status;
and it is further
OFOERBJ~ ADJUXED )IN) 08:REED that the parties shall file separate returns for the year 1988~ and each year thereafter for incane tax p.1rposes. Toe
DB:REE CF O I SSOWTION - 6
Marriage of Hansen
Cause ltmer: 87-3-09135-3
L
DAVID J. 0RDE:LL
AT1't;)f1Nio."Y AT LAW
705 :SE.COMO A\IENUE
SIJlTE 401 HOGE 9WH .. PlNG
S~ATiLE:, WASHINGTON !;!S1C)4
l:20GJ 626<1130
App. 22
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parties m1all corrrriunicate regarding matters of dispute related to the 1988 income
taxes and wi l I endeavor to reach an agreement regarding said matter. J,,ny agreement reached by and bet,-veen the parties shalt be fol towed by the parties. N-?.tther party is mder obligation to reach a'l agreement, but each party shaH have
any and all rig1ts provided by Federal tax laws; and it is further
OIDffiED .. ADJUJGID IN) DECREED that there are certain items of personal
property of the parties, lnduding an oak entertairwnent centre, television set
putchased shortly prior to rrarriage, stereo receiver, speakers, m.icrc,.,-.ave, vacuum
cleaner,. brass boat and miscellaneous other items µ.irchased prior to nBrriage,
award of ;,-.hfch remains in dispute between the parties. lhe parties wi If endeavor
to resolve issues regarding ownership of said items of property wl thin sixty (60)
days of entry of the Decree of Disso\utfon provided, if they are 1.nable to so
agree,, ~dther party may, by m::,tlon,, present this matter on the Fa11i ly Law J.ltotion
Calendar to be heard on affidavit only, and the ru( ing of the Judge/Court G:mnissioner hearing the s~ shat I be binding on the parties,, subject to revision.
The restraining orders entered by the parties regarding sale or disposition of
any of said assets, as wel I a:s assets awarded to the other party herein shall re·•
main io ful 1 force and effect; and it is further
OfOERB), />DJU::CID Pl-0 DECREED that each party shat 1 pay h Is or her own
attorneys' fees and costs without further contdbut ion frtt11 the other party, ex~
cept as otherwise provided in the Findings of Fact ~cl Conc\usions of Law or in
the parenting plan executed by the parties; and it is further
OfOERID, 1~lJu:x:;EO faNJ DECREED that each party shaf I be reqJired to take
DECREE 0:: Dt Ss:>WTlON - 7
Marriage of Hansen
Cause t,urber: 87-3-09135-3
DAVID J. 0ROELL
AlTORN!;Y AT !.1-,W
105 SECOND AVENU!i.:
SWTE'. AOl HOGE: SUH.DJNG
SE:ATT'k(i,- 'NASHiNGTON' se1c,1
!2061 624•0130
App. 23
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any and atl steps necessary to see that the provis\ons contained in the Findings
of Fact aod Conclusions of law and Decree of Dissolution are given fut I force
and effect .. Each party shall execute those doaments of conveyance and/or docuents of ti tie so as to effecutate the property division incorporated herein.
Each party shat ( deliver to the other party within thirty (30} days of the date
of entry of the Decree of Dissolution, those items of personal property awarded
to the other \\hich are at the present time tn his or her possession4 Each party
shal r det iver to the other those insurance pot ides awarded to the other v,hich
are in his or her possession as 1#e11 as those records relating to assets a<Narded
to the other party in his or her possession. lhe part\es shall contact one a'lother and rn:lke suitable arran911ents for delivery a1d receipt of said d:>cu-nents
and/or such items of personalty. Each party shat I be obi iged to exert his or her
est efforts to ca<rplete these transfers~ In the event no legal descriptions are
given or those given in the Decree of Dissotut ion or attachrents thereto are defective, each party shall pr~tly on notice thereof, execute a nev deed or oocuent of conveyance of said property; and it is further
OfOERED, ADJt..n::'B) A'D OECREffi that each party shal I pay $fly and al I inorne taxes we and owing as a resu\t of their incoo.es and earnings 1 except as
therwise set forth herein above; and it is further
OfOERS), ADJUX;ED AN) DOCREa) that both parties should be restrained
from ;mlesting, harrassing or ooreasonably bothering the other party, or having
ny contact with the other to mich the other party has not consented prior to
that Ume; and it is further
ECREE a:: DJSSJWTION ... 8
1a r r i age of Hansen
ause l'urber 87-3-09135-3
DAVID J. OR0P;LL
AT"TOl'!NE'Y AT LAW
705 SECOND AVENUE
SUfTli;:: 401 HOGE BUii.PiNG
SEAJ'T't:to:,'WASHll-JG'fO!'l 98!04
12061 624"0130
App. 24
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United
ney's
oroERID, NJ.JlJX.E> /lNJ OOCREED that prior to rerroving Melissa fran the
States, Respondent place ten thousand ool lars ($10,000-00) in his attortrust account with irrevocable instruct ions that said funds remain in the
trust account pending Melissa's return. Provided, however, that if rkl i ssa is
not returned within five (S) days of her schedu\ed return date, sa\d funds sha1\
be imnadiatefy transferred to Petitioner's attorneyr s trust/general account to
be used to pay any and al I attorneys I fees incurred in an atterupt to return
I i ssa to the Uni ted States and her 1mther; and it is further
OFOERED, /CJU:GED Ar.rJ DECREED that support continue tnt i I the child
reaches the age of eig,teen ( 18) years or completes hig-i school, ,..hicltever
occurs later, with the court retaining jurisdiction to determine vklether and in
what proportion each party should contribute to the cost of post-hig-, school education for the child, said jurisdiction eXµiring if post-majority support is
not set prior to
DA1ID:
Presented by:
Copy Received
Approved for Entry and l\bt ice
'of Presentation Waived:
Oa:::REE. OF OlSSJWTION - 9
tJlarr i age of Hanse.,
Cause t',lm::ier 87-3-09135-3
0AV10 J. OR0E1..L
ATTORNEY AT 1.AW
'705 SECQNO AV!;'.NUE
$UlTF. 401 HOGf/: BIJII.OlNG
. · Se'.ATI'U!, WASHlNGTON 98!04
(2061 &24•01'.3Q
App. 25
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DECREE CF' OJS=OWT!ON ~ 10
~'°larriage of Hansen
Cause l'brber 87-3-09135-3
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DAVID J. OR0ELL
ATi'Ol'!NEY AT I.AW
705 SE:CONO AVl'::NU!::
SUITE 401 HOGE BUILOlNG
. SE:ATT'L!::. WASHING'roN 98104
120\'11 e2A·o130 '
App. 26
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EXHIBlT A
lhe fo 11 owing i terns of rea I and (Jersona I property :shou Id be atvarded to
petitioner-wife, free and clear of any interest of respondent-husband:
1,. 1986 Toyota Celi ca automobile, subject to any a'ld al I <b1 igat Ions
thereon or related thereto;
2. All accounts with any banks or financial institutions in petitionerwife's name or under her control;
3. Jlny and al I rigtts or benefits of petitioner-wife arising rut of any
former $TlPloyrnent or affititation in a tabor uiion;
4. Ail clothing1 jewelry and f)ersonal effects of petitioner-wife;
s. Furnitura~ furniture, ar,;ipl iances and other personal property ln pe:tit ioner's possession or under her control 1 other than wedding gifts received fr<1il
respondent's relatives or otherwise attributable to respondent Is side of the fami ly, and disputed items of property as set forth in the Findings of Fact and ilinclus ions of Law and Decree of Oissolut ion; said disputed i terns of property to be
settled in the rrianner set forth therein;
6. kly and al I pol ides of insurance insuring I ife, health, or property
awarded to petitioner herein.
JP2.0625A
EXHlBlTA-1
Marriage of Hansen
Cause ~r: 87~3-09135-3 OAVt0 J. 0RDELL
ATTORNEY AT LAW
705 SECONO AVENUE
SU!iE 401 HOGE'. EIU1LDfNG
SEATTLE. WASHINGTON 98104
12061 524•0130
App. 27
3 The fol lowing items of real and personal property should be a.varded to
4 respondent-husband1 free S'ld clear of any interest of petitioner-wife;
5 1. 1985 Thunderbird aitcmobi le, subject to ;;r1y l'f)d aH ooUgations
6 thereon or related thereto;
7 2. AU accounts with 'i§'IY banks or financial inst Hutions in respondent8 husband 1 s r,aroo or ooder his control;
g 3,. Pny and a I I r i 9"t ts or benefl ts of respondent--husband arising out of
10 any former ~loyment or affi Ii tat ion in a labor mion;
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4. All clothing, jewelry .rid personal effects of respondent-husband;
S. lhe foi I owing items of personal property presently in possession of
18 petitioner:
14 (a} Si tver serving (tea) set; (b) chrystal vase; {c} N:>rwegian
15 s i Iver candle holders; (d} N::irwegian silverware; (e} N:>rwegian cake cut16 ter and salad tongs; (fl mo (2) oil paintings; and (g) silver chest.
17 Mdltionally respondent shall receive any and ali ~~dding gifts received frcm re18 spondent *s reiatives or otherwise attributable to respondent 1 s side of the fam19 ily, presently in possession end control of petitioner, with the exception of
20 disputed items of property as set forth in the Findings of Fact and G:>nctosions
21 of Law and Decree of Dissolution; said disputed i terns of property to be sett led
22 in the manner set forth therein;
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6. krf <Tid ali policies of insurance insuring l1fe, health, or property
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26 EXHIBIT B - 1
~~rriage of Hansen
Cause l'-Urber: 87-3-09135-3
DAVm J, 0RDELL
ATTORNEY AT LAW
705 SECOND AVENUE:
SUlTE: 40f HOGE 6Uft.DiNG
SEATTLE, WASHINGTON 98104
12.0t'il 624-0130
App. 28
1 awarded to respondent herein.
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26 EXH\B\T B - 2
Marriage of Hansen
Cause f\UTbert 87-3-09135-3
DAVID J. OR0E'.L.L
ATTORINE:Y AT V.W
705 SECOND AVcNUIE
SUffE;; 40! HOGE BUIL,DJNG
SEATT'LE. WASHiNGTON 98104
420EH 624-0t30
App. 29
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EXHIBIT C
Petitioner-wife should ass~ .rid pay those d;)ligatioos set forth here4 on, should hold :respondent-husband hannless therefron, and indem,i fy him for a1y
5 ] reasonabte costs and expense Vlhich he may incur, including attorneys• fees., as a
6 , result of her failure to pay said debts or ooligations i.men we:
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1. /Joy a1d an debts or obUgat ions ,ncurred by petitioner frOO'l and
after date of separation;
2. Pny <I1d all separate ooligations of petitioner;
3. /Joy and all debts or cbl igattons constituting I iens or enct.m::>rances
upon any real property of petitioner;
4. my and al I ot ..:d lgat ions for income taxes for the years 1988 or sobsequent years;
5. ksy and all separate tbligations of petitioner;
6. A,"1y and all premarital obligations of petitioner ..
JP2.0625C
EXHIBIT C - 1
Marriage of Hansen
Cause Numer: 87-3-09135-3 DAVID J, OR0ELL
ATTORNE:Y AT I.AW
705 SECOND AV!::NUE
SUITE 4ot HOGE !!Ult.mNG
SS:Ai"TL!i'., WAS!-llNGTON 98104
t20Sl 624·0\30
App. 30
1
?. I EXHIBIT D
""
a Respondent-husband should assume a1d pay those ooli gat lons set forth
4 hereon, should hold petitioner-wife harmless therefron, and indem i fy her for any
5 reasonable costs and expense vihkh she milY incur, including attorneys I fees, as
6 a result of his failure to pay said debts or obi igat ions \'.hen die:
7 i. kly and all debts or ®ligations incurred by respondent from GW1d
S after date of separation;
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2. k,y and al I separate obi igations of respondent;
3. Pny and al I debts or obligations constituting liens or encurbrances
upon any real property of respondent;
4. Poy and all obligati<ms for incooie taxes for the years 1988 or subsequent years;
5. Pny and all separ-ate obiigat ions of respondent;
6. Poy and all premarital obligations of respondent.
EXHIBIT D - 1
t'i'\arriage of Hansen
Cause i'lnber: 87-3-09135-3 DAVID J. OR0ELl
ATI'ORNt:V AT' 'LAW
705 SECOND AVENLJE
surn: 401 HOGE !i,Ufl .. PING
5EAT1'L£, WA5H1NGTON 98104
l206i 624-0130
App. 31
2
EXHlBlT E
:J '.! 1he support set forth herein shall be revieN&i on a bi-annual basis
r;
-± ':; (every two l2) years), based 1..pon the financial situation of the parties. lhe
; parties shat I exd'tange the prior year's income tax: return .rid current ,vage a-i.d
i)
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inc.one information for the year in date on or before 15 June of said year, in
order to effectuate said adjustment. 9lould the parties be t.nab1e to agree by
30 June of said year, regarding the aoot.tnt of said support payable for the roning
:, year, either party may apply to Court on the Fami Iy Law II.int ion Calendar for a
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determination of said issue. 9,ould either party fai I or refuse to exchange informat ion with the other in the rrenner set fo...-th cbove, said party shall be respons ib[e for costs related to incurring said infonnation. said support a:::Jjustment shal I be effective 01 July of said year, CO'lTl'lencing Juiy 1991. ln calculating said support adjustment, the parties shal 1 use the then existing child support schedule effective for King County~ Washington.
JP2.0625F
EXHIBIT E - 1
Marriage of Hansen
cause t,brber: 87-3-09135~3 DAVID J. OR0ELL
ATTORNEY A't LA'tl
705 SECOND AVE'.f,IUE
SUJTE AO! HOGE BVllDING
SFATTLf!:. WASHINGTON 9BJ04
(206) 624·01:30
App. 32
MeOICAL HISTORY (CONF\RMSW. HISTOft.YOr A.SSAUl.:r)
OBTAIN RELEVANT MEDJCAL He,;
I
·t ,-.~;-. ;-lA~B:;O~R;,A;;:T;:;O;;R;;Y-;T:;E;:;S;::;T::;:S:"'_-;;R;;ES:;:U~lT:;::S;:.:---,----::M::E::P::l::CO-:--:-'_LE:"G':A"':"~LT-ES-:-:T-:-:$:--_-R_i:S_U_L_T"'.""S---,.,:'"""".,--------~~-,;,--. -,------,--
I CHECK eox Ir DONE) ·:. UCHECK a.ox if' DONEl . : POST corr AL co~ACE"..:,l?N) · :\:'
0 ?UBlC HAIR COMBINGS 'f'JA, /
If !'OST COITAL CONTRACEP'l'toN W
I GONORRHEA Cls w,.,.tl.. CT 00 i/>'OODS UGHT t\.-0 SC,i_:'t,,;.,v,._, PRESCRIBED, INDICATE THAT f'.J(rtENl
ENDOCERVlCAL D ------~ WST MOUNT HA$ BEEN INFORMED or pQCCS\13,LE RISKS
AND SIDE EFfEC"'fS OF S ..-1• lREATMENT
UR!'f"l'HRAL, 0 (DOCUMENT ASSENCS OR PRESENCE OF SPERM) H' PREGNANCY WERE OCCUR.
RECTAL lx) IN #/H?f /~ND %OF MOTILE/NON MOTILE
ORAL Kl ~ 'VAGINA <p$p(3:vwi
~ O'f.HER Kf:W: ¢$::p:'4 ,,.,,
SMEARS
• PAP
VAGINAL ~tt=?R !'&l-------f
~~----1
G~AV!NDEX
OTH!.R
• ------.....!
• -~------1 D OTHER -~-------
ACID l'HOS?HAT ASE ONt::llGATE SOUR Cg)
00 r.le L-ft ,1,r. 'v1 v
()'fHER •
TRANSFER OF SPf;CIME'.N$ 3.
l Hef\EEY CERTIFY 'THAT t HAVE RECEIVED F~OM;
AT HARBORVlE:'W MEDICAL CENTER i'HE FOLLOWING ITEMS; 5,
... l,.... '------------------------1 P'KYS!ClAN
C
' SA c w<. ,,.,.,,JJL
. ~Nl/'.t,G;.MAfEf""°
2
_--:-~-:---~--,--,--,icc:,}EE~PTT:--, -::-,-~-T,pr11:ii,io'1tt\::ii 1 i;:,------f;;:;pJt~~~R~· Ti;~~~&N;,.;;;-1" {.,(r~,~~::'.:::'.!_:X~v,.:--==. ::_ __ ··-··----·-······,--··r•~-=,-----··~---·-···•-, ·" ·· ··
. f.e&.,{,a:.O..,.:,t:'./2
OAT& IHOUA
App. 33
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF SNOHOMISH
LISA D. ECKSTROM, )
) No. 90-2-0274-7-1
Petitioner, )
) DECLARATION OF
v. ) ELIZABETH STANTON
)
SIGURD J. HANSEN, )
)
Respondent. )
)
Elizabeth Stanton hereby declares as follows: I am a Social
Worker Supervisor with the Division of Children and Family Services
of the State of Washington. Additionally, I do visitation
supervision on referrals from private attorneys who frequently
receive my name through Family Court Services. I know both of the
parties involved herein and Melissa, have personal knowledge of the
matters contained herein and am competent to testify as to the srune.
1. I first became acquainted with the parties and Melissa
when requested by Family Court Services to supervise a 5 hour visit
between Sigurd Hansen and Melissa Hansen and report on my
observations to Michelle Gregg, the Family Court worker assigned to
the case.
DECLARATION OF ELIZABETH STANTON
Eckstrom v. Hansen
j Cause No. 90-2-02747-1 DAVID J. OR0ELL
ATTORNF:Y AT LAW
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705 SECOND AVE;NUIE
SU!T!;. -101 HOCE l'JUIU)ING
SEAT'rLE'., WAS!-llNGTON !i/810'1
1204$) 62.4-0130
App. 34
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2£3
Prior to observing the visitation, I met with Lisa
Eckstrom to discuss her concerns and to identify items she wanted
me to look for during the visitation. During this conversation,
Ms. Eckstrom expressed concern about smoking, alcohol consumption
and further express concern about the potential for Sig to sexually
abuse Melissa. This was to my knowledge the first time that any
question of sexual abuse, or the potential therefor was ever
mentioned in the proceeding.
3. After observing the visitation, which went very well, I
reported to Michelle Gregg, including Lisa' s concern about potential
sexual abuse~ Michelle Gregg and I discussed this issue and were
in agreement we observed nothing in the Hansen family interaction
which would suggest, any inappropriate sexual behavior. I was
concerned and Michelle Gregg I the r'amily Court worker, indicated
that she was concerned that there would be further allegations by
Lisa of unfounded sexual abuse. Lisa had previousl:l made unfounded
allegations about Sig's behavior and we were concerned that these
allegations could move into the sexual child abuse realm.
4. My observation and evaluation in this case was a direct
result of the concern of the Family Court worker about false
allegations, as well as her desire to make a very detailed and
thorough report which caused my appointment in the first place. The
report was completed and there was no indication whatsoever of any
inappropriate sexual behavior on the part o:f Sigurd Hansen or any
DECLARATION Of ELIZABETH STANTON -2
Eckstrom v. Hansen
Cause No. 90-2-02747~1 DAVID J. 0RPELI...
ATTORN£Y AT LA¼'
705 SECOND AVENUE
SUITE 40! HOG£ !:ltlttmNG
SEATTL.E:. WASHINGTON 98104
42061 6t.4·0t30
App. 35
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member of his family.
5. I have assisted in the transfers of Melissa for visitation
purposes since the entry of the Decree of Dissolution which
incorporated the parties' Parenting Plan. I have had an opportunity
to observe Melissa and Sig on many occasions, and I have seen
nothing in their behavior nor in the dynamics of the Hansen family
which would cause me concern regarding child abuse of any kind
whatsoever. l run very sensitive to the needs of children to be
protectedT am very cautious when allegations of child abuse, whether
physical or sexual 1 are made; but once again, have seen no
indication in the interaction between Mr. Hansen and Melissa, the
Hansen family I or otherwise which would create any concern regarding
the occurrence of any inappropriate sexual behavior between Sigurd
Hansen and Melissa.
6. Finally, one of rny roles in my profession is to be very
sensitive ..,,,hen parents are involved in custodial issues to evaluate
their ability to protect their bonding with the child and the
child• s parents. Continued interference with Sigurd Hansen's
residential access to Melissa could in the future impact the very
positive bond that e~ists between them.
THIS DECLARAPION is made under penalties of perjury pursuant
to the laws of the State of Washington, and the foregoing is true
DECLARATION OF ELIZABETH STAN.TON -3
Eckstrom v. Hansen
Cause No. 90-2-02747-~1 DAVID J. 0ROE:LL
ATIORN!IY AT LAW
705 SECOND AVE:Nt.Jlii:
Sl.ltTR 4.0t Ht'lt..!" JRIJiLPlNG
SEATTLE.. WASHtNGTON 98104
120(;) 624-0130
App. 36
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and correct to the best of my knowledge and belief.
Declaration is dated and
This
SIGNED this __ day of July, 1990 at Seattle,· Washington.
ELIZABETH STANTON
HANSEN.DC4
DECLARATION OF ELIZABETH STANTON -4
Eckstrom v. Hansen
Cause No. 90-2-02747-1 DAVID J, OR0ELL
ATTORNEY AT LAW
705 SECOND AVENlHE
$U!TF AOl HOl'..E J"llill.OiNG
SC:Ai"TL!:'... WASHINGTON 9810-4
120fll E\24-0)30
App. 37
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D•ol«r~tio~ i~ dtt&d ~nd
S!GN'!t thi;t JJ.'J:Jivi1.y of July,. : 990 e.t Se~tt1e 1 waahin~on.
DECL.l'Jth.T!ON OF l:.-1 ZA:;,1r:1
H ;;,'!ANTON
Eckstrom v. Han~wn
Cau~e No. 90-2-02747rl
//~
DAV!O J. OPll!lll.t
1\.-Clo'.o!i.rr' At loAW
'tt• U'~ON0 AVCm.lr:
IIUl'l'i .{('.,I ~O(Jlt •t.m.O!N;3
~!!:ATTlE.. '.NASklN(,';;TQ.'t C.::il0.4
App. 38
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DATA OF CLINIC VISIT: 7-23-90.
St:rSJ"RCTIVK; HelisG~ ls a two 4nd one~half year old female who preBants to SAC d'lnic-with
her mot.her, Lis.a !;'or ~:-gency Room follow up f;;:orn 7/8/90. ,i§,.t th;<1,t: t~ she was brought
to the Ztoergency Room by hE!r ~ther complaining tha.t her bottom hurt. Har mother at that:
ti-me gave a. hJ .. etory that her dad<ly ha<l. hurt h9::-. Appe.rent.ly the child herself ga•,te no
disclo&ui:-e that:: clly.
on physical exa.."\1 sha was noted to have a. linear patte:rn of erythe..rnatocll l@sion.s a.nd
a.hcasions ac~oes her back. aer genital exam revgaled er:;rthema posteriorly around the
perin9al body a~d pos~erior £crchette and a ao«te~hat dilated a.nua. cult~rgs were
obtalned, which were negat:J.Y1;i.
Th..;:re also eppa.::ently was a history of phtsical abus~ when the child was an infant, by her
father. Ther~ is legal action taking place regard~ng custody b~tween the mother and the
father; Attorneys are involved. There ts a guardi~n ad libitQ~ who la involved, and now
there ls a p!:'.:osecute<r fr<Xt Snohomish Cou.r:ty that is involved. PetectJ.ve .;eff JOfHS!$ .frooi
Ed.'N'.)nds is lnvolve<l. The guardian ad litim.m1's n~ is Vic Larson.
Hetissa w2,,. seen a second ti;:;e cm 7/14/90, b.cought in her by her maternal aunt. Th.rt
concern ~as a purplish discoloration cf the perineum that the ltlCther had noticed. juet
pt'ior to t;he oft.Lee vLsLt on 7/14. '!'.he aunt ,gave a history that: the cnlld was not
exhibiting any unusual beha,ior except that BO!OOtimes -.,,hen cha.ngir:.q into d:i::y clothe,:; a.ftar
:;:,3..ng swi,t:'J:'t,l,r,g, the aimt had nct<?d h,sr: putting hec firtger up i.nslde he:c e.nd. ;;ay.tng ",!,,dC:y
do thia. ~ Th": doctor at that t,Lr:ia inte.:::-·liew~-d the child a.rid sne did indicate that her
~addy had to~ched her in the ger;it~l area. ~er ~xam apparently ~hO~"Od a LLctte e.i::--.{them~
retiemblLn,J the exam. cf 7/8. Golposcopy ;,,,as not done at t.hat t.!.IDG. .So 5h@ p.i.ceefamts too.s.y
foe follow up evaluation. Sh-a has Appcently been interview-ed by g,everal other people in
::tm meantime, so a s:pecific ?'Brscnal. interview of Mall.lHHt by horG~lf W3a" not obta.ine-:! •
.i\.lso, she waa acting quit@ i;by an<! s~,;1h:at withc.::awn. ThG: moth@t" gives a history tn~t
the day after her initial exam here, she did complain of e<.'.Xl)e dy~\lri.a.,. but that resolved,
and several day1, ago she had a brief porioo ot dysuria. A.fte?:; ewLmi.lng for se...,,raral hours.
this alao has re$olved. She has never had a history of urina...ry tract infection$, vaginal
or .rectal bleeding, significant b<:;r<,.tel or bladder problems. She ia allergic to
PE:NICILLIN--aet$ welts frOITI this. MKP!CATIOOSz None.
PMT ~IC,?\.L 1llSl'ORl': lndicateg that ahe haa had multiple yeast irtffreftions int ha
di~per area and she hashad bro hospitalizations for dehydration. CUrr,ently the parents
a:ce divorced~ th'3 child has visitation with he:c dad twice a week, and every other we:,ekende
OBJ:S:C:l'!VR: A wel),.-developed, well-nourished girl, occasLonal.ly playfol and interactive,
but moatly shy f>?male, in no a.cute diJ!'!tress. HEE:NT: EntL:::ely HNL. No exudate or
erythema tn the pozterior pharfnx. NECK: Supple ~ithout lym9hadenopatny. LONGS. Clear
to auscultation. CA.RDIAC: reg--..11.a.c ;::-ate and rhythm without murmur, .r,..1b or: gallop.
· · BREASTS: S;r·trimetrical, Tanner stage ! ; non tender. .i\£00.HZN: Benign~ PositiYe bowel
tones, so!t, non tender. No ma$Ses or hepatosplenomegaly. EX'TRZHITIES: Non tender~
PA'.:l::lE~ NAME:
PAT:tElrr !-{O:.
DA-:r.E~
?E!XSlCIM:
--~-.. --... --,---- , ...... - ~-........- .., --~.
ECK.51$0H, HBL!SSA
:14-87-78-09
23 JUL 90
Hl\RY S. GISOONS; H.O.
11
tnITVKRSI'r'T OF riASE:l:RG'.!'OH KEOICA~s
Harl:;x;lr-vie-~ Hedicai Center ·-
University of waahington Medical c2nte
Seattle, Washington
App. 39
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and aymm@tric. Mo ed~. BACK: No rosidu.al f!ndl.nga • froe:t. thelesl.ona described
GEN!TAL!A: Tanner stage I female with nocmal external genit~li&~ The:-clitoral.
hoodr labia. inajora/mlnora:. were all no.t'lllal. t.ha posterior forch~tte wai> normaJ.. There wa~
some posterio~ labial fusion ncted~ which was new. Tho 'Urethra Md periurethrat tls~ue
appeared normeJ.. ':be hymen was: quit a redundant but di.d. reveal a, l-2 ;:in round ori!ide-... -. _-_-. -_ -
Tha ·.;a.ginat muc~ea waa not well-·tis'liali::r.ed and no disvcharge w;,,..s noted+ Th& poaterior"
fossa revealed a fairly demarcated white area of tissue ln the left p,oaterior foasa. The
blood vessels -,.ere probably normal. Peroneal body was normal. the· a.nua. revealed sos:ne
laxity, particularly Ln the knee-chest position. Immediately. Thia was consiatent: with
tho irregular pattern noted in th~ photographs from 7/8 with an ar,g-ulated notching of tho
clrcu~ference of the anus at 3 o'clock in the knee-chest position. Th~ mucosas was
vLsuallzetl ~ith prominence oe the anal verge~ No stc~l waa noted, no ditLtal exam was
cone.
!rnpression: A child with a history of sexual abuse. r-"1 e:xa:n today revealed posterior
lat;,ial fs.;sion and oorn'I': tLs$ue in the posterior :ossa suggestive of scar tissue and an
um.1s"1al ana.l exam with dilatation and angulation a.t .3 o'clock. All of thei;Hi findings
"-'Ol.lld b9 cori;,istent with a. histor,t of i;exual abuse and the photographr,; fr,om tho initial
e•taluat1on re·.;ea.led significant erythei:n.,1 around the posterior forchette and, ant'.:l"ri.or
p<Er i tone al body, and proba.b ly a very sup$rf ic ia.l laceration of the posterior forchet te,
whJ.ch certainly would be consistent wi~h sexual abuse, but may have been cause<l by
retraction. The area that is erythemat:oua is ueual :or a.."'l infla:miati::n:y cause and ""ould b,e
suqgestiv1:1 of frictional injUr"f corrnt;::mt. with sexual abuse. Her &.nal exam wa.a simil.l!.r to
her anal. exarr1 today, constent with, bu~ not diagnostic of anal penetrating traum~.
'2. 'the leslon,;. on her back a.re resolved. ?to cle<at.r et,i.olclgy .. ·as nota,q at that t;i.rr,.e and
non accid,,:mtal. trauma should ~ a cot1siO:e::1.1tion.
3«. DJS:!,:tia x.? 1 not able to gi·f·e urine! $pelCLm-£!n tOO:!.y.. Irritation thQ 2.Lk-aly cauzo«
Should dysuria recur, woulc r-ule out 1..1rina..ry tract infection.
?L./V-f ~ ?hotc,colposccpy waa dGne. Slides wtl l h-e roview;;;-j at a lat-'"': date. GC and
Chlamydia cultures we:ce done on the oropbarynx, rectum and: vagl.o.a.. RPR will be done at
eight W£HJ!ks pc,et 7/8/90, 1?roba.bly At;: ?!-IDs office.
DD~ 7/24/90
DT: 8/04/90
C ,,.. • ... .
?Al'IEN'l" N~:
PATIENT NO!
~:---:--
~,,._ •
~CKSTROK, HELrSSA
H4-B7-78-D9
23 JUI. 90
M.1'.R~ S. GIEBONSr K-D~
mttvK'F..SI'IT oi;~ WASHINGTON· HX.DICM,, ~..:S
5aroot:"V ie-w Xedical Center
Uni.ve:csity of Washington Mectic,ll.l Center;·
Seattle, Wa$hingtort
App. 40
-
Wiluom R Forney, M.D., F.AAP.
Harley C. Wohl, M.D •. FAAP.
Sill S. Schnall M.D,. FA.AP.
September 20~ 1990
Hr. David V. Ardell
705 2nd Ave Suite 401
Hoge Building Seattle, WA 98104
(206) 546-2421
Re: Melissa Eckstrom-Hansen
RICHMOND PED!Ai'Rte CUN!C
355 l'tW, ~ a.aoctl llood
s«att11t,, l/itlllail,o!o119t1;;
I have been asked to comment regarding any possible sexual abuse
of Melissa. During the many visits to our office there have been
no signs or symptoms suggesting sexual abuse.
sw·. r=.er·e·l~..
l ft'· . .
,~L Q t ,AA:V
William R. Forney, M.D.
EXHIBIT _f.; ____
App. 41
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2-6
KfNG COUNTY
\!;Pi:Oftir .. ,1"':'."1f1.o-1· c.:LEf" ..'.j -.... .... "' ~n l~ ... ~ ~"L"'• ... ~:.i . ·fl'.,,
S[t7fl E, WA. ''
IN THE: SUPERIOR COURT OF THE STATE OF WASHING1'0N
IN AND FOR THE COUNTY OF KING
In re the Marriage o:f:
LISA DAWN HANSEN,
Petitioner 1
a.nd
SIGURD J. HANSEN,
Respondent.
No. 87-3-09135~3
DECIJ\RATION OF
ELIZABE'I'H STANTON r MSW
ELIZABETH STk>~NTON hereby declares as follows: I have personal
knowledge of the matters contained herein and am competent to
testify as to the same.
I am and have been a social worker since 1959. I am in the
employ of Children's Protective Services, a position I have held for
the past 22 years. Additionally, I have and do accept referrals
through Family Court and private referrals~ It was in the capacity
of assisting in a Family Court investigation that I became familiar
with the parties in this proceeding and Melissa Eckstrom-Hansen.
