PETITION FOR WRIT OF MANDATE
TO DISQUALIFY JUDGE ALKSNE
[This may not be an exact replica of the original document]
A. NATURE OF THE PROCEEDING
Petitioner filed a Motion to Recuse Judge Alksne and a Declaration in Support of Motion for Recusal at an ex parte hearing on January 15, 2010 [Exhibits A and B]. At that hearing, Judge Alksne deemed Petitioner’s Motion to Recuse a Statement of Disqualification as per California Code of Civil Procedure 170.3 [Transcript, January 15, 2010, p. 2].
Rather than consenting or answering the Statement of Disqualification as is the intention of that law, Judge Alksne filed an Order to Strike the Motion [Exhibit C], justifying the order by claiming there were no legal grounds for disqualification. However, in her Order to Strike she stated that it was clear that Petitioner intended the grounds for the Motion were as per 170.1(a)(6)(A)(iii): “A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
Petitioner herein contends that she did provide legal grounds for the disqualification and that Judge Alksne’s Order to Strike is improperly issued. Therefore, she should be immediately disqualified.
If, however, the order was properly issued due to a procedural problem caused by being an in pro per litigant, Petitioner requests the opportunity to resubmit a Statement of Disqualification with the corrections made.
A litigant has the constitutional right to an unbiased judge, so even nonstatutory grounds for disqualification should be preserved on appeal. People v. Brown (1993) 6 Cal.4th 322, 334-335.
Petitioner is herein requesting the disqualification of Judge Lorna Alksne.
B. WHY RELIEF BY WRIT IS WARRANTED
As per Code of Civil Procedure 170.3(d), relief by writ is the only means of determining the question of disqualification when it is disputed.
The Order to Strike was file stamped January 21, 2010. However, when Petitioner viewed her file on January 22nd it was not there. The notice was file stamped January 22nd but the postmark for the notice was January 25th [Petitioner will provide upon request]. The Code allows 10 days for response and 5 days for mailing. Therefore, Petitioner is timely in submitting this Petition.
There is a hearing scheduled for March 9, 2010 on the matter of Estoppel re: sending Minor Damon Moelter to a boarding school to coerce him to recant the abuse he has been reporting for seven years [Exhibit D]. Petitioner requests that the matter of disqualification be resolved before that or any other hearing.
WHEREFORE, a Writ of Mandamus is the only adequate remedy.
A. NAME AND STATUS OF EACH PARTY
Cindy Dumas Petitioner, Mother
Judge Lorna Alksne Respondent, Superior Court Judge
Eric Moelter Real Party in Interest, Father
Kurt and Leslie Leinbach Claimants (Guardians)
Gary Plavnick Minor’s Counsel for Damon Moelter
B. BACKGROUND AND PROCEDURAL HISTORY
Petitioner and Real Party in Interest, Eric Moelter, are the parents of the three minor children whose custody and best interest are the subject of the proceeding:
Damon, age 13, DOB 8/29/96
Ryan, age 16, DOB 2/6/94
Evan, age 17, DOB 9/5/96
Divorce was granted in August, 2002 in Hawaii, with Petitioner receiving sole physical custody and both parents sharing joint legal custody. Petitioner resided in San Diego with the children at the time of divorce and Moelter moved to San Diego in October, 2002, at which time regular visitation commenced every other weekend and Wednesday evenings.
Minor Damon Moelter began reporting abuse by his father Feb. 23, 2003. The abuse was first reported to CPS, who interviewed the children, ordered supervised visits and referred the case to the police department. Respondent failed a polygraph and the detective did not believe his version of the story so the detective placed Respondent on the Child Abuse Central Index. There was not enough evidence to meet the burden of beyond a reasonable doubt, so the case was shunted into Family Court.
Domestic Violence Court Judge Hightower had issued a TRO and continued it. When the case was transferred to Family Court, the children were given back to the Respondent unsupervised, before an investigation of the abuse was conducted. An evaluation was ordered to investigate the abuse, but the evaluator did a custody evaluation instead. At the hearing on the abuse on Jan. 22, 2004, it was found that Petitioner had not met her burden of proof. Damon subsequently continued to report and show severe signs of abuse, but the court still did not order an evaluation according to FC 3118. Ryan also reported abuse. Petitioner was therefore forced to leave the jurisdiction on Nov. 5, 2004 to protect her children.
In 2007, the D.A. reviewed the case, dismissed all charges of abduction and assured Petitioner that if they returned to San Diego, the new family court judge would order a proper evaluation according to FC 3118 and have a hearing with testimony from the children. The children obtained a Temporary Restraining Order against their father from Commissioner Chemelenski in Long Beach in August, 2007.
