In re K.S.

Filed 8/19/08 In re K.S. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from orders of the Superior Court of Los Angeles County, Marilyn Mackel, Juvenile Court Referee. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

__________________________

INTRODUCTION

Anne S., mother of L. (10 years old) and K. (eight years old), appeals from the orders of the juvenile court that denied her petition for modification (Welf. & Inst. Code,  388)[1] and appointed the childrens paternal grandmother, H.D., as their legal guardian ( 366.26). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Predicate facts

This is the third time since 1999 that this family has been involved with the Department of Children and Family Services (the Department). We issued an opinion in 2006 in this case. We summarize background information culled from that opinion:  Anne lost custody of her eldest child, A., in the first dependency. The second dependency involved L. and K. after Anne and K. tested positive for cocaine at that childs birth in 1999. After Anne successfully reunified, the juvenile court terminated its jurisdiction and awarded Anne primary physical custody of the children.[2]

This case commenced when police found Anne, then six-year-old L., and four-year-old K. sleeping in Annes car. They had been homeless for over a year. Anne suffers from mental health problems that  affect her judgment and ability to properly care for and supervise her children.  Her problems caused her to make inappropriate decisions for the children and created a long-standing pattern of making false allegations and accusations to the detriment of her children.For example, L.s school staff reported several outbursts from Anne while on school grounds, in which she accused teachers of discriminating against homeless people, claimed to have been threatened by the Mexican mafia, and was verbally hostile and aggressive with the assistant principal. Homelessness, the Department concluded, was  one symptom of mothers emotional problems.  Additionally, Anne was angry, suspicious, defensive, and tended to blame others for her own predicament. The children were eventually placed with H.D.

Two Evidence Code section 730 evaluations revealed that Anne has a personality disorder with prominent paranoid features and possibly associated hysteroid and histrionic and narcissistic features. One doctor found that Annes suspiciousness and paranoia were part of her personality disorder and not a major mental illness. She had a low tolerance for frustration that led to angry outbursts towards others. . . .  Anne suspected, without basis, that others were harming or deceiving her, and was preoccupied with unjustified doubts about the trustworthiness of friends, family members, and professionals. The doctor found that [t]he nature of [Annes] psychiatric difficulty will not easily ameliorate. Her illness would continue to make an impact on her life in fairly significant ways. Still, notwithstanding that it was highly unlikely that therapy would be beneficial, [the doctor] recommended it be attempted. (Ibid., italics added.)

The juvenile court sustained the petition finding the children were defined by section 300, subdivision (b) and ordered the childrens removal from Annes custody. It ordered Anne to undergo individual counseling to address case issues, among other things, and awarded Anne monitored visits.

Anne made questionable progress in her individual counseling. She commenced individual counseling with a therapist who stated that Annes  anxiety still overwhelms her.  Indeed, her  anxiety level seems to be rising.  She continued to blame others. She accused the social worker of siding with the childrens father, of being untruthful, and trying to get Anne.

After a short-lived attempt at unmonitored visits, the Department moved to reinstitute supervision because the freedom of unmonitored visits did not reduce Annes anxiety. Anne exhibit[ed] extreme agitated, confrontational, and uncooperative behaviors in front of the children, placing them at risk of emotional abuse. The juvenile court reinstituted monitored visits, denied Anne telephone contact, and ordered that the childrens placement information be kept confidential.

Anne continued to make baseless allegations that H.D. was endangering the children. Investigations revealed the allegations to be false. Still, these false allegations triggered three visits from the police on Thanksgiving, all of which caused unnecessary emotional harm to [the] children. K[.] was reportedly shaking with fear. 

Visits were again liberalized in the fall of 2005. Two unannounced visits in November and December revealed no problems in the overnight visits the children had with Anne. However, by the 18-month mark, the childrens feeling was constant that, although they enjoyed spending time with Anne, they did not want to live with her. Their attorney reported that once overnight visits began, he had been  called and told that [they] were crying, screaming, kicking, did not want to go and spend the weekend with her. Thus, counsel opined that returning the children to Anne posed an emotional risk to them, and requested the family undergo conjoint therapy before L. and K. would be returned to Anne. Counsel also noted the strong bond the children had with H.D. and the stability of her care.