Even after completion of the Family Court report, r have continued
to be involved in this matter as set forth herein.
I have regularly supervised the exchanges between Lisa Eckstrom
DECLARATION OF ELIZF,BETH STANTON, MSW -1
rn re Marriage of Hansen
Cause No. 87-3-09135-3
DAVID AT'TORNEY
J, 0RDE:L.L
AT LAW ,,1 705 SECOND AVENUE;
SUITE 401 HOGE Sl/ll.DING
Sl:::A"fTLE'.. WASHINGTON 98104
12cm 1,2.:-01:10
App. 42
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and Sig Hansen of their daughter, Melissa. The exchanges took place
on Tuesday and Thursday mornings at 7:00 a.m. at Lisa Eckstrom•s
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home. In addition, I have supervised the exchanges between Litja
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Eckstrom and Melissa's paternal grandmother, Mrs. Hansen. l
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The majority of the exchanges that l have witnessed have been
when the paternal grandmother picked up Melissa for her ·
1.dsit. I
stopped going to the door with Mrs. Hansen after Lisa 1 s attorney
t
advised me that her parents would sue me for trespassing if I "put f
foot •
1 on their property. From the street, I have had a full vi1w
of the door and the faces of all parties.
The behavior of all parties has been consistent through the
visits. There is a significant pause before the door is opened.
Lisa is at the door with a blanket in her left hand. After a long
pause, I can see Melissa climbing the steps to her mother. Lisa is
frequently not looking at her, but turns toward her as she comes up
the steps. Lisa. puts Melissa's coat on, farewells are prolonged
with kisses, Lisa puts he:r arms around Melissa and holds her. In
most recent v;eeks, 1 have observed another child at the door and
many farewell exchanges take place between that child and Melissa.
From my place in the street, it appears as though the goodbyes are
to a child going to a terrible fate. Melissa is somehow on most
occasions able to v1c1lk out the door and go to her grandmother.
On two occasions, she has whimpered, but I have noted there has
never been any sign of tears. I have always remained to see Melissa
DECLARATION OF ELIZABETH STANTON, MSW ·--2
In re Marriage of Hansen
Cause No. 87-3-09135-3 DAVID J. O~DEL.!..
ATTORNEY AT LAW
705 SE;CQNO AVENUE
5UJ1"E 401 HOGE BUILO!NG
SEATTLE. WAStt!NGTON 98104
f:'.>Ofil fil:''1·01::10
App. 43
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strapped in the child's seat. and she has always been playful and
laughing when she left.
l have observed Melissa at her paternal grandparents I ho:me.
She is very comfortable there and goes freely through the house
organizing her play. Her favorite thing is swinging. On one
occasion1 while her fat.her was fishing, I heard her ask for him.
There was a period of time \vhen Sig was not permitted to see
Melissa. I was asked by the Hanserrn to observe the first hour of
the first visit tha.t he had following that period of suspended
visits. Melissa had been playing comfortably and having a good time
in the living room prior to hir, arrival. When he arrivedr her
demeanor changed notably. She beca111e elated and joyful and acted
this ont by crawling on the couch giggling and saying "meow meow
meow''. This was a very touching moment for everyone present.
Since that time, I bave observed another visit at the Hansen
home. Again, Melissa was playing comforta.bly in the living room and
interacting with her grandparents. Mr. Han sen asked "Where is
daddy?" Melissa said, "I don't know". Mr. Hansen said "Oon•t you
want to see Daddy?" Melissa said "No", Mr. Hansen then said,
;'Why?" and Melissa r~sponded 1
'No" , Shortl:;{ after this exchange, Sig
arrived.. Melissa hid 'Under the table. I looked at her and she was
smiling and looking to see if he wonld £ind her. Sig pretended to
look for her and then pretended to be leaving because he couldn't
find her. She came out laughing. I then observed them playing for
DECLARATION OF ELIZABETH STANTON, MSW -3
In re Marriage of Hansen
Cause No. 87-3-09135-3 DAVID J. 0F{DEt.L
ATTORNEY AT I.AW
705 SE;CONO AVENUE
SUITE 401 HOGE SUILDJNG
5E'.A'rrt .. E;:. WASHINGTON 9:8104
App. 44
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about 45 minutes before I left. Melissa a.sked him to toss her into
the air and he did so several times. I noted that she had complete
confidence that he would catch her. I also noted that he stopped
immediately ·w·hen she aslced him to do so.
I have noted Lisa always gives a blanket to Mrs. Hansen when
Melissa leaves, but I have never seen Melissa pay any attention to
it during the visits I observed.
In other exchanges of children whose parents are in custodial
disputes, I have consistently observed the sending parent to have
the child dressed and at the door or to lend encouragement to the
visit, even in cases where I knew the parent had difficulty doing
this and probably w:i.t.h good reason. Melissa seems to be left on her
ow'n to get to the door and carried through the· situation by what
14 I interpret. to be her affection and trust of her grandmother.
15 ' I have had substantial opportunity to observe the interaction
16 between Melissa and Sigurd Hansen as ,,;ell as the interaction between
17 Melissa and her paternal gra.11.dparents in a professional capacity.
18 Throughout the time I have been involved in this proceeding, I have
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seen absolutely nothing which would indicate the Melissa has
suffered any physical, emotional, mental or sexual abuse at the
hands of Sigurd Hansen or his parents or any member of his family.
Because of my background, rny employment with Children's Protective
Servicest and my mm nature, I am very protective of children, but
a:m convinced that Melissa is not at risk while in the care of her
DECtARA'l'ION OF ELIZABETH STANTON, MSW -4
In re Marriage of Hansen
Cause No. 87-3-09135-3 DAVID J, •RDElL
A'f1bPNE'.Y 1'.T LAW
70!5 SECONO AVENUE
SUJTE 401 HOGE aun.O)NG
SEA11U':, WASHINGTON 9!;!104
f:2061 624•0130
App. 45
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father or paternal grandparents.
THIS DECLARATION is made under penalty of perjury pursuant to
the laws of the State of Washington, and the foregoing is true and
correct to the best of my knowledge and belief. This Declaration
is dated and
SIGNED this ~ day of September, 1990 at Seattle, Washington.
DECLARATION OF ELIZABETH STANTON, MSW -5
In re Marriage of Hansen
Cause No, 87-3-09135-3 DAVID J. 0RDELL ·."" -· ATTORNEY AT LAW
705 SECOND AVENUE
SUITE:; 401 HOGE BUILDING
SEATTLE. WASHINGTON !;!Bl04
i:>.om 6~4-01.l!O
App. 46
ll-5-90
Diane chesterfield
r
LYNDA BRIDGES MSW.
116 FIRST AVENUE SO!J .. SUITE 333
SEATTLE, WA 98104
(206) 447-2384
child Protective Services
Depertmenc of social and Health Services
1900 3~d Avenue w.
Lynnwood, WA N-33-3-98036
Dear ~s. Chesterfield:
In resp0nse to our conversation on l0-29-90, this letter is a ::n.:.IT1..rn,ary c: my im:erviews with Melissa Hanson en lG-19-90. I wa;;:;
r~o1
~n~
-les-::;:eci
Ma1~ss~
by Lisa Eckstrom,. M~lissars mother, tQ Provide the.tatt~
wh~ cae=-~ +ob• hav • ~g a~iu-~man~ Y~p~~i~"- •o ~:~ ----- --·-~- -c... ,.._..,'-,,I.._. • ._.~}~..,.,.->,..,:,;. - - ...... _ ....... -J ;,;;;,i.,..,. .......... ...,,,. ....,,.,__~--.... .... ---y..,...,...., .... ,,._ .... ,_.~ ~ns:.t:3.ticn. with :.cer fathsr. 1
'I w~nt l:':er to be ~s h'2:althy 3:1':1 ;..~·,_;-;:•;,
as she can be. She is preseL~ly very =~i~gy. 3he ~as rsgrEss0a
and ::iow is pcn:ty1ng in her :;;:iants. She is refu.sin.g to be bathed in.
the ba:h cub. she has nightmares at nisht and s!eeping ad t~ent ?:o~le~s. S~e, overall, seems LO be not the happy little girl she
useci to be. 0
! have not had individual interviews with Lisa nor Missy's fa~he~, Hanson, Therefore, I hava no background information about &his case, nor am I aware of the full extent of previous evaluations or allegations cf sexual abuse.
During my first inter-view with Melissa, she seemed quite
preoccupied with the dell house bathroom toilet and bathtub. She
well
spent most of her time forcing the doll to sit on the toiletr as as the bath tub, n1..1merous times. When I attempted to get her :c move to other rooms in the dell house, she kept reverting back ~6 the bathroom where she continued bathing and pottying over and
aver again. When I asked Missy if she bathed in the bath tub, she said, "No, the sink. H
During her second interview, she skillfully played with puzzles demonstrating axce.ptiona.1 hand eye coordiuat±.on. She was able to quickly put puzzles together that most children her aga
would have difficulty managing, In the playroom, there is also a
App. 47
c:i.esterfi'i:lci
.?.e: Me11s:.s.a
• ll-5.,,:90
?age 2 •
family of dolls, consisting ot tour dolls, male/female (father and mothe~) and two male/female children, The dolls are anatomically correct, soft fabric dolls, Often, ! u.se .:nese dolls £or
evaluatino a child 1 s level of attachment and rest>cnsiveness to
his/her family members. In our play, I placed the little blond
chil~ doll i~ the ar~s of the mommy doll and asked ~hat she was doiztg. She replied, "she is hugging her. 0 I then placed the
ternals child doll in the arms of the daddy doll and asked what he
was doing. She :::epl i eci, nEe is hurting her potty pot." I then
askeci., "Whe!'e .1.s hi.;r potty pot?u she then pointed to the vaginal area of the clothed female child dell. I then asked Missy where her pctcy po: was and she pointed to her own vaginal area, I asked, "Does the ii~tle girl have her clothes on when the daddy is .nurting h.e:r in s:.::.e potty· pot? 0 She .said, "No." S'.:le then took the
ciol ls cl cthe.s off. I then asked where is her potty pot and sh'!;! =esponded by poin~ing again to the vaginal area of the doll, which
was :1ow unclothed. I then asked, rtDoes the daciciy do 11 have his
.-;,...,.,...,.<: '"'";' t
r she saici, "No." she then took the clothes off th$
ci~dciy doll and point<':!d to his penis. she stated, nEe hurts her
wi .:h his w-ear:.i e." r th'.;!n asked, ''How does hse hurt her with his
wean:1.e? Show me. 0 She placed the two dolls together and then
:~rsw ~hem on the floor. At that point, she curled up i~ a feta!
posit:oc wit~ her legs drawn to her chest, physically scooting away :=rorn me.. ~he ther1 said, "Ycru do it .. rr I th.en s.sked. nDo-as yc,11r- i~ flu::~-: yo 11 in JC·U~ ~atty po::?lt ar:ci she said., tr:tes. rt I askecif
nzices !!~ U.utc you wit~ his weanie in yo?..1..r potty pot? rt and she said,
nYes" 0
Missy appeared very tr:gncened. Her facial expressions and behavior caused me to beleive she was very upset and afraid. I
reassured her we were going to step playing with the dolls. She
:::,.en ca.me over and wrapped her a.::-rns aror.h"'td my neck and gave me a
v~ry intense hug. ! then comforted her and we proceeded to play
again with the doll house.
During ihe third inte~view with Meliss~ on 10-22-90, she again
was playing with the doll house, primarily the bathroom. She was
much quieter during this visit. We talked about the visits with
her father and I asked her if she enjoyed visiting with him. She
said ... 0 No, daddy hurts my potty pot. 0 r then asked if anyone else.
hu:tt !i.Cr, ;'Dici. your mornmy hurt you? 0 she said, nHo." "Did your
grandmother hurt you? Did your gt'andfather .hurt you? Did a friend
hurt you?'' !n asking this series of questions, she replied each time, ''No, my daddy hurts me." ! then asked, ''Did Morn.11y tel 1 you.
to say Daddy hurt you?" and she replied, nNo. u I also have
drawings where Missy discloses that her father hurt her potty pot and wet on her leg.
Since I em net evaluating Missy for sexual abuse, I conveyed
App. 48
chesterfield
?.~: .:;felissa
ll-5-·90
?age 3 •
this information to John Dunne, H.D., the court appoint~d
evaluator, so he could continue the evaluation of Melissa. After conr.acting John Dunne, I contacted Larry Vey at CPS on 1-0~19-90,
who suggested that I make a direct referral ta CFS intake. ! spake with intake on 10-23-90. an 10-25-90, I spoke with Candis at CPS,
t,.;"n,o :.•::'.ld: my statement. I .spoke with Diane Chesterfield at CPS en 10-30-90. At this poi;:it, my primary ohjecti•;e is ta assist
Maiii;:.:-::a, in resolving the trauma she beleives has occurred to he;; t~~oug~ a ~herapeutic r~lationship~
Lynaa Bridges MSW
App. 49
' I
Southlake Professional Group Renton Plaza Building
John E. Dunne, JVi.D., F.A.P.A. ~ Child Psychiatry
Wren Hudgins, Ph.D. • Psychology
Barnett M. Kaplan, M.D. • Psychiatry
Clinical Associates
Pablo R. Proano, M.D .• P.S. • Psychiatry
Janis P. Mayberry, Ph.D .• Psychology
Barbara Mayers, Ph.D.• Psychology
Lee Carlisle, NLD. ~ Child Psychiatry
Barbara Barry, Ph.D.· Psychology PSYCHOLOGICAL EVALUATION
SIG tIANSEN
NOVEMBER 19, 1990
REFERRAL INPORMATION
1400 Talbot Road South, Suite 203
Renton, WA 98055
(206) 235-7383
Sig IIansen was referred for psychologic:al evaluation th.rough Dr.
John Dunne as a component of his psychiatric evaluation witb
respect to parenting responsibilities of Sig's three year-·old daughter, Melissa. Specifically, Sig and Melissa's mother, Lisa
Eckstrom, is asking the court to assiat them in determining appropriate parenting responsibilities with respect toward
Melissa.
ASSESSMENT INSTRUMENTS UTILIZED
In order to complete this ev~luation t:he following assessment
instruments were administered:
One 50 minute clinical interview, dated 10-12-90.
Administration of the Minnesota
Inventory, (MMPI), dated 09-24-90.
Multiphasic Personality
Administration of the Millon Clinical Multiaxial Inventory-II, dated 09-24-90.
nmIAVIORAL ODSERVATIONS
Mr. Uansen did not attend his first appointment, as there seemed
to he a scheduling mix-up. He did however, make the second
scheduled appointment and w,'!ls on time to meet the examiner. Mr.
Hansen was casually dressed, but wearing a gold watch and a diamond ring. Ile spoke easily with the examiner, showing no
signs of ,gross psychological or cognitive impairment. It is the
examiner's opinion that this evaluation is an adequate representation of Mr. Hansen's current level of psyc:hological
fiinctioning. Mr. rransen looks his stated age and talks with a
slight accent indicative of his bilingual abilities in both Norwegian and t:1nglish. ne appeared somewhat angry during the
evaluation as he spi:::,ke about his feelings of being manipulated
App. 50
PSYCHOLOGICAL EVALUATION
RE: SIG HANSEN
PAGE: TUREE
It is possible that he is in.vol ved in a sophisticated attempt to
present himself in a favorable light. Sig is reporting a great
deal of somatic complaints, some of which may be a reaction to
stress and conflict. Sig might be described as self-centered,
emotionally mature, demanding, and manipulative. Ile has little
insight into the psychological nature of his problems, and ·when
under stress, he is unlikely to experience any subjective
distress. While Sig is somewhat friendly and outgoing, his
relationships tend to be somewhat superficial and involve
excessive demands for attention and affection. When important
values are threatened, it is likely that Sig will become blameful
of others while denying that he is angry and upset. Mr. Dansen
also could be described aa having unjustified jealousy, a poorly
regulated temper, and is very sensitive of other people's
opinions and actions. Mr. Dansen would more than likely have a
difficult time of forgivin.g others even after minor
disagreements, which can lead to power struggles with those he is
closest to. The results of the MCMI tend to corroborate the
finding$ of the MMPI~ With the results of the MCMI, thei;e
appears to be a tendency of avoiding self disclosure, It is
possible that Mr. Hansen is not pz>.1;ticula.dy psychologically
minded but also that he is,. perhaps, somewhat evasive. While he
produced a valid profile, it is important to note that !\.ome
$Cores may be lower than what they in fact actually are. Mr.
Hansen could be described as: being ver:y concerrie:d about getting
exte;:nal approval and respect from others. He conforms to the
expectations of others and is very adaptable. This ada_pt.abilit:y
seems to be a way of dealin9 with his inability to admit to
psychological problems. Thus, by be:coming so adaptable and re~dy
to modify his behavior, he avoids criticism which he expects for
his shortcomings. Mr. Hansen h,:ts a strong fear of expre~rning
negative emotions and losing his control. ne will deny any
discord or unhappy feelings which will again make his public self
much less prone to criticism. Ile fears making mistakes and
provoking humiliating comments. Mr .. flans.en may tend toward
perfectionism and an over concern with minor public appearances.
Surges of ang:err however, can periodically break through, bu.t as
a result of his struggle to repress these urges, he may have a
history of tension and somatic problems.
CONCLUSION
Mr. Dansen is a 24 year-old male referred for brief psychological
evaluation through Dr. John Dunne. Results indicate Mr. Hansen
to be somewhat defensive about admitting to problems within the
-- evaluation but also within fhe - wodd at large. Ue is quite
concerned with making mistakes and, therefm.-e, will become very
adaptable in order to avoid criticism and rejection by others.
When in conflict with others1 he will also become hlarneful and
App. 51
PSYCHOLOGICAL EVALDATION
RE: SIG DANSEN
PAGE: TWO
for his property and material wealth. It was somewhat difficult for Mr. Uansen to talk about his daughter, Melissa, and, in fact,
it was only when the examiner brought her up specifically that he
was able to talk about her. Mr. Hansen instead chose to talk a
great deal about his ex-wife and the wrong doings that occurred during their courtship, dating, and separation and divorce
proceedings.
TEST RESULTS AND INTERPRETATION
M.r. Hansen reports growing up in the Seattle area with an older and younger brother. ilis father is a fisherman, and subsequently
w,':is gone from the home for extended periods of time. Sig speaks
v~ry highly of both of his parents and describes hi$ mother as being a tough woman who was quite capable of maintaining a household when Sigrs father was away. Sig, however, also speaks
of his father with a great deal of respect and, in fact, states
that at one level as a child he knew that he needed to obey his father or the consequences would be severe Lf he did not. Mr.
Hansen reports doing average in school; having graduated from
high school. ne began working with his father as a fisherman at
age 12 and, in fact, would at times be late for the beginning of school, as he wa$ busy working with his father. Mr. Hansen did
not date in high school and reports that he did not even kiss a girl until the age of 18. Lisa was his second girlfriend ~hom he
met through mutu.al friends. 'I'hey co:t"responded a great deal through letters,, and after Lisa beca.me pregnant there was a mutual decision to get married. However, initially, when Lisa found out she was pregnant$ Sig wanted to ter,m:inate the
pregnancy, whereas Lisa didn't. According to Sig, the couple was mar-ried in October, Sig not remembering the exa.ct date. They
were separated in November and their d,'iughter was born in April.
The wedding was held at his parents' house and the couple had a honeymoon in Hawaii for 9 days.. Sig reports this as being
terrible, as there was a great deal of fighting during the
honeymoon. Shortly after they returned from. the honeymoon, Lisa left to go live with her parents and file for divorce. Sig was
not present for the birth of his daughter and :found out several days aftet" she was born, then went to the hos:pit-al to see her.
Sig reports wanting to be more involved in his daughter, Melissa's, life so that his parents can raise her, as be has a
great deal of concern about how Melissa is currently being raised.
The results of the ~~1PI reflect a valid profile and that Sig was
cooperative and understood the questions. Results of the Mr-1PI indicate Sig is somewhat moody and experiencing periodic
psychological distress. Sig has relatively good ego strength,
positive self-concept, and is fairly adaptable and resourceful.
App. 52
PSYCHOLOGICAL EVAL0ATION
RE: s:IG HANSEN
PAGE: FOOR
defensive, rarely acknowledging his contribution to the
dif£icul ty. Mr. Hansen denies ps:tchological components of his
behavior, and rather tends to react to stress by denying it
verbally but with resulting somatic problems. With respect to
parenting issues, the examiner has some concerns about his
abilitx to work with others and c:ornp.i:ornise, rather than be
totally adaptable or quite angry. It is also important that he
be able to relate to stress and be able to acknowledqe his own
shortcomings. Overall, the examiner finds no eviden~e in this
evaluation to indicate that ht;) would be an inadequate parent.
Respectful~ii) submitted by,
- /1&-L--~,,-,-
v---
is P. -Mayberry, Ph.D.
Licensed Clinical Psychologist
JPM/tvv
App. 53
Southlake Professional Group
·- John E. DuMe, M.D., F.A..P,A. • Child Psychiatry
Wren Hudgins, Ph.D. - Psychology
Barnett M. Kaplan, M..D. ~ Psychiatry
Clinical Associates
Pal>lo R. Proano, M.D., P.S. - Psychiatry
Janis P. Mayberry, Ph.D. - Psychology
Barbara .Mayers, Ph.D. - Psychology
Lee Carlisle, .M.D. • Child Psychiatry
Barbara Barry, Ph.D. • Psychology
PSYCOOLOGICAL EVALUATION
LISA ECKSTROM
DOD 12-20- 65, AGE 24
NOVEMDER 19, 1990
Renton Plaza Building
1400 Talbot Road South, Suite 203
Renton, WA 98055
(206) 235-7383
Lisa Eckstrom was referred for psychological evaluation through
Dr- John Dunne as a component of his psychiatric evaluation with
respect to parenting responsibilities of Lisa's three year old
daughter, Melissa. SJ?ecifically, Lisa and Melissa's father, Sig
IIansen, are asking the court to assist them in determining
a1;>propriate parenting responsibilities with respect toward
Melissa.
ASSESSMENT INSTRUMENTS UTILIZED
In order to complete this ev-aluat.ion, the .follo\'i'ing assessment
instruments were administered:
60 minute interview with Lisa, dated 10-2,6-90.
Administration of the
Inventory, dated 9- 11- 90.
Minnesota Multiphasic Personal i ty
Administration of the Millon Clinical Multiaxial Inventory-II ,
dated 9-20-90.
DEJlAVIOR AND ODSERVATIONS
Lisa was on time for her scheduled appointment with the examiner.
She is a very attractive woman looking some~hat younger than her
stated age. She spoke freely with the examiner but also appeared
somewhat upset that she needed to engage in the evaluation
process. She had di.:fficulty in feeling that people did, in fact,
believe her o:r: supf?ort the concerns she bad ~ith respect to
Melissa's father. She seemed to feel that no one was, in fact ,
listening to her and that her daughter would continue to be at
risk. Throughout the evaluation, there continued to be good- eye
contact and there was no evidence of gross psychological or
cognitive impairment. It is this examiner's opinion that this
evaluation represents an adequate level of Lisa's current level
of psychological functioning.
App. 54
-
PSYCllOLOGIC.AL EVALGATION
RE: LISA ECKSTROM
PAGE 2
TEST RESULTS AND INTERPRETATIONS
Lisa reports growing UJ:? in Edmonds the_ 5th of 6 children. !1er
parents are currently married and living in Edmonds, and tisa
lives with them. In school she reports doing adequately, and
after high scbool went to study the travel business at a
community college. She then enrolled as a medical transcribel'.'
and eventually got a job with a plastic surgeon. Lisa reports
getting laid off, as she was quite tire, blaming Sig for taking
her out late at night. She then moved to California where she
modeled and sold condominiums. Lisa reports that she got to know
Sig through letters and phone calls, and that when he was nice to
her she couldn't have asked for a better partner. rrowever, Lisa
also states that he hit her prior to their marriage but that she
didn't report this. She also states that she did not know about
Sig's heavy smoking . or drinking and that on their honeymo.on he
drank so much that he threw up . Lisa also reports that on the
honeymoon he hit her and that she filed a police report regarding
this incident. Lisa states that she planned to marry Sig in the
summer of 1988, but that due to her une,-pected pregnancy they got
married in October, 1987 . Lisa states that the couple went to
counseling several times but that Sig punched her and that she,
at that point, chose to end the marriage and, as she states,
chose the bab:'.i· over the marriage~ Lisa is quite concerned about
her daughter, Melissa, and feels that no on is, in fact,
addressing the concerns regarding her daughter. She fears for
Melissa's safety when Melissa is with her father and has started
Melissa in counseling due to Melissa 1 s statements regarding her
alleged se,;.ual abuse. Currentl:r, Lisa is not working , as she was
in an auto accident and is unable to work at this time, It is
difficult for Lisa to envision or support Sig having any
relationship with Melissa, particularly as she now has concerns
rega.rding Melissa's safety. Ilowever, the examiner feels that
Lisa is not. able to envision any shared communication between the
couple with respect toward any parenting responsibilities.
Results from the MMPI reflect results in which the validity must
be taken as being doubtful. Responses that were. given by Lisa
are very guarded, reflecting an unwillingness to admit to
personal problems or weaknesses that at'e beyond her ability to
solve or con.trot. There£01:e, results of the MMPI need to be
taken somewhat tentatively. Dased on Lisa's results, she might
be described as being somewhat restless and independent and
enjoying variety and change. She would be described as being
capable of being assertive and of identifying and expressing
anger appropriately. Ilowever, Lisa also has the ability to overcontrol her anger and can, at times,· be out of touch with he.t"
rootiv~es and feelings.. She wants very much to present a good
public front but periodically can act out her anger in perhaps
App. 55
PSYCilOLOGICAL EVALUATION
RE: LISA ECKSTROM
PAGE 3
-
unpredictable outbursts. As rejecti on is painfu l for her, she
is perhaps somewhat cautious about confronting others in a faceto-face manner. Therefore, she might try to please people and
can, at times, selectively report things in order to protect
other peoples's feelings. It is possible that people might
mist~ke Lisa's emotional reserve for being cold or indi fferent.
The results of the MCMI tend to substantiate those of the M.'1PI.
Results of the MCMI indicate Lisa having a strong need to be seen
by others favorably and how easily she will give in t o the wishes
of others, particularly those in authority. She tries very hard
to be considerate and cooperative without a great deal of self
will or personal desi~e. Lisa will go out of her way to appear
capable and confident in her attributes, although she feels
somewhat inadequate and unsure of herself. ll.ny sign of
disapproval from others causes her a great deal of tensiion.
Rather than having this happen, she will become overly
respectful,perhaps even ingratiating with those she perceives in
authority. Periodically Lisa's anger may overpo~er her sense of
propriety. nowever , a fear of exposing these feelings can lead
to being overly organized and showing rigid self~restraint. She
does not trust others to provide the approval and security she
desires and is, therefore, feeling a great deal 0£ tension right
now. Although Lisa may appear conscientious and capable, she at
times, can be indecisive, want to procrastinate, and can be
easily upset by deviations in her daily routine. She wants very
much to appear in a good light and, therefore, adheres to social
conventions. She dreads making mistakes or taki.ng risks as they
could be humiliating for her or provoke disapprmral from persons
in authori ty. Lisa has a rigorous internal conscien ce and seeks
to control her angry urges and thought.
SUMMARY AND RECOMMENDATIONS
Lisa Eckstrom is a 24 year-old woman participating in a
psychological evaluation to help determine parenting
responsibilities with respect to her two year-old daughter. Lisa
had a difficult time in acknowledging any problems and yet is
quite distressed that people will not acknowledge her difficulty.
She's tense and worried but lacks insight as to the psychological
component of her dif ficulties. She is very much su;bject to
others' opinions of her and will alter her behavior in order to
present a good public front. She is very dependent on others'
opinions and behavior and gears her life toward pleasing those
that ~he ca r es about. While there is no indication that- Lisa
would not be an adequate parent for her daughter, there is
- ·'
App. 56
·,
PSYCUOI.OGICAL EVALOATION
•
RE: LISA ECKSTROM
PAGE 4
•
concern with respect toward her ability to be asse.rti\Te as well
as to acknowledge Melissa's father's role in her daughter's life,
i.f, in .fact, there ca.n be a safe rel~tionship between the two.
Respectfully .submitted by T
Janis P. Mayberrjt, Ph.D.
Licensed Clinical Psychologist
JPMJtvv
App. 57
John E. Dunne, M.D .• F .A.P .A. - Child Psychiatry
Wren Hudgins, Ph.D. - Psychology
Barnett M. Kaplan; M.D. • Psychiatry
Clinical Associates
Pablo R, Proano, M.D., P.S. - Psychiatry
Janis P. Mayberry, Ph.D. - Psychology
Barbara Mayers, Ph.D. • Psychology
Lee Carlisle; M.D. • Child Psychiatry
Barbara Barry, Ph.D.• Psychology
• Renton Plaza Building
1400 Talbot Road South, Suite 203
Renton, WA 98055
(206) 235~ 7383
PSYCilIATRIC ASSESSMENT
RE: PARENTING ARRANGEMENTS POR MELISSA 11:Cf\STROM-IIANSEN
NOVEMDER 26, 1990
Mother
Lisa Dawn Eckstrom, Age 24
7503 228th Ave SW
Ed.11orids, WA 9 8 CJ 2 0
Telephone: 774-6409
Attorney for Mother
Peter D. Francis
1600 Seattle Tower
1218 3rd Ave
Seattle, WA 98101-3080
Telephone: 682-9910
Dependant Child
father
Sigurd Johnny Dansen, Age 24
17107 76th Ave W
Edmonds, WA 98020
Telephone: 745-2065
Attorney for Father
David J. Ordell
705 2nd Ave, Suite 401
Uoge Building
Seattle, WA 98104
Telephone: 624-0130
Melissa Dawn Eckstrom-Uansen, Age 2 yrs. 6 mos.
nirthdate; 04-22-88
IDENTIFYING DATA AND REASON FOR EVALUATION
Melissa is the only child from the marriage of her parents, Sig
Dansen and Lisa Eckstrom, who separated 5 months prior to her
birth. Sig Hansen works as a corruneroial fisherman on his
father~s boat in Alaskan waters and Lisa Eckstrom is unemployed,
al though she has 1.vorked as a model, and an offic,e worker in the
past.. stg recently moved into his own house and Lisa, and
Melissa live in the home of her parents. Melissa visits her
father twice a week and every other weekend when he is not away
fishing. There had been so raany conflicts between Lisa and Sig
that their Parenting Plan called for psychological evaluations of
all parties if further allegations arose. In the past 6 months
Lisa has alleged that Sig has assaulted her and also has sexually
ORIGINAL
App. 58
• I
PSYCTIIATRIC ASSESSMENT
RB: MDLISSA BCKSTROM-DANSEN
11-26-90
PAGE 2
abused Melissa. These allegations prompted the agreed order of
psychological evaluation of all parties, including both sets of
grandparents. Although the cost of the evaluation was
originally to have been divided equally between the parties, Sig
Uansen agreed to pay the entire amount pending t'eview by the
court.
SOURCES OF INFORMATION
l:'or the purpos(! of this evaluation the following interviews were
conducted:
09=26-90
10~·08-90
10~10-90
lO-ll-90
10--12~·90
10-17-90
10-18··90
11-05-90
U-07-90
11-07-90
One hour interview with the
One hour interview with the
One hour interview with the
One hour intervie~ with the
One hour interview with
Sverre and Snefryd Uansen.
father, Sigurd £fan sen.
mother, Lisa Eckstrom.
f<'lther.
mother.
the paternal grandparents,
One half hour session with MeJissa nansen and her
mother followed by one half hour ses~ion alone with the
evaluator.
One hi:il f hour with Melissa Il<'!nsen and her father
followed by one half hour session alone with the
evaluator.
One hour session w.il:h Mel:issa ilIH1sen.
One hour interview with Victor Larson,
guardian ad litem for Meliss,9 Llar1sen. ,
!>LS. w.'
One hour interview with the mat~rn~l gr~ndparents,
Theodore and Jean Eokstrom.
f'or the purposes of thi!'; e\'";d,uation the fol lowing telephone
conversations occurred:
01-12-90 T.C.
08--17-90 T.C.
08-23 90 T.C.
0 9~10·· 90 T.c.
09-11-90 T.C •
. 09-12-90 T.C.
09"•17w90 T.C.
09-26-90 T.C.
09-W--90 T.C.
10-05-90 T.C.
10-10-90 T.c.
10-11-90 't.C.
10~18~90 T.C.