Petitioner returned to San Diego with the children on Feb. 1, 2008, with the understanding that the new family court judge, Judge Lorna Alksne, would conduct an investigation according to FC 3118 and allow the children to testify. Petitioner was told by the court that the children would stay with guardians for two weeks while Damon reported the abuse.
The court appointed Dr. William Dess as evaluator, and Damon told him in detail about four years of abuse. However, the children were not returned to Petitioner. Dr. Dess’ report did not meet the requirements of FC 3118, specifically Section 3118 (b) 1-6. At the custody hearing on August 20, 2008, Dr. Dess was asked why he had not complied with FC 3118, but the Court stopped the line of questioning, stating that it was not the court’s intention to do a 3118 due to Res Judicata.
Another psychological examination was ordered at a hearing on September 30, 2008, which was done by Dr. Randy Robinson. Although the court stated, “Damon is to have full psychological testing in this case. I think that’s warranted in light of the evidence that the court has,” it was a brief two page report, which did not comply with any of the requirements of FC 3118. However, Dr. Robinson did state that Damon reported sexual contact with his father between the ages of 5 and 8, at which time he left with his mother.
A Request for Statement of Decision as to why Section 3118 had not been complied with was filed on October 10, 2008. There was no response by the Court.
The children were ordered into reunification therapy with their father and he was granted partial legal custody. In sessions with the reunification therapist between October, 2008 and August, 2009, the children confronted their father about much of the abuse, which was later testified to by the psychologist, Dr. Breffni Barrett. Petitioner began conjoint sessions in February, 2009 at which Damon stated many times that he is afraid of being alone with his father. Dr. Barrett has confirmed that Damon is afraid of being alone with his father.
Petitioner filed an Ex parte Application for Stay of Custody on June 16, 2009. It was denied and the hearing on the motion was continued to September 11, 2009, the same date as the custody hearing. The court stated it was unlikely to grant the request to do an investigation according to FC 3118.
As recently as Sept. 3, 2009, Damon again reported in a conjoint therapeutic session that he is very afraid to go alone or overnight with his father, was being heavily pressured to do so, but that he would kill himself if he was made to go. At that time, Petitioner decided to file a Writ of Mandate on September 11, 2009 to stay custody determinations until a full investigation according to FC 3118 is done. The Writ was denied without explanation. Custody of the two older boys was given to father on October 2, 2009, while the youngest child who was still saying he had been abused and was exhibiting extreme fear at being alone with his father was allowed to stay with the guardians.
Petitioner has effectively had her parental rights terminated without due process. She has no custody and is allowed only one three hour supervised visit a week, not in her home. She is not allowed to see her children and they are not even allowed to speak to each other on the phone or see each other on birthdays, Christmas or other holidays. Petitioner is not allowed to take part in any school activities or know about any academic or medical decisions.
C. ACTION OF TRIAL COURT
The trial court erred in filing an Order to Strike Petitioner’s Statement of Disqualification rather than consenting or answering it. Judge Alksne filed the Order to Strike on the basis that Petitioner’s Statement to Disqualify stated no legal grounds. However, she stated in her Order to Strike [Exhibit C] that it was clear that Petitioner’s grounds for disqualification were according to 170.1(a)(6)(A)(iii), which is the legal grounds. Judge Alksne, therefore, should have complied with the intention of the law which is to consent to her disqualification or provide an answer to the specific allegations made, stating why they do not indicate that she is biased.
[Petitioner is in pro per and was unaware of California Code of Civil Procedure 170, so she relied on Federal law, 28 U.S.C. §455(a), and case law, Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994) in her Motion. She assumed there would be a hearing on the matter, like most other matters.]
The Order to Strike was not intended by the legislature for this use and Petitioner is hereby requesting this Court determine that Petitioner did have legal grounds for the disqualification and that the Order to Strike was improperly made and void it. Petitioner requests that Judge Alksne be automatically disqualified as a result of not answering the Statement of Disqualification within the 10 days permitted as per CCP 170(c)(3).
D. REQUEST FOR CHANGE OF VENUE
Petitioner requests a change of venue due to the involvement of many judicial and extra-judicial officials in San DiegoCounty. Long Beach is also a tainted venue due to aforementioned explanation.
E. REQUEST FOR JUDICIAL NOTICE
Petitioner hereby requests that the reviewing court take notice of the entire file as there are too many facts contained herein which are referenced to be able to include in the Exhibits.