The juvenile court terminated reunification for Anne, finding although Anne had complied with the case plan, that the children would be at risk if they were returned to Annes care because of (1) Annes inability to recognize what has happened throughout the case, such as numerous false allegations about the childrens caretakers . . . . (2) The persistent need for therapeutic treatment and intervention to deal with the issues identified in two psychological evaluations, which issues pose a substantial risk of detriment to the children. (3) The tremendous amount of instability. Before it would be in the childrens best interest to return to Annes care, she would have to find stability outside of the transitional housing in which she has been living. (4) The court observed a level of distortion and lack of impulse control that constituted clear and convincing evidence that the children would be at risk if returned to Annes care. The court set the section 366.26 hearing. Anne filed her petition for extraordinary writ review. (Cal. Rules of Court, rule 8.452.)

We denied Annes writ petition holding, although she should be commended for complying with her case plan, that Anne had not made progress toward ameliorating the conditions leading to the childrens out-of-home placement.

2. The post-reunification period July 2006 through March 2007

Conditions did not change noticeably in the period following the termination of reunification.

a. Individual therapy

Anne did not undergo individual therapy and continued to make baseless allegations. She missed two intake appointments in March 2006. In the summer of 2006, the Department learned that Anne was receiving individual counseling from an intern at the Jenesse Center, Inc., a transitional housing program. Although Anne was also evaluated at the Childrens Institute International (CII), that program only used therapists with masters degrees in marriage and family therapy (MFT). Eventually, the juvenile court allowed Anne to see an MFT, but not an intern if counseling occurred at CII.

In July 2006, Anne told the social worker that she had an appointment with a therapist. However, that therapist reported that Anne had attended an intake appointment only where she declared that she did not have any symptoms and did not need therapy. In January 2007, Anne had still not enrolled in individual therapy.

The Jenesse Center, Inc. reported that Anne had left its housing in March 2007. She was residing on her own and she was not participating in the Centers services. Visits to Annes new residence in April 2007 were positive.

b. Conjoint counseling

Conjoint counseling began in November 2006. In January 2007, the therapist, Jennifer Campoy, M.S.W., indicated that, after four sessions, the children still demonstrated a high level of anxiety and brought up past issues and that Anne exhibited poor impulse control and poor judgment during sessions.

Conjoint therapy sessions were described as  chaotic  at the end of January 2007. The family argued. Campoy ended the sessions when the situation became uncontrollable. Campoy opined that until Anne underwent individual therapy, conjoint therapy would be unhealthy and unproductive for the children. K. and L. did not have the skills to cope with Annes high level of anxiety.

In February 2007, Campoy and CII terminated conjoint therapy as it was not productive. Although two of Annes goals were to use better judgment in the childrens presence and to refrain from talking negatively about H.D., she nonetheless openly shared her suspicion and resentment. The children responded by being anxious and aggressive toward Anne. They had difficulty managing their feelings in therapy and acted out by throwing things, crawling under tables, and not sitting still. At least twice, the children asked to leave the session because of Annes behavior. In late February 2007, the juvenile court vacated its order for conjoint therapy pending the request of Annes individual therapist to reinstate it.

c. Visits

By early 2007, the Department requested that Annes visits be restricted again. K. reported that Anne had kicked and slapped her, leaving a mark, and had yelled at K. during an argument, causing K. to fear visits with Anne. Both children told the investigating social worker that they did not like visiting Anne because she yelled at and hit them and they feared being hit again. H.D. reported that the children were anxious and unable to sleep after visits with Anne. Anne screamed at and physically threatened H.D.

Anne denied these descriptions were true and insisted H.D., father, and their relatives were plotting to undermine visitation. She claimed that someone paid the investigating social worker to probe the allegations. She also claimed the investigator was stalking her and she told him that the FBI was on to him. She threatened to sue the investigator.

The children appeared comfortable during visits with Anne in April 2007. During a visit, the social worker found Anne and the children had a healthy relationship. The children did not appear fearful of Anne. L. wanted to spend the night with Anne, although K. preferred to return to H.D.

d. H.D.s care

Meanwhile, the children thrived in H.D.s care. They regularly attended school and had not been absent at all in the previous reporting period. H.D. was employed at the school, maintain[ed] a close relationship with [the childrens] teachers and stay[ed] informed [of] their educational accomplishments, and progress, as well as their areas of weakness[]. K. stated that she wanted to continue living with H.D.

H.D. signed an affidavit confirming her understanding of the juvenile courts earlier orders that father have contact with the children only when monitored by someone other than H.D., and that he not be allowed to transport the children. Father moved out of H.D.s house.