10-19-90 'I'. C.
from David Ordel], attorney for father.
from David Ordell's office.
from David Ordell's office.
from Lisa Eckstrom.
to Lisa Eckstrom.
to Peter Francis, attorney for mother.
from Sig Hansen.
to Davi.] Ordell.
to Peter Francis.
f1-om Sig Hansen.
from Sig Hansen.
from David Ordell.
from Sig Hansen.
from Sig Hansen.
App. 59
f , I
PSYCHIATRIC ASSESSMENT
RE: MELISSA ~CKSTROM-IJA.NSBN
11-26-90
PAGE 3
10-22-90
10-22-90
10~·23'"·90
10-29-90
l0-31-90
11-01-90
11-01-90
11-02-90
11-06-90
11-06-90
11-·06-90
11-07-90
ll-08-90
11-08-90
ll-08-90
11-08-90
11-08 90
11-08-90
11-,12·"90
ll-15-90
11-19-90
ll·-19-·90
11-21-90
T.C. from Linda Dridges, M.s.w.
T.C. to Lisa Eckstrom.
T.C. from Lisa Eckstrom returned.
T.C. from David Ordell.
T.c. from Diana Chesterfield, CPS caseworker.
T.c. from Victor Larson, M.s.w., guardian ad litem for
Melissa ITansen-Bckstrom.
T.C. from David Ordell.
T.C. from Charles Davis, D.MIN., former therapist for
Sig and Lisa nansen.
T.c. to Pete~ Prancis.
T.C. to David Ordell.
T.C. from Mr$. nansen, paternal grandmother.
T.c. from Diana Chesterfield.
T.C. to Peter Prances.
T.C. to David Ordell.
T.c. to Linda Dridges, M.s.w~
T.C. to Linda Dtidges, M.s.w.
T.C. to William Forney, M.o., Pediatrician for Melissa
Uansen-Eckstrom.
T.c. to Elizabeth Stanton, M.s.w.
T.C. from David Ordell.
T.C. from Peter Francis.
T.C. to Larry Voie, CPS caseworker.
T.C. to Peter Francisf office.
T.C. from David Ordell.
For the purpose of this evaluation the following documents were
reviewed;
01) ITornily Court Par~nt Questionnair(;; f;or :t,isa Eckstrom, undated
approximately 1988.
02) Family Court Parent Questionnaire for Sigurd Dansenr undated
approximately 1988.
03) Family Court Custody and Visitation Report by Michelle
Gregg, dated 01-20-89.
04) Motion and Declaration for Continuance of Trial Date, dated
01-26-89.
05) Order of Continuance, dated 02-08-89.
06) Declaration of Tim nai-tnian; dated 06-02-89.
07) Declarations of Jean and Theodore Eckstrom, dated 06 08-
88.
00) Permanent Parenting Pl~ri, dated 07-26-89.
09) Responsive Declaration of Lisa Eckstrom, dated 10-24-89.
lO> Replied Declaration of S:iguxd Hansen, dated 10-25-89.
11) Temporary Order for Protection from Domestic Violence, dated
05-09-90.
App. 60
•
PSYCliIATRIC ASSESSMENT
RE: MEL! SSA ECl{STROM- UANS r:rn
11-26-90
PAGB 4
•
12J Declaration of Counsel (David J. OrdellJ. dated 05-10-90.
13) One Year Order .tor Protection from Domeistic Violence, dated
05-10-90.
14) Order Appointing Guardian Ad Litem, dated 05-15-90.
15J Medical Records for Melissa Eckstrom from Uarborview Medical
Center Emergency Roomr dated 07-08-90 to 07-14-90.
16) Temporary Order for Protection from Domestic Violence, dated
07-09-90.
17) Declaration of Snefryd Tiansen, dated 07-10-90.
18) Declaration of Laila Perkingstad, dated
19) Declaration of Rlizaheth Stanton, dated 07-10-90.
20) Declaration of Johan Manns
21) Decl~ration of David J. Ordell, dated
22) Order, Case #90-2-02747-1, dated
23) Declaration of Marcy Rust, dated 07-16-90.
24) Temporary Restraining OJ:der a.nd Order. to Show Cause, dated
07-17",90.
25) Officers Statement, net. J. Jones, dated 07-11-90.
26) Statement of Jane Eckstrom, dated 07-20-90.
27) Declaration of Michelle Gregg, dated 01-20-90.
28) Declaration of J~ne Eckstrom, dated
29) Declaration of Ronald T. Eckstrom. dated 07-23-90.
30) Let teer to the evaluator from David ~T. Ordel 1, dated 07-26--
90.
31) Letter RE: Polygraph Ex.and nation of Sigurd ,J. tJansen bf
Terry J. Dall, dated 07-30-90.
32) Letter to Lisa D. Eckstrom from Paul, Stern, Deputy
Prosecuting Attorney, dated 0B-06-90.
33) Letter to Paul Stern f rora J~mes Martin Roe, dated 08-07-90.
34) Video tape of Melissa Eckstrom-·Hansen in tho?. Hansen house,
dated from 0B-16-90 to 09-16-90.
35) Sworn statement from Ronald T. Eckstrom, dated 09-11-90.
36) Sworn Statement of Jean Eckstrom, dated 09-12-90.
37) Motion to Terminate Visitation and for Other Releas~, dated
09-18~90.
38) Sworn Statement of Peter D. Francis, dated 09-18-90.
39) Declaration of Sigurd UanRan. dated 09-19-90.
40) Order to Show Cause, RB: Contempt, dated 09-19-90.
41) Declaration of Snefryd Uansen, dated 09-19-90.
42) Sworn Statement of Peter D. Francis in Opposition to Motion
to Remove Supervised Visitation, dated 09-24-90.
43) Sworn Statement of Lisa Eckstrom in Opposition to Motion fol"
Contempt and Other Relief, dated 09-24-90.
44) P.8!sponding Declaration of Sigurd Uanse.n, dated 09-24=90.
45) Declaration of Elizabeth Stanton, M.s.w., dated 09-25-90.
46) Reply Declaration of Snefryd Hansen, dated 09-26-90.
47) Declaration of Marcy Drodet, dated 09-26 90.
App. 61
:1 •
PSYCDIATRIC ASSESSMENT
RB: MELISSA ECKSTROM-ITANSEN
.11-26-90
PAGE 5
•
43} Deposition upon Oral Testimony of Jean Eckstrom, d::tted 09-
26-90.
49) Letter to the evaluator from David J. Ordell, dated 09-28-
90.
50) Letter; to the evaluator from Peter D. l:'rances, dated 10-02~
90.
51) Letter to Lisa Eckstrom from the evaluator, dated 10-17-90.
52) Video tape of Sig Hansen and Melissa, d;;.ted 10-25-90.
53) A family drawing jointly done by Linda Dridges, M.S.W. and
t1e1:i.ssa Ec:kstrom-Uansen, dated 11-07-90. (copy attached)
54) Letter to the evaluator from David J. Ordell, dated 11-13-
90.
55) Report of psychological evaluation of Lisa Eckstrom b_y ~Tanis
P. Mayberry, Ph.D., dated 11-19-90.
56) Report of psychological evaluation of Sigurd nansen by Janis
P. Mayberry, Ph.D., dated 11-19-90.
SUMMARY OF RELEVANT nrs·:roRY
The fa:d.lowing summary is compiled from ,"¼ll sources. It is not
meant to represent "findings of fact" but only the evaluators
best understanding of the significant hiatory. Where
discrepancies of information exist from different sourcee, this
will, be noted as much as possible.
RBCENT U!STORY
Sometime in March or early April, 1990t Melissa t~ld her :maternal
grRndmother that her father had touched her "potty pot". At the
time Melissa was visiting her father intermittently at the
paternal grandparents home where lie lived. This was reported to
Children's Protective Services in Snohomish County but no action
was taken. Somewhere in this same time period Lisa notified the
Edmonds police that Sig was in town and would be arriving at her
residence at a particular time to pick up Melissa. At the time
Sig had an outstanding warrant for his arrest because of hia
failt:u-e to respond to a DWI cha.r:ge in late 1989. The police did
arrive and arrest Sig when he came to pick up Melissa. On May 8,
when Sig an:-ived to pick u.p Meli$Za fo1~ hi~ 'regular daytime
Tuesday visit, Lisa, who believed that he did not have a valid
driver's license, asked if his mother was with him. Sig
·· indicated that she was and when Lisa realized that Sig had lied
she became alarmed and tried to grab Melissa when Sig waa trying
to put her_ into t.he car seat. Some kind of an altercation
occurred at that time between Sig and Lisa, although they're
versions are quite different. According to Sig, he was in the
driver's seat, strapping Melissa into her c~r seat,. Lisa opened
App. 62
•
PSYCHIATRIC ASSESSMENT
RE: MELISSA ECJtSTROM-HANSEN
11-26-90
PAGE 6
•
the door, reached over him and tried to grab Melissa. De pushed
her out of the way, told her to stay clear, closed the car door
and, backed out of the driveway. He denied that he eve:r hit or
harmed Lisa in any way. Lisa, on the other hand, said that
Melissa was screaming, that he grabbed her by the wrist and threw
her to the ground twice. It was not clear from her description
whether this occurred while Sig was still in the car. Later that
same dayr Melissa's paternal great-grandfather was arriving at
Sea-Tac Airport from Norway. The plane was late in arriving and
Sig ma.de an attempt to notif;t Lisa of the delay through his
attorney, since he could not call her directly because of the
restraining order. Lisa did not get the message that there would
be a delay in returning Melissa. She ,.;ent. to the Uansen hou.se
and waited for them at a 7-11 parking lot nearby. Dy the time
the Uansen ts arrived borne, jnst before 4; 00 pm, Lisa was
intensely angry. Again, there wae a confrontation, although only
verbal- Again, the two stories are quite different. Lisa
describes Mr. nansen as very ~ngry and physically threat~ning and
Sig describes Lisa as enraged and accusatory. It was in this
highly charged atmosphere that Melissa returned to her mother.
On July 1, Sig moved into a house that he had purchased in
Edmonds. July 7 and 8, were to be the first overnight visit for
Melissa at his new house. Lisa was apparently quite anxious
about this and called numerous times that evening to talk to
Melissa. When Sig and his friend. Johan Manns, who was there
~isiting with his wife, refused to let Lisa ta~k with Melissar
she apparently became verbally abusive. The neKt mornini;_1 when
Sig and Melissa were at the patenvd grandparents home, Lisa
again callsd frequently demanding to talk with Melissa.
Apparently Melissa did not want to talk with her mot.her but Lisa
could n1:,t accept this. Nhen Melissa was ret.uxned to the Ed:;!i,;trorn
household later that day, there was a birthday party in progress
for one of Lisa's brothers. In contrast to Lisa's highly
agitated state, described by Sig, ~1ohan Manns, and Mrs. nansen,
Lisa described herself as calm when Melissa returned home.
Melissa changed into a bathing suit and played with other
children who were in a wading pool in the backyard. She
apparently complained of »an owie on my butt" but no one pursued
this. Also at this same time, approximately an hour or so after
Melissa returned home, two "M" shaped marks were noticed on her
back. The i:-dze of thoSe marks are not clear to this evaJtiator.
nowever, again, no one responded with alarm about these marksr
attributing them to natur•l causes. These marks were variously
described as a rash or scratches, perhaps like a blunt abrasion.
That evening when Mrs. Bckstrom was giving Melissa and another
child a bath, Melis~a continued to complain of pain in her anal
App. 63
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PSYCUIATRIC ASSESSMENT
RB: MELISSA ECKSTROM-UANSEN
11-26-90
PAGE 7
•
area. When Mrs. Eckstrom finally examined this directly, ahe
noticed a protuberance of the rectum and that the area seemed
blue or discolored. She described th~ anus a • bqing "open".
Children's Protective Services were called and on their advice
Melissa was taken to narborview Medical Centers Emergency Room
where she was ex.:un±.ned by Paula Lozarro; M. D., a pediatric
resident. she noted erythema of the labia area and possible
dilatation of the anus. Six days later Melissa was brought back
to Dr. Lozarro for re-evaluation by Lisa's sister-in-law, Jane
Eckstrom, (Lisa was not feeling well enough herself to take
Melissa) because the family had noticed a bluish area near the
anus. Dr. Lozarro indicated that there was no bluing and
bruising but that the perinea! body had a bluish hue that was
within normal limits (NP. the perineal body is a small bump in
the midline between the vagina and anus.) At that time, Meliasa
a 1 so told Dr. Lo;;;arro th;t ''daddy puts his .finger in my potl:.y
pottt. At that time, another CPS report was made. After an
investigation by Larry Voie, the case was closed because he felt
the mother was taking appropriate action to protect Melissa.
There were further changes in the visitation arrangements so that
initially only the paternal grandpat:ents cc>uld be with Melissa,
and after two visits the father could be included but the father
could not have any sepBrate time unsupervised by the paternal
grandmother. On Aug~ 30, Melissa made a st?!;temeht to the
maternal grandmother, Mrs. Eckstrom, that "daddy pottied on my
leg". This was later repeated to the paternal grandmother. This
evaluation was begun in late September. In mid-qctober, Melissa
began seeing Linda Dridgesr MSW, at Lisa's instigation even
though this had been specifically prohibited by recent court
agreements. At the initial session with Linda Dridges, Melissa
said her daddy poked her with his "weeny" and th,~t her fat:her
hurt her "potty". Linda Dridges made a report to Children's
Protective Services. 'l'his report was ir-1vestigated by Diana
Chesterfield, who had also handled the report in March or April,
The parties agreed that Melissa could continue to visit her
paternal grandparents but have no further contact with her father
pending the outcome 0£ this eva 1 nation. Just prior to th;i.$ last
CPS report, Melissa told her father in a videotaped conversation,
th.::..t he had not touched her potty.
PAST UISTORY
Lisa and Sig met in l 986 and dated sporad1caJ . .t y for two years,
mostly by long distance, since Sig spent 8 to 9 months a year
fishing in the coastal waters of Alaska. At least at times
there were intense emotional upheavals in this relationship and
on at least two occasions they mutually decided to end the
App. 64
') ' •
PSYCDIATRIC ASSESSMENT
RE: MELISSA BCf\STROM-IIANSEN
11-26-90
PAGE 8
•
relationship. Lisa wa• considerably more intereated in marriage
than Sig, and it was Li$a, apparently, who repeatedly talked
about marriage, engagement rings, houses, etc. Early in 1987,
Lisa moved to California where she worked part time as a model
and managed an apartment complex with a friend. During the time
she was in California, Sig visited her several times. Then in
August she became pregnant with Melissa. The pregnancy
precipitated their decision to roa,n:Y. However, their
relationship continued to be turbulent: There was intense
conflict about what to name the baby. Sig wanted an ethnic
Norwegian name and Lisa wanted a more common American name. At
the wedding, Lisa claimed that Sig was drinking heavily, although
no one else noticed that there was a problem. On their flight to
Dawaii for their honeymoon, they sat separately, apparently
because Sig ~anted to smoke cigarettes and Lisa wanted to sit in
the non-smoking section. The honeymoon was very turbulent with
many arguments. Sig left several times, once for an extended
period of time overnight, and drank heavily. Ile acknowledged
coming back to their room once so drunk that he vomited in the
bathroom. T,,isa callqd her mother repeatedly each day ber::ause she
was so upset. After their return to Edmonds, the arguing
continued. Apparently, Lisa would spend most of each day with
her mother, talking with her about the situation. When the two
of them would argue would leave. Apparently, during this
time he continued to drink heavily. During thig time Lisa
claimed that Sig was physically abusing her, although the only
indication of that were observed were some bruising on the upper
eye lids seen by her mother. The final separation occurred about
4 to 6 weeks after the wedding. Sig went to Norway uto clear his
mind". After his return, Lisa wanted to reconcile but he
refused. She appat·ently was guite enraged with him because he
refused to reconcile. Following that they had little to do with
each other. Again, Sig was not present when Meliaaa was born.
Shortly after Melissa's birth Lisa raised the issue that Sig
might not be the biologi~al father and acted accordingly. She
actively excluded Sig and resumed a relationship with a man
named Dill, whom she claimed was the biological father.
Sometime in October of that year ( 198()} Lisa met Tim Hartman and
began dating him. They began living together in December and
actively talked about marrying. llowevar, the relationship ended
sutnrnai::-i ly in mid-January, 1989, appaJ~fently because Lisa was
advised by her atto:rney that having this relationship was' not in
her best interest. Aleo about this time, Michelle Gregg was
doing her evaluation for the family Court Services. Dlood tests
0£ Sig na_nsen demonstrated that he was the probable father.
Despite this Lisa continued to exclude Sig and frequently showed
concern that Sig would somehow harm Melissa, leave the crnintry or
App. 65
•
PSYCHIATRIC lkSSESSMENT
RE: MELISSA ECKSTROM-UANSEN
H-26-90
PAGE 9
•
in other ways act inappropriately. She made several efforts to
bar or limit Sig's time with Melissa, made a variety of
allegations about Sig or his family which later proved false. At
the recommendation of Michelle Gregg, Sig hired Elizabeth
Stanton, MSW, in early 1989 to monitor the transitions of Melissa
between Lisa and himself because these transition times had
become so frequently scenes of conflict.
CHILDHOOD AND FAMILY tlISTORIES
Sig Uansen is the oldest of three brothers in an intact family.
Doth parents are Norwegian immigrants. They have a stable family
with a somewhat ,suthoritarian family style. The £ather bas
worked as a commercial fisherman all his adult life as had his
father and grandfather before him. Sig was described as a very
active preschooler but that when he reached school age he had no
difficulties and was well liked by teachers and classmates. Sig
admired his father and clearly identified with the life of
fishing. ne started accompanying his father during s~~mers when
he was 12 and began working as a paid hand at age 14. Since
graduating from high achoo! he has worked full time as a
commercial fisherman, spendin9 between 7 <1nd 9 months of each
year £ishing in Alaskan coastal waters. There is no family
history of etm:::,tional, behavioral, or psychiatric problems.
Lisa is the 5th of 7 children in an intact, stable family of
Swedish heritage. Both parents were born in th~ United States.
Lisa's oldest sibling is a sister, 10 years her senior. All of
her other siblings are brothers who often catered to her. Iler
father often worked overtime so that her mother was in charge of
the household. Lisa described he~self as close to her father as
well as to her younger brother's, Mike and Rob. She was an
a-v-erage student;:.. As an a.dolescent she won a. beauty contest: and
entered at least two others. She went to modeling ~chool and
worked occasionally as a model. She has also worked as a medical
transcriber, managed an apartment complex, and did clerical work
in a business office. Lisa~s maternal aunt was apparently
sexually abuse by the maternal grandfather prior to divorce when
the maternal aunt was 7 years old. There is no other history of
sexual abuse in the family or history 0£ behavior, emotional or
psychiatric problems.
PSYCHIATRIC AND SUDS'l'ANCE AOUSB HISTORIES
Sig first began drinking beer with friends at age 17, although he
denied it created any problems for him. He stated that since
the separation his drinking has subsided significantly but only
App. 66
•
PSYCHIATRIC ASSESSMENT
RE~ Mf.LIS.SA ECI<STRot1-UANSEN
11-26-90
PAGE 10
•
on those weekends that he does not have r-,elissa with him. Ile
drinks less when he does d:r;ink once or twice a month. He denies
a history of blackouts or work related problems from the
alcohol. He has two DWI arrests, one in 1984 when he was 19, and
ohe in late 1989, but he apparently was not convicted of either
offense. Ue denies a history of getting into fights either while
intoxicated or sober. Ile saw Charles Davis, D.MIN., several
times with Lisa and on sporadic occasions by himself during 1988.
Lisa Eckstrom· has no history of emotional or behavioral problems
as a child or adolescent. She denied the use of marijuana or
cocaine. She described herself as being "allergic to alcohol"
and denied having anything more than an occasional drink.
However, she W<'lB somewhat inconsistent in this as another time
she claimed she was intoxicated when she had intercourse with
Dill, the man she alleged was the biological father of Melissa.
She saw Charles Davis, D.MIN., on several occaaions with Sig in
1987. Most recently she has been seeing Ken autchinson, a
minister with the Antioch Dible College, for counseling. she was
involved in an auto accident May 19, 1989 and suffered back and
neck injuries sufficient to interfere with her employment doing
office clerical work for Diamond Parking. she current takes
TENS treatment almost daily and has not wo~ked since the
acciilent.
DEVELOPMENT~L HISTORX FOR MELISSA ECf<STROr1-ll.1\NSEN
' During the pregnancy Lisa developed toxemia and had excessive
weight gain. Labor was induced 3 weeks early. At birth Melissa
weight 8 lbs. 12 ozs., but was only 19 inches in length. She w~s
described as being somewhat blue. Li~a indicated that she slept
excessively during the early months. However, she reportedly
said her first word at 4 months and took her first step at 8
months. She is described as being somewhat shy, especially with
men. She is also described as a picky eater by Lisa but not by
Mrs. Hansen. She has a security blanket that she uses for sleep
while at tha Eck• troms but her use of this blanket at the
nansen•s has been somewhat irreguJar-. Lisa describes Melissa as
reluctant to leave when Sig comes to pick her- up. Apparently,
she complains of abdominal pain and may hav~ loose stools.
IIowevet", at the Hansen household she apparently has a history of
constipation. She has repeated vaginal yeast infections since
about 9 months nf age which have been t:1-eated, only to :r:ecur.
Melissa apparentl.y likes to wear dresses on most occasions and
this became an issue when she was sent to the nansen 1 s in dresses
rather than play clothes. Melisse is reported to have tried to
throw the play clothes given to her by her father in the trash
App. 67
•
PSYCDIATRIC ASSESSMENT
RE: MELISSA ECKSTROM-UANSEN
11-26-90
PAGE 11
•
can. According to Lisa, Melissa started being afraid of the dark
sometitne in ,July and since then has needed someone with her t.c:,
fall asleep. Although toilet trained for daytime she continues
to wear diapers at bedtime and still occasionally wets.
Apparently~ she has been more frequently ,•.tet since ,July~
INTERVIEWS WITU TUE FATilER., SIGORD BANSBN
Sig is of average height, a handsome young man with nearly
shoulder length wavy blond hair. He dressed casually fot· each
interview but was neatly groomed. Ue related in a pleasant and
cooperative fashion. He seemed eaget" to talk about himself and
the difficulties he has had trying to maintain his relationship
with Melissa. Ue v.',:liS notably unguarded except when askE::d ,3bout
his substance abuse history. Then he was moderately defensive
and probably tended to minimize. Despite that,,. he appears to be
a reliable historian. Uis mood and affect were well within a
rHHmal range. Al though he appea.red :somewhat angry about the
difficulties he feels Lisa ha• caused, he eKpcessed primarily
feelings of anx or caution. ae sees her as ecmehow "craxy•
or unpredictable. Although he primarily blames these current
difficulties on Lisa he has at least some insight to his own
contribution and acknowledges drinking excessively many times
during the month that they were togethei: after ma.n:ying. He
denied being sexually inappropriate with Melissa or in other ways
doing things that might harm her. Ue also denied trying to harm
tisa and described ~imself as only trying to defQnd himself when
she became "hysterical«. ITe believes that Lisa and/or her mother
has sornft!hOt,; · coached Me I issa to sa.JT things about him. lle
described Lisa and her .fami 1y h.;.~ enti};ely rejecting him and he
believes that they will do whatever they can to discredit him and
eliminate him from a role in Melissa's life. At the Rame time,
he has a very low opinion o,f the Eckstrom• s and made it very
clear that he despises them as he believes that they despise him.
There is no e\"idence of thought disorder such as loosening of
associations or paranoid ideation. Although he tended to be poor
on dates and inconsistent about remembering details, his memory
appeara intact. Dis judgement appears to be within normal
limits.
INTERVIEWS ~-HTII TUE MOTIIER, LISA J:!:CKSTROM
Lisa is a trim, attractive, young woman with blond hair. She was
somewhat formally dressed for the first interview, perhaps
reflecting initial anxiety. She ~elated to the evaluator in a
pleasant, coo~erative but slightly guarded fashion. At times
she was somewhat more guarded than at othersr such as making
App. 68
•
PSYCilIATRIC ASSESSMENT
RE: MELISSA BCKSTROH-UANSEN
11=26 90
PAGE 12
•
arrangements for appointments with Melissa. Despite this slight
guardedness she tended to respond to qu~stions candidly and ie
viewed as a reliable historian. Der mood appeared well within
the normal range. llowever, her affect seemed remarkably bland
and sometimes seemed inconsistent with what she was describing.
For example, when she talked about Sig throwing her to the ground
twice in her driveway, rather than showing ange~ or agitation she
seemed calm and matte1; of fact. Similarly, the,re was no change
in her affect when she talked about her concerns about the
possibility of Mel iesa being sexually abused by si,-3. She has nc:,
insight into her own role in the present difficulties. She
presents herself as though innocently drawn into the allegations.
She sees herself as not believing that Sig could do Ruch a thing
but only following through filing complaints when urged
repeatedly by others, such as her attorney or caseworkers. She
views Sig as having been sweet, kind, and considerate before the
marriage and she tended to minjmize any conflicts during that
period. She sees him as having changed after the marr and
discovered the extent of his drinking and smoking. She believes
he drinks heavily, is irresponsible, unpredictably angry,
sometimes violent, and unwilling to communicate with her. At the
same time she acknowledges that she does not want to be around
him. She views the !Jansen famil~f has hostile and angry and thatSig f s father, particularly, is a potentially violent m~n. She
clearly fears that Sig or his parents will mistreat Melissa in
some way and that it will be emotionally distressing or traumatic
·to her. There is no evidence of thought ~isorder such as
loosening of associations or paranoid ideation. Ile~ memo~y i$
intact and her judgement appe,H·s to bi~ wit:hin l::.he normal range.
INTERVIEW WITH TIU! PATERNAL GRANDPARCNTS, SNBFRY'D AND SVERRC:
HANSEN
Snefryd and Sverre are a late middle aged couple who both spoke
with a heavy Scandinaviari accent. They were both neatly groomed
and related easily to the evaluator. They both seemed eager to
talk about the current difficultiea and about their family.
Snefryd, in particular, was able to give many details and seemed
to be a highly reliable historian. They expressed a sense of
righteous indignation that they and Sig have been treated so
badly by Lisa Eckstrom. They see her as easily upset and quick
to blame anything on them or Sig. They feel that when she is
upset she is irrational and threatening. Mr. Uansen acknowledged
that he became very angry at Lisa the day he picked up hia father
ft:oro the airport. tle indicated that he called her "'a punk" and
told her to "get the hell away from the house." They see Lisa as
demanding, material ist.ic, and self--centered. 'rhey see Melissa as
App. 69
•
PSYCDIATRIC ASSESSMENT
RB: MELISSA ECKSTROM-UANSEN
11-26-90
PAGE 13
•
initially cautious when they pick he:r:- up but that within a half
hour she is relaxed and has a close relationship with her father.
Neither Snefryd or Sverre had any obvious disturbance of affect
or thinking.
INTERVIEW l'HTJJ THE Ml\TERNAL GRANDPARENTS, JEAN AND TED ECKSTROM
Jean a~d Ted are also a late middle aged couple who were neatly
groomed for their session. Jean was almost exclusively the
spokesperson and related in a rather unusuMl fashion. She seemed
angry, hostile and guarded. She talked in clipped sentences and
often looked irritated. In contrast, Ted was pleasant and
relaxed but had little to offer in the way of information. lie
indicated that he works long hours and is not much involved in
what happens at home. Jean worried that she would be accused of
making things up but appeared to be a fairly r~liable historian.
She talked at length about the progressive difficulties between
Sig and Lisa including a time that Lisa said that she had been
hit by Sig but acknowledged that she had not told her husband
about that. lier rationale was that their was no reason to upset
him. She indicated that she was sur~iised about all the
difficulties that occurred on the honeymoon and Ted described
himself as feeling baffled. They bot~ described themselves as
feeling insulted by the social worker (Elizabeth Stanton) who
would stand there watching the transfer of Melissa. They view
Sig as "spoiled" ,snd Mr. Hansen as angry and verbal Jy abusive.
they see the present problems as relating almost ,entirely to
and the Uansen'e hostility toward them.
SESSION WITH MELISSA ECKSTROM-IJANSEN AND HER MOTUER
Melissa is an attractive blond haired girl wearing a coordinated
playsuit and has blond hair below her shoulders. In the waiting
room she played at the play table with her mother but turned away
when introduoed to the evaluator. Lisa also seerned cautious, did
not refer to the evaluator as a doctor but instead by the first
name and indicated that the evaluator was a nice man, although
she seemed somewhat anxious in saying this. As the mother was
being oriented to the playing area, Melissa held back. The two
of them explored the dollhouse with Melissa standing on a chair
and her mother kneeling next to her. Doth Melissa and her mother
explored although her mother tended to assist and verbalize what
they were doing. There was good eye contact. Melissa tended to
sniffle and occasionally had a shallow cough. (Mother indicated
that Melissa had been sick with an upper respiratory infection)
Melissa's verbal development seems well within the normal range
and she uses about 5 word sentences. She has good fine motor
App. 70
•
PSYCUIATRIC ASSESSMENT
RE; MELISSA ECKSTROM-BANSrnN
11-26-90
PAGE 14
I
development and appears to feel comfortable with physical
closeness ta her mother. Mother seemed well focused on Melissa.
tracking her focus of attention. They played with a schoolhouse
and bus and mother seemed to have some difficulty in
understanding how all the parts of the school fit together.
There were no sexual themes in the play. 1~,wever, there was one
general issue around safety when the mothe,~ said "donrt st-ting her'
too hard, she is scared,tt referring to a child on a playground
swing.
When it came time for the mother to leave Melissa became
immediately distressed and clung to her mother. lier mother tried
to reassure her and distract her and finally said that she had to
go to the bathroom, would get some juice for her and be bftok
soon.. Then aside to the evaluator she indicated that Meliss., was;
more fearful be with men than with women. With the mother's
promise to be back quickJy Melissa accepted her mother leaving.
Although crying and distressed about her motherts leaving,
Melissa did not avoid the evaluator. She walked with the
evaluator to get a tissue and allowed the evaluator to dry her
tears. She said that she wanted her mommy. She continued to cry
for about 9 minutes after her mother left but gradually allowed
herself to be distrac~ed by play with the school. She tended to
focus on pu,tting the children in the:ix cba irs or putting tlv~ir
hats. She frequently asked the evaluator for assistance. The
"teacher" told the "students" a story about a little girl whose
~other and father lived in different places and aia not like each
other. Melissa wanted to know why they did not like each other
and said that she did not know ,,.rhy her pa.rents did not J ike ead,
other. When asked if she liked her mother and father she said
that she liked her mother but did not like her father, because
"daddy hurt my bottom". She did not remember how her father hurt
her bottom but did say that her bottom does not hurt anymore. At
the end of the eeeaion she helped clean up with minimal
encouragement and did not complain. She seemed somewhat eager to
leave and indicated that she did not want to come back the next
day with her father to play.
SESSION WITH MELISSA llANSEN AND HER FATimR
In the waiting room Melissa was sitting together with her father
at the play table where they were coloring. Melissa glared at
the evaluator when he went by and did not seem eager when it was
time to start the session. Melissa coughed occasionally but did
not seem as ill as she had the previous day. She brought with
her a doll and a baby bottle of juice. This time Melissa was
wearing a dress over her p.;1nts and was wearing her hair in a
App. 71
•
PSYCDIATRIC ASSESSMENT
RE: MELISSA, ECKSTROM-HANSEN
11-26-90
PAGE 15
•
ponytail. Melissa and her father explored the dollhouse together
with Melissa standing on a chair and her father standing next to
her. Father ~nitially held onto her to prevent her from falling.
nowever, several minutes later when father had his hand on her
hip to stabilize her, she reached behind her and pushed his hand
away without saying anything. In contrast to the good eye
contact that she had with he~ mother, she tended to have
infrequent eye contact with her father and when she did it was
brie,t and tentath·e. IIowever:, she readily talked with him, at
least as much as shi? did with her mot.her. Fat.her initially
tended to be somewhat anxious and asked her to do things.
Uoweverr this behavior seemed to decrease as the session
progressed. At times, they had difficulty relating about the
play materials. For example, Melissa wanted the toy dog and cat
to talk on the dollhouse telephone. Father was concerned that
she would break the phone and refused to let her do it. After a
minor struggle, he reluctantly yielded so that the dog and cat
could use the phone. There was a similar but less intense
interaction when Melissa wanted the dog and cat to sit on the
chairs at the kitchen table which father objected.
When it came time for father to leave. Melissa again looked
somewhat anxious but did not overtly protest. father picked her
up and said that he would be in the waiting room and asked if she
would be ok. It was only with some hesitation that she said that
she would be. After fat~er left she returned immediately to her
Play with the dollhouse. Although she quic~ly ~ccepted the
presence of the evaluator, there was little eye contact, She
continued the theme of the dog and cat throughout the rest of the
session. There was a repetitious theme of putting the dog on top
of the cat, first inside the carriage and then with the cat on
the under carriage but with the dog inside the baby carriage.