WHEREFORE, Petitioner prays that this Court:
1. Issue a Writ mandating that Judge Alksne be disqualified immediately.
2. Issue an order that all findings and Orders made by her to date be voided.
3. Issue an order that joint custody be immediately granted.
4. In the alternative, that Judge Alksne be disqualified as per CCP 170.3 and the Chair of the Judicial Council be notified immediately for determination of the disqualification matter by a judge from another county.
5. That there be a change of venue for this case due to Judge Alksne being Presiding Judge and the publicity and involvement of many local court and court- affiliated officials.
6. Grant any or all of the above and any further relief as the Court may deem just and proper.
February 9, 2010 ______________________________
Petitioner, Cindy Dumas
I, Cindy Dumas, am the Petitioner. I have personally reviewed and am familiar with the records, files and proceedings described in and the subject of the present petition and know the facts set forth to be true and correct.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
February 9, 2009 ____________________________________
Petitioner, Cindy Dumas
IV. POINTS AND AUTHORITIES
"Statutes governing disqualification for cause are intended to ensure public confidence in the judiciary and to protect the right of litigants to a fair and impartial adjudicator – not to safeguard an asserted right, privilege or preference of a judge to try or hear a particular dispute." (Curle v. Superior Court (Gleason) (2001) 24 Cal.4th 1057, 103)
Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement for recusal, only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) "is directed against the appearance of partiality, whether or not the judge is actually biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.").
That Court also stated that Section 455(a) "requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice." "Recusal under Section 455 is self-executing; a party need not file affidavits in support of recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989)
The Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy the appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals further stated that "We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed." Judges do not have discretion not to disqualify themselves. By law, they are bound to follow the law. Should a judge not disqualify himself as required by law, then the judge has given another example of his "appearance of partiality" which, possibly, further disqualifies the judge. Should another judge not accept the disqualification of the judge, then the second judge has evidenced an "appearance of partiality" and has possibly disqualified himself/herself. None of the orders issued by any judge who has been disqualified by law would appear to be valid. It would appear that they are void as a matter of law, and are of no legal force or effect. Should a judge not disqualify himself, then the judge is violation of the Due Process Clause of the U.S. Constitution. The right to a tribunal free from bias or prejudice is based on the Due Process Clause.
If the court does not follow the law as to non-represented litigants, then the judge has expressed an "appearance of partiality" and, under the law, it would seem that he/she has disqualified him/herself.
Federal law requires the automatic disqualification of a judge under certain circumstances. In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994)
Not only do criminal acts committed by a judge which favor one party indicate bias, courts have repeatedly ruled that judges have no immunity for their criminal acts. Since conspiracy, fraud and kidnapping are criminal acts, no judge has immunity to engage in such acts. Just the fact that there are alleged criminal acts, the appearance of justice is not satisfied and that Judge Alksne’s impartiality might reasonably be questioned.
ORDER TO STRIKE
Judge Alksne has made an Order to Strike Petitioner’s Motion to Recuse/Statement of Disqualification, allegedly due to Petitioner not providing legal grounds. As noted above, Petitioner did state legal grounds, one of which Judge Alksne correctly noted was CCP 170.1(a)(6)(A)(iii): “A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
Since Judge Alksne chose to Strike rather than consent or answer the disqualification, she foregoes answering the Petitioner’s contentions. However, she proceeds to answer the contentions generally, stating that the evidence that Petitioner presented to support her grounds—that a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial—were improper and inadmissible.
Judge Alksne is vague in her Order, does not address any specific facts Petitioner presented to show lack of impartiality. She asserts that “most, if not all” of Petitioner’s contentions are based on “speculation, conjecture or conclusions of Petitioner, and therefore, may be properly stricken from consideration.” Notwithstanding the fact that is entirely false that the contentions by Petitioner are speculation, the law does not provide that a Statement of Disqualification can be stricken due to speculation or conjecture. It can only be stricken if there are no legal grounds [CCP 170.4(b)].
To the contrary, as per CCP170(c)(5): “A judge who refuses to recuse herself shall not pass upon her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party. In that case, the question of disqualification shall be heard and determined by another judge…” Judge Alksne in her Order to Strike is passing upon the sufficiency of Petitioner’s allegations instead of leaving that matter to another judge as the law requires.
The California Judges Association requested this provision for an Order to Strike be put in law. During the legislative process the California Judges Association requested the provision be put in because "criminal defendants often raised frivolous and untimely disqualification challenges which slowed down the administration of justice". This loophole was not meant to be used in the instant circumstances and its use by Judge Alksne further indicates that she is avoiding directly and honestly answering Petitioner’s contentions of partiality. It may be further evidence of how entrenched she is and is another example of her "appearance of partiality" which possibly further disqualifies her.