Nonetheless, there was a suggestion in January 2007, that father was at H.D.s house when neither the children nor H.D. were there. H.D. explained that father cleaned her house and she, L., and K. all denied that father was living with, or had unmonitored contact with, them. An investigation revealed no indication that father was residing at H.D.s house.

Anne reported that H.D. had a prior history with child welfare based on general neglect. After an initial investigation, the adoptions social worker explained that there was no hint of a threat to the childrens safety or stability. The Department researched the records but could find no evidence of any such history. As a child, father had lived with his aunt and also with his first grade teacher who had been moved by fathers familys poverty to help. However, child protective services never detained or removed father from H.D.s custody.

Annes attorney mentioned that H.D. was driven to a visit with Anne by an unlicensed, 14-year-old child. An investigation revealed that H.D. had used a taxi service. The service denied using underage drivers. When the social worker interviewed Anne about that allegation, Anne insisted that H.D. was paying the social worker to continue to recommend guardianship with H.D. Anne also alleged that the paternal family was using its affiliation with the Mexican mafia to persuade the Department to favor them.

As a result of the case history, the Department recommended legal guardianship as the permanent plan for the children with family preservation or wraparound services.

3. The section 366.26 hearing in April 2007

Anne filed a section 388 petition seeking an order that the children be placed in her custody, or in the alternative, [that she be granted] unmonitored visitation to include weekend overnight visits. The juvenile court granted the petition in part, allowing Anne unmonitored visits with the children, to begin as day-long visits once a week, no less than twice a month. The court gave the Department discretion to liberalize her visits in consultation with her therapist and the childrens attorney.

At the contested section 366.26 hearing, the childrens social worker testified that when she met with L. and K. monthly, they told her they were uncomfortable with and feared Anne. H.D. testified that when the children returned from visits with Anne, they were a little belligerent toward H.D. and did not want to listen to her. Anne was aggressive with her and called her a liar and the devil in front of the children.

The juvenile court ruled that the appointment of H.D. as legal guardian would provide the children with the stability the law sought without terminating court jurisdiction. The court recognized Annes slow evolution toward stability in housing, but by the section 366.26 hearing, the children could no longer remain in limbo. The court explained that its future decisions would be influenced by whether Anne was in individual counseling with a licensed therapist who was able to address her impulsive behavior and the instability that had characterized her life until recently.

The juvenile court signed the letters of guardianship and ordered that Anne would have weekend day visits with the children. Anne filed her appeals. We consolidated the appeals.

CONTENTIONS

Anne contends that the juvenile court (1) abused its discretion in denying her section 388 petition; and (2) erred in appointing H.D. guardian. She also argues that (3) the clerks transcript conflicts with the reporters transcript with respect to visitation and must be ordered amended.

DISCUSSION

1. The section 388 petition for modification was granted in part.

Anne contends that the juvenile court abused its discretion in denying her section 388 petition requesting that the court return the children to her custody or, in the alternative, grant her unmonitored visitation to include overnight weekend visits. As changed circumstances, she listed her successful monitored visitation and new housing. The change was in the childrens best interests, she asserted, because they were not afraid of her; she was complying with all court orders as best she could; she could provide better housing and educational opportunities than H.D.; and the children would benefit from spending more time with her.

A section 388 petition seeks to modify the status quo in a dependency case. The ruling on the motion is addressed to the sound discretion of the juvenile court (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522), and will not be disturbed on appeal without a showing of a clear abuse of that discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)

Section 388 reads in relevant part, Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the . . . juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. Thus, under section 388, a dependency order may be modified only if changed circumstances show that the proposed modification is in the childrens best interests. (In re Kimberly F., supra, 56 Cal.App.4th at p. 526.) As petitioner, Anne bore the burden of proving, by a preponderance of the evidence (Cal. Rules of Court, rule 5.570(h)(1)), that (1) there has been a change of circumstances or that there is relevant new evidence, and (2) that the proposed modification would be in the childrens best interests.

It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion (In re Kimberly F., supra, 56 Cal.App.4th at p. 522) and this is not a case meriting reversal. At the outset, we observe that the juvenile court partly granted Annes petition. It allowed Anne to have unmonitored visits with the children, beginning as day-long visits once a week, no less than twice a month, and gave the Department discretion to liberalize that plan. Thus, the court granted Anne her alternative request, namely, unmonitored visitation, albeit without including overnight weekend visits initially. Insofar as the order did not grant Anne all that she requested, we fail to see how this ruling constitutes an abuse of the courts discretion.