She was asked if this hurt the cat and how the cat felt, but
there was no response. The evaluator asked her about her hurt
bottom ;,.nd a.;:,ked her t,o show the ev.a 1 u,;;tor wi l:h ;;. dol J where she
was hurt. She ignored this request and did not interrupt her
play, although her bod;y posture seemed to stiffen. On at least
two occasions she had me 1 i.ft.: he.1..· up by the waist: while she
played with objects on the dollhouse balcony. She seemed
entirely comfortable with this. At the end of the session she
was again aaked if sh~ would show the evaluator using the doll
where~her bottom was hurt. She pointed to the anal area on-the
doll and again said that she did not know what her father did to
hurt her bottom. She denied hurting it while going "poopie".
Then as she walking toward to door with her doll she
spontaneously sajd "daddy didn't hurt it". In the waiting room
she rejoined her father and paterlli:i,l grandmother but b,rnded to
App. 72
PSYCUIATRIC ASSESSMENT
RE: MELISSA ECKS'l'ROM-HJ\.NSEN
11-26-90
PAGE 16
stay close to her father.
ONE HOUR SITSS!ON wx·rn MELISSA HANSEN
Melissa was brought to the session by her mother. Melissa seemed
reluctant to go with the evaluator and seemed to cling slightly
to her mother. She only agreed to go when the mother agreed to
walk ht:!r to t:he off ice. She th,~n separated without obvious
protest. She seemed quite emotionally guarded, although sh~
freely allowed the evaluator to assist in her play with the
dollhouse. She again focused them~tically on the dog and cat.
She referred to the dog as a bay and to the cat as a girl. She
~lso included the mother, girl, and baby doll in her play but
generally ignored the grandparents, father, and boy dolls. At
one point in the play she excluded the grandfather doll entirely.
She repeated a scene of the cat hiding in a garbage can. She
said that it wa.s hiding £ror.i the dog and was quite fd.ghtened hut:::
the dog did noi; want to hurt the cat. Then she reversed the
theme fo have the dog hide in the garbage can but said that the
doq ¼'f.H;; r,ot afraid. She , ... as <lsked about her bottom and sa.id that.
it-did not hurt anymore. She said that she did not recall who
Linda Dridgea was, even though she wae ~eminded that this was the
woman whom sh(;! told tww he;· bottom hurt. The evaluator ask.;;-d
her to show again with the do ls where her bottom hurt.
Bather than URing the dressed anatomic dolls sitting on a nearby
table, she used a dollhouse doll again and pointed to the anal
area. When asked how her bottom gc;t hiut she sa;i.d that she did
not:: know. When asked if her father l,ta·t hee bottom ry:he first
said no, thr.::n guic:kly charHJed her mJnd and said y~s. She
indicated that her father poked her with his big "peepee". When
she was asked to show how he did that she held the male and the
fema]e dolls back to b,'l.ck touching at the buttocks. When asked
to show this with the larger dolls she said vehemently »no, you
do it"', and returned to the dollhoufiie play. She denied that sh(:!
felt angry or upset with her father. In general, her affect
seemed guite neutral or perhaps guarded during this interchange.
There wa • no change in the character of her play aftmr she
returned to the dollhouse. She continued to focus on the cat and
the dog, Rnd the mother, girl and baby dolls. Twice she set up
two ch,d.rs and the high chair to h,1v0 the mother, gid <'ind the
baby doll all sit side by side. A few minutes before the end of
the session she; asked to see her mother and said that she missed
her. She denied that she missed her father. She helped put
things away but did not seem especially rushed. She took the
evaluator's hand .vhile walking out l::o the waititHJ room.
App. 73
PSYCUIATRIC ASSGSSMCNT
RE: MELISSA EClW'rROM-UANSEN
ll-26-90
PAGE 17
DISCUSSION
,,
i ~
This haa been an unusu~lly difficult and complicated evaluation,
principally because there has been a long history of difficulties
and turmoil that preceded the current issues. The principJe
focus of this evaluation is whether or not Melissa has he~n
sexually abused, and if so, was it her father who sexually abused
her. Th~ evaluation has included both clinical and psychometric
assessment of both parents. In part, this evaluation assessed
the possibility of sexual deviancy in the father and the question
of reliability and emotional instability in the mother. There
have been s;condary questions about the roles of the two
grandmother's in the present conflicts and their relationship~
with Melissa. Although thi5 evaluation cannot entirely answar
all of these questions, it does shed some light on the relevant
issues that pertain to these questions.
The psycho1ogica] assessment of the father, Sig [Jansen,
demonstrates that he has narcissiRtic traits that to some degree
interfere with his relationshipR with others and abili to
tolerate conflict. lie may at; times be demanding or manipu,l ve.
In dealing with conflict he tends to either withdraw o~ react
with an9er and impulsive actions. rlis psycholo9ical tasting
suggests that he has more difficulty than was readily apparent in
the clinical interview. Uowever, in the clinical interview he
appeared relatively unguarded and candid. One of the major areas
-~£ difficulty is his history of alcohol abuse. AJthough he tenrls
minimize this as an actual problem for himself, it is clear
that his drinking waa guite substantial during his marriage and
the period following the separation. There is indication that he
sees alcohol as a potenti~l problem and has taken some steps to
both minimize the amount of drinking and to decrease the risks
involved, such as not drinkinq while Melissa is with him and
taking a taxi on the nights-that he plans ta go drinking. Doth
the video tapes that were reviewed and the direct observations of
hiR interactions with Melissa suggests that has some minor
difficulties in hie ability adequately relate to her. ~t tim0R,
he attends more to his internal agenda, wanting her to perform in
$Orne wa:yt l:"othEH" than attending to Mel 's cues. Ue has: some
tendency to misinterpret her symbolic play in adult terms, for
example, reacting to her play with the dog and cat in the
dollhouse at an adblt ·1ev~l~ · That is, he tried t~
Melissa £rom having the toy dog and cat sit at the table as he
•ight if a dog and cat really were trying to get up on the
kitchen chairs at home. In one of the video tapes he also seemed
to misread Melissa when he was having her perform for him by
jumping into his arms. In that sequence, he eventua]ly put her
App. 74
PSYCDIATRIC ASSESSMENT
RC:: MELISSA EC!tSTROM-IIANSIZN
11~26-90
PAGE 18
on top of the refrigerator, elicJting a protest from her.
nowever, there had been indications earlier that MelisRa was · uncomfortable, which he did not respond to. These are relatively
minor difficulties and are not obviously harmful in and of
themselves. there ie no indication at all of sexualization in
his manner of relating to Melissa. There is also no indication
either in the history or the clinical presentation of sexual
deviance. Admittedly, this is very difficult to adequately
ascertain, hut there is nothing in this evaluation that would
lead ~e to suspect sexual deviancy.
The psychologic:;i 1 assessmt?:nt. of Lisa Eckstrom is rnore
problematic. She has significant narcissistic histrionic and
dependent traits. She appears willing to exploit others without
regard to their feelinas or concerns. Sha seems never to have
fuily emotiona.lly emancip<lted f;rom her parents, particularly her
mother and is overly sensitive to criticism or disapproval. It
is probable that she distorts things in an effort escape possible
disapproval and to deflect h1am¢ or responsibility to others.
She has a pattern of at times being emotionally out of control
and then altering her behavior to present a good public front to
her parents or others. This seems to explain the many
inconsistencies ln a way that she has related her concerns to
others. Although it is clear that at times she has had
uncontrolled anxiety, she tends to deny or mini~ize this to
others. · She also tends to greatly misinterpret or distort
fragments of information that lead to false stat~mente about Sig
nansen or his parent$. A good example of this is her statement
that Mr. Hansen's bo,~t had been confiscated because he was
running drugs. The boat had indeed been impounded but this was
because of a contractual dispute rather than any illegal
activity. In addition to the distortions in the way she relates
to others ~nd the misleading assumptions from fragmentary
knowledge. she also has an intense deaire to exclude Sig from he~
life and Helissa~s. Although she has indicated a wish that she
wants Melissa to have a good relationship with her father, she
clearly does not believe this is possible~ She has a powerful
emotional wish to ~void interaction with Sig which seems in some
ways to represent a projection of her fear of retaliation for her
own behavior. She clearly avoids consciously recognizing the
significance 0£ her own difficulties, tends to projects this onto
Sig, conceals her behavior from her family and others by blaming
Sig and recruite people to defend her in her battle by presenting
them with distorted, incomplete, or false information. This
tends to keep the situation in an uproar, sustains her image as
an innocent victim, and diverts attention away from her own real
difficulties. On the other hand, her ability to relate to
App. 75
PS'iCHlA'l'R re ASSESSMEN'I.'
RE: MELISSA. CCIISTROM-HANSl~N
11-26-90
PAGE 19
Melissa is quite appropriate and intact. She has the capacity to
accurately attend to Melissats needs and meanings without
c.teating overt difficulties. To the extent that:. there are
difficulties the~e, they are more subtle and probably outside of
her own awareness. A good example of this is the way that she
introduced me to Melissa. Although consciously she was making an
effort to assist in the process and to reduce Melissa's
potential ,;:1nxiety, she unconsciously conveyed he.r own anx iq:ty
that this was going to be a potentially difficult situation.
This undoubtedly had the effect of subtly making the separation
mor~ difficult for Melissa. The nonverbal message did not convey
accurately that the evaluator w~s a person that Melissa's mother
trusted and felt comfortable with.
'I'be assessment of Melissa suggests that ithe has a strong
attachment to h~r mother and a. more ambivalent: or weakened
atbichment to her .father. There .are clearly evidence of
separation anxiety that sh~ experiences both in the direct
observations and by histo~y when Melissa leaves her mother to go
with her father or grandmother. Since this kind of anx 1s
usually found during this early developmental stage, the degree
of separation anxiety that Melissa experiences cannot be said to
be ~bnormal. Uowever, it is important Lo recognize that the
source of the anx has to d,~aJ wit:::h t.he uncertairity that thB
child feels in the relationship with the person she is leaving
rather than any t.hr·eat that the child fer:'cls .about the person with
·w1v:::,m she is going. Uowev,~r, it is common for f1 child in this
situation to make some kind of statements that would rationalize
why she does not want to go. These statements are often a source
of conflict and misunderstanding in divorced or divorcing couples
where the.re is a br,eak down itt trust i:¼nd cornm1:m ication. That is
certainly true of the relationship between Sig and Lisa. Melis,a
tends to be a highly functioning child for her age and shows
little sign of regression except some reoent clinging to her
mothe~ and difficulties at bedtime • Some of the separation
anxiety appears to be represented somatically in Melissa by her
complaints of abdominal pain when it comes time to ]save to go
with her t<1ther or grandmother. Al though she is described ;;.,s:
having diarrhea at the Bckstrrnns, Ahe is apparently constipated
at the Hansen's. It would not be unusual for this situation to
occur even though these symptoms seem paradoxical. There does
not appear to be any physical evidence of sexual abuse. The
descriptions of the anus on ,July 8 most likely represent a minor
rectal pr-olaps:e, t-.rhich is a common pedic;1tric Pl'ob.lem an;:;oc>iated
with constipation. The reported vaginal erythema most likely is
a result of the recurrent yeast infection that both parents
acknowledge Melissa has had. The marks on Melissa's back cannot
App. 76
PSYCITIATfUC AssgssMENT
RB: MELISSA ECKSTROH-UANSEN
11-26-90
PAGE 20
be explained from any of the information available to me through
this evaluation. Although it is not clear what caused those
marks, there is .no reason to believe that either parent
deliberately or unintentionally inflicted them on Melissa. I
suspect that they were caused by some natural event during her
play at the birthday party at the Eckstrom home. Uowever. this
is speculative and not supported by any other information.
Melissats statements that her father had touched her genital area
and had hurt her are more problematic. Tiowever, her statements
here are quite inconsisten~. Uer statements to Linda Dridges
were quite graphic and associated with intens~ emotion. Uowever,
it is not clear if the emotions represents an actual feeling of
having been harmed bv her father or her own internalized conflict
about.saying things ~hich she does not believe to be true. In a
spontaneous statement to me during her second session, she
clearly indicated that her father had not hurt her anal area.
This seems to be supported by he~ statements in a video·tape in
which she says that her father did not touch her and that her
mother h.)d thought these st,":itements "funny''. Despite Melissa• s
statements to rne, Linda Dridges, and numerouA other people, that
her father has touched her "potty pot", these statement do not
seem to be convincing evidence in and of themselves for sexual
abUS{:!.
'.rhe· assessments of the Hansen's suggest that they are a stabJ e
traditional family. The paternal grandmother presents as a
secure, experien(:ed care:giv·er and Melissa ap,peil:t'S to have a
comfortable, safe relationship with her. This is a relationship
that should be Rustained, and their is no convincing reason that
it should be disrupted.
The evaluaticm of Mr. and Mrs, Ik::,kstrom raises some distm~bing
questions. The maternal grandmother is clearly the dominant
figure in this family, and maternal grandfather plays a more
peripheral role. Mrs. Bckstrom presents as an unhappy, hostile,
and guarded person. She seems to be part of a powerful dependant
axis, consisting of herself, Lisa, and Melissa. She does not
appear to be able to see difficulties in Lisa and is clearly
convinced that all of the difficulties that her daughter has had
should be blamed on someone else, principally Sig. She was so
elosed and hostile that I ~as unable to assess her psychological
.,functioning.· Al though she appe~1rs to be an accu.r.~te· h:i.st·t:n.·:lah,
one wonders about the degree of disb:>rtion that her own
psychology may have in her interpretation of events.
Decause of the possibility of skillful concealment, it is always
impossible to completmly exclude the po~sibility nf sexual abuse.
App. 77
PSYCHIATRIC ASSESSMENT
RE: MELJ SSA ECf{STROM-Hl\NSBN
11-26-90
PAGE 21
nowever, in this situation it seems extremely unlikely that
sexual abuse has actually occurred. A far more likely
possibility is that of the so called »parental alienation
syndrome• in which the child progressively gets drawn into a
powerful exclusive relationship with one parent as a way of
meeting that parent's psychological needs, in this case, Lisa.
This is a very difficulty pattern to successfully alter.
Uowever, it would suggest that the in time with the father be
increased. There might be sufficient rationale for alte~ing the
primary residential arrangGrnents for Melissa so that she ac~ually
lives with · her father or secondarily with the paternal
grandparents. Unfortunately, because of the father's occupation,
it is unlikely that he could be more consistently available, and
actually assume the primary parental role. This also would seem
to be a risky alternative because of the subtle difficulties that
Sig has in accurately responding to Melissa. The impact of this
alternative on Melissa would be highly unpredictable and probably
a mixture of both posit~ve and ive effectA, The most
seriously d,;tmaging of them might be $Orne lon9 tcrrn impairment in
Melissa's capacity to form secure stable attachments. A more
conservative approach would be foe mother Lo continue to he the
primary caretaker but to maintain the regular time that Melissa
has with her patern~l grandmother and to maximize the available
time with her father when he is in town. Decausc the possibility
t'riat Sig has se:n1a l deviancy ~nd may have sexual abused M0liss.;:1
is so remote, th~re does not seem to be any adequate or
~ompelling reason to have Sig undergo a ,exual deviancy
evaluation, f";V-en though :it: would be easy to see how this could be
thought of as a pi:ude:nt. recommendation.
CONCLUSIONS
The predominance of evidence of this evaluatio11 suggests that
there was no sexual abuse of Melissa. A more likely explanation
of the issues is that she is developing the so called "pa~ental
alienation syndrome" in which she is drawn into a progressively
more exclusive relationship with her mother to meet her mother's
psychological needs. Also there is no evidence that Sig Hansen
hHs a sexual deviancy. llowever, he does have narcissistic traits
which interfere, in some degree, in his ability to accurately
respond to MeJissa. However, in other ways he appears to be a
. .co:mp.etent and caring parer-i.t. - He clea:rlT h~H3 had a··signi·f·icant·
problem with alcohol which appears to be under control currently.
llis difficulty with alcohol at this time seems to be more of a
potential problem which could emerge in the future. Lisa has
serious pe1:-sonal ;U;y disturbances with prominent nain:issis:tic
histrionic, and dependant traits. She meets the diagnostic
App. 78
PSYCTIIATRIC ASSESSMENT
RB: MELISSA ECRSTROM-ITANSEN
11-26-90
PAGE 22
criteria for Uistrionic Personality Disorder. This disorder,
like all personality disorders, are extremely difficult to treat,
especially ~hen the individual has little insight or no
motivation for treatment. Despite her psychological difficulties
she is in general a competent, caring and appropriate parent.
Ile:r real difficulties in her rehationship vdth Melissa involved a
subtle drawing of Melissa into a tight excilusive relationship
with her to help meet her own dependant needs. Despite Lisa's
powerful psychological difficulties, I doubt that she has
deliberately harmed Melissa or actually coached her in making the
statements that Melissa has made. TTowever, she has undoubtedly
consciously encouraged or suggested these statements.
RECOMMENDATIONS
1} There is no reason to re..fe:r Si.g tJansen for sexual deviancy
evaluation.
2) The residential arrangeme11te for Mcli8Ba with her father
should reb_1r11 to the :Lt· origina 1 unrest.-ic.tcd form, ie. eve17
Tuesday ~1nd Thm-sday ?.Jfternoon :1 nd every oth,~i- weekend. She
should continue to spend that tirne v,,,ith her pa te';rna l
grandmother if her fath0r is not available.
31 Melissa should continue to reside with her mother as the
primary residential parent.
4) Liaa Eckstrom should seek treatment with a qualified
psychologist or psychiatrist. The treating psychologist or
psychiatrist should be given a copy of this evaluation to
help guide in the tre,;itment planning.
5) Melissa should continue in treatmen~ with Linda Oridges,
H.s.w., and Linda Dridges should also be given a copy of
this evaluation to guide in her treatment of Melissa. Doth
L:i.sa and Sig shoold be involved with Ms. Dridges in
assisting in the treatment of Melissa in whatever way Ms.
n~idges deeme appropriate.
6) Melissa should be enrolled in a preschool in which both
pa~ents are allowed to participate.
submi I; ted by t
JED/tvv
App. 79
App. 80
~ ~·-) ~
Southlake· Professional Grou; ·. ~; Renton Plaza Building
John E. Dunne. M.D., F.A. P.A. • Child Psychiatry
Wren Hudgins, Ph.D, - Psychology
Barnett M. K~plan, M.D. - Psychiatry
C:tinical Assodates
Pablo R. Proafio, M,D., P.S. • Psychiatry
Janis P. Mayberry, Ph.D. - Psycl10fogy
Barbara Mayers, Ph.D. - Psyclwlogy
lee Carlisle, M.D. - Child Psychiatry
Barbara Barry, Ph.D. - Psychology
January 16, 1991
Joan Green Ferguson, M.s., A.D.
Division of Children and Family Services
Dept. of Social and Uealth Service&
Dox C-97r BJ12
19000 33rd Ave W, N52-2
Lynnwood, WA 98036
RE: Evaluation of Melissa Eckstrom
Dear Ms. Ferguson:
1400 Talbot Road South. Suite 203
Renton. WA 98055
{206) 235· 7383
Thank you fol'.' sending me the r-esults of the cuJposcopy
examination that was preformed on Aug. 3, 1990. I, indeed, did
not .have that available to me at the time that I conducted my
evaluation or produced my report on my assessment. I also did
not have the results of the serology or multiple cultures that
were done on July 9, or July 23.
Unfortunatelv, none of this additional information is at all
conclusive.·: The erythema of the vulva area, the superficial
laceration of the posterior fourchette or muscle laxity of the
anus can haov~ multiple explanations and thev are cer-tainlY also
consistent w::Cth the conclusions that I d.t:'ew~ in my evalu;tion.
This additional, although useful, does not alter my basic
asses~ment or conclusion.
JED/tvv
cc: Pete Francis
1600 Seattle Tower., 1.218.Jrd Ave
Seattle, WA 98101-3080
David. Kastle
3500 188th Ave SW
Lynn;,,:(:i,.::.id, h'A 9::1046
App. 81
Guardian Ad Lilum Report
Eckstrom vs Hansen ~s1 ~ 1-0913 s-3 I
February 10, 1992 -
.. FEB I I
•; ,~ i ,"':, 11 ... \r
, ; ,: ; 1 I
sur;EEiJH cl)-Ji(T CLi:r~:~:
I have prepared this report. as the Court appointed oo~J1hh~~d'.Litum. As the G.AL.
my role is to recommend a course of action which I believe will be in the best interest of
Melissa.
The issue before. the court is whether it is in the best interest of Melissa to resume contact
with her father, Sig Hansen, and her paternal grandparents. This necessarily requires
resolution of t.vo precursor issues, First; was Jvlclissa the victim of sexual abuse?
Secondly, if Melissa was sexually victimized, was Sig Hansen the perpetrator?
OPlli'1ON AND RECOM'.tl.mNDATION
l can not. determine \Vhether Melissa has been sexually victimized. Assuming she has
be.en the victim of sexual abuse, I am of the opinion that Sig Hansen was not the
perpetra:or. Based on this opinion 1 am recommending that this court anmv Sig Hansen
and his parents to reinstate visitation \\'ith Meliss.a.
I have come to this opinion after carefully revie\ving my entire contact ,vith this case
(contact whlch has occurred over approximately 20 months), reviewing the professional
evalualions, reviewing court documents including depositions, reviewing my numerous
contacts 'INith the parties and their attorneys; my phone conversations and interviews, and
reviewing other materials which document both the long tem1 family conflicts bet,veen
the parties and the allegations of abuse.
CHRONOLOGY
05-11-90 to 07-09-90
I received a refom1l from Lisa Eck,,;trom1
s attorney, Stuart Scruff, I was
appointed the G.AL. on May 15. 1990. I began work by interviewing Lisa
Eckstrom and Siguard Hansen. I also interviewed both paternal grandparents. I
ob.served the child, 1'1elissa. Eckslrom, with both parent~. observed an exchange
during visitation1 interviewed Elizabeth Stanton, and reviewed accumulated court
documents. r also had a number of phone contacts with Lisa and Sig.
App. 82
Additionally, I was called upon to mediate several disagreements between Lisa
and Sig regarding make up visits and phone contact.
07-09-90
McJissa was seen by Dr. Paufa Lozano in the emergency room at Hatborview
Medical Center. Based on Lisa's statements an.d the doctor\s findings, a reforral
ivas made to Children's Protective Services. A case worker waB as.signed.
07-10-90
Lisa petitioned a Sr1<.)homish County court for restraining order. Edmonds police
involved. The court denied the re.straining order and ordered the matter to be set
for a hearing the next day in Kirlg County Family Court.
07~11~90
King County Commissioner Hershey held a hearing. Allegations of sexual abuse
were heard. The Commissioner ordered supervised visits with the father and
ordered a psychiatric evaluation of both parents and the child. A hearing was
scheduled for the 25th tJf Ju1y to hear oral testimony. Prior to the 1-11~90
hearing, I interviewed Dr. Lozano and her supcn:isor, Dr. Gibbons.
07# 13~90
J met with both Children1
s Protective Sen•iccs and l11e Edmonds police
department. Near tho end of July or beginning of August the Edmonds police
arrested Sig Hansen for the sexual abuse of McHssa. Sig agreed to have no
further contact with Melissa until completion of the police investigation. Sig took
and passed a polygraph test The paternal grandparents conti@cd to have regular
visits with Me.Jissa. During this period, Marilyn Leibert. RN_, was hired by the
Hansen's to observe Melissa for signs of possible sexual abuse. Snohmish County
declined to prosecute Sig and supervised visit.c; were re-(,umed.
08~07-90
At the request of Sig I observed a visit with Melissa. Later in August, I
jutcrviewed Elizabeth Stanton regarding he.r observations during the re.sumed
supervised visits,
09~03-90
A heaxing was hdd before King County Commissioner AJHson. The
Commissioner ordered Usa to comply \vith the 7 ~ J l ~90-ordcr requiring a
psychiatric evaluation. This evaluation was to be done by Dr. Dunn. The
Cormnissioner declined to appoint a new GAL.
09-10-90
Dr. Dunn begins his evaluation,
2
App. 83
10-I 8-90
ln the middle of Dr. Dunn's evaluation process and contrary to existing court
orders Lisa took Melissa to Linda Bridges fgr therapy. On 10-22 after the third
session in four days Ms. Bridges infonns Dr. Dunn of her concerns regarding the
sexual abuse of Melissa. On l0-23 she makes a fom1al referral to Children's
Protective Services.
10~31-90
A dependency petition is filed in Snohomish County Juvenile Court alleging the
sexual abuse of Melissa by Sig. The grandparents are at first offered supervised
visits and later these are denied.
11-26-90
3
Dr. Dunn issues his report stat.ing among other things that it is highly unlikely
that Sig sexually abused his daughter and that the child's statement~ are a result of
Parental Alienation Syndrome. He diagnoses Lisa as Histrionic Personality
Disorder and recommends treatment He also recommends the return to
unrestricted visitation for the Hansen's. His recommendations are not followed
b:y Snohomish county which continues to maintain jur:isdi.ctfon on the case
through March 31, 1991, ai. which point they drop the dependency petition.
04-16~91
A. hearing was held before Commissioner Slusher, regarding reinstitution of the
Hansen's visitations. Commissioner Slusher ordered a supervised visit with the
paternal grandparents in the office of Linda Bridges. He also suggested that a
hearing date be set, to hear ora.i testimony, at the earliest possible time. He
ordered that there be no cont.act between Melissa and her father,
06-B-91
The paternal grandmother visited wHh Melissa in Ms. Bridges' office. Melissa sat
jn Ms. Bridges' lap the entire time. refused to acknowledge the grand:mother, and
appeared to fall asleep. No further visits were attempted.
07-03-91
Stuart Greenberg begins a sexual deviance evaluation of Sig. He concludes that it
is highly unlikely that Sig is a sexual deviant His evaluation of Sig parallels that
of Dr. Dunn's. Both find it unlikely that Sig ,vmdd sexually abuse others,
particulady his daughter. Dr. Greenberg believes Sig has more difficulties with
alcohol and impulsive outbursts than noted by Dr. Dunn.
01-14-92
Dr. Dunn updated his evaluation. He again concludes that it is highly unlikely
App. 84
- -
4
that Sig sexualiy abused ~,:teJissa. He concludes that Parental Alienation
Syndrome is the most .likely explanation for Melissa's disclosure. He
recommends that Sig he allowed to relinquish his parental righti:;. He reasons that
an attempt to reest.ablish parental bonds i.vith MeHssa could cause further
devefopmental disturbances for Melissa.
SU~fiv!ARY OF CONTACTS
05~11-90 One hour interview Lisa Eckstrom.
05-l 1=90 One hour interview Sig Hansen and patents.
05-18-90 One hour intervie\-v Lisa and Melissa.
05-18-90 One, hour interview Sig Hansen.
05-25-90 One hour interview Elizabeth Stanton.
05-25-90 Two hour rcvie,v of court records.
06-09-90 T\vo hour inlervfow Sig Hansen, Melissa and paternal grnndparenfs.
06-09-90 through 7-5-90 One hour of accumulated phone contacts Lisa and Sig.
07-11-90 Six hours Interview at Harborview Hospital and Family Court hearing.
07-12-90 Phone contacts 1,vith Children's Protective Services, Detective Jones, and Alden
Garret, one hour.
07-13-90 Three hours meeting with Children's Protective Services and Edmonds Police
Dcpaitmcnt
08~07-90 One and one, half hours interview with Melissa and paternal grandparents.
08-15-90 One half hour meeting with Eli7,,.aheth Stanton.
09-03~90 Four hour Family Court hearing,
10-31-90 Four hour Juvenile Court hearing.
11-07-90 One hour intotview Dr. John Dunn.
04-08-9 I One hour observation of interview with Linda Bridges and Melissa.
04-08-91 One hour interview with Lisa Eckstrom.
04-11-91 One, hour interview with Unda Bridges.
04-12-91 One hour interview with matema.l grandmot11er.
04-12-91 One hour inte:rvie\v \Vith. paternal grandparents.
04-12~91 One hour interview With Sig Hansen.
04-16-91 Four hour Family Court hearing.
06-13¼9 I. One hour observation of' visit at Linda Bridges' office between 111atcmal
g;andmothcr and Melissa
App. 85
01-22-92 One hour interview with Dr. Greenberg regarding results of sexual deviancy
evaluation.
0l-23w92 One half hour interview witlt Lisa. Her attorney Peter Frances was present
01-25-92 One hour interview with Linda Bridges.
02-04-92 One hour interview witl'i Ken Hutchenson, Lisa's cmmselor
02wl0~92 One hour interview with Sig.
In addition to face to face interviews a number of phone contacts \Vere made during the
course of this case, J have also reviewed a large number of court docmnenis as well as
written material obtained from the attomeys representing both parties.
The above briefly deSctibes my involvement \vith this case. One earlier event.,
documented in the court mes, is also worthy of note. This event occurred in January of
1989. ln l 989, the original court evaluator commented on the apparent lack of suppmi
Lisa or her mother vvould lend to the task of Melissa forming a relationship with her
father. This evaluator recommended that both patties submit to a family psychiatric
evaluation and that both parti.es participate in counseling. Neither of these
recommendations \Vere followed.
DISCUSSION
I originally spoke with Mr. Scarff who relayed infomrntion regarding an allegation that
Melissa had been sexually abused by Sig. Base.cl on this, I intervfowed Sig, Lisa and
Sig's parents. My clinical impressions at that time did not lead me to conclude that
sexual abuse had occumed. I also spoke ·with Elizabeth Stanton who, after making
independent observations, concurred \Vith me. Later, I became aware of the polygraph
te...;,;t result and three separate evaluations of Sig, au of which supported my and Ms.
Stanton's observations.
5
I later received information regarding the physical findings of Dr. Lozano. Although the
medical findings were inconclusive, I found them very disturbing. l began to investigate
my concerns and spoke with both the examining doctor and her supervisor. The
examining doctor made a report to CPS. I later spoke with CPS regarding the medical
findings. The evidence I found whic.h supported the notion of Mr. Hansen as the
perpetrator were statements made by Lisa regarding Melissa's disclosures and a history of
previous physical and sexual abuse given to the emergency room doctor by Lisa.
App. 86
Although Lisa's statements concerned me I viewed them in the context of previous
allegations made to the original court evaluator which were unsubstantiated.
On March 28, 1990, Lisa made a referral to CPS which generated both a CPS and
Edmonds police investigation. During these investigations Lisa stated that Melissa was
fearful and showing regressive behavior. None of this information was given to me
during my initial investigation.
This infonnation , and the infonnation now compiled before this court makes this a
difficult care. If the court were to find that Sig sexually abused his daughter, resuming
visitation would be unthinkable. However, after my involvement with this case, I find
the Parental Alienation Syndrome diagnosis offered by Dr. Dunn, as the most credible
explanation for the conflicting opinions in this case. The early court documents support
such a notion. Clearly, Lisa has never encouraged visitation \'i.,ith the Hanscns, She has
consistenUy sought to limit, restrict, and control l'vfelissa's access to the Hansens. This
started as early as Lisa's attempt,:; to prove that Sig was not Melissa's b1ological father.
According to Dr. Dunn's view Melissa was subconsciously drnwn into a tight, exclusive
relationship viriU1 her mother and maternal grandmother and began to identify with their
6
anger and fear of the Hansen family. The behavior of though not fully explained, is
of the type known and documented in other family law cases,
The difficulties in this case are not easily resolved because the professional opinions are
so obviously polarized. The responses from the various professionals who have sought
to investigate, evaluate; treat and protect 1-felissa from a nmnber of real or .imagined
dangers is difficult to understand. Certainly the allegation of sexual abuse provokes a
strong emotional response. One expects this in parents, relatives, and family friends of
the alleged victim. One hopes, however, that the professionals charged with
investigating and evaluating such allegations will bring to the problem the objectivity
needed in decision making. I hclievc the polarization has occurred because those
professionals who believe that Sig is the perpetrator of Melissa's possible sexual abuse
have consciously chosen to disregard information which does not confom.1 to one or the
others preconceived notions. Those ,vho believe Sig to be the perpetrator have never
interviewed him, nor have they observed the interaction between Sig and Melissa. They
have never sought the observations of myself or Elizabeth Stanton, and most importantly,
have virtually ignored the long history of family court involvement in this matter.
App. 87
7
An example of this occurred withln CPS. When I originally spoke with the CPS
supervisor she stated that their job was to protect children, not to investigate. Later
Diane Chesterfield stated that she chose to disregard the family court history and focus
only on Melissa's stalements and the physical evidence. She also chose to ignore Dr.