Following is some of the evidence supporting the legal grounds on which the disqualification is based—that “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” These facts and evidence constitute improprieties, violations of Ethical and Professional Codes, Rules of Court, State, Federal and Constitutional violations and even criminal acts, all in the service of achieving her stated agenda: reunification of the children with the Respondent:
Judge Alksne took jurisdiction illegally away from Long Beach where there was proper jurisdiction. [Exhibit E] She held hearings and made findings and orders knowing that she did not hold proper jurisdiction. All findings and orders should therefore be rendered void since the foundation of the case is fraudulent.
Judge Alksne assured Petitioner and the children that if they returned to San Diego, she would take Damon’s reports of abuse seriously, have a hearing and do an investigation as per FC 3118 if we returned to San Diego [Transcript, February 1, 2008, p. 7]. Six months later, when jurisdiction was established, she completely reversed herself and said she would not do a 3118 or have a hearing on the abuse and deprived her of custody without due process. She instead declared the abuse issue in Res Judicata. [See Petition for Writ of Mandate, #D055824, filed September 8, 2009, and Declaration in Support of Stay of Custody, June 16, 2009].
Judge Alksne has gone to great lengths to keep this case in her jurisdiction. She told Respondent that he would get custody if he moved to San Diego from Long Beach [Transcript, September 30, 2008, p. 5,6]. Respondent acquiesced and moved to San Diego, after which he received custody.
This case was decided by Judge Alksne before Petitioner and her children ever walked into her courtroom, which is the definition of bias. There were many statements like this one during the course of the proceedings made by her:
COURT: “And I think if you will recall from my comments—I know you read part of my transcript, Mr. Henrich (opposing counsel), my intent in this case was to reunify as quickly as possible. In January  I said it.” [Transcript, September 30, 2008 p. 7]
Petitioner and children returned after that statement, February, 1, 2008.
Judge Alksne also stated that she did not want a psychologist who might “take at take the case at another angle” or minors’ counsels another “posture.” [Transcripts, January 31, 2008 and February 1, 2008].
It is clear that Judge Alksne knew which way she was “taking the case” before Petitioner and the children even walked in her courtroom, and all the promises to give Damon a fair chance at protection and justice were fraudulent.
At the October 2, 2009 hearing she achieved her agenda of ordering the older two minors against their will to live with their father. They stated to her in chambers that they wanted to live with their mother, but she ignored them.
As for Damon, after almost two years of saying it would cause irreparable damage to separate the brothers, Judge Alksne separated Damon from his brothers in an attempt to distress him so much that he would give in and go with his father, as per the Reunification therapist’s recommendation [See letter from Dr. Barrett]. Judge state that if that did not work, she recommended sending him to a boarding school, completely isolating him from all friends and family [Exhibit D]. That is extreme lengths to go to in order to achieve her agenda, and Petitioner hopes this reviewing court will disqualify her before that can happen.
Petitioner and children were lied to by Judge Alksne. They were told if they returned to San Diego, they would receive due process—a proper investigation and hearing. Judge Alksne stated that she was going to take the boys’ reports of rape seriously and have a hearing on it. [Transcripts, January 31, 2008, p. 9 and February 1, 2008, p. 8]. A few months later she refused to do a proper investigation or have a hearing on the abuse, had ignored Damon’s reports to psychologists and the Chadwick Center and ordered the children into reunification therapy with Respondent.
Petitioner and children were also told that they would only be separated for two weeks while Damon reported the abuse to a professional. Although Damon reported hundreds of incidents of abuse, not only to Dr. Dess, but to Minor’s Counsel and the Chadwick Center (and later to Dr. Robinson and Dr. Barrett), Judge Alksne went back on her word and would not allow the children to go back with Petitioner, despite their insistent pleas to do so. They were eventually forced to visit and then live with the Respondent, Judge Alksne’s stated agenda, while having intermittently no contact or brief supervised visits with Petitioner. Instead of being apart only two weeks as promised, it has been two years. The children are virtual prisoners, being held against their will and prohibited from speaking with anyone who can tell them the truth about their own case.
The D.A. exonerated Petitioner of abduction due to the compelling evidence of abuse. Judge Alksne led her to believe that if she returned voluntarily, that leaving the jurisdiction with the intention of protecting Damon would not be held against her. Instead, she has used it as a reason for depriving Petitioner custody. This is trickery and deceit, and a violation of Canons 1 and 2 and the Code of Ethics.