Looking at the first prong of the showing Anne must make under section 388, she has failed to demonstrate changed circumstances. As noted, in terminating reunification services, the juvenile court found that the children would be at risk if they were returned to Annes care because of Annes:  (1) inability to recognize her numerous false allegations about the childrens caretakers; (2) persistent need for therapeutic treatment and intervention to deal with issues that pose a substantial risk of detriment to the children; (3) tremendous instability in housing and living situations; and (4) level of distortion and lack of impulse control.

Of these four factors posing a risk to the children, Anne showed a concrete change in only one, namely, her housing. Otherwise, Anne showed little or short-lived changein the rest of these factors.

Most important, Anne has not demonstrated that she is in therapy to work on these issues. The tenor of this case is influenced by Annes failure to address her problems in individual therapy and to ameliorate her anxiety and anger, which feelings cause the children to act out and feel anxious themselves. Every single mental health professional to evaluate Anne has recommended long-term therapy for her. The juvenile court has been adamant about the requirement that Anne undergo therapy and had Campoys opinion in February 2007 that Anne required individual counseling before she could participate in family sessions that would be safe for the children. Still, by her own admission, Anne was not in therapy as late as April 2007.[3]

Because Anne is not in therapy, she continued to make false accusations about H.D. as late as February 2007.

Lastly, Anne presented no evidence that she was not still impulsive. The conjoint therapist noted Annes poor impulse control and judgment in December 2006. In January 2007, the Department substantiated allegations that Anne had hit K. prompting the juvenile court to restrict Annes visits with the children. Again in February 2007, the conjoint therapist found that Anne could not contain her anxiety and anger toward H.D. Her behavior made the children very uncomfortable. And, the court heard H.D.s testimony at the section 366.26 hearing that Anne still does not inhibit her impulse to act belligerently and aggressively toward H.D. and to call her names in front of the children.

As for the second prong, Anne has not carried her burden to show that the modification she sought, namely, returning the children to her custody or for full weekend visits was in the childrens best interest. Among the factors juvenile courts consider in determining whether a proposed change of order is in the childs best interest are: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)

Annes problems are indeed serious and protracted -- exacerbated by her persistent failure to undergo therapy â€‘‑ and have not been ameliorated. Throughout this case, her therapists recognized the entrenched nature of Annes personality disorder and have been realistic about the likelihood it might not improve. Despite 18 months of reunification and an additional year of services, Anne continues to behave in much the same manner. Although there is some indication that the childrens relationship with Anne has improved just before the section 366.26 hearing, K. remains firm in her desire to return to H.D.s and L. stated that he would like to spend the night and have a summer vacation with Anne, but said nothing about living with her. And, the juvenile court heard the social worker testify that the children still fear Anne. By comparison, L. and K. are bonded with H.D., interact well with her, and are thriving in her care.

It is true that Anne demonstrated stable housing as late as April 2007. It is also true that two visits that month were positive and the children did not exhibit anxiety in Annes presence. However, it must be remembered that this dependency is marked by a continuous cycle of liberalized visits that are subsequently restricted because of Annes behavior, which she had not addressed in therapy. At this point, where the family is not in conjoint therapy and Anne is not in individual therapy, it would have been an abuse of discretion for the juvenile court to jump into extended, unsupervised weekend visits again, without a therapists recommendation that it would be safe for the children emotionally. The juvenile court was properly circumspect in granting Annes section 388 petition by giving her extended day-long visits with the children, while allowing the Department to liberalize visits after consultation with Annes therapist and the childrens attorney. There was no abuse of discretion in granting Anne most of her section 388 petition but otherwise provisionally denying her overnight visits.

2. Anne made no showing H.D. is not a suitable guardian.

Anne contends that the order appointing H.D. legal guardian must be reversed because H.D. is not suitable.

A hearing under section 366.26 is intended to provide a permanent plan for children who cannot be returned to parental custody. . . . At the permanency hearing the court must select one of the statutorily prescribed options. . . . that is the best disposition for the child. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 803‑804, fn. omitted.) [A]doption, where possible, is the permanent plan [for such children] preferred by the Legislature. (Id. at p. 804.) But, if that plan is not possible, the Legislature has declared the second statutorily proscribed disposition option to be the appointment of the relative with whom the children are currently living as legal guardian. ( 366.26, subd. (b)(2); see also Cal. Rules of Court, rule 5.725(e)(6)(B).)[4] Because the juvenile court did not find by clear and convincing evidence that L. and K. were likely to be adopted, it properly selected the next preferred alternative, namely, appointing a relative, H.D., with whom the child[ren are] currently residing as legal guardian . . . for the child[ren], and order that letters of guardianship issue. ( 366.26, subd. (b)(2), italics added.)