Dunn's evaluation, Sig's polygraph test, and the observations of Elizabeth Stanton.
Though she was aware of this information she did not interview Sig. She did not observe
Melissa with Sig, nor did she observe MeHssa with her paternal gr,mdparcnts before
.filing the dependency petition, which was later djsmissed.
According to Ms . .Bridges the Lynnwood office of Children's Protective Services did a
good job of protecting Melissa for six months, Ms. Bridges has also ignored the family
court history, Dr. Dunn's report, and others who have observed Melissa's behavior v,dth
the Hanscns. Over the last year she has treated Melissa for the effects of trauma
associated with sexual abuse even though the court appointed evaluator has clearly stated
that such an event probably never occurred. Her assessment was not based on a thorough
eval:uation of all of the relevant information. It was based on her clinical judgement of a
two and one half year o1d child1
s heha,vior in her office. I find Ms. Bridges' assessment
methodology puzzHng. Her statements to CPS and their subsequent zeal in protecting
this child from her fatl1er has compounded Melissa's alienation from her father, which
may be imeparable.
In spite of Dr. Dunn ts evaluation, .Mr. Hansen indicated a ,villingncss to participate in a
Sexual Deviance evaluation as early as March, l 99L Yet the evaluation did not take
place until July. At the court hearing in April, 199.1, it was suggested that oral testimony
be given immediately, yet it has t.aken until Fcbruary,1992 for this to be scheduled, a full
eight months later. Some defay is understandable, but. this lengthy delay has
compounded the clinically documented alienation of l\·1elissa from the Han sens.
The conrt delays, the over zealous behavior of ChHdren's Protective Services, and the
,vell meaning but iU advised clinical assessment and treatment of Melissa have an
actively supported lhe original impulse of the Eckstrom family lo alienate Melissa from
the Hanscns. Dr. Dunn has suggested llial whatever relationship Mei.issa had ·with the
Haoscns no longer exists. He is concerned that the trauma associated with a
reestablishing their relationship may not be worth the risks involved. I strongly suspect
Ms. Bridges agrees witi1 this asse..;,sment It is difficult to disagree with Dr. Dunn1s view
for the short term. Howevcr1 more is at stake than Mefo:;sa;s short term, development In
App. 88
fact, the long term effect of Melissa having no contact with the Hansen's may be severe
indeed.
Recent literature on adoption suggests that an adopted child's need to know about his or
her birth parents is critical to later developmental tasks. Professi.onals in this field have
responded by promoting Life Books about birth parents and supported the chiJd's need to
know about their birth parents. The recent trend to,vard open adoptions is also an
example of this change. Questions refated to "who am l? Where did I come from? and
who are my relatives?'' are all important as one approaches the developmental task of
identity formation.
One must assume that Melissa, like other children, \ViU one day ask these questions. If
there is no further contact between Melissa and Mr. Hansen the answers to these
questions will be given from the perspective of Lisa and her family. Given Dr. Dunn's
diagnosis Qf the mother and description of the dependent triad consisting of Li.sa,
Meli~.;;a, and the maternal grandmother, difficult issues related to separation and
individuation may arise for Melissa. She is already described as fearful nf men and as
isolated in her play at day care. One nrnst aEk what difficulties this child might likely
experience and how these problems \vm be understood. Lisa dearly does not take
responsibility for the difficulties she creates. She consistently describes herself as a
victin1 of events, compelled to do things because those in authority tcU her it must be
done. This inability to accept responsibility, coupled \Vith a sanctioned myth of sexual
abuse, may combine to reinforce the notion that normal developmental. conflicts
associated with identity formation may be seen and treated as a symptom of prior sexual
abuse.
It is clear that Sig has many difficulties of his own. It is also clear that at one point Sig
and his parents had a healthy relationship with Melissa. This relationship may have
effectively hecn destroyed by the combination of events that make up this very difficult
case.
If the cou1i believes that the sexual abuse of Melissa by her father was unlikely burthen
refuses contact I believe the court will inevitably compound Melissa's problems by
reinforcing a myth tl1,at wm foUow Melissa into her aduU life. It will reinforce the notion
that the Hansens ,vere evil and dangerous people who refused to protect her, and that her
father not only did not love her but was a very bad and sick man who horribly abused
App. 89
her. It would also reinforce the image of Melissa as a victim and, given her mother as
her only model, may perpetuate the generational damage that has already occurred in
Lisa Eckstrom. The dangers inherent in no further contact are at least as real M the
probable trauma associated ,vith attempts at reunification of Melissa with the Hansens.
CONCLUSION
9
1 do not believe that Sig sexually abused J:vielissa. There are risks associated with the
reinstitution of visitation. However, the risb inherent in no further contact are at least a.s
great. The inconclusive physical findings are disturbing. I do not rnle out that
something happened to Melissa, only that it is tmHkly that. Sig is the perpetrator. \Vith
this in mind I recornmend the following:
L That visitation be reinstated.
2. That a female GAL be appointed who's task it would be to establish a relationship,
first. with Melissa (Ms, Bridges May be helpful in this process), and later wii.h both
Lisa and Sig. The GAL \vould initially supervise the visits with 1Mclis.sa and the
Hans.ens, providing all transportation in the beginning.
3. That Lisa remain in counseling on a regular ba.~is and that Sig begin treatment with a
certified therapist to work on his anger and alcohol related difficulties. The therapist
should also help him to understand the trauma Melissa rnay experience during the
nmnification process.
Victor Larson M.S.W.
App. 90
'
# List of Exhibit,.
f 1.1 se No. s 7 ... 3 .. o 9135 - 3
FI l E
K!NG C.OUNTr WA.SH!i'{GTQN
MAR 191992
SUPERIOR oom=rr CLERK
SY UJJRIE KENDfo.LL
OE?UTV
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7r = Plaintiff!Petitioner AIR =::: Admitted/Refused
.a. = Defendant/ Respondent t~s~ Re~O & A = Re~ottered & Admitted
ID = For ldentifrcation Only W ~-- Withdrawn
(Returned to Counsel or Retained by the Court)
App. 91
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1-lK,
_s_o_u_th_l_a_ke_P_r_o_fe_s_s_i_o_n_a_l_G_r_o_u_p _______ Pu~~ES=============R=e=n=to=n=P=l=a_z_a=_B~u_i=ld=in=g
1fEP•tCT John E. Dunne, M.D., F.A.P.A. - Child Psychiatry
Wren Hudgins, Ph.D. - Psychology
Barnett M. Kaplan, M.D. - Psychiatry
Clinical Associates
Pablo R. Proano, M.D., P.S. - Psychiatry
Janis P. Mayberry, Ph.D. - Psychology
Barbara Mayers, Ph.D. - Psychology
Barbara Barry, Ph.D. - Psychology
Sherry Hanan, Ph.D. • Psychology
1400 Talbot Road South. Suite 203
Renton, WA 98055
(206) 235-7383
SUPPLEMENTAL PSYCHIATRIC ASSESSMENT
RE: PARENTING ARRANGEMENTS FOR MELISSA ECKSTROM-HANSEN
JANUARY 14, 1992
Mother:
Lisa Dawn Eckstrom, age 26
7503 228th Avenue SW
Edmonds, WA 98020
774-6409
Attorney for Mother:
Peter D. Francis
1600 Seattle Tower
1218 3rd Avenue
Seattle, WA 98103-3080
682-9910
Dependent Child:
Melissa Dawn Eckstrom-llansen
Age: 3 years, 9 months
DOD: 04/22/88
Father:
Sigurd Johnny nansen, age 25
17107 76th Avenue West
Edmonds, WA 98020
745-2065
Attorney's for Father:
David J. Ordell
705 2nd Avenue, Suite 401
Iloge Duilding
Seattle, WA 98104
624-0130
David I<astle
8318 196th Avenue SW
Edmonds, WA 98026
774-2800
IDENTIFYING DATA AND REASON FOR SUPPLEMENTAL EVALUATION:
Melissa is the only child from the marriage of her parents, Sig
nansen and Lisa Eckstrom. An evaluation of Melissa and her
parents is described in a report by this evaluator, dated
November 26, 1990. Since then, the issues continue to be
unresolved. Lisa continues to maintain that Melissa was sexually
abused by her father and should not have further contact with
App. 93
IlANSEN EVALUATION
JANUARY 14, 1992
PAGE TliO
him. Sig denies that he ever sexually mistreated Melissa,
contends that Lisa has tried to exclude him all along, and has
pressed for resumption of regular time with Melissa. Children's
Protective Services has supported the contention that Melissa was
sexually abused by her father and has barred any contact by Melissa with Sig since the last report •. The issues are scheduled
to be heard in court in February of 1992. This evaluator
requested the supplemental evaluation for two reasons:
1. To update this evaluator on any changes in the parties, particularly Melissa, since the prior evaluation, and
2. To re-examine the conclusions in the prior report based
on additional information.
SOURCES OE' INFORMATION:
For the purpose of this supplemental evaluation the following interviews were conducted:
11-07-91
12-18-91
12-20-91
12-27-91
One hour interview with Tonee L. Wax, Sig llansen's
girlfriend.
One hour session with the father, Sig Uansen.
One hour session with Melissa Eckstrom-Uansen at the
office of Melissa's therapist, Linda Dridges, MSW.
One hour interview with her mother, Lisa Eckstrom.
The following telephone calls have occurred since the previous evaluation was completed:
12-03-91
12-03-91
03-22-91
03-26-91
04-03-91
04-10-91
04-10-91
04-18-91
04-19-91
04-26-91
07-22-91
07-23-91
08-12-91
08-26-91
08-27-91
TC from Krystal Silva, guardian ad !item for Melissa
Eckstrom-Uansen.
TC from Elizabeth Stanton, former supervisor for
Melissa's visits with her father.
TC from Marcy Droder, paralegal for David J. Ordell.
TC from Marcy Droder.
TC from Marcy Droder.
TC from Mary Gibbons, M.D., Medical Director of the
Sexual Assault Center.
TC from Vic Larson, former guardian ad !item for
Melissa Eckstrom-llansen.
TC from Marcy Droder.
TC to David Ordell, attorney for father.
TC from Marcy Droder.
TC from Dr. Greenberg's office.
TC to Stuart Greenberg, Ph.D.
TC from David Ordell.
TC from Marcy Droder.
TC from Stuart Greenberg, Ph.D.
App. 94
UANSEN EVALUATION
JANUARY 14, 1992
PAGE TIIREE
09-09-91
09-18-91
09-25-91
10-24-91
10-30-91
11-04-91
11-05-91
11-07-91
11-11-91
11-11-91
11-12-91
12-12-91
12-13-91
12-16-91
12-31-91
TC from David Kastle, attorney for father.
TC to Lynda Dridges, MSW, Melissa's therapist. TC from David Ordell.
TC from Marcy Droder.
TC from Marcy Droder.
TC from Marcy Droder.
TC from Lisa Eckstrom.
TC from David Ordell.
TC from Sig llansen.
TC from Lynda Dridges' office.
TC from Lynda Dridges' office.
TC from David Ordell.
TC from Marcy Droder.
TC from Sig Uansen.
TC from Anita at office of Peter Francis, attorney for mother.
The following documents have been received and reviewed since the original report:
01. Therapy notes for Melissa Eckstrom-Ilansen by Lynda Dridges, MSW, dated January 9, 1990, and various dates from October 12, 1990 to May 3, 1991.
02. Medical records from llarborview Medical Center Sexual Assault Center with various dates from July 8, 1990 to
April 17, 1991.
03. Letter to Diane Chesterfield, Child Protective Services, from Lynda Dridges, MSW, dated November 5, 1990.
04. Letter Re: Melissa Eckstrom-Hansen from Lynda Dridges, MSW,
dated December 21, 1990. 05. Letter to Mary Gibbons, M.D. from Joan Green Ferguson, MS,
dated January 10, 1991. 06. Letter to the evaluator from Joan Green Ferguson, MS, dated
January 10, 1991.
07. Letter to Joan Green Ferguson, MS, from the evaluator dated
January 16, 1991.
08. Letter to Whom It May Concern from the evaluator dated
March 29, 1991.
09. Responsive Declaration of Mary Gibbons, M.D., dated
April 10, 1991.
10. Notice of Association by David J. Ordell and David A.
Kastle, dated April 10, 1991. 11. Responsive Declaration of Lynda Dridges, MSW, dated April 11, 1991.
12. Deposition Upon Oral Examination of Lynda Dridges, MSW, dated May 6, 1991.
13. Letter to the evaluator from Peter D. Francis, dated May 24, 1991.
14. Letter to the evaluator from Peter D. Francis, dated June 4, 1991.
App. 95
HANSEN EVALUATION
JANUARY 14, 1992
PAGE FOUR
15. Letter to Mr. Seth Dawson, Deputy Prosecuting Attorney,
Snohomish County, from Ronald T. Eckstrom, dated July 11, 1991.
16. Letter to the evaluator from David J. Ordell, dated
August 16, 1991.
17. Motion for Reconsideration of Court Commissioner's Ruling of
the Honorable Carlos Velategui (a document from an unrelated
case sent by David J. Ordell), dated August 29, 1991.
18. Declaration of Lisa Eckstrom in opposition to additional
examination in evaluation by Dr. Dunne, dated October 30, 1991.
19. Declaration of Peter D. Francis in opposition to motion for
second evaluation by Dr. Dunne, dated October 30, 1991.
20. Family Law Order, dated November 1, 1991.
21. Letter to the evaluator from Marcy Droder, paralegal for
David J. Ordell, dated November 4, 1991.
22. Rebuttal to Dr. Dunne's report by Lisa Eckstrom, dated
December 10, 1990.
23. Letter to the evaluator from Todd c. Nichols, attorney for
the mother, dated December 24, 1991.
24. Letter to the evaluator from Peter D. Francis, dated
December 30, 1991.
25. Subpoena Duces Tecum to the evaluator from Peter D. Francis,
dated December 30, 1991.
26. Notice of Records Deposition to the evaluator from Peter D.
Francis, dated December 30, 1991.
27. Letter to Peter D. Francis from the evaluator dated
December 31, 1991.
28. Affidavit of llarald Simon, dated January 7, 1992.
29. Affidavit of Timothy aartman, dated January 8, 1992.
30. Letter to the evaluator, from Peter D. Francis, dated
January 20, 1992.
31. Gordon c. Naqayama-Ilall, et. al., "Utility of the MMPI with
Men Who Dave Sexually Assaulted Children," Journal of
Consulting and Clinical PsychologY.• 1986 Volume 54, No. 4,
pp. 493-496, received January 20, 1992.
32. Gordon c. Nagayama-Ilall, et. al, Validity of Physiological
Measures of Pedophilic Sexual Arousal in a Sexual Of~ender
Population, Journal of Consulting and Clinical Psychology,
1988 Volume 56, No. 1, pp 118-122, received January 20,
1992.
RELEVANT INTERIM IIISTORY:
Since the prior evaluation Melissa has had no contact with her
father. Visits with the paternal grandmother, Mrs. llansen, were
to resume in March but Lisa resisted that by not being home with
Melissa when Mrs. Ilansen came over to pick her up. Subsequently,
a session was arranged for Melissa to be with Mrs. Ilansen at
App. 96
[JANSEN EVALUATION
JANUARY 14, 1992
PAGE FIVE
Lynda Dridges' office as a way of easing this transition.
Melissa's reaction during that session was quite dramatic. She
essentially avoided Mrs. llansen, withdrawn and seemingly fell
asleep. Since September, 1991, Melissa has been attending
preschool two days a week and also a dance class. She continues
to see Lynda Dridges, MSW, for therapy once a week.
Predominantly she plays with her cousins, 8 year old Lishia and
6 year old Jenny. She is described by her mother as being
somewhat shy, sometimes reluctant to separate from her mother,
but otherwise functioning well. Mrs. Eckstrom continues to be
involved in the daily care of Melissa and is generally the one
who brings Melissa to her sessions with Lynda Dridges. There
have been two babies born into the Eckstrom family in November
and December of 1991, one to the maternal aunt, Marcie, and the
other to Lisa's sister-in-law.
Sig continues to work as a commercial fisherman on his father's
fishing boat in Alaskan waters. As before, he is gone for
several weeks to two months on an intermittent basis. Ile has
apparently assumed more responsibility for repairs, maintenance
and preparation of the boat. Lisa started working in January,
1991, as a receptionist at a Japanese-owned import/export
company. In about June or July she was promoted to handling the
accounts receivables. She works seven hours a day, five days a
week, in downtown Seattle. She and Melissa are generally able to
meet for lunch once a week when Melissa comes for her session
with Lynda Dridges, MSW.
Sig started dating Tonee Wax during the summer of 1990. Ile had
met Tonee through his friend Johann in early 1987 and had dated
her a few times when, as Sig described, he was still trying to
get rid of Lisa. Doth he and Tonee indicated that after they started dating again he was very slow to open up to Tonee and
trust her. Doth indicate that the relationship is very stable
but that their relationship is "on hold" while the legal issues
are still unresolved. Lisa also has been dating a man named
Steve for about six months. She met Steve when he came to the
office where she works to repair their computer. She describes
Steve as more of a "day to day person," someone who obviously
feels comfortable doing relatively mundane things like watching
T.V. or going to the store with her. She contrasted that with
Sig, "who was always on the go, wanting to do something all the
time." She says that it has been much easier for her to feel
that she really knows Steve and likes that he does not use drugs and drinks only rarely. She says that she has developed a kind
of trust in him that she never had with Sig. She described
Melissa as initially being somewhat shy with Steve as she is with
most men. nowever, she says that now Melissa likes him and
enjoys playing with him. Despite her trust in Steve, he has
never been with Melissa by himself.
App. 97
IIANSEN EVALUATION
JANUARY 14, 1992
PAGE SIX
Lisa's reaction to my report was apparently very intense and
angry. This obviously made it very difficult for her to agree to
and participate in the update of this evaluation. I received a very angry call from Krystal Sylva on December 3, 1991, shortly
after my report was released. Uowever, she had not seen the
report but had only talked to Lisa Eckstrom, apparently conveying
a sense of outrage that was consistent with Lisa's perspective on
my evaluation. There was another incident which also suggests
the intensity of Lisa's feelings that has occurred following the
release of my report. This occurred at a restaurant where Sig
and Tonee Wax were dining together. As they prepared to leave Sig was attacked by a young woman he did not know who was
screaming at him that he was a "child molester" and pulling his hair.
INTERVIEW WITII SIGURD HANSEN'S GIRLFRIEND, TONEE WAX:
Tonee Wax is a blond attractive neatly dressed woman who bears some similarity in her appearance to Lisa Eckstrom. She was
clearly eager to talk with the evaluator and express her
concerns. She clearly has a strong attachment to and affection for Sig nansen. She believes it is inconceivable that Sig would
have sexually misused Melissa or harmed her in any way. She
believes that the allegations are entirely a plot by Lisa as a
way of getting rid of Sig. She talked at length about her
relationship with Sig and her observations of him and the Oansen
family. She recalled meeting Melissa and observing Melissa with
her father and grandparents. She recalled Melissa's question to
her "Do you like my mommy? My mommy doesn't like my daddy."
Although her comments and recollections about Lisa, whom she had distantly known as an upperclassman at high school, were consistently negative, her reflections on Sig appeared more
balanced and reliable. For example, when she was giving a
relatively detailed account of his drinking patterns, she acknowledged that he drinks with his commercial fishing friends and that this sometimes "gets out of hand." Ilowever, she says
that with herself and his friends from high school, he drinks very little. She acknowledged that much of what she knew ·about
Lisa she knows only indirectly by rumor and reputation and from
Sig. Overall she appeared to be a reliable historian.
INTERVIEW WITD SIGURD IIANSEN:
Sig was casually dressed in jeans and a print shirt for his interview. De has collar length hair and appears somewhat heavier than when he was interviewed a year ago. Although he appeared to have a tense demeanor he seemed open in talking with this evaluator. Ile responded openly when asked about a variety
App. 98
IIANSEN EVALUATION
JANUARY 14, 1992
PAGE SEVEN
of issues, providing more detail than in the prior evaluation.
Uowever, he was obviously more angry about what has been
happening, both having his relationship with Melissa barred and
the enormous cost of the litigation which he feels is a waste.
Ile continues to believe that Lisa is pursuing these allegations
because she enjoys doing this to him. De expressed relief that
Melissa had never seen him without clothes, believing that he
probably would have been arrested and jailed if she had. Ile
expressed regret that his family had not been more open about
girls or that he had a sister so that he would not have been so
naive and awkward when he had been dating Lisa.
SESSION WITil MELISSA ECKSTROM-IlANSEN:
This session was arranged to be at Lynda Dridges' office, so that
the setting would be more familiar to Melissa. Melissa was
standing next to her mother who was seated in Lynda Dridges'
waiting room when I came in. Neither Melissa nor her mother
acknowledged me when I arrived. Melissa turned her back and then
crawled onto her mother's lap. Lisa seemed somewhat uneasy and
carried on a conversation with the office secretary. After I
went into Lynda Dridges' office, Lynda Dridges talked with
Melissa in the waiting room about where to meet with me. Melissa
was whining and clinging to her mother, clearly very reluctant to
go with Ms. Dridges. Eventually, Melissa went with Lynda Dridges
to the playroom and I joined them a few moments later. Melissa
was clinging to Lynda Dridges, not wanting to engage in any play
and avoiding Lynda Dridges' efforts to engage her in play. I sat
down on a pillow about four or five feet distant from Melissa and
shortly afterwards Lynda Dridges left in the pretext of getting
some clean paper for drawing. Shortly after Lynda Dridges left
Melissa seemed to relax. She started talking with me and showed
me her elaborate Christmas outfit which had three elves on it
with legs sticking down. As she relaxed she became more playful,
for example, teasing me about the number of legs on her dress.
She then played with a stacking toy, actively involving me. I
asked her about her living arrangements and she noted that she
still lives with her mother at her grandparents house, that she
has a cat named Muffet and two dogs, Dosco (?) and Duchess. She
made no response when I asked if her mother had a boyfriend.
After playing with the stacking toys for awhile she shifted to
drawing a picture. I asked her about preschool. Initially she
denied that she went to preschool and only went to dance school.
Later she acknowledged that she went to preschool but did not
know the name of her teacher there. She spoke affectionately
about her dance teachers, Jenny and Karen. When I asked about
playing with other children at the preschool, she said that she
does not play with any of the children there and only draws
pictures. She explained that she did not like playing with other
App. 99
IIANSEN EVALUATION
JANUARY 14, 1992
PAGE EIGIIT
playing
children
with
and preferred playing by herself. Later she referred to
she was upset
her two cousins, Lishia and Jenny. She said that
that Jenny did not think she drew very well. About
mother
this time
had
she wanted to go to the bathroom and explained that her
to
to take her in. When we got up to leave the play room
hand.
find
We
her mother in the waiting room, she spontaneously held my
the bathroom.
encountered
After
Lynda Dridges along the way who took her to
hand' when we walked
her return she again spontaneously held my
engaged
back to the playroom. After we were renever
in play, I asked her about her daddy. She said that she
why she
thought
did
about him and did not miss him. When I asked her
mean. When
not see her father, she said that her daddy had been
finger held
I asked her to explain she just gestured with her
someone getting
some distant above her in a wiggling motion, like
area
ready to tickle her. She pointed to her vaginal
(vaginal)
and explained that he had used his finger on the front part
talking
of her "potty pot." She seemed relatively calm in
resumed drawing
about this and it did not seem to disrupt play. She
and had a playful demeanor. Iler drawing evolved
similar
into a silly drawing of me which had a playful teasing quality,
session.
to
During
her way of relating in the earlier part of the
wished
this part of the session I asked her if she ever
would
she had a daddy. She said yes, that she wished that Steve
said
be her daddy and referred to him as "mommy's friend." She
what he
that
was
he is nice but did not add any further detail about
told her
like or what he did that she liked about him. When 1·
playing but
that it was time to stop, she seemed reluctant to stop
room,
did so without protest. Again as we were leaving the
she spontaneously
we went back
reached up and held my little finger as
mother.
to Lynda Dridges' waiting room where we met her
withdraw again.
llowever, after she rejoined her mother she seemed to
INTERVIEW WITil LISA ECI{STROM:
Melissa,
This appointment was arranged for one week after the session with
her session
in part
with
to obtain follow-up about Melissa's reaction to
the session
me. Lisa was casually and neatly dressed for
quite
and had below shoulder length hair. She was clearly
critique
anxious
of my
and guarded and immediately presented me with a
uncomfortable prior report. She readily acknowledged how
had wanted
she was with this interview and indicated that she
listened
to bring her attorney. She believed that I had not
about my
to what she had said, although she was not concerned
Although professionalism when I raised that as a possible issue.
progressed,
she seemed to relax and become more open as the session
she always seemed somewhat guarded throughout
session.
the
She provided new information to me about Melissa's
reactions following her initial sessions with me a year ago. She
App. 100
[JANSEN EVALUATION
JANUARY 14, 1992
PAGE NINE
also clarified her characterizations of Melissa's reactions
after she returned from her visits with Sig as well as the
session that she had with Mrs. llansen at Lynda Dridges' office.
She indicated that Melissa was excessively tired and that rather
than having constipation she complained of a stomach ache and had
some diarrhea. She clarified that Melissa never had had problems
with constipation. She indicated that Melissa had no apparent adverse effect following her session with me. She said that
Melissa's separation anxiety at her session with me was somewhat
worse than she had expected but acknowledged that she had never
left Melissa with a stranger before. She described again in
detail the things that Melissa has said that lead her to believe
that Sig sexually abused her on more than one occasion. She
finds it astounding that anyone could not believe Melissa and
just call this parental alienation syndrome. Despite her
obvious discomfort in the session she was cooperative and appears to be a reliable.historian.
DISCUSSION:
This has been an unusually complicated and contentious situation
and both sides find themselves highly polarized. What at one
time was simply a conflict between two parents about the
arrangements for the child visiting the non-residential parent has become even more highly charged with the possibility that the
child, Melissa, may have been sexually abused by her father, Sig
Uansen. My initial findings and formulation are summarized in a
report dated November 26, 1990. This evaluation was undertaken
because the case is about to come to court for trial. It is
imperative because of the long time span since the initial
evaluation that I had the opportunity to reassess developments,
particularly with Melissa, since then. It has also given me the
opportunity to evaluate new data and to re-examine data that was
available at the time of the original evaluation. This summary will attempt to touch on my thinking about all of the major
issues relevant to my current conclusions.
First, let me comment on factual errors that appeared in my
initial report. Lisa Eckstrom has pointed out a number of them
to me in a written critique dated December 10, 1990. Although most of these are useful in correcting minor factual
inaccuracies, most do not bear directly on the psychological assessment. Ilowever, many of them also seemed more defensive in
their content. llowever, there are some aspects of the original evaluation that were underemphasized and do have a bearing on my overall evaluation. I will try to highlight these areas in this
discussion.
App. 101
IIANSEN EVALDATION
JANUARY 14, 1992
PAGE TEN
Missy, as she is generally known and who is now approaching four
years of age, continues to be a verbal, well functioning child.
She apparently has adjusted well in her current family setting. She has a close relationship with her mother and presumably maternal grandmother and also has an affectionate relationship with her mother's boyfriend. She is apparently functioning well in a preschool setting, although she may have a tendency to be
somewhat shy and to play by herself. Despite this description of her functioning, she appears to be a very sociable child. There is still some suggestion of separation anxiety suggested by her
reluctance to start preschool in September, 1991 and her reluctance to separate from her mother and from Lynda Dridges, MSW, during my session with her in December. llowever,
this is certainly confounded by the rather intense negative feelings that Lisa has toward me. It seems remarkable that after
so many months the mere mention of my name would have sent Melissa into acute distress as described in Lisa's affidavit of October 30, 1991. It is also remarkable that after Lynda
Dridges left Missy in the playroom with me, her demeanor toward
me changed fairly rapidly. Within a minute she was not only
playing but actively including me in her play. This is in contrast to her clinging behavior when Lynda Dridges, MSW, was still in the room with her. Iler playfulness and willingness to talk with me as well as her seeking out my hand to hold as we
walked down the hallway, also contrasts with her mother's description of her being shy with men. In comparing this with my earlier evaluation of her, she also seemed more relaxed and comfortable. This may reflect the preparation that Missy had for
the session by her therapist, Lynda Dridges, MSW. Lisa also
confirmed that there were no obvious signs that Missy had been distressed by her seeing me again, although she had seemed
somewhat tired and irritable immediately afterward.
In the initial evaluation Missy had been quite adamant that her father had hurt her anal area. Iler enactment at the time was rather confusing, since she put the buttock areas of the male and female dolls together in a back to back position, even though she had indicated that he had hurt her with his "pee pee."· This
reference is further confused by a notation from Lynda Dridges that Missy has "two potty pots," presumably referring to the anal and vaginal areas. A further note, made on October 19, 1990, indicated Missy referring to the vaginal area. There are also references to daddy wetting on her leg, presumably semen or urine. There are also many references in Lynda Dridges' notes that Missy says that she does not like her daddy. Dy the time I
saw Missy in December these recurrent concerns about her father had essentially disappeared in the therapy sessions. I have con£ idence in Lynda Dridges as a therapist and do not believe that Missy's recurrent statements represent Lynda Dridges' leading Missy in saying these things. Probably both the I Tillr
App. 102
EVALUATION
JANUARY 14, 1992
PAGE ELEVEN
adequacy of therapy and the passage of time free from seeing her
father has relieved Missy of these concerns. When I saw her on
December 20, 1991 her affect related to her feelings about her
father were remarkably neutral, stirring neither a sense of loss
nor apprehension. It suggests her attachment to her father is
completely gone for any practical purpose and her father as a
real person is nothing but a distant memory. She clearly
recalled that her father had been "mean" to her but this time
described the abuse in a very different way. She held her finger
over her, moving it around in a motion suggesting someone about
to tickle her. She then indicated that the finger went to her
vagina. She made no reference to his penis or to her anal area,
even when I asked if he had hurt her in other ways. This new
description is more consistent with the Ilarborview Emergency Room
notation of erythema surrounding the posterior fourchette and the
notation of the second culposcopic of a very superficial
laceration of the posterior fourchette on July 23, 1990. It
needs to be noted that the possible superficial laceration was
not noted on the initial culdoscopic exam on July 8, 1990,
although this might very well have been overlooked at the time.
This is a very disturbing finding and certainly consistent with
some of Missy's descriptions of what had happened.
Unfortunately, the inconsistency of her descriptions (vaginal vs.
anal, digital vs. penial penetration) are equally disturbing.
Another interpretation of this might be that both vaginal and
anal penetration occurred in which both or either the finger or
penis were involved. I do not believe that Missy's statements
are at all coached in the usual sense. Iler statements do not
have a mechanical or rehearsed manner and seem entirely
spontaneous, such as one sees in a person retelling recalled
events. Certainly, faced with only the data presented by Missy,
such as Lynda Dridges, MSW, has been, one would have little
choice but to conclude that Missy has been sexually abused.
Unfortunately I have had to evaluate this information in a larger
context, which includes evaluations of the alleged perpetrator,
Sig Uansen, of Missy's primary caretaker, Lisa Eckstrom, and the
history of a progressively deteriorating, highly destructive
relationship between the two of them. My interpretation of the
meaning of Missy's statements and her emotional responses to
contact with her father and father's family are heavily
determined by these other factors and the context in which
Melissa's rejection of her father occurs.
Sexual abuse and misuse of children is an action and not a
psychiatric disorder or a personality characteristic. Short of
admission by the individual, the possibility that someone may be
inclined to sexually abuse a child is based entirely on clinical
judgment. There are no specific and reliable diagnostic tests to
make this judgment, either by inclusion or exclusion. Penile
App. 103
IlANSEN EVALUATION
JANOARY 14, 1992
PAGE TWELVE
arousal using plethysmograph can readily have both false
positives and false negatives. The evaluator is left with
taking a detailed sexual history and a careful assessment of the
individual's attitudes towards others in making this clinical
judgment. Although I do not have a written report from Stuart
Greenberg, Ph.D. of his sexual deviancy evaluation of Sig Ilansen, he did describe his findings to me by telephone. Ilis conclusions
are parallel to my own regarding the likelihood that Sig llansen
would be inclined to sexually abuse others, particularly his
daughter, Melissa. Ilowever, his assessment suggested that he may
have more difficulty with alcohol and with impulsive outbursts of
anger than I had indicated in my original assessment. This seems
to be corroborated in the declaration of IIarald Simon. I was
also impressed when I re-evaluated Sig that he appeared more
generally angry and bitter about the current situation. Ile also
seemed more open and spontaneous with expressing himself, which
may reflect his belief that 1·had viewed him fairly and
favorably. This general openness and willingness to be
scrutinized also is characteristic of his parents who seemed
eager to open their lives to me, sharing both good and bad.