Petitioner was threatened with loss of custody if she did not change her position about the abuse. The children were told that they could not see their mother if they did not cooperate with the reunification. The children were first pressured to recant the abuse, then, when that failed they were pressured to forget about it and “move on” so that their life could go back to normal, i.e. get back with their mother. The children agreed to put it in the past so that they could be back with Petitioner, but that did not happen. It was just more fraud.
This is the use of psychological coercion to achieve Judge Alksne’s agenda. That is a violation of Constitutional rights, an abuse of power and a violation of Canons 1 and 2.
CONSPIRACY WITH RESPONDENT TO DEFRAUD PETITIONER OF CUSTODY
Opposing counsel stated on record that he had understood that promising Petitioner due process was just a “ruse” to get them to return to San Diego.
MR. HENRICH: “To tell you the truth, I thought that was a ruse to bring her in.” [Transcript, January 31, 2008] He made that statement on January 31, at a hearing the day before Petitioner returned. This, along with the statement by Judge Alksne that her only intention had been to reunify the children with Respondent indicate that there was collusion between the court and Respondent.
After Petitioner stated to the court and members of the public complained to the Commission on Judicial Performance, that the children had a right to not be forced to live with someone on the Child Abuse Central Index, Respondent was mysteriously removed from the Index. He paid $2000 to a private polygrapher and, despite the fact that everyone knows they are not reliable, that was used as pretext for removing him from the Index. It is extremely rare and difficult to be removed from the Index and could not likely have happened without court intervention or influence. This not so coincidentally facilitated Judge Alksne giving custody to Respondent.
The Court told Respondent that he would be given custody if he moved to San Diego from Long Beach. [Exhibit 9/30 p. 5,6] Respondent acquiesced and moved to San Diego, after which he received custody.
Judge Alksne has acted to cover up the serious abuse reported by Damon in an effort to achieve the Respondent’s and her agenda of “reunification” of the children with the Respondent. Evidence that Judge Alksne is covering up the abuse that Damon is reporting includes:
Judge Alksne threatened the Petitioner that if she did not change her position on the abuse, that she would not get custody. This is a violation of Petitioner’s civil rights and is psychological coercion. She is using custody as a means of coercion to get Petitioner to comply with her agenda. This is a violation of Federal Law in that it is intimidation of a witness to a crime.
COVER UP OF ABUSE
Instead of gathering the minimum evidence required by law, the judge has ignored, dismissed and outright concealed critical evidence of abuse. She has not allowed an investigation as per FC 3118 and will not allow a hearing on the abuse, in which more evidence can come to light. She will not allow parties to even view critical evidence, such as the videotape of Damon reporting the abuse to the ChadwickCenter in 2008. She will not allow parties the transcripts of the in-chambers testimony by the children. Judge Alksne will not allow a 13, 16, or 17 year old to testify or to even know what is going on in their case. They are not allowed to speak with anyone who can tell them the truth about what’s going on.
The cover up of abuse includes: sealing the record, suddenly kicking the public out of courtroom when there were court watchers taking notes, and putting a gag order on the case after it garnered media attention. Although these are ostensibly done to protect the chidlren’s privacy, the more likely reason is to keep the public from knowing about her improprieties.
Judge Alksne uses the agenda-serving finding that Petitioner is a detriment to her children so she can then justify closing the courtroom and kicking the public out. However, she never says what the evidence is that Petitioner is a detriment.
At the hearing on October 2, 2009, Judge Alksne stated that Damon should be sent to a boarding school to make him stop believing he was abused. Petitioner is aware of other children being sent to boarding schools to “de-program” them. Coercive and cruel measures are often used to get the children to recant. The fact that Judge Alksne is suggesting this extreme measure supports that she is trying to cover up the abuse. Petitioner has filed a Motion to Estop Damon from being sent to a boarding school/camp. The hearing is set for March 9, 2010.
These, along with other actions, such as pressuring the Petitioner and children to recant or shut up about the abuse or she will not get custody, is evidence of a cover up.
COLLUSION WITH MINORS’ COUNSELS AND PSYCHOLOGISTS
The Court deprived the children of their chosen attorney who had been zealously advocating for them. In his place, she appointed three minor’s counsels, who have not advocated for them, but instead have enabled the court’s stated agenda of reunifying the children with the Respondent.
The Findings and Orders were given directly by minor’s counsel to Judge Alksne for signature and filing without the approval and despite the many objections of Petitioner that they were not according to the transcript or the facts or evidence. Petitioner has been ignored with regards to the Findings and Orders.