Despite Sig clearly having minimized his drinking and difficulty
with inpulsive anger, one gets the impression that this is a
straight forward, hard working, uncomplicated, but somewhat
immature and naive young man. One additional comment needs to be
made, that an aspect of his style of relating that was not
mentioned in my earlier report. This was brought to my attention
by Lisa in her statement that Sig always needed to be on the go.
This seemed to fit with my observations of Sig in the video tape
in which he appears with Melissa. In that video tape he
persistently interacts by trying to get Missy to perform and is
generally overstimulating. There is relatively little recorded
time when he seems simply content to be with her. If this is
indeed generally representative of his way of relating to his
daughter, Missy may have found this difficult and perhaps even
unpleasant to cope with. Although it probably represents his
eagerness to engage in a relationship with her, it may also
reflects some degree of insecurity and relative lack of empathic
understanding of Melissa's feelings and needs. Overall, it
appears improbable that Sig would have deliberately or repeatedly
sexually abuse Melissa. With this conclusion in mind one must
look for other possible explanations for Melissa's statements and
behavior.
The re-evaluation of Lisa does not substantially alter my initial
assessment. Although she indeed was more hostile and guarded, this is not a particularly unusual reaction following printed statements that the person found unfavorable. She actively opposed having further contact with me and acknowledged that she
wanted her attorney with her. In view of this extreme
guardedness it was only remarkable that she was as open as she
App. 104
IlANSEN EVALUATION
JANUARY 14, 1992
PAGE THIRTEEN
was in talking about Melissa and about the character of her
relationship with her boyfriend, Steve. Uowever, it appears that
both Lisa and her parents viewed my attempts to understand them
as individuals as intrusions into their lives. Their guardedness
contrasts strongly with the openness of the Ilansens. Lisa
acknowledged that for about the first six months of Melissa's
life she wanted to exclude Sig entirely. nowever, it would
appear from this assessment that there has never been a period
where she truly accepted Sig as a part of Missy's life nor
trusted her with him. She approached every visit with
apprehension, and every sign of difficulty with great alarm.
Even assuming great care on her part not to discuss her negative feelings about Sig in Melissa's presence, her feelings of
apprehension must have been readily apparent to Melissa. The
apprehension carries an unspoken meaning that Melissa's father is
somehow dangerous or bad. Melissa has lived with this
apprehension throughout her life. I believe that it is this
insidious message that creates the alienating influence in
Melissa's mind. This is not something that is directly or
deliberately created by Lisa but is bo.rne out at her unconscious
or at least unspoken attitudes about Sig.
Just as it is not possible to definitely conclude that Sig did
not sexually abuse Melissa, it is also not possible to exclude
the possibility that Melissa was sexually abused. Given the
circumstances of the time Melissa spent with her father, it seems
extremely improbable that sexual abuse could have occurred as
Melissa described it. Most of their time was spent in the
company ·of other family members and there is no evidence of any
attempt by Sig to be secretive or to conceal any of his behavior
or time with Melissa from other members of his family. I would
conclude that the probability of Melissa having been sexually abused by her father is extremely low. In contrast the
likelihood that she progressively rejected her father, based on
her own emotional identification with her mother's hostility towards her father, is extremely high. Memory is an extremely fickle human tool which is readily prone to distortions,
condensation and suggestion. Children's memory tend to be quite
fragmented, concrete and devoid of context. It is often·
impossible to accurately understand the meaning of a child's
communication in adult terms without additional information from
an adult observer. Melissa was initially quite consistent in her
statements that "daddy hurt my potty pot." What is not clear to
me is exactly what this refers to and the context and meaning in
which it occurs. Although I do not question that this is an
accurate portrayal by Missy of remembered event or events, I do
not know if this refers to an incident that was sexual in nature.
App. 105
IlANSEN EVALUATION
JANUARY 14, 1992
PAGE FOURTEEN
CONCLUSIONS:
Although I cannot completely eliminate the possibility, it seems
improbable that Melissa Eckstrom-Hansen was sexually abused by
her father, Sig llansen. It still appears that the more likely
explanation is the progressive emergence of parental rejection of
her father by Melissa, the so-called "parent alienation
syndrome," which evolves from Melissa's incorporation of her
mother's apprehension about her father. This is not a situation
deliberately created by Lisa. At this point, however, Melissa
appears to have lost any real attachment to her father. She
seems fully integrated into her life with her mother and has no
apparent longing for her father. This brings up a difficult
dilemma. Working from the assumption that Melissa was not
sexually abused by her father and her father does not pose any
risk to her directly, should contact with her father resume and
if so, how? The problem with resuming contact with her father is
that any contact is likely to be marked by tremendous
apprehension by both Melissa and her mother. Richard A.
Gardner, M.D., a noted child psychiatrist who coined the term
"parent alienation syndrome" recommends that the child be placed
for thirty days on a temporary basis with the alienated parent.
I have seen two recent cases in which this was tried and
successfully restored the child's relationship with the
previously alienated parent. However, in one of these cases the
benefit was temporary, lasting only several months before the
child reverted to the initial rejection. In the other case, the
original parent refused to maintain contact with the child after
the child re-established a good relationship with the other
parent. One needs to keep in mind in such highly charged and
deeply polarized family situations that the efforts to reunite
the child with the rejected parent may have unforseen
consequences to the child's development and attachment to either
or both parents. Even though I have great sympathy for the
plight of the father, Sig Ilansen, I find it extremely hard to
justify the turbulence likely to be created in Melissa's life
and her development by re-instituting contact with her father.
Therefore I would recommend that Sig llansen be allowed to
relinquish his parental rights and that attempts to reunite
Melissa with her father be abandoned.
JED/alj
App. 106
2
3
4
5
6
7
8
9
In Re:
LISA DAWN
and
SIGURD J +
-
93 DEC I 7 f H 2: l 5
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
)
) NO. 87-3-09135-3
ECKSTROM, )
) PETITION FOR TERMINATION
Petitioner, } OF PARENTAL RIGHTS
)
)
)
HANSEN, )
)
Respondent. )
}
11 I, SIGURD J. HANSEN, the father of Melissa Hansen-Ecl-"'...strom,
12 hereby declare under penalty of perjury under the laws of the state
13 of Washington as follows:
14
15
I .. CHILD
I run the birthfather of Melissa Hansen-Eckstrom who was born
16 April 22, 1988. Melissa resides with her mother, my ex-wife, Lisa
17 Dawn Eckstrom, in Seattle, Washington.
18 Avenue N. W., Seattle, WA 98177.
I reside at 18631 8th
19 I. RELINQUISHMENT
20 I realize that it is in the best interests of my daughter that
21 I relinquish my parental rights, and I hereby con:firm that I desire
22 to relinquish the child to the sole care and custody of her mother.
23
24
25
PETITION FOR TERMINATION
OF PARENTAL RIGHTS - 1
itme child and to have the
rt.
t;. iE
:.:_,~ary care, medical an'%
• 1~0F~J!o IBM Building, Suiie 1925
Seallie, WA 00101-i 127
2001628-0800
Fax: 20GJZ)3.i9'19
App. 107
2
3
4
5
$
7
8
9
dental treatment, and evaluations of the child. I desire that an
order permanently terminating all of my parental rights to my
daughter be entered by the court.
!II. LEGAL EFFECT
I understand that the legal effect of this relinquishment will
be to divest me of all legal rights and obligations with respect to
Melissa, and that she will be freed from all legal obligations with
respect to me ..
IV. APPROVAL OF COURT
This consent is given subject to the approval of the Superior
10 1 court of the state of Washington, and it is to have no force or
12
13
14
15
18
19
20
2i
23
24
25
effect until approved by the court.
V. FINALITY
I understand that after this consent is approved by the Court
it is not revocable except for fraud or duress practiced by the
person, department or agency requesting the consent or for lack of
mental competency at the time the consent was executed by me.
VI~ INDIAN CHILD 'WELFARE ACT
The Indian Child Welfare Act, 25 use sec. 1901, et. seq., does
not apply.
VII. SOLDIERS AND SAILORS RELIEF ACT
The Soldiers and Sailors civil Relief Act of 1940, 50 use Sec.
SOl, et. seq., does not apply.
VI::E-I • CONSENT
I hereby consent to the termination of my parental rights.
PETITION FOR TERMINATION
OF PARENTAL RIGHTS - 2
App. 108
l ' .i
~
-
This consent is voluntarily ~ecute~.
i
2
3
4
IX. VOLUNTARINESS
In executing this relinquishment, I am not acting under any
fraud, ~uress or infl.uenoe of anyone. :t have read the foregoing
and hereby understand the same. :r have reviewed the same with my
5
:. attorney.
6 !l ii I understand that my decision to relinquish the child is an
7
8
t extremely important one,
' relinquishment will be to
that the legal----' effeet
take from me all legal rights and
ot: this
9
obligations with respect to the child, and that an order
10
: permanently terminating ail
11
))
1
be entered.
12 I·
I[ 13 .
1 14
'1
15 1·
16 It STATE OF WASHINGTON~ ss.
I COUNTY OF KING )
of -my parantal rights to the child will
,1 I I on this date personally appeared before me. Sigurd J. Hansen,
iS )to me known to be the individual described in and who executed the
!within and foregoing instrument, and acknowledged that he signed
,e the same as his free and voluntary act and deed ror the uses and
purposes therein mentioned.
20
GIVEN TJNDER MY HAND ANO OFFICIAL SEAL this
21 Nove:rnbe.r, 1993.
/t.i± day of
22
23
24
25
PETITION FOR TERMINATION
OF PAABNTAL RIGHTS - 3
NOT in and fort
. ~t. W~shington, residi,n:;<;1 at
My Commission · expire,s:: · ... ~~/4~=--
Print name: 771,ii,,;.,f m1
!'ry'dftll ·. ::. ";,_,"'I.! t' ,1, 1 •
; r
,.f ;,,,-
t J
I
!
'
·-t
T
App. 109
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5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
D.H.,
V.
Hon. Veronica Alicea-Galvan
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
Plaintiff,
No. 17-2-09152-9SEA
ORDER ON DEFENDANT'S
MOTION FOR SANCTIONS
MAYOR EDWARD MURRAY,
Defendant.
CLERK'S ACTION REQUIRED
Pending before the Court is Defendant's Motion for Sanctions. In connection with
Defendant's Motion, the Court has reviewed the following:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Defendant's Motion for Sanctions;
Declaration ofMalaika M. Eaton in Support of Defendant's Motion for
Sanctions and Exhibits A- B attached thereto;
Response to Frivolous Motion for Sanctions;
Declaration of Lincoln C. Beauregard in Opposition to Defendant's Motion
for Sanctions and Exhibits 1-7 attached thereto;
Declaration of Julie A. Kays in Opposition to Defendant's Motion for
Sanctions and the attachment thereto;
Declaration of Vickie Shirer in Opposition to Defendant's Motion for
Sanctions and the attachment thereto;
Defendant's Reply in Support of Motion for Sanctions;
Second Declaration ofMalaika M. Eaton in Support of Defendant's Motion
for Sanctions and Exhibits C- D attached thereto;
Declaration of Arthur J. Lachman in Support of Defendant's Motion for
Sanctions and the attachment thereto; and
LAW OFFICES OF
ORDER ON DEFENDANT'S MOTION FOR
SANCTIONS - Page I
MCNAUL EBEL NAWROT & HELGREN PLLC
600 UniVCJSity Street. Suite 2700
Sc1nle. Washington 98101,Jl4J
(206) 467-1816
App. 110
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7
8
9
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21
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(10)
(11)
(12)
(13)
(14)
(15)
(15)
(16)
Declaration of John A. Strait in Support of Defendant's Motion for
Sanctions and Exhibits A-C, attached thereto. [and]
Supplemental Authority
Declaration of Maurice Levon Jones;
Declaration re: Deposition of Mayor Ed Murray;
Declaration of Lincoln C. Beauregard re: Photo of Jones
Declaration of Lincoln C. Beauregard re: Motion for Sanction
Defendant's Surreply in Support of Motion for Sanctions; and
Third Declaration of Malaika M. Eaton in Support of Defendant's Motion
for Sanctions and Exhibit E attached thereto.
The Court has also reviewed the records on file herein. The court hereby adopts and
incorporates it's oral ruling on the issue from May 4, 2017, And being otherwise fully
advised, now, therefore,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant's
Motion for Sanctions is GRANTED. The Court assesses sanctions against attorney
Lincoln Beauregard in the amount of $5000, to be paid to the Clerk of the Court
immediately but in no event later than IO days from the date of entry of this Order.
IT IS SO OFIDzy.
DATED this day of May, 2017.
Hono
King
ORDER ON DEFENDANT'S MOTION FOR
SANCTIONS - Page 2
LAW omcES OF
MCNAUL EBEL NA WROT & HELGREN PLLC
600 llni•ersity Srreet, Suue 2700
Seanle, w .. hmgton98101·3143
(206) 467-1816
App. 111
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Presented by:
McNAUL EBEL NA WROT & HELGREN PLLC
By: s/Malaika M. Eaton
Robert M. Sulkin, WSBA No. 15425
Malaika M. Eaton, WSBA No. 32837
Attorneys for Defendants
With copies to:
Lincoln Beauregard lincolnb@connelly-law.com
Julie Kays jkays@connelly-law.com
Lawand Anderson lawand@lalaw.legal
ORDER ON DEFENDANT'S MOTION FOR
SANCTIONS - Page 3
3759-001 ge03480395 2017-05-04
LAW OFFICES OF
MCNAUL EBEL NA WROT & HELGREN PLLC
600 UniYffSil)' Street, Sui1e 2700
Seattle, Washington 98101-3143
(206) '67-1816
App. 112
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Hon. Veronica Alicea-Galvan
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
DELVONN HECKARD,
Plaintiff,
v.
No. 17-2-09152-9SEA
STIPULATED ORDER ON FEES
PURSUANT TO ORDER DENYING
MOTION TO COMPEL [DKT. 92]
MAYOR EDWARD MURRAY,
Defendant.
l?R.OPOSEB
Pursuant to this Court's Order Denying Motion to Compel [Dkt. 92], which
granted Defendant's request for fees, the parties have stipulated that $3,516.00 in fees is
awarded to Defendant.
DATEDthis Uejlt. dayofJune,2017.
McNAUL EBEL NA WROT & HELGREN PLLC
By: ___,__,p(J'--~--u.,.!.---,~.,......,.....-#._, -'--)-~~-
Robert M. Sulkin, WSBA No. 15425
Malaika M. Eaton, WSBA No. 32837
600 University Street, Suite 2700
Seattle, Washington 98101
Telephone (206) 467-1816
rsulkin@mcnaul.com
meaton@mcnaul.com
Attorneys for Defendant
ORDER ON FEES PURSUANT TO ORDER
DENYING MOTION TO COMPEL [DKT. 92] - Page 1
LAW OFFICES OF
McNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite 2700
Seattle, Washington 98101-3143
(206) 467-1816
App. 113
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CONNELLY LAW OFFICES, PLLC
Lincoln Beauregard
By: ______________ _
Lincoln C. Beauregard, WSBA No. 32878
Julie A. Kays, WSBA No. 30385
Attorneys for Plaintiff
L.A. LAW & ASSOCIATES, PLLC
Lincoln Beauregard, for
By:--------------- Lawand Anderson, WSBA No. 49012
Attorneys for Plaintiff
ORDER
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is
granted $3,516.00 in fees pursuant to this Court's Order Denying Motion to Compel [Dkt.
92]. Plaintiff is ordered to pay these fees within 5 days of the date of this order.
IT IS SO ORDERED.
DATED this / (a day of June, 2017.
Presented by:
McNAUL EBEL NA WROT & HELGREN PLLC
By: _{);(_cd<_¼_fu._~dt-----'.,______,,,_i~~-- Robert M. Sulkin, WSBA No. 15425
Malaika M. Eaton, WSBA No. 32837
Attorneys for Defendant
With copies to:
Lincoln Beauregard lincolnb@connelly-law.com
Julie Kays jkays@connelly-law.com
Lawand Anderson lawand@lalaw.legal
ORDER ON FEES PURSUANT TO ORDER
DENYING MOTION TO COMPEL [DKT. 92] - Page 2
LAW OFFICES OF
MCNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite 2700
Seattle, Washington 98101-3143
(206) 467-1816
MCNAUL EBEL NAWROT AND HELGREN PLLC
August 29, 2018 - 4:27 PM
Transmittal Information
Filed with Court: Court of Appeals Division I
Appellate Court Case Number: 76571-0
Appellate Court Case Title: Melissa Eckstrom, Respondent v. Sigurd Hansen, Petitioner
Superior Court Case Number: 16-2-12120-9
The following documents have been uploaded:
765710_Petition_for_Review_20180829162203D1093993_2258.pdf
This File Contains:
Petition for Review
The Original File Name was 18-0829 Petition for Review with Appendices.pdf
A copy of the uploaded files will be sent to:
dean@deanstandishperkins.com
jleonard@mcnaul.com
klavoie@hwb-law.com
ldarling@hwb-law.com
lincolnb@connelly-law.com
mfolsom@connelly-law.com
mhelgren@mcnaul.com
Comments:
Sender Name: Thao Do - Email: tdo@mcnaul.com
Filing on Behalf of: Matthew J. Campos - Email: mcampos@mcnaul.com (Alternate Email: tdo@mcnaul.com)
Address:
600 University Street
Suite 2700
Seattle, WA, 98101
Phone: (206) 467-1816 EXT 362
Note: The Filing Id is 20180829162203D1093993
STATE OF WASHINGTON,
Respondent,
v.
MELISSA McMILLEN,
Appellant.
ON APPEAL FROM THE
SUPERIOR COURT OF THE STATE OF WASHINGTON,
PIERCE COUNTY
The Honorable Frank Cuthbertson, Judge
bench trial)
APPELLANT'S OPENING BRIEF
KATHRYN RUSSELL SELK, No. 23879
Counsel for Appellant
RUSSELL SELK LAW OFFICE
Post Office Box 31017
Seattle, Washington 98103
206) 782 -3353
TABLE OF CONTENTS
A. ASSIGNMENTS OF ERROR 1
B. ISSUES PERTAINING TO ASSIGNMENTS OF ERROR 1
C. STATEMENT OF THE CASE 2
1. Procedural Facts. 2
2. Testimony at trial 3
D. ARGUMENT. 23
1. THERE WAS INSUFFICIENT EVIDENCE TO PROVE
ALL THE ESSENTIAL ELEMENTS OF THE
CRIME. 23
2. McMILLEN WAS DEPRIVED OF HER SIXTH
AMENDMENT AND ARTICLE 1, SECTION 22
RIGHTS TO EFFECTIVE ASSISTANCE OF
COUNSEL . 26
a. Ineffectiveness in failing to raise a corpus delicti
challenge below 27
b. Ineffectiveness in failing to rebut the
prosecution' s case regarding McMillen' s
behavior and demeanor as evidence of her
guilt and credibility. 31
c. Personal issues and failure to prepare 41
3. THE COURT ABUSED ITS DISCRETION IN
ADMITTING AND RELYING ON TESTIMONY
FROM AN EXPERT WHO WAS NOT QUALIFIED
TO GIVE HER OPINION ON THE RELEVANT
MATTERS. 47
E. CONCLUSION 50
i
TABLE OF AUTHORITIES
WASHINGTON SUPREME COURT
In re Brett, 142 Wn.2d 868, 16 P. 3d 601 ( 2001) 46
State v. Aten, 130 Wn.2d 640, 927 P.2d 210 ( 1996). 27, 28
State v. Bowerman, 115 Wn.2d 794, 802 P.2d 116 ( 1990) 39
State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 ( 2006). 28
State v. Burri, 87 Wn.2d 175, 550 P. 2d 507 ( 1976). 46
State v. Copeland, 130 Wn.2d 244, 922 P.2d 1304 ( 1996) 47
State v. Darden, 145 Wn.2d 612, 41 P.3d 1189 ( 2002). 46
State v. Dow, 168 Wn.2d 243, 227 P.3d 1278 ( 2010). 28
State v. Hartwig, 36 Wn.2d 598, 219 P.2d 564 ( 1950) 45
State v. Hendrickson, 129 Wn.2d 61, 917 P. 2d 563 ( 1996). 26
State v. Jones, 168 Wn.2d 713, 230 P.3d 576 ( 2010) 40
State v. Pryor, 67 Wash. 216, 121 P. 56 ( 1912). 27
State v. Ray, 130 Wn.2d 673, 926 P. 2d 904 ( 1996). 27
State v. Read, 147 Wn.2d 238, 53 P. 3d 26 ( 2002). 40, 49
State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 ( 1987). 39
State v. Townsend, 142 Wn.2d 838, 15 P. 3d 145 ( 2001). 46
State v. Vangerpen, 125 Wn.2d 782, 888 P. 2d 1177 ( 1995) 28
WASHINGTON COURT OF APPEALS
State v. Bonisisio, 92 Wn. App. 783, 964 P.2d 1222 ( 1998), review
denied, 137 Wn.2d 1024 ( 1999). 46
State v. Dawkins, 71 Wn. App. 902, 863 P.2d 124 ( 1994) 40
ii
State v. Koch, 157 Wn. App. 20, 237 P. 3d 287 ( 2010), review denied, 170
Wn.2d 1022 ( 2011). 26, 40
State v. Kosewicz, 174 Wn.2d 683, 278 P. 3d 184, cert. denied, U.S. ,
133 S. Ct. 485, 184 L. Ed. 2d 305 ( 2012). 25
State v. Page, 147 Wn. App. 849, 199 P.3d 437 ( 2008). 28
State v. Pineda, 99 Wn. App. 65, 992 P.2d 525 ( 2000). 27, 29, 30
State v. R.H.S., 94 Wn. App. 844, 974 P.2d 1253 ( 1999) 25
State v. Webbe, 122 Wn. App. 683, 94 P.3d 994 (2004). 27
FEDERAL AND OTHER STATE CASELAW
Davis v. Alaska, 415 US. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347
1974). 46
Hill v. Billups, 92 Ark. App. 259, 212 S. Ct. 3d 53 ( 2005). 48
In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 ( 1970) 23
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
1979). 23
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.
2052 ( 1984) 26
United States v. Deegan, 605 F. 3d 625 ( 8' Cir. 2010), cert. denied,
U.S. , 131 S. Ct. 2094, 179 L. Ed. 2d 896 (2011) 34
RULES, STATUTES AND CONSTITUTIONAL PROVISIONS
Article 1, § 3. 23
Article 1, § 22. 1, 26, 46
ER 702 47
RCW 9. 94A.525( 3)( b) 2
RCW 9. 94A.535( 3)( a) 2
RCW 9A.32. 030( 1)( c) 23
iii
RCW 9A.32. 050( 1)( b) 2, 23, 24
RCW 9A.42.070. 24
Sixth Amendment. 1, 26, 46
OTHER AUTHORITIES
Beth E. Bookwalter, Throwing the Bath Water Out with the Baby:
Wrongful Exclusion ofExpert Testimony on Neonaticide Syndrome, 78 B.
U. L. REV. 1185 ( 1998) 37, 39
Margaret Ryznar, A Crime ofIts Own? A Proposalfor Achieving Greater
Sentencing Consistency in Neonaticide and Infanticide Cases, 47 U.S. F.L.
REV. 459 ( 2013). 36, 37, 40
iv
A. ASSIGNMENTS OF ERROR
1. There was insufficient evidence to support the conviction
for second - degree felony murder based upon the predicate
crime of second - degree abandonment.
2. Appellant Melissa McMillen was deprived of her Article 1,
22, and Sixth Amendment rights to effective assistance of
counsel.
3. The trial court abused its discretion in admitting and relying
on testimony from an expert who was not qualified to
testify about the matters on which she gave her opinion.
B. ISSUES PERTAINING TO ASSIGNMENTS OF ERROR
1. To prove its case, the prosecution had to show that
McMillen recklessly abandoned her child and the death
occurred in the course or furtherance of or in immediate
flight from that abandonment. Did the prosecution fail to
meet its burden ofproof when it failed to show that the
death occurred because of the abandonment or that
McMillen acted recklessly instead of with criminal
negligence?
2. Was counsel prejudicially ineffective in failing to move for
dismissal based on the corpus delicti rule when that
dismissal would likely have been granted and would have
ended the proceedings against her client?
3. The prosecution' s case depended upon its portrayal of
McMillen' s demeanor and acts as evidence that she was a
cold, calculating person who had abandoned her child to die
just because she did not want it. At trial, counsel made no
effort to present evidence that McMillen suffered from
Neonaticide Syndrome," which would have explained her
demeanor and acts. After the conviction, counsel had her
client evaluated and presented that diagnosis and
information about the syndrome to the court in a sentencing
memo. Was counsel prejudicially ineffective in failing to
even attempt to introduce this highly exculpatory evidence
which would have rebutted a crucial part of the state' s
case?
4. By her own admission, counsel repeatedly failed to prepare
to adequately cross - examine the state' s crucial expert
witnesses. She made other missteps showing that she was
not really prepared to provide adequate assistance to her
client. Is this further evidence of counsel' s ineffectiveness?
1
5. Did the trial court abuse its discretion in admitting and
relying on expert testimony from a doctor who specializes
in child abuse, has not delivered a baby for 10 years, has
delivered less than 50 babies in her 25+ year career, has no
training or experience in forensics or pathology and was
nevertheless giving an opinion on whether an injury found
post -mortem was caused by a common birth trauma?
C. STATEMENT OF THE CASE
1. Procedural Facts
Appellant Melissa McMillen was charged by amended information
with second - degree felony murder, with alternate underlying crimes of
attempted first- degree criminal mistreatment, second - degree criminal
mistreatment or first- or second - degree abandonment of a dependent
person. CP 50 -51; RCW 9A.32. 050( 1)( b). Aggravating circumstances of
deliberate cruelty" and that the victim was " particularly vulnerable" were
also alleged. CP 50 -51; RCW 9. 94A.535( 3)( a), RCW 9. 94A.525( 3)( b).
Pretrial proceedings were held before the Honorable
Commissioners Diana Kiesel and Garold Johnson on June 10 and July 11,
2011, the Honorable Judge Beverly Grant on August 2 and December 9,
2011, May 12 and July 27, 2012, the Honorable Judge Rosanne Buckner
on October 12, 2012, and the Honorable Judge Brian Tollefson, also on
October 12, 2012. 1
The volumes of the verbatim report ofproceedings will be referred to as follows:
June 10, 2011, as " 1RP;"
July 11, 2011, as " 2RP;"
the volume containing August 2 and 9, 2011, May 11 and July 27, 2012, as
3 RP ;"
October 12, 2012, as " 4RP ;"
October 12, 2012, as " 5RP ;"
January 11, 2013, as " 6RP ;"
January 14, 2013, as " 7RP ;"
January 16, 2013, as " BRP ;"
the chronologically paginated proceedings of August 5, 8, 12 -15, 20 and 22, and
September 3, 2013, as " 9RP;"
2
Further pretrial proceedings were held before the Honorable Frank
Cuthbertson on January 11, 14 and 16, after which a bench trial was held
before Judge Cuthbertson on August 5, 8, 12 -15, 20 and 22, September 3
and 5, 2013. Judge Cuthbertson found McMillen guilty of second - degree
felony murder with second - degree abandonment as the predicate offense
and that the victim was " particularly vulnerable." CP 396. He did not find
deliberate cruelty." CP 396.
After sentencing proceedings on November 15 and December 13,
2013, Judge Cuthbertson ordered a sentence at the very bottom of the
standard range. CP 374 -87; 12RP 22 -24. Ms. McMillen appealed and this
pleading follows. See CP 388.
2. Testimony at trial
On Saturday, June 4, 2011, 20 -year old Melissa McMillen gave
birth in the basement of her father' s house, where she and Zach Beale, her
boyfriend of two years, were living. 9RP 311 -14. The night before, they
had dinner with McMillen' s dad and grandparents and Beale and his sister
both noted that McMillen seemed to be in pain. 9RP 318, 322, 611 -13.
Beale asked if anything was wrong and McMillen said to just give her a
minute, so he left her alone. 9RP 318 -19.
Later, after they had gone downstairs to bed, he woke up and she
was not there. 9RP 319. He looked around and saw blood stains on the
floor by the door. 9RP 319. Nervous, Beale got up to look for McMillen,
September 5, 2013, as " 10RP;"
November 15, 2013, as " 11RP;"
December 13, 2013, as " 12RP."
3
finding her on the stairs. 9RP 320. He was not sure what she was doing
there and asked if she was " all right." 9RP 320. When she said " yes," he
went back to bed. 9RP 320.
Later that morning, after he got up, he asked her about it and,
eventually, she told him she had a stillbirth. 9RP 321. He asked what that
meant and she said she had given birth to a dead child. 9RP 322.
At the later trial, Beale would say he had " no understandings of
pregnancy at all" and had just known that McMillen might be pregnant.
9RP 338 -38. When they had first started dating they had used birth
control but they had stopped at some point. 9RP 313 -14. Beale
remembered McMillen telling him once that she thought she had missed
her period. 9RP 313 -14. He did not really know when she said that and,
although Beale said he had "[ a] few" conversations with McMillen about
whether she might be pregnant after that, he could not remember them.
9RP 314 -15.
Beale and McMillen did not talk " a lot" about options of what they
should do if she was pregnant. 9RP 315. Beale himself never brought up
the subject. 9RP 315 -16, 336. He said, "[ a] t times it seemed like she
didn' t want to talk about it." 9RP 315. Conversations really "never got
anywhere," although they came up some names at one point. 9RP 337.
Beale also recalled something about her not being able to get an abortion
at some point because she was too " far along." 9RP 316 -17. Beale never
did any research into it or called anyone or a clinic himself, although he
speculated with his mom about whether McMillen might be pregnant.
9RP 317 -33, 370.
4
Beale and McMillen never talked about getting prenatal care or
anything like that. 9RP 337. Beale, who was unemployed, had no health
insurance and no idea if McMillen, his girlfriend of two years did, either.
9RP 337 -38.
To Beale, McMillen did not really ever look pregnant. 9RP 318.
Some of her coworkers at a local Montessori school agreed, although
everyone had noticed her gaining weight from the fall of 2010 and into the
spring of 2011. 9RP 22 -23, 113 -14, 100 -101, 342 -44. Lynne Combs, the
school' s assistant director, said that McMillen' s weight gain appeared to
be all over McMillen' s body. 9RP 134. In fact, Combs admitted,
everyone working at the school had gained quite a bit of weight at the time
so they were all trying as a team to " get healthier," even starting a diet
program together. 9RP 113 -14, 126.
Owner of the school, Kate Nohavec, noticed the weight gain but
said McMillen was not dressing any different and her demeanor did not
change. 9RP 100 -101. When asked if McMillen appeared pregnant to
her, Nohavec said "[ s] he appeared that she had gained weight." 9RP 102-
103. Mary Winters and Lisa Wall, coworkers, thought McMillen was
getting " larger" mostly in the abdomen. 9RP 23 -24, 342 -44. McMillen' s
mom Tenly Schell, however, said McMillen did not ever appear pregnant
during the relevant time. 9RP 603. McMillen never told her mom she
was pregnant, either. 9RP 601 -602. Schell did not recall telling police
that she had been asking McMillen "for some time" whether she was
pregnant and that McMillen had denied it and said she had started her
period. 9RP 605, 776 -77.
5
After McMillen told him what had happened, Beale said, he was
confused and did not know what to do. 9RP 322. According to Beale,
McMillen said her mom was on the way over to help her take care of
everything. 9RP 322. He usually went to a friend' s house to watch
fights" on weekends, sometimes staying more than a day. 9RP 323 -24.
His friend was already on the way over to pick Beale up anyway, so Beale
decided to go. 9RP 323 -24.
Beale could not remember how long he was there with McMillen
before he left, and did not recall helping her clean up or anything like that.
9RP 332 -35. At first, Beale said he did not see the remains before leaving.
9RP 322. Later, he admitted that he " took a glance." 9RP 334.
At his friend' s house, Beale ended up calling his mom in Alaska
to tell her McMillen had a stillborn the night before. 9RP 324 -28. Mary
Beale - Kuhlman testified at trial that she had been aware that there was a
possibility that McMillen was pregnant. 9RP 370. After talking to her
son, Beale - Kuhlman phoned McMillen and told her she should go get
checked out by a doctor because there could be " things that can medically
go wrong when you have a baby." 9RP 370. McMillen said she was
going to call her mom and would take care of it. 9RP 370.
McMillen never said she saw the baby move, or heard it cry or felt
the heartbeat or anything like that. 9RP 372 -73. At some point in their
phone call, though, Beale - Kuhlman thought McMillan said, "[ w]hat ifthe
baby wasn' t dead when it was born ?" 9RP 371. Beale' s mom responded
that if that was the case she would need to get some help and call 9 -1 - 1.
9RP 371 -72.
6
McMillen was supposed to volunteer at the school that day, a
Saturday. 9RP 27. When she did not arrive, a coworker "texted" to see if
McMillen was okay and McMillen responded that she was having a " really
heavy" period which was making her weak. 9RP 27 -31. Combs called
McMillen and McMillen said she was sick and throwing up. 9RP 127 -31.
Combs told her to feel better and said she would see her at work on
Monday. 9RP 129. The next day, however, McMillen called Combs at
home and told her she had miscarried. 9RP 127 -29. Combs asked if
McMillen needed anything and McMillen, who was crying very hard, said,
n] o." 9RP 129.
Beale was not home that day and did not return until Tuesday,
when McMillen' s sister was graduating from high school. 9RP 329. That
night, he and McMillen were in the basement watching a movie and Beale
asked if everything got "taken care of' and if she had gone to a doctor.
9RP 329. At trial, Beale could not remember McMillen' s response, but
she told him the remains were still there and she had not seen a doctor so
he called police seeking some help. 9RP 329, 335.
When police arrived at about 11 p.m., Beale was outside. 9RP
137, 296, 298. He approached Tacoma Police officers Ben Logan and
Yuliya Popkov. 9RP 137, 296 -98. Logan said Beale told the officers that
his girlfriend had given birth to a baby a few days before, it was dead, it
was still in the house and "he didn' t know what to do." 9RP 139 -40. Both
officers said McMillen seemed to be a little upset with Beale when she
saw him with them. 9RP 140, 300. Beale then told them that she did not
know he had called police. 9RP 140 -41, 330.
7
Logan asked McMillen what had happened and she said a couple
days earlier she had been " feeling uncomfortable" and constipated, gone to
use the bathroom, sat on it trying to " go" and then given birth to a
stillborn." 9RP 143. Logan also testified that McMillen said " the child
was left where it was birthed," that she went and took a shower and that
she came back about an hour and a half later, when she " put the body
away." 9RP 143. Popkov said McMillen told them she had a stillborn,
freaked out" and put it away in a bag in the laundry room. 9RP 143.
When Logan asked McMillen ifthe baby moved at all or made any
noises after it was born, she answered, "[ n] o." 9RP 145. She said it
appeared to be dead. 9RP 147. It also appeared purple. 9RP 147.
The officer asked McMillen why she had not called 9 -1 - 1 or told
anybody when it happened. 9RP 146. McMillen explained that she was
scared, did not know what to do and did not want to call an ambulance
because " she couldn' t afford it and she didn' t have medical insurance."
9RP 146. The officer asked McMillen if she knew she was pregnant and
McMillen responded that she did not know for sure but " suspected that she
may be," although she also said her birth control kept her from getting a
period. 9RP 146 -47.
Inside the house, officers noted suspected blood on the floor and
bath mats in front of the toilet and sink upstairs and also on the carpeting
in the bedroom, several stairs and on the toilet, sink, washing machine and
several places on the floor in the laundry room. 9RP 265 -66, 275 -76, 282-
83. In the messy laundry room, officers located clothing, bedding, towels,
a bottle of bleach and a garbage can with bloody towels, papers and
8
clothes in it. 9RP 274, 443 -44. McMillen told the officers she had put the
remains into a bag in the laundry room and officers found a grey cloth -type
bag with hearts on it. 9RP 301 -305. A fire department lieutenant opened
the bag and saw what appeared to be some towels " heavily covered in
blood and matter." 9RP 177, 307. He also found a plastic bag which had
what appeared to be the remains of an infant inside. 9RP 178 -84.
Both McMillen and Beale were taken to police headquarters to be
interviewed that night. 9RP 188 -93. Detective Daniel Davis first spoke to
McMillen " a bit off tape for awhile" and then recorded a statement. 9RP
384 -85. After they gave statements, McMillen and Beale were released
and taken to Beale' s grandparents' home. 9RP 387 -88.
McMillen was picked up again the next day, however, for further
interrogation. 9RP 388 -92. In her second statement, McMillen said she
had been stressed out to think she might be pregnant but had not been
really going out of her way to either avoid it or deal with it. 9RP 398.
McMillen said she had planned to check at Planned Parenthood but then
after months went by and she was not having symptoms, she thought she
was not pregnant. 9RP 398. She was also telling herself that it could have
been other things causing her to miss her period, like stress. 9RP 399.
After she looked online, though, she was not so sure, because it seemed
like the kind of stress you had to have for your period to stop was pretty
extreme, like when you had cancer. 9RP 399 -400.
Davis asked McMillen if she thought about calling an " adoption
place" to inquire about those services and she said she did not know there
were places like that. 9RP 406. She also said it was hard to do things like
9
talk to strangers about something like this. 9RP 407. McMillen was
young, unmarried and did not know what was going on but knew how
people would view her. 9RP 407.
McMillen also knew, however, that her grandparents would not
have abandoned or disowned her even though they were from a different
era. 9RP 401 -403. She still felt like her having a baby without being
married would nevertheless have " changed their perception" about her and
that was hard. 9RP 401 -403.
Detective Davis asked McMillen what she was going to do when
she suddenly had a baby after she had denied being pregnant. 9RP 412.
McMillen said she would have told people she was pregnant if she had
wanted to and it was her body and her life, a personal thing. 9RP 412.
She said there were people she knew who were now " kicking themselves"
and saying they should have gone out and bought her a pregnancy test or
something but McMillen thought it was a personal issue. 9RP 414.
McMillen admitted to the officer that she never really thought
about the " bigger picture" and was just kind of waiting until the moment
things happened or the last minute. 9RP 415. McMillen also said she did
not think that she and Beale were really fit to be parents. 9RP 414.
Regarding the birth, McMillen did not think her water had broken
but did not know what it would have felt like and had several times where
she " just leaked everywhere." 9RP 412. After the baby was born dead,
McMillen was not quite sure what to do and so she wrapped everything in
a towel. 9RP 419. She then passed out on the ground and when she woke,
she ultimately ended up putting the remains in a garbage bag and then in a
10
school book bag. 9RP 419. McMillen first said that she had not wanted a
garbage bag sitting down there and was trying to keep it hidden from
e] verybody." 9RP 419. A moment later, however, she noted that her
dad did not go down into that room much and Beale already knew what
was going on, so having it in a bag other than a garbage bag was more for
herself because it made her uneasy to have it in a garbage bag as ifit was
garbage. 9RP 420.
At that point, McMillen said, she went and took a shower. 9RP
417. She then went back down and tried to clean up the blood on the floor
and on the toilet. 9RP 417. Usually she would use bleach when cleaning
the toilet because Beale was " not really big on flushing" and she did not
think she used Pine -Sol, which they also had, because the smell was too
strong. 9RP 418. For the floor, McMillen thought she just used wet
towels and paper towels. 9RP 418.
In the second interview, the detective asked ifthere was blood on
the baby and McMillen said she did not think so but that she was bleeding
a lot. 9RP 422. She also said there was not " a substantial amount of
blood" in the toilet and that she had not really started bleeding "too much"
until the placenta came out. 9RP 422.
At trial, the officer first testified that this was not " consistent" with
what McMillen had said in the first interview, which he thought was that
there was " not much bleeding at all." 9RP 423. When confronted with his
pretrial interview, however, Detective Davis admitted that he had said
there were actually no changes in the " main points" of McMillen' s
statements. 9RP 436 -40.
11
In fact, the detective admitted at trial, he had taken a break from
the interview to reread his reports before answering the question of
whether there were any inconsistencies. 9RP 440. He then answered it by
saying there were no " changes in the main points." 9RP 440.
McMillen was nevertheless arrested after the second interview, in
part because of what Davis said were " inconsistencies in the statement that
I just didn' t feel were, you know, consistent." 9RP 423, 424.
Police had by then spoken with some of McMillen' s coworkers
about whether McMillen had confided in them that she might be pregnant.
Wall admitted she did not really socialize with McMillen, had never met
McMillen' s longtime boyfriend and never discussed her own personal
issues with McMillen. 9RP 24 -37. Wall nevertheless decided to ask
McMillen one day at work, "[ a]re you sure you' re not pregnant ?" 9RP 24-
37. Two other coworkers who were there when McMillen was asked if
she was pregnant' said McMillen got angry and ultimately cried. 9RP
125 -27, 344 -45. One testified that McMillen said she had gotten tested at
a Planned Parenthood and was not pregnant but was gaining weight due to
stress. 9RP 344 -45.
Combs testified that Mc Millen never really discussed personal
issues at work. 9RP 119 -22. Combs had known McMillen for some time.
9RP 110 -18. McMillen had been working at the school since she was
about 16 years old, having started by earning credit as part of a high school
class before getting hired. 9RP 96. In her work, McMillen was solely
2It is unclear ifthis was the same day.
12
responsible for a group of 5 - 12 year -olds and sometimes preschoolers but
the school had no infants younger than 12 months. 9RP 92 -93. Those who
worked with her said she was great with the kids, loved them and was loved
by them, herself. 9RP 132 -33, 35, 345. McMillen' s plan was to become a
teacher and she was already doing some "job shadowing" to that end. 9RP
133 -34.
At some point in October of 2010, McMillen had gone to a work -
related conference with Nohavec and Combs and they had shared a room.
9RP 99 -100. McMillen seemed to be sick and did not eat much but others
in the school had the flu at the same time. 9RP 100, 124 -26, 131.
McMillen was fine shortly after that and did not miss any work because of
being ill. 9RP 132. In the interview with Davis, McMillen said something
about it maybe being morning sickness but then she felt fine shortly after
that so she did not really know. 9RP 394 -97.
A parent at the school testified that she had noticed McMillen
gaining weight and had asked if McMillen was pregnant but McMillen said
she was not. 9RP 211 -18. The woman persisted and McMillen got very
upset. 9RP 219. According to the parent, McMillen said she had been to
Planned Parenthood and they said she was not pregnant. 9RP 219.
The parent admitted that she brought the subject up in the entrance
to the school where there was a big open space and lots of people such as
kids and other teachers. 9RP 219 -222. She also admitted that she was
confrontational with McMillen, going " at her" with " a lot of concern" and
getting " pretty aggressive." 9RP 220 -22. The parent conceded that she had
no social relationship with McMillen and they had never discussed personal
13
things at all before. 9RP 223 -24. But the parent described herself as just a
really compassionate, caring person" who worried about people, which
was why she had confronted McMillen. 9RP 223 -24.
A person who worked as a " floater" at the school in April of 2011
said McMillen had a little "belly" and she asked McMillen one day when
she was " due." 9RP 288 -89. McMillen laughed and said she was not
pregnant but was just a " stress eater." 9RP 288 -89.
McMillen told officers she could have told people about what was
going on but she felt it was personal. 9RP 412 -14.
McMillen' s mom took her to an emergency room on June 8', where
Dr. Christina Hitchcock was asked to consult on whether McMillen had a
tear on her cervix. 9RP 452 -54. Hitchcock determined that the cervix was
not torn, just healing, but McMillen had a significant tear between her
vagina and rectum and her uterus still enlarged. 9RP 454 -55. The tear
already looked infected and was not healing. 9RP 456. The tear was
cleaned out and repaired with three layers of sutures. 9RP 456 -57.
McMillen told Hitchcock she thought her last period had been in
October of 2010. 9RP 45859. McMillen described the delivery and said
that the blood was all red, not dark brown. 9RP 460. She did not describe
a " substantial amount ofblood loss," instead just saying it was kind of like
a period. 9RP 474. Hitchcock admitted that she did not ask McMillen
anything about " labor, contractions, bleeding" and just recalled McMillen
saying " when she sat on the toilet is where she delivered the baby." 9RP
475. McMillen told Hitchcock that the baby was a " still birth." 9RP 454.
Questioned by Hitchcock, McMillen did not know how far along
14
she was in the pregnancy, could not say how big the baby was and, when
asked ifthe baby was like a " five pound bag of sugar or like a ten pound
bag ofpotatoes," kind of laughed. 9RP 457. Hitchcock noted the laugh in
her report because, the doctor said, it "appeared abnormal to me." 9RP
462. Hitchcock said McMillen denied depression or feeling tearful and that
she always referred to the baby as " it." 9RP 462.
Hitchcock was not the only state' s witness asked to talk about
McMillen' s " demeanor," usually over defense objection. Logan testified
that the night police were called McMillen appeared " calm, normal," and
d] idn' t appear to be upset[.]" 9RP 147 -48. Davis testified that she was
calm" and "just sitting there" - as compared to a " more excited" Beale.
9RP 375 -81. The firefighter there that night said she seemed "[ s] lightly on
edge," nervous and didn' t appear comfortable. 9RP 173. Detective
Chittick said that in the first interview McMillen was " very stoic"
throughout, did not show a lot of emotion, was not " upset, agitated or
anything like that" and seemed like she was having " not a lot of feeling and
just answering the questions." 9RP 196. Davis described her in the same
interview as " pretty calm and, you know, maybe a little detached from the
gravity of the situation. 9RP 387. And for the second interview, Davis was
allowed to say McMillen' s demeanor was " pretty much the same as the
night before." 9RP 423. He also gave his opinion that it was " a pretty calm
interview," that "it seemed like she was a little bit - like I said, I guess,
detached some, distance maybe." 9RP 423.
Hitchcock ran some tests, including for clotting disorders that are
always tested when there is a stillbirth. 9RP 463. They were normal. 9RP
15
463 -64. What was not normal, however, was McMillen' s blood volume,
which was very low. 9RP 470. She was also anemic, which could have
made her light- headed and dizzy. 9RP 470. In fact, Hitchcock offered
McMillen a blood transfusion but she declined. 9RP 473 -74. Hitchcock
said she could not tell whether the low blood levels were a big change for
McMillen because they had no " baseline." 9RP 473. The doctor admitted,
however, that if McMillen' s normal blood level was even 10 points higher
then the 21% she was at now the doctor would describe it "technically, as a
postpartum hemorrhage." 9RP 473.
For the first time at trial, Hitchcock claimed that McMillen had told
the doctor that, after she gave birth, she left the baby in the toilet for about
90 minutes and took a shower. 9RP 475. Hitchcock testified that
McMillen said that when it was born, the baby looked " purple" so she just
kind of left it there." 9RP 475. When confronted with her report, the
doctor admitted that it contained no such statement. 9RP 475 -76. Prior to
her testimony, Hitchcock had told counsel some things she had
remembered that were not in her report. 9RP 476. The " 90 minute" claim
was not among them. 9RP 476. Hitchcock claimed, however, to
distinctly remember that" being said. 9RP 476.
McMillen' s mother, Tenley Schell, was in the room for the entire
examination that day. 9RP 603. She did not hear the comments Hitchcock
said were made. 9RP 603. Schell also did not recall telling police later that
she had asked McMillen "for some time" whether she was pregnant but
McMillen had constantly denied it and said she started her period. 9RP
605. A detective later testified about that conversation. 9RP 605, 776 -77.
16
Dr. Thomas Clark, the Pierce County Medical Examiner, conducted
the autopsy and could not find any clear cause of death from the physical
evidence. 9RP 538. Instead, he based his conclusion that the death was
from hypothermia or drowning with blood loss as a contributor based solely
on the circumstances of what he had been told had happened and was
capable of causing death. 9RP 538. There was no external evidence of any
injury to the infant and " nothing in the autopsy to support drowning or
hypothermia as a cause of death." 9RP 538, 545. Frankly, he admitted, the
cause of death" was " circumstantial" based on the fact that he believed the
baby had been born alive and that these " factors" seemed most likely to
have potentially caused the death. 9RP 538.
Clark first said the infant appeared to be " full -term with early
decomposition and desiccation[.]" 9RP 492 -93. Clark admitted, however,
that the infant weighed a little less than one would expect in a full -term.
9RP 519. Clark opined that the baby was born alive in part because a
portion of the x -ray appeared to show that the lungs were " aerated," which
Clark said meant " they had inflated and had air in them." 9RP 496. Clark
also said there was air in "the initial portion of the GI track, the stomach
and duodenum." 9RP 496. Clark explained that, when an infant is born, its
lungs are not inflated and there is no air in the GI track, so as birth occurs,
the first breath is taken and it inflates the lungs over the course of a few
breaths. 9RP 496. He also said that infants can swallow air, which is then
processed through the duodenum and bowel. 9RP 497.
When the scalp was opened up, Clark found a " large hematoma,"
which is " a collection of blood and blood clot in between the scalp and the
17
skull." 9RP 501. There was a large amount of blood sitting on the interior
of the scalp which should not be there and which, Clark said, could not
have been there ifthe infant had died in the uterus, because it could not
occur without blood pressure. 9RP 503. There was a " subdural
hematoma" too, which he said almost always was caused by trauma but did
not have to be severe to cause the damage he saw. 9RP 507. It was
possible the subdural hemorrhage was caused at the same time as the
hemorrhage observed on the outside of the skull. 9RP 507. If a baby was
born in the toilet and struck its head on that, it could be consistent with
these hematomas. 9RP 533.
Clark admitted that some part or " even possibly all" of that subdural
hemorrhage could have been caused by the birth, itself. 9RP 507. He also
thought that the parietal hematoma could have been caused by birth or
external trauma. 9RP 532 -33. He said "[ y] ou can get a thin layer of
subdural blood from birth trauma," so that he could not really ascribe the
bleeding to trauma other than that from birth. 9RP 509.
Clark talked about the autopsy and described in detail taking
sections from the lungs and putting them in liquid and noting that they
floated, which he said was " indicating that they have gas in the alveolar
spaces." 9RP 514 -15. He said that lungs that did not have air in the air
spaces " don' t float" and lungs with air in the air spaces, do. 9RP 515. He
said that typically "lung tissue does not float in a stillborn that never
breathed." 9RP 515 -16.
Clark relied heavily on the " floating lung" test, saying that an infant
who died in utero " would not have expanded lungs, the lungs would not
18
float" and " there would be no air in the GI tract on an x- ray." 9RP 517.
Clark admitted that the compression or motion ofjust picking up a
newborn and moving it could cause some air to be present in the lungs but
thought the infant' s lungs in this case were uniformly and completely
expanded. 9RP 576. He also admitted that part of the autopsy put
potentially negative pressure in the lungs and stomach and that could pull in
air, but he noted the X -Ray had been taken before then. 9RP 576 -77.
Clark concluded that the infant was born alive, "based on the
aerated lungs, air in the stomach, and the large scalp hematoma." 9RP 526.
The cause of death was " not so clear," Clark admitted, although he opined
that it was likely a combination of drowning and hypothermia, maybe also
with blood loss contributing to the death. 9RP 527. Clark admitted that
there isn' t any one thing that is absolutely clear" about the cause of death,
because drowning and hypothermia do not usually show physical signs in
an autopsy. 9RP 527. Drowning " would not necessarily leave any specific
evidence," Clark said, because most people who drown have a spasm in
their throat so that water does not get into the lungs. 9RP 527. As a result,
the fact that the infant' s lungs were clear in this case - or any other - would
not exclude the possibility of drowning, according to Clark 9RP 527.
Clark also thought death could have happened because the child " could
have lost enough heat to die" but again there was nothing in the autopsy to
show that and it was based on what he had been told about what happened.
9RP 527.
Dr. Clifford Nelson, a forensic pathologist and deputy state medical
examiner for the state of Oregon, disagreed with Clark' s conclusions. 9RP
19
642 -43. Nelson, who had special training for child death investigation,
reviewed the evidence and found no proof of live birth, as he defined it.
9RP 678 -79. He noted there was nothing in the autopsy which showed any
evidence of drowning and the allegation was that the baby had its head out
of water. 9RP 723 -24. There was also no external evidence of any injury
to the child at all. 9RP 705 -706.
Indeed, on this evidence, Dr. Nelson said, he could not say with any
reasonable degree of medical certainty that this was a live birth. 9RP 727-
28. He did not believe anyone could. 9RP 727 -28.
Nelson said that, in most situations, the only way to know for sure
you have a live birth was to find some food or colostrum in the child' s
stomach or have some injury which could only have happened after birth.
9RP 679. For " inconclusive" findings, he said, there are findings you can
see in live births and still births, as well, so they really do not support a
finding that either occurred. 9RP 679. For example, he had seen patchy
aeration in kids that he knew were born alive so he could not use that to
make the call." 9RP 758.
Nelson talked about the " float test" which people used to use and
upon which Clark' s opinion relied. 9RP 680. He said there were a lot of
reasons you can get gas in the lungs and that would cause them to float, but
that was not proof of a live birth. 9RP 680. During the birthing process,
for example, the chest was squeezed down and then released, and that
negative pressure would draw some air into the lungs. Also, Nelson noted,
moving a body at all, including putting it on an X -ray table, can cause " an
exchange of air and get the air into both lungs and stomach and even
20
potentially the duodenum," as seen in this case. 9RP 681. Nelson said
there can be gas based on decomposition of a newborn and then showed the
court what gas looked like - big holes that are " really rounded" - which he
saw in the example slides and in baby McMillen. 9RP 682. He also
showed a textbook talking about how post - mortem handling had also been
found to cause entry of air into fetal lungs. 9RP 683.
In fact, Nelson showed sections of a lung taken from a baby who
died in the uterus which looked " aerated" even though it was impossible,
given that death was known to have occurred before birth. 9RP 684 -85.
Nelson concluded that post - mortem handling could account for what
appears to be air in the X -rays of the lungs and the stomach. 9RP 685.
Regarding Clark' s apparent heavy reliance on the " float" test,
Nelson quoted a textbook in the field saying that there were too many
controlled" tests showing that stillborn lungs may float and the lungs from
an infant known to be born live could sink for that to be used as evidence of
live birth in criminal trials anymore. 9RP 688 -89. He said he would
probably make note of it but it was " useless" as a determinate of whether a
baby was born alive or not. 9RP 690.
Nelson looked at the lung tissue slides taken by Clark and said that
the lungs seemed mostly " pretty solid," which would not be the case if they
were " normal aerated lungs." 9RP 694. He said there appeared to be round
circles typical of the appearance of gas - formed cysts. 9RP 694 -95.
Regarding the subgaleal bleeding, Nelson testified that he would
expect to see bleeding in certain vessels in the subcutaneous fat ifthe
bleeding was due to blunt force trauma or impact, but none was there. 9RP
21
703 -707. Nelson thought instead that it was due to a caput succedaneum.
9RP 704. A caput is something that happens as the baby' s head is traveling
through the birth canal from being coned down and pushed and narrowed,
and there can be some bleeding. 9RP 707 -708.
In rebuttal, the prosecutor called Yolande Duralde, medical director
of the Child Abuse Intervention Department at Mary Bridge Hospital, who
specialized in child abuse.' Duralde disagreed that the parietal hematoma
on the front of the head was a caput succedaneum. 9RP 794. Instead, she
offered her opinion that the injury occurred after the baby was delivered, by
hitting something hard like "the toilet on the way out." 9RP 797. She
based this on the description McMillen gave of the birth being like she had
to " poop" and a baby coming out, which Duralde opined showed no
difficulty in the child coming through the birth canal such as that which
would cause a caput. 9RP 798.
Duralde admitted that there was no medical evidence to show that
the injury was not caused during the birthing process. 9RP 800 -801.
Instead, she said, she was relying just on the description of the delivery to
reach her conclusion. 9RP 801.
Duralde also conceded that she had previously said it was possible
that the injury was a caput but it just did not sound like one. 9RP 803, 809.
3The court' s decision to admit this evidence over defense objection is discussed in
more detail in the argument section, infra.
22
D. ARGUMENT
1. THERE WAS INSUFFICIENT EVIDENCE TO PROVE
ALL THE ESSENTIAL ELEMENTS OF THE CRIME
Both the state and federal constitutions guarantee the accused due
process, which requires the prosecution to prove every element of a charged
crime, beyond a reasonable doubt. U.S. Const. amend. 14; Wa. Const. Art.
1, § 3; In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068
1970); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 ( 1980). Evidence
is sufficient to support a criminal conviction only where, taken in the light
most favorable to the prosecution, a rational trier of fact could have found
all of the elements charged beyond a reasonable doubt. Green, 94 Wash.2d
at 221; see, Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61
L. Ed. 2d 560 ( 1979). Where there is not such evidence, reversal and
dismissal is required. Green, 94 Wn.2d at 221.
In this case, this Court should reverse and dismiss the conviction
because the prosecution failed to meet its burden of proof for the essential
elements of the offense.
McMillen was accused of second - degree felony murder with a
number of crimes listed as the predicate offense. CP 50 -51.
A person is guilty of murder in the second degree when. .. he or she
commits or attempts to commit any felony, including assault, other
than those enumerated in RCW 9A.32. 030( 1)( c), and, in the course
of and in furtherance of such crime or in immediate flight
therefrom, he or she, or another participant, causes the death of a
person other than one of the participants[.]
RCW 9A.32. 050( 1)( b). McMillen was convicted of the crime with second -
degree abandonment of a dependent person as the underlying offense. CP
396. To prove that crime, the prosecution had to show that McMillen
23
committed second - degree abandonment and, " in the course of and in
furtherance thereof' or `immediate flight therefrom," the death occurred.
See RCW 9A.32.050( 1)( b).
Abandonment of a dependent person in the second - degree is defined
in RCW 9A.42.070, which provides, in relevant part:
1) ... [ A] person is guilty of the crime of abandonment
of a dependent person in the second degree if:
a) The person is the parent of a child, a person
entrusted with the physical custody or a child or
other dependent person...; and
b) The person recklessly abandons the child or
other dependent person; and:
i) As a result of being abandoned, the
child or other dependent person suffers substantial
bodily harm; or
ii) Abandoning the child or other
dependent person creates an imminent and
substantial risk that the child or other dependent
person will die or suffer great bodily harm.
Here, the relevant harm was death, so it appears that subsection (ii) applies.
Thus, the prosecution had to prove that McMillen recklessly abandoned the
infant, creating an imminent and substantial risk of death, and death
resulted from the commission, in furtherance of or in direct flight from that
abandonment.
The prosecution failed to meet that burden ofproof, in several ways.
First, there was insufficient evidence that the death occurred in the
commission, in furtherance of or in direct flight from the abandonment.
There was no testimony from any of the experts that the infant would have
lived had it not been in the water. All of the testimony was that it was
24
assumed that hypothermia or drowning likely caused the death and loss of
blood likely contributed, simply because no real cause of death could be
found based on the physical evidence. 9RP 527, 538, 723 -24, 798, 801.
But the description McMillen gave was of a head above water. Further, no
one testified that the infant would have lived ifMcMillen had done
anything different. Nor was there any evidence to that effect. Absent any
supporting testimony at all, it was speculation only that supported the
assumption that the death occurred in the commission, in furtherance of or
direct flight from the abandonment.
Further, there was insufficient evidence to prove the required mental
state. The predicate felony is an element of the felony murder crime and
substitutes for the mental state the prosecution is otherwise required to
prove. See State v. Kosewicz, 174 Wn.2d 683, 691 -92, 278 P. 3d 184, cert.
denied, U.S. , 133 S. Ct. 485, 184 L. Ed. 2d 305 ( 2012). The mental
state the prosecution had to prove here was recklessness, which required
proof that the a defendant 1) failed to act while knowing of and
disregarding a substantial risk that a wrongful act might occur as a result
and 2) disregarding that risk grossly deviated from conduct " a reasonable
person would exercise in the same situation." State v. R.H.S., 94 Wn. App.
844, 847, 974 P.2d 1253 ( 1999). Thus, there are both objective and
subjective parts of the analysis, because recklessness is determined by not
only looking at what a reasonable person would do but also the defendant' s
subjective belief at the time of the offense. Id.
Here, the weight of the evidence shows that McMillen' s subjective
belief was that the baby was dead. She told everyone it was stillborn or that
25
she had miscarried. See 9RP 127 -29, 143, 321, 370, 419. She said it did
not make noise. It did not move. It was purple. Only with Beale' s mom
did McMillen wonder aloud "what if' it had been born alive. 9RP 371.
Given that, there was insufficient evidence that McMillan knew of
and disregarded a substantial risk of death and thus committed
abandonment. Thinking the baby was dead, there would be no risk in
leaving it where it was while washing off yourself. Failing to be aware of
the risk that the baby might be alive is criminal negligence; it is not
recklessness. See, Lg., State v. Koch, 157 Wn. App. 20, 36, 237 P. 3d 287
2010), review denied, 170 Wn.2d 1022 ( 2011) ( criminal negligence is
failure to be aware of a substantial risk and that failure was a gross
deviation from the standard of care of a reasonable person). Even taken in
the light most favorable to the state, at best the evidence supported a
conviction for second - degree manslaughter. See, e. g., RCW 9A.32. 070( 2).
Because there was insufficient evidence to prove all the essential elements
of the crime, this Court should reverse.
2. McMILLEN WAS DEPRIVED OF HER SIXTH
AMENDMENT AND ARTICLE 1, SECTION 22 RIGHTS
TO EFFECTIVE ASSISTANCE OF COUNSEL
Under both the state and federal constitutions, the accused in a
criminal case is entitled to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 ( 1984); State
v. Hendrickson, 129 Wn.2d 61, 77 -78, 917 P.2d 563 ( 1996), overruled in
part and on other grounds ll Carey v. Musladin, 549 U.S. 70, 127 S. Ct.
649, 166 L. Ed. 2d 482 ( 2006); Sixth Amend.; Art. I, § 22. Further, a
defendant can be deprived of the due process guarantee of a fair trial when
26
counsel fails to live up to minimum standards, because counsel serves the
important function of balancing against the weight of the state and taking
steps to ensure the trial is " fair." See State v. Pryor, 67 Wash. 216, 121 P.
56 ( 1912); State v. Webbe, 122 Wn. App. 683, 694, 94 P.3d 994 ( 2004).
In this case, reversal is required, because counsel was prejudicially
ineffective and, as a result, McMillen was deprived of both her rights to
effective assistance and to a fair trial.
a. Ineffectiveness in failing to raise a corpus delicti
challenge below
First, counsel was prejudicially ineffective in failing to raise a
challenge based on the corpus delicti rule below. Under that rule, there
must be sufficient evidence - independent of the defendant' s statements -
that a crime was committed. See State v. Ray, 130 Wn.2d 673, 679, 926
P. 2d 904 ( 1996). The prosecution bears the burden of production, which
means that it " need only produce evidence sufficient to support a finding
that someone committed a crime." State v. Pineda, 99 Wn. App. 65, 77,
992 P.2d 525 ( 2000). Where a death is involved, this means evidence
sufficient to support " a logical and reasonable inference that the death was
caused by a criminal act." 99 Wn. App. at 77 ( quotations omitted). Put
simply, there must be more than a body - there must be some proof,
independent of the defendant' s statements - that the death was the result of
a crime. See id.; see also, State v. Aten, 130 Wn.2d 640, 663, 927 P.2d 210
1996).
The corpus delicti rule is both a question of sufficiency of the
evidence to admit a statement and sufficiency of the evidence to convict,
27
but it not constitutional. See State v. Dow, 168 Wn.2d 243, 249, 227 P. 3d
1278 ( 2010). As such, it is not an issue which can be raised for the first
time on direct appeal, except in the context of counsel' s ineffectiveness.
See, State v. Page, 147 Wn. App. 849, 855, 199 P. 3d 437 ( 2008). When it
is raised below, on appeal this Court applies de novo review, taking the
evidence in the light most favorable to the state. See, e. g., State v.
Brockob, 159 Wn.2d 311, 328, 150 P. 3d 59 ( 2006).
Here, the issue was not raised below, but counsel was prejudicially
ineffective in that failure. Failure to make a motion at trial will amount to
deficient performance if the defendant can show that the motion has merit
and would likely have been granted. See Page, 147 Wn. App. at 855.
Further, that deficiency is shown to have prejudiced the defendant ifthere is
a reasonable probability that, had the motion been made and granted, the
outcome of the proceeding would have been different. Id.
Those standards are all met in this case. First, had the motion been
made, it would have been granted, because there was not sufficient
independent evidence to provide "prima facie corroboration" of the crime
described in the defendant' s statements. To meet that standard, the
independent evidence must support a " reasonable inference" of the facts the
state needs to prove. See State v. Vangerpen, 125 Wn.2d 782, 796, 888
P.2d 1177 ( 1995). That independent evidence may be direct or
circumstantial. See Aten, 130 Wn.2d at 655. Any circumstantial evidence
used, however, must be " consistent with guilt and inconsistent with
innocence." 130 Wn.2d at 660.