The court would not use an evaluator suggested by Petitioner, known to be scientific and objective about abuse whom Petitioner requested, but instead appointed an evaluator personally known to her. COURT: “… so I will not use someone I don’t know in this case because I don’t need someone to take this case at a different angle.” [Transcript, January 31, 2008, p. 15]
She had ex parte communication with him, “No one is to talk to Dr. Dess until I do…” [Transcript 1/31/2008, p. 33] “I have personally spoken with Dr. Dess this morning. He gave me his back line phone number…” [Transcript 1/31/ 2008]. She later admitted his report into evidence before the required 10 day review period. Despite the fact that it was inadmissible due to the fact that he had not interviewed Petitioner making it speculation and hearsay relied on it to deprive Petitioner of custody.
All the psychologists who were appointed by the court have gone along with the court’s agenda of reunifying the children with Respondent and keeping them away from me. Judge Alksne has violated the California Rules of Court by not stating the purpose and scope of the evaluations. Although they are mandated reporters, none of them reported the abuse as required by law and none of them advocated for the children’s psychological best interest to be allowed to live with their lifelong primary caretaker/bond.
Judge Alksne allowed in an inadmissible evaluation by Dr. William Dess, whom Petitioner has never met, and relied on it to make findings against Petitioner and take custody away from her.
Petitioner has been made aware that she will not get custody unless she pays the expensive professionals whom she did not want, who are complicit in covering up the abuse, who spin the data to make Respondent look good and Petitioner look bad. She has made it clear from the beginning that she had been bankrupted in the previous court, but that does not matter. The professionals have pressured her to get money from her parent’s retirement fund.
The media has exposed the inappropriate collusion and extortion involved in hiring these biased professionals who spin the cases to whomever has the power, money or court’s agenda.
OBSTRUCTION OF JUSTICE
Judge Alksne would not allow a hearing on the abuse, declaring Res Judicata, despite the fact that there were extreme changes in circumstances and Damon was reporting many more incidents of abuse. Judge Alksne would not gather the minimum amount of evidence as per State Law FC 3118, and ignored or concealed what evidence there was. Evidence has been concealed. Judge Alksne will not allow a 13, 16, or 17 year old to testify or to even know what is going on in their case.
INTIMIDATION OF WITNESSES TO A CRIME
Judge Alksne threatened the Petitioner that if she did not change her position on the abuse, that she would not get custody. She has not changed her position and she did not get custody.
The boys were told by Minors’ Counsel that if they did not cooperate with reunification with their father, they would not be able to see their mother. They were pressured to recant the abuse and when that failed to forget about it and not speak of it to anyone.
This is psychological coercion and a violation of their Constitutional rights. Judge Alksne is using custody and the inalienable right of a parent and child to a relationship with each other as a means of coercion to comply with her agenda. This is a violation of Federal Law in that it is intimidation of a witness to a crime.
Since the usual torture of using custody to coerce children into recanting abuse and living with their father did not work on Damon, Judge Alksne is now threatening to send Damon to a boarding school/camp to coerce him into saying that he was not abused [Exhibit] This is proof of how embroiled and invested she is in covering up the abuse.
What Judge Alksne did fits the legal definition of Kidnapping: To forcibly and unlawfully hold, keep, detain and confine a person against his or her will. The children have been held against their will for two years away from their mother. It is an unlawful action because it involved fraud and coercion and she did not have jurisdiction to take the children away from Petitioner.
DUE PROCESS VIOLATIONS
Judge Alksne has deprived Petitioner of her Constitutional right to parent her children saying there is clear and convincing evidence she is a danger/detriment to her children. Firstly, she refuses to state what that evidence is despite repeated requests. Second, she has deprived Petitioner of due process—her right to have a hearing and access to evidence which can prove that she is not a danger/detriment.
Judge Alksne continuously declares that there is clear and convincing evidence that Petitioner is a detriment to her children and is guilty of different versions of alienating: danger to the children because she still believes Damon was abused, coaching, etc. Petitioner contends that even if these were true, which they are not, Judge Alksne does not have the power to override Petitioner’s Constitutional right to parent her children for those insignificant reasons. There must be extremely dire reasons to effectively terminate all parental rights. This is an issue the Supreme Court should consider.
The trial court is estopped from making findings inconsistent with Judge Smyth’s findings on January 22, 2004, as she declared the abuse issue in Res Judicata from that time [Exhibit D]. She is therefore estopped from making any findings related to the abuse. However, she has been continuously making findings and orders inconsistent with Judge Smyth’s findings. She has made findings that there is no credible evidence of abuse, when Judge Smyth (and many other professionals) said there was. She has said that Petitioner has to change her position on the abuse, but Judge Smyth did not state that.
She has made custody findings that Petitioner is alienating/influencing Damon with regards to the abuse when Judge Smyth found that Petitioner had reason to believe that Damon was reporting abuse. Theses findings should be voided.
She is threatening to send Damon to a boarding school to change his belief about the abuse, but she is estopped from that, because Judge Smyth said it was possible the abuse did happen. He said that there was just not enough evidence to meet “preponderance of evidence” burden, but that may have been because he was too young to explain well what happened to him.
CRUEL AND UNUSUAL PUNISHMENT AND INTENTIAL INFLICTION OF EMOTIONAL DISTRESS
The children have been punished with the loss of their life-long primary bond, one of the worst traumas that can befall a child, even though they have done nothing wrong and have consistently stated to the court they love their mother and want to be with her. Petitioner has been punished with the loss of her children for believing what her children have told her about the abuse and trying to protect them. The severity of the punishment does not fit the alleged “crime” of Petitioner trying to protect her children.
The children were not allowed to see their mother at all for four months because she said something about the case to them and wrote some emails after many months of being deprived normal contact with each other. This punishment does not fit the crime and was exceedingly cruel-- to take children away from their lifelong primary bond for so long is a traumatic experience for them, not to mention for the Petitioner/mother, who had been promised by Judge Alksne that they would only be separated for two weeks. Then she cruelly added four more months of no contact so that the “reunification” would be more successful, which meant 8 months of no contact.
After almost two years of saying it would cause irreparable damage to separate the brothers, Judge Alksne separated Damon from his brothers in an attempt to distress him so much that he would give in and go with his father. Judge state that if that did not work, she recommended sending him to a boarding school, completely isolating him from all friends and family [Exhibit D]. That is beyond cruel.
After two years, Petitioner is still not allowed to see her children and they are not even allowed to speak to each other on the phone or see each other on birthdays, Christmas or other holidays. Petitioner is not allowed to take part in any school activities or know about any academic or medical decisions.
This is indicative of someone who does not have empathy or compassion and should not be on the Bench. These tactics of isolation and maternal deprivation in an effort to get children to reunify with a parent they do not want are promulgated by the pedophile friendly Richard Gardner and is used in cases where children report abuse to silence them. Gardner’s theory and tactics are not supposed to be used because of how cruel and unethical it is and it does not meet the Kelley-Frye standard. The children, at 13, 16 and 17, are still saying they want to be with and live with their mother, which Judge Alksne completely ignores.
The court stated that the reports by all three children that their father had raped Damon were very serious [Declarations by Minors Evan, Ryan, and Damon Moelter, January 31, 2008], so she was going to investigate it and have a hearing on it. Six months later she didn’t care enough to even have a hearing on the abuse, had ignored Damon’s reports to psychologists and the ChadwickCenter and ordered the children into reunification therapy with Respondent.
Judge Alksne does not know critical aspects of the case. For example, in one attempt to discredit Damon’s reports of abuse, Judge Alksne sarcastically said that one incident before we left San Diego turned into four hundred after we came back. It is improper for judges to be sarcastic anyway, but in fact, Damon had reported countless incidents of abuse before we left. He had said that the abuse occurred every time he visited his father while he slept in bed with him. That was corroborated by his brothers and minors counsel--that Respondent had made Damon sleep with him until he was almost eight, at which time it came to the attention of the court. Damon had also reported to CPS and the police that his father had abused him on his lap during the day in many places, including the monitored visitation, a taxi, a park, while playing video games, etc.
For the court to get such a critical part of the story wrong and speak sarcastically of it is negligence and arrogance. She is also concealing evidence of abuse—the ChadwickCenter videotape from his recent disclosures and the transcript from the in-chambers testimony.
Judge Alksne has defamed Petitioner as being an alienator, a danger to her children, a detriment, an abductor, etc. without due process. She has caused people in the community to have mistaken beliefs about Petitioner. In other words, she is protecting the Respondent’s reputation by dismissing all the evidence which incriminates him and is destroying Petitoner’s reputation, by dismissing all the evidence which exonerates her.
RETALIATION FOR EXERCISE OF CIVIL RIGHTS
Petitioner was told she would not get custody if she did not stop protesting the perceived injustices in her case. She was also told she would not get custody if a website that is not hers was not taken down, a website which tries to get the truth out and support for protection and justice for Damon. This is a violation of Petitioner’s Constitutional right to free speech and in particular to speak out about government corruption. Petitioner was not given custody, so it is retaliation for the exercise of civil rights, another Constitutional violation.