In this case, there was insufficient evidence independent of
28
McMillen' s statements, to prove that the death was the result of a criminal
act. This Court' s decision in Pineda, supra, is instructive. In that case, a 9-
day old infant just pronounced healthy by a doctor the day before was found
dead on a futon with its sleeping mom. The mom was dressed, with
makeup and neatly arranged hair. The baby was pronounced dead at the
hospital and her body did not show signs of foul play. The mom did not
manifest emotion," and when interviewed by police even laughed or
giggled at times, which struck the officers as odd. Pineda, 99 Wn. App. at
67 -68. The mom maintained that what had happened must have been
accidental and said she did not remember what had occurred. Id.
Just like in this case, there was no sign of external injury or bruising
and nothing in the autopsy that provided evidence of cause of death. 99
Wn. App. at 72. Instead, the cause of death was determined based on the
mom' s statements of what she thought occurred. 99 Wn. App. at 74.
The mom was charged with second - degree manslaughter for having,
with criminal negligence," caused the death of another. 99 Wn. App. at
74. A diagnosis of suffocation was made but an expert testified that the
evidence was more consistent with "SIDS" than with suffocation and that
he would not make a diagnosis of suffocating "[ b] ecause there are no
autopsy findings that would suggest it." 99 Wn. App. at 75 -76.
In upholding the trial court' s dismissal for insufficient evidence
based on the corpus delicti rule, this Court rejected the idea that the
diagnosis of "suffocation" supported the finding that a crime had occurred.
The Court noted that the autopsy finding that the cause of death was
suffocation or smothering was based solely upon the statements of what the
29
defendant said had occurred, not on any physical findings from the autopsy.
Id. The Court pointed out that the expert' s opinion was thus not
independent" of the defendant' s statements. Further, this Court rejected
the idea that the evidence was sufficient to support a " logical and
reasonable inference that anyone committed a crime" just because a 9 -day
old seemingly healthy child was dead, the medical examiner found no
actual cause of death in the autopsy, the mom was fully dressed and there at
the time of death and she failed to show emotion about what happened.
Pineda, 99 Wn. App. at 80 -81.
Here, even taking the evidence in the light most favorable to the
state, on de novo review, reversal would have been required. Without
McMillen' s statements, there is simply insufficient evidence that the death
was due to any criminal agency. None of the experts found any physical
evidence showing a cause of death. By his own admission, the medical
examiner' s determination that drowning or hypothermia were likely causes
of death was based solely upon what McMillen said occurred. 9RP 538,
545. So was Duralde' s testimony dismissing the possibility of a caput -type
birth injury being the cause of the hematoma. See 9RP 798 -901. Thus,
none of those " facts" is " independent" of McMillen' s statements and they
cannot be considered in determining whether the corpus delicti rule has
been met. See Pineda, 99 Wn. App. at 79 -80.
The remaining, independent evidence does not prove the death was
the result of any criminal agency. The autopsy itself did not show a cause
of death. The findings of hypothermia or drowning were based not on
evidence but on assumption based on McMillen' s statements. There was no
30
outward sign of traumas or bruising. And again, Duralde' s opinion that the
injury was not caused by the birth but rather blunt force trauma was not
based on evidence but on what McMillen had said had occurred.
There was insufficient evidence to support the conviction under the
corpus delicti rule. Had counsel made the motion below, it would likely
have been granted. Had it been granted, McMillen would never have been
convicted. Had the trial court failed to grant the motion, it would have
been error, and this Court would have applied de novo review and so held.
It is hard to conceive of an outcome more favorable to the defendant
than dismissal of the charge, which should have occurred here. There could
be no strategic reason to fail to make such a motion. Counsel' s failure to
move to dismiss below amounted to ineffective assistance of counsel. This
Court should so hold and should reverse.
b. Ineffectiveness in failing to rebut the prosecution' s
case regarding McMillen' s behavior and demeanor
as evidence of her guilt and credibility
Before trial, it was clear that the prosecution was going to focus on
McMillen' s behavior and demeanor as evidence of guilt and credibility.
The prosecutor argued that the evidence such as that McMillen did not seek
prenatal care, did not take a pregnancy test, at one point looked into an
abortion and denied being pregnant to others was all relevant to McMillen' s
knowledge that she was pregnant." 9RP 56. The prosecutor also argued
that the evidence was relevant to McMillen' s " intent," because her action -
and inaction - during the pregnancy showed she did not want the child and
everything she did before the birth was " consistent with what she does after
having the baby, which is nothing." 9RP 56 -57. The court said it would
31
consider the evidence " for a limited purpose to understand her credibility."
9RP 58.
Counsel' s efforts to exclude the evidence as irrelevant were
rebuffed. See, e.g., 9RP 340. The prosecution was also allowed to
introduce diaries they said showed that McMillen had made no preparations
at all for the arrival of a baby. 9RP 260 -62.
Before trial, counsel announced her intent to introduce testimony
from Judy Snow, the mental health manager at the jail who had seen
McMillen when she was booked into custody. 9RP 47 -48. Counsel wanted
Snow to talk about how McMillen' s " affect" and " demeanor" after the
arrest seemed inappropriate and " detached from reality." 9RP 47. Counsel
went on:
it is important to the defense here, this detachment and the
lack of contact with reality that Ms. McMillen had at the
time that she continued to exhibit, not just during the pregnancy, not
just at birth, but afterwards, even after she was arrested for
murdering a child.
9RP 48. The court thought the evidence was " a bit attenuated" because of
the timing but mentioned it might be relevant ifthere was a claim of
diminished capacity." 9RP 48 -49. Later, there was a vigorous discussion
of whether Snow would testify, with a prosecutor from the civil division
arguing on behalf of the sheriff's office to try to keep Snow from court.
9RP 70 -74. For her part, counsel said the prosecution was going to
introduce " demeanor" testimony for June 8 and she wanted to " follow up"
with information about the same thing on June 9'. 9RP 75.
Counsel also told the court that the reason she wanted to admit the
evidence from Snow was because it showed that McMillen " couldn' t
32
acknowledge reality to herself." 9RP 58.
Later, however, when the court was ready to rule on whether Snow
would be allowed to testify, without explanation, counsel said, " I' m
withdrawing her as a witness," apologizing, "I should have apprised the
Court of that earlier." 9RP 445.
In opening argument, the prosecutor focused on how McMillen had
denied the pregnancy, told different things to different people and
ultimately, "instead of protecting her child, let her baby girl die in a dark,
cold basement and then put her in a bag like a piece of trash." 9RP 87, 88,
89, 90. The prosecution invoked that same theme again in closing,
focusing on the theory that McMillen' s motive was she " never wanted to be
pregnant. She didn' t want to be a mother. She never intended to be a
mother." 9RP 816. Again and again, the prosecutor portrayed McMillen as
someone who denied her pregnancy but knew she was pregnant, who was
callous and did not get an abortion because it was " inconvenient" for her.
9RP 819 -20.
The prosecutor also focused the court' s attention repeatedly on what
it portrayed as McMillen' s inappropriate, detached and " cold" behavior in
not being emotional, laughing inappropriately and dealing with the
pregnancy and birth. 9RP 827 -30. In rebuttal closing argument, the
prosecutor used this behavior as proof of guilt, saying " the way she
conducted herself throughout this pregnancy is completely consistent with
the end of this pregnancy." 9RP 842 -43. The prosecution portrayed
McMillen' s " denial of symptoms" of pregnancy as " sinister" and more than
just denial but rather proof that she did not want the baby and was likely
33
guilty of abandoning the baby die as a result. 9RP 844 -45.
In fact, the prosecutor declared everything McMillen had done as
calculated, cold and considered." 9RP 845 -46.
In her closing argument, counsel tried to deal with the behavior,
describing it as " denial" but also admitting that no one would say
McMillen' s conduct and attitude made any sense. 9RP 837 -38.
In the written findings on guilt, the court specifically noted
McMillen' s denial of the pregnancy and not getting prenatal care. CP 391.
Later, at sentencing, the judge would confess that one of the things
that had struck him at trial was McMillen' s " conduct and her affect," not
only in relation to the pregnancy and birth but also during the trial
proceedings. 12RP 12 -13. He candidly admitted that he had not
understood it at all. 12RP 22.
At sentencing, however, the judge had a much different view of
McMillen and what had occurred. 1RP 21 -22. By then, counsel had filed a
memo which included a psychological evaluation of McMillen done after
the trial. See CP 299 -71. The evaluation showed that McMillan was
suffering from "neonaticide syndrome." 11RP 4 -5. The syndrome usually
affects young women in their first pregnancy, in their teens or early 20s,
unmarried and often passive, who deny their pregnancy and avoid making
decisions about it and who ultimately cause the death of the infant through
action or inaction. CP 305; see United States v. Deegan, 605 F.3d 625 8th
Cir. 2010), cert. denied, U.S. , 131 S. Ct. 2094, 179 L. Ed. 2d 896
2011) ( Bright, J., dissenting). Counsel noted that the syndrome explained
McMillen' s denial of the pregnancy, failure to take any steps to figure out if
34
she was pregnant or not and other actions - even McMillen' s claim that
giving birth did not hurt that much. 11RP 10 -11.
These materials had an impact on the judge. 12RP 12. In reaching
his decision at sentencing, he noted that "[ o] ne of the things that came out
at trial" and which he had observed as abnormal was McMillen' s " conduct
and her affect." 12RP 22. The judge also said that until the verdict was
handed down, it appeared to him that McMillen was not aware of how
serious the case was that she was facing. 12RP 22. The judge admitted he
had not understood her " affect and her conduct." 12RP 22.
Before sentencing, however, the judge had read some of the articles
cited by the defense and he now understood that this was a " classic case of
neonaticide." 12RP 23. The judge also noted that it was " real important"
in understanding the case, which otherwise " makes no sense." 12RP 23.
After reading what counsel had now provided, the judge said he was
starting to understand. 12RP 24. The judge went on to say that, "while this
neonaticide is not a complete defense ... while I don' t think it creates the
kind of compulsion or coercion that would warrant an exceptional sentence
downward and while I don' t question that Ms. McMillen had the capacity
to appreciate her conduct and the capacity to conform her conduct," the
judge believed a low -end range sentence was proper. 12RP 24 -25.
Counsel was prejudicially ineffective in failing to even attempt to
admit the crucial evidence regarding neonaticide at trial. First, counsel' s
failure was deficient performance. It was abundantly clear that McMillen' s
out -of -the ordinary behavior and affect was going to need to be explained at
trial as something other than a reflection of the heartless, cold person the
35
prosecution sought to portray.
Indeed, the entire case against McMillen was based on that
portrayal. See 9RP 87 -90, 827 -30. There was no physical evidence of any
cause of death. There were no external injuries. There was no evidence to
prove drowning or hypothermia. The prosecutor' s focus on what it
portrayed as McMillen' s inappropriate, detached and " cold" behavior was
integral to its theory of guilt. 9RP 842 -43. The prosecution used all of this
evidence to prove McMillen was " calculated, cold and considered" and
convince the court that McMillen had simply callously left a baby she did
not want in the toilet to die and thus was guilty of the felony murder. 9RP
845 -46.
It was clear that, to defend her, McMillen' s behavior and affect
were going to need to be explained as something other than a reflection of
the heartless, cold person the prosecution sought to portray. Indeed, in her
closing argument, counsel tried to address it, describing it as " denial" but
also admitting that no one would say McMillen' s behavior made any sense.
9RP 837 -38.
But in fact, once counsel had McMillen evaluated after the
conviction, it became clear that McMillen' s behavior did make some kind
of sense, from the perspective of someone suffering, as she was, from
neonaticide syndrome. See CP 299 -305, 327 -30. Neonaticide - the killing
of a child within 24 hours of its birth - is uncommon in the United States
but when it occurs, the fact pattern is " consistent to the point of being
archetypal." Margaret Ryznar, A Crime ofIts Own? A Proposalfor
Achieving Greater Sentencing Consistency in Neonaticide and Infanticide
36
Cases, 47 U.S. F.L. REV. 459, at 459 ( 2013). The pattern involves a young
woman (teen or early 20s), having a first pregnancy, unmarried, who denies
her pregnancy until she finds herself in labor, after which, mentally and
otherwise unprepared for the child, she abandons the baby or commits some
other action leading to the baby' s death. Id.
In fact, virtually every "fact" upon which the prosecution relied in
its theory of McMillen' s callousness, duplicity and guilt is answered by the
syndrome with which she suffered. For example, the denial of pregnancy
which the prosecution relied on as evidence of deceit and calculation is, in
fact, a " key element of neonaticide syndrome." See Beth E. Bookwalter,
Throwing the Bath Water Out with the Baby: Wrongful Exclusion ofExpert
Testimony on Neonaticide Syndrome, 78 B. U. L. REV. 1185, 1191 ( 1998).
In fact, young women suffering from this syndrome may suffer such a state
of pathological denial that they may convince themselves that they are not
actually pregnant - as here. Id. The syndrome involves extreme denial to
the point of disassociation, so that they may even ignore their own physical
symptoms.
Further, seemingly callous behavior is explained by the syndrome,
such as returning to a prom after the birth or throwing out the remains. Id.
And the " unusual passivity" of neonaticide offenders manifests in failing to
take steps to terminate a pregnancy or take action relating to the situation.
78 B. U. L. REV. at 1193.
At sentencing, the judge was very clear: at trial, he had not
understood McMillen' s demeanor or any of the things she did during the
pregnancy and birth. 12RP 12, 22. It was only after counsel presented
37
McMillen' s diagnosis and the information on neonaticide syndrome that the
judge came to understand why McMillen had done what she had done - or
not done. 12RP 12 -24. Indeed, the judge declared McMillen' s case a
classic example of someone with the syndrome. 12RP 23.
This information came too late for trial, however, because counsel
apparently abandoned the idea of even trying to present anything to rebut
the prosecution' s portrayal of her client below. While counsel objected to
the prosecutor' s use of the evidence on " relevancy" grounds, she also
dropped the only witness she had who would have talked about demeanor
before the court could even rule on that witness. See 9RP 445. Aside from
declaring that her client was obviously in " denial," counsel did not present
any witnesses or testimony to show that McMillen' s behavior was, in fact,
explicable, given her mental state. As a result, counsel left the court with
only the prosecution' s view of McMillen as a cold, heartless, immature girl.
Below, counsel seemed to think that, because McMillen' s mental
condition was not a complete defense, it was only relevant for sentencing.
12RP 11, 14. In fact, however, the evidence was also extremely relevant to
whether McMillen was guilty at all. The determination of cause of death
was based on the version of events McMillen gave about what occurred.
6RP 527. And McMillen' s description of the ease of the birth is the only
evidence Duralde relied on in disputing that the injury was a caput and in
concluding it was caused by the infant' s head striking the toilet as it came
out.
But that description of events and the declared " ease" of the birth
came from someone suffering from a syndrome in which they are so
38
disassociated from the pregnancy they may suppress their own physical
symptoms - including those during birth. See CP 299 -306; Bookwalter, 78
B.U.L. REv. at 1191.
Indeed, counsel herself noted how important the diagnosis was to
the defense, arguing in her sentencing memo that it was " critical to
understanding [ McMillen' s] disassociated, dazed, desperate response to the
birth." CP 322.
Counsel' s failure to try to present the information and diagnosis to
the court at trial instead of waiting until sentencing was ineffective
assistance. To show counsel was ineffective, McMillen must first show
that, even with a strong presumption of effectiveness, counsel' s
performance fell below an objective standard of reasonableness. State v.
Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 ( 1990). Second, McMillen
must show that counsel' s unprofessional errors prejudiced her client. Id.
That standard is met when there is a reasonable probability that, but for
counsel' s deficient performance, the result would have been different. This
does not require proof that, absent counsel' s error, the defendant would be
convicted; instead, it requires only a probability " sufficient to undermine
confidence in the outcome." See State v. Thomas, 109 Wn.2d 222, 226,
743 P.2d 816 ( 1987).
There is more than such a probability here. All of the negative facts
the failure to get prenatal care, the failure to take a pregnancy test, the
denial of the pregnancy, the failure to prepare, her demeanor and everything
else - were based upon the court seeing only the prosecution' s view that
someone who acted that way was simply cold and callous enough to leave
39
her own infant to die. Evidence that McMillen suffered from neonaticide
syndrome would have rebutted all of that negative evidence by showing
that these things form a recognizable pattern and are symptoms of the
extreme disassociation inherent in the syndrome.
Further, even if counsel did not think the court would necessarily
admit the evidence as a " complete defense," she still should have tried to
introduce it. See State v. Dawkins, 71 Wn. App. 902, 863 P. 2d 124 ( 1994)
where counsel mistakenly thought the court would deny a motion to
exclude harmful evidence, still had a duty to make the effort because the
admission of evidence is a matter of much discretion). In fact, where
evidence is of high probative value to the defense, its exclusion may violate
the defendant' s constitutional right to present a defense even if there is an
evidentiary rule of practice which justified that exclusion. See State v.
Jones, 168 Wn.2d 713, 719, 230 P.3d 576 ( 2010).
It is important to note that "[ a] reasonable belief that the defendant
did not act with the statutorily required culpability constitutes a legitimate
defense theory of the case." Koch, 157 Wn. App. at 36. Not only that, the
defense of insanity is unusually effective as a defense in infanticide cases,
succeeding about one -third of the time versus the " less than one percent" in
all felony cases overall. Ryznar, 47 U.S. F.L. REV. at 472.
Further, there was no downside to trying to admit this evidence
below. In a bench trial, a judge sits as both arbiter of law and finder of fact.
See State v. Read, 147 Wn.2d 238, 244, 53 P. 3d 26 ( 2002). Even if the
judge decided not to admit or rely on all of the evidence regarding
McMillen' s condition, the very fact that such evidence existed would at
40
least have indicated that the prosecution' s view of McMillen' s acts and
demeanor were not the only explanation for what occurred.
Counsel was again prejudicially ineffective on behalf of her client.
There could be no reasonable tactical decision which would support
keeping this crucial information out of trial. This Court should so hold and
should reverse based on counsel' s ineffectiveness.
c. Personal issues and failure to prepare
A few days before the scheduled trial date in January of 2014,
counsel told the court she had just learned what Dr. Duralde was expected
to say at trial and counsel needed a continuance to get an expert of her own
to rebut it. 6RP 4 -5. Counsel had been trying to set up a witness interview
with Duralde since " even before October," but had not known what
Duralde was going to say, because, counsel said, Duralde " did not write a
report, and I asked for a copy of her CV, and I could not see any connection
with her background and current experiences." 6RP 5. Duralde had been
very busy and the interview had only been completed on Christmas Eve.
6RP 5.
At that point, counsel said, she started trying to " find an expert but
that wasn' t a lot of time." 6RP 5. She had met with someone just the day
before but "he' s not available, so that didn' t work out." 6RP 5. Counsel
continued:
I' m now in a position where the State' s expert - - and I just, several
weeks ago, learned what she was going to say, and it' s significant, if
she' s allowed to testify... I think they plan to have her testify on
an] ... ultimate issue to form an opinion. And I think that the
defense will be severely prejudiced and Ms. McMillen will ifwe' re
not allowed to bring an expert in to rebut the testimony of Dr.
Duralde, and I think we can. I've tried. Ijust didn' t have time with
41
the holidays and with the short time frame before trial.
6RP 5 -6. The prosecutor noted that Duralde had been on the state' s witness
list since 2011. 6RP 7. Counsel again repeated that she had not known
what Duralde was going to say until recently but ultimately admitted,
i]deally... we would have had an interview a year- and -a -half ago,
absolutely[.]" 6RP 7 -8. Counsel argued, however, that McMillen should
not be prejudiced by counsel' s failure to conduct the interview earlier " in
such a serious case when the expert witness is being offered on the issue of
the case." 6RP 8. The court was not inclined to grant the continuance but
set over the question for the expected trial the following week. 6RP 8 - 10.
A month or so before the original trial date, counsel' s " second
chair" was not able to continue on the case for "personal reasons" and
counsel had to try to find someone to replace her. 6RP 10. The person she
thought she had found, Adrien Pimentel, never ended up appearing on the
case. See 6RP 10.
Shortly after that, trial had to be continued after counsel told the
court that her office mate was " currently in the hospital and they' ve just
done a do not resuscitate, and he' s expected to live for hours or days." 7RP
2 -3. Counsel asked for time because she needed to help " take care of
things," including her officer mate' s practice. 7RP 2 -3. Because of the
schedules of all of the parties, the trial was continued nearly eight months,
to August. 8RP 2 -4.
Just as trial was starting, counsel notified the court that her expert,
Nelson, had suffered a medical emergency and now would not be able to
meet her right away to help her get " up to speed to cross - examine" the
42
prosecution' s expert, Clark. 9RP 76. Counsel said her client was now " at a
disadvantage" but she did not ask for a mistrial. 9RP 77. Instead, she
asked the prosecution to proceed with the other witnesses first. 9RP 77 -78.
She wanted to let the court know that when Clark' s testimony was coming
up, she would " not be able to effectively represent Ms. McMillen" unless
she had a chance to meet with Nelson. 9RP 77 -78. It was agreed that there
would be flexibility. 9RP 77 -78.
A little later, however, the prosecutor told the court that Clark
wanted to testify the next day because of his schedule. 9RP 359 -60.
Counsel objected that she would not have had an opportunity "to have
reviewed things with her expert by then." 9RP 359 -60. She reminded the
court that she had to meet with her expert that weekend in order to be
prepared, as they had previously discussed. 9RP 360 -61. Counsel declared
that, if Clark testified the next day, "[ t] he defense is not going to be
prepared to effectively cross - examine him." 9RP 361. She also said, "[ f]or
me to attempt to cross - examine an expert in his area of expertise and
without proper preparation - - and the way I' m going to get that is education
through my expert - - would be completely ineffective." 9RP 360 -61.
The judge then noted that it was now 2013 and counsel had been in
possession of Clark' s report since December of 2011. 9RP 361 -62. In
addition, the judge felt that Nelson' s criticisms of Clark' s report were clear.
9RP 362. The judge declared, " we can' t hold up Dr. Clark until there' s
another run through practice with Dr. Nelson[.]" 9RP 362.
Counsel repeated that she would not be " effectively prepared" for
her client if Clark testified early:
43
I am not a medical physician. I have no medical training. It' s not at
all unusual for a defense attorney, in my 27 years of experience, to
meet with the experts just on the eve of trial so the information is
not stale, so it' s fresh, so an attorney is prepared to do the one thing
that is most important to the defendant in this trial.
9RP 362 -63. Counsel reminded the court that everyone was clear that the
two medical examiners were " the two most significant witnesses." 9RP
363. She then said "[ t]he court is asking me, without having the assistance
of a medical expert, to cross - examine the State' s primary witness in this
case, and I will not be effective. It will be ineffective assistance of
counsel." 9RP 363.
At that point, the prosecutor again noted that counsel had been in
possession of Clark' s report since 2011 and had interviewed Clark in June
of 2012, that the case had been set for trial in January of 2013 and
continued about eight months and that, in short, " counsel has had years to
prepare for this cross - examination[.]" 9RP 364.
Just before Clark took the stand, counsel renewed her objection and
restated her concern. 9RP 451. The court thanked counsel for making the
record, then said, " I would, again, just state that you' ve had years to prepare
this examination." 9RP 451.
Later, when her own expert was appearing, Woods started the day
by telling the court she had inadvertently left some important materials at
her office and would need a brief recess later to get them. 9RP 618. A
crucial part of her expert' s testimony was his PowerPoint presentation,
which he used to illustrate his opinion as to why Clark' s conclusions about
the case were wrong. See 9RP 683 -87. In the afternoon, however, counsel
could not get the presentation to work because she had run her computer
44
until it was " out ofbattery." 9RP 699 -701. Counsel did not say anything
about why she had not brought the plug as a backup, given the importance
of the presentation. 9RP 699 -701. Nor did she ask for a briefrecess to go
get a plug. 9RP 699 -701.
After initially telling the court she was going to ask her expert to
continue without the visual support, counsel ultimately ended up using a
printout of the PowerPoint, putting it on the " overhead" at the relevant
times. 9RP 702, 708. The pictures were so bad as to be almost useless.
9RP 708 -10.
After the court had found McMillen guilty, counsel moved for a
mistrial. 1ORP 10. She told the court she had just learned two weeks
earlier that her husband had stage four lung cancer that had metastasized to
the bone. 1 ORP 10. He had only 6 to 12 months to live. 1 ORP 10.
Counsel said she had decided to try to push through the case but
now moved for a mistrial because she did not think she had effectively
represented her client. 1 ORP 10. She said there were things she should
have and would have done differently. 1 ORP 10. The court summarily
denied the motion and the prosecutor then mentioned that he had known
about the situation and offered to ask for time in the case but counsel had
declined. 1 ORP 10 -11
All of this is further evidence of counsel' s ineffectiveness in this
case. A defendant is deprived of his right to counsel if counsel is not given
a " reasonable" time to prepare. See State v. Hartwig, 36 Wn.2d 598, 601,
219 P.2d 564 ( 1950). The logical corollary is that counsel has a duty to
take such time and get prepared. Indeed, counsel must " make a full and
45
complete investigation" of both the facts and the law in order to " prepare
adequately and efficiently to present any defense." Id; State v. Burri, 87
Wn.2d 175, 180 -81, 550 P.2d 507 ( 1976). The requirement of "reasonable
investigation" ensures that counsel is able " to make informed decisions
about how to best represent" her client. In re Brett, 142 Wn.2d 868, 873,
16 P.3d 601 ( 2001).
Further, cross - examination is " the principal means by which the
believability of a witness and the truth of his testimony are tested." Davis
v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 ( 1974).
And McMillen had a state and federal right to confrontation which included
the right to meaningful cross - examination and impeachment. State v.
Darden, 145 Wn.2d 612, 41 P. 3d 1189 ( 2002); 6' Amend.; Art. 1, § 22.
By her own admission, in this trial, counsel was unprepared to
effectively cross - examine the two most significant of the state' s witnesses -
the experts. Some of these failures, standing alone, might not compel
reversal. But trial counsel' s ineffectiveness is evaluated based upon the
record as a whole. State v. Townsend, 142 Wn.2d 838, 843, 15 P.3d 145
2001); State v. Bonisisio, 92 Wn. App. 783, 798, 964 P.2d 1222 ( 1998),
review denied, 137 Wn.2d 1024 ( 1999).
It is clear that counsel was suffering not only the stress and
difficulty of a challenging murder trial but serious, upsetting personal
turmoil. Her failures were thus understandable. But they were failures
nonetheless, and they prejudiced her client. Because McMillen was
deprived of effective assistance at the trial, reversal is required.
46
3. THE COURT ABUSED ITS DISCRETION IN
ADMITTING AND RELYING ON TESTIMONY FROM
AN EXPERT WHO WAS NOT QUALIFIED TO GIVE
HER OPINION ON THE RELEVANT MATTERS
In addition, the trial court abused its discretion in admitting and
relying on Duralde' s testimony in finding guilt. Expert testimony is
admissible under ER 702 if a) the testimony is about methods or theories
which are generally accepted in the relevant scientific community, b) the
expert qualifies as an expert and c) the expert' s testimony would be helpful
to the trier of fact. See State v. Copeland, 130 Wn.2d 244, 256, 922 P.2d
1304 ( 1996).
In this case, the court abused its discretion in finding that Duralde
qualified as an expert and her testimony would be " helpful" to the trier of
fact. Before trial, counsel repeatedly argued that Duralde was not qualified
to give an opinion about what the autopsy showed or whether the
hematomas might have been caused before or after birth, because Duralde
was an expert in child abuse, not an obstetrician or pathologist. See CP 70-
161; RP 766 -67, 772 -73. Prior to Duralde' s testimony, the trial court heard
about Duralde' s qualifications as medical director of the Child Abuse
Intervention Department at Mary Bridge Hospital. 9RP 779. Duralde, who
had worked in the child abuse field for 24 years, admitted that, while she
was board certified in family practice, she had not delivered a baby in about
ten years and before that, since the 1980s. 9RP 780, 788. In total, she
thought she had delivered about 42 babies during her whole career. 9RP
781 -82.
Duralde held no board certifications for obstetrics, nor had she ever
47
worked as an OB /GYN. 9RP 785. She had no certifications in forensic
pathology and had never held a job in that field. 9RP 785. She had neither
written nor published on labor and delivery. 9RP 786. When asked what
formal training she had " regarding evaluating infant deaths," she said, "just
as it regards to child abuse issues and evaluating the patho - physiology of
those concerns." 9RP 786.
The court nevertheless let Duralde testify as an " expert in pediatric
injuries, including trauma to newborns." 9RP 791. And it relied on her
testimony in finding guilt. See CP 389 -96.
There is no question that Duralde was qualified to testify about
child abuse. But she was not qualified to testify about the matters at issue
in this trial. Where an expert is qualified in one area that does not
automatically mean they are qualified to testify about anything. See, e. g.,
Hill v. Billups, 92 Ark. App. 259, 212 S. Ct. 3d 53 ( 2005) ( even applying
abuse of discretion standard, doctor who treats pregnant moms and their
babies in utero and has emergency room experience but who does not work
on neonates or examine them not qualified to testify about the condition of
a neonate).
Reversal is required. In bench trials, it is usually presumed that the
trial judge did not consider inadmissible evidence in rendering the verdict.
See Read, 147 Wn.2d at 244. But bench trials place "unique demands" on
a judge, requiring her to sit both as the arbiter of law and the finder of fact.
147 Wn.2d at 245.
As a result, the presumption that a judge did not rely on improperly
admitted evidence is rebuttable. Id. Ifthe evidence is insufficient absent
48
the inadmissible evidence or if it affirmatively appears that the improper
evidence induced the trial judge to make an essential finding it would not
have otherwise made, the presumption is rebutted. 147 Wn.2d at 245 -46.
Here, it is clear that Duralde' s improperly admitted opinion played a
crucial role in the trial court' s determination of guilt. The court' s finding
VIII specifically relied on Duralde' s opinion that the amount of blood in the
parietal hematoma and subgaleal injury was " not consistent with a caput
secundum or birth canal injury." CP 395. Further, as noted, infra, there
was insufficient evidence to prove all the essential part of the state' s case.
The trial court abused its discretion in admitting and relying on Duralde' s
testimony, and this Court should so hold.
49
E. CONCLUSION
The tragedy in this case has only been compounded by the
proceedings below. There was insufficient evidence to prove the crime and
dismissal should have occurred under the corpus delicti rule. The court' s
decision was made without full knowledge and understanding of
McMillen' s mental state and what actually occurred. Counsel' s unfortunate
personal turmoil clearly interfered with her ability to adequately represent
her client. Further, the trial court relied on " expert" testimony from
someone unqualified to provide it. This Court should reverse Melissa
McMillen' s conviction for second - degree felony murder.
DATED this 3rd day of October, 2014.
Respectfully submitted,
s/ Kathryn Russell Selk
KATHRYN RUSSELL SELK, No. 23879
Counsel for Appellant
RUSSELL SELK LAW OFFICE
Post Office Box 31017
Seattle, Washington 98103
206) 782 -3353
CERTIFICATE OF SERVICE BY EFILING /MAIL
Under penalty of perjury under the laws of the State ofWashington, I hereby declare that I
sent a true and correct copy of the attached Appellant' s Opening Brief to opposing counsel via this
court' s portal upload at Pierce County Prosecutor' s Office, pcpatcecf(cOo.pierce. wa.us, and
appellant by depositing the same in the United States Mail, first class postage pre -paid, as follows:
Melissa McMillen, DOC 370439, WCCW, 9601 Bujacich Rd. N.W., Gig Harbor, WA. 98332-
8300.
DATED this 3rd day of October, 2014.
S /Kathryn A. Russell Selk
KATHRYN RUSSELL SELK, No. 23879
Counsel for Appellant
RUSSELL SELK LAW OFFICE
Post Office Box 31017
Seattle, Washington 98103
206) 782 -3353
50
Document Uploaded:
RUSSELL SELK LAW OFFICES
October 03, 2014 - 9: 25 AM
Transmittal Letter
455862 - Appellant' s Brief.pdf
Case Name: State v. McMillen
Court of Appeals Case Number: 45586 -2
Is this a Personal Restraint Petition? Yes p No
The document being Filed is:
Designation of Clerk' s Papers Supplemental Designation of Clerk' s Papers
Statement of Arrangements
Motion:
Answer /Reply to Motion:
Brief: Appellant' s
Statement of Additional Authorities
Cost Bill
Objection to Cost Bill
Affidavit
Letter
Copy of Verbatim Report of Proceedings - No. of Volumes:
Hearing Date( s):
Personal Restraint Petition ( PRP)
Response to Personal Restraint Petition
Reply to Response to Personal Restraint Petition
Petition for Review ( PRV)
Other:
Comments:
No Comments were entered.
Sender Name: K A Russell Selk - Email: karsdroit© aol. com
A copy of this document has been emailed to the following addresses:
pcpatcecf@co.pierce.wa.us
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