AFFILIATION WITH FATHER’S RIGHTS GROUPS
Judge Alksne invited the head of a father’s rights group, Harry Crouch, to come to her chambers and give her literature about father’s rights groups. [http://220.127.116.11/search?q=cache:w3_uG1ZAnlQJ:www.ncfm.org/newsletter/Transitions%25202007%25203.pdf+california+men%27s+center+lorna+alksne&cd=6&hl=en&ct=clnk&gl=us, p. 10]
Firstly, Judges are not supposed to be involved in political groups, especially a family court judge with a father’s rights group. [California Code of Judicial Ethics, Canon 5]. Secondly, Father’s rights groups advocate for the use of the parental alienation theory against mothers who report abuse by fathers. That is what Judge Alksne is using against Petitioner to take custody away from her. Judge Alksne’s husband also rents space in his office to a fathers’ rights group.
The publicity this case has garnered is enough reason in and of itself for Judge Alksne to be disqualified. The media attention for this case has made her look bad. There has been coverage of this case by ABC, KUSI, Univision, periodicals, and websites. There has been an email campaign wherein over 15,000 people wrote to legislators and judicial officials complaining about the way Judge Alksne is violating laws, ignoring Damon’s brave disclosures of brutal abuse, and not allowing Damon to testify.
There are weekly protests in front of the court, where information is available about how Judge Alksne did not do the proper investigation or allow Damon to testify and is now threatening to send him to boarding school to change his belief that he was abused, etc.
There have recently been disturbing posts to many websites with death threats to Judge Alksne and threats of harm to her family and children [Exhibits]. Petitioner had nothing to do with these threats and does not condone violence. However, they are serious, and it is a good reason in and of itself for her to be off the case, for her own protection.
COMMISSION ON JUDICIAL PERFORMANCE INVESTIGATION
Members of a court watch group who were kicked out of the courtroom after attending many of the hearings and taking notes, wrote to the Commission on Judicial Performance [Exhibit F]. They subsequently opened an investigation into her handling of the case.
Threats on Judge Alksne and her family’s lives have been posted on various internet sites in relation to this case [Exhibit G]. Someone says he/she is extremely angry for how Judge Alksne is taking Damon her daughters and other children away from protective mothers and handing them over to child molesters. The FBI is taking it very seriously and has begun an investigation.
Judge Alksne made all parties aware that someone from the Elkins Commission talked to her about Petitioner appearing before them to discuss problems in family courts. Therefore, there has been ex parte communication which is not allowed.
A person aware all of the aforementioned facts might reasonably entertain a doubt that Judge Alksne would be able to be impartial
The main legal grounds upon which Petitioner’s Motion to Recuse/ Statement of Disqualification rest on is that “A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” [CCP 170]
A person aware all of the aforementioned facts might reasonably entertain a doubt that Judge Alksne would be able to be impartial.
In fact, there are literally thousands, possibly hundreds of thousands, of people aware of just a few of the facts of this case who have reasonably entertained a doubt that Judge Alksne would be able to be impartial and are upset that she is not listening to or protecting a 13 year old boy who is bravely reporting years of brutal abuse and threats to kill him by his father.
As noted, Section 455(a) of the Judicial Code is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process. There can be little doubt that Judge Alksne is not promoting public confidence in this case. This is especially apparent due to the publicity in the media, the email campaigns, the weekly protests in front of the court and the investigations by the Commission on Judicial Performance and the FBI.
Further, it is clear Judge Alksne is biased because of the extreme lengths she has gone to deprive Petitioner of her Constitutional right to parent her children. Petitioner has effectively had her parental rights terminated without due process. She has no custody and is allowed only one three hour supervised visit a week, not in her home. She is not allowed to see her children and they are not allowed to see their mother on birthdays, Christmas or other holidays. Petitioner is not allowed to take part in any school activities or know about any academic or medical decisions.
Petitioner has not been given a chance to defend herself against Judge Alksne’s findings that she is a danger/detriment to her children and denied access to a hearing or evidence which could exonerate her. Judge Alksne said required Petitioner to change her position about the abuse (i.e. say it did not really happen) and stop protesting the injustices in her court or she will not get custody. Petitioner will not stop believing her children, will never stop trying to protect Damon and will not stop protesting until he is safe with her. Therefore, Petitioner will never get custody of her children in Judge Alksne’s court.
This is a complete miscarriage of justice and Petitioner will never get a fair hearing or due process with Judge Lorna Alksne. In the interest of fairness and justice, Judge Lorna Alksne must be disqualified.