  [W]hen a court has made a custody determination in a dependency proceeding,  a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.    [Citations.] (In re Tamneisha S., supra, 58 Cal.App.4th at p. 806.)

The juvenile court did not abuse its discretion in appointing H.D. legal guardian of the children. H.D. had been caring for the children since nearly the commencement of this dependency, except for when they were reunified with Anne. Their relationship has always been described by the social worker as loving. The children were thriving in H.D.s care, and appeared happy there. She attends to their educational, psychological, and physical needs.

Acknowledging that H.D. provides adequate care for the children, Anne cites concerns that were raised at the section 366.26 hearing about H.D.s suitability, namely:  (1) conflicting information about H.D.s alleged prior child welfare history; (2) the allegation that H.D. permitted unsupervised contact between the children and father; (3) H.D.s inability to care for the children as evidenced by the Departments recommendation for family preservation services and H.D.s inability to name the childrens doctor or teachers; and (4) an allegation that H.D. allowed the children to be driven by an underage, unlicensed driver.

The allegations concerning H.D.s prior involvement with child welfare and the underage driver are unsubstantiated. The Department investigated at least twice and found them speculative or baseless. Ultimately, determination of whether these allegations were true or not was for the juvenile court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) It was entitled to believe the Department, particularly because these allegations initially came from Anne, a woman with a long history of distortion and unfounded accusations. As for fathers contact with the children, the Department has been and continues to monitor fathers presence at H.D.s house.[5]

Turning to the Departments recommendation for family preservation and wraparound services, they do not undermine H.D.s suitability as a guardian. The stated intent behind the recommendation was to obviate H.D.s dependence on father and to preserve this family and to address any underlying issues which are not interfering with [H.D.S] ability to meet the minimum level of care for the children. (Italics added.) By underlying issues, the Department meant the childrens need for counseling and tutoring, and H.D.s requirement of rental assistance and help replacing furnishings and appliances. In short, as the Department notes, its recommendation for family preservation services was intended to assist, not incriminate, [H.D.] . . . .

Nor is H.D.s appropriateness as a guardian undermined by the mere fact that she was ostensibly unable to identify the names of the childrens doctor or teachers during testimony. H.D. works at the childrens school 1.5 hours a day and maintain[ed] a close relationship with [the] teachers and stay[ed] informed [of the childrens] educational accomplishments, and progress, as well as their areas of weakness[.] The children did not have frequent visits to the doctors office. The point is, H.D. is fully engaged and involved in these childrens lives and so her inability at the hearing to recite names cannot be a ground for revoking the letters of guardianship. Anne made no showing that the juvenile court abused its discretion in appointing H.D. the childrens guardian.

3. The discrepancy between the reporters and clerks transcript is moot.

Anne argues that a discrepancy exists between the reporters and clerks transcripts because the latter does not accurately reflect the juvenile courts April 2007 order concerning the childrens schedules and necessity for makeup visits.

The Department filed a motion to take as additional evidence the juvenile courts post-judgment order of November 13, 2007. We grant the motion[6] because it will   expedit[e] the proceedings and promot[e] the finality of the juvenile courts orders and judgment [citation] . . . . [Citation.] (Cf. In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422 [request for court to take judicial notice of post‑judgment evidence in context of motion to dismiss].)

The juvenile courts November 13, 2007 order provides that Anne was to call the children 1 time per day between 4 and 5 PM. Anne is to have 2 weekend overnight visits a month. If the children have an activity they want to participate in on the weekend mother is to have a visit, mother is to be notified well in advance. Mother is to have [the] visit the following weekend.  []  All holidays that occur during the week will be spent with the legal guardian and the children and any holidays that fall on the weekend will be with mother and the children.  []  All pickups and dropoffs will occur at the North Hollywood police station.  []  Weekend visits will begin on Friday at 6 PM and end on Sunday at 4 PM.  []  Legal guardian will notify mother about any school activities the children are participating in. Therefore, Annes contention is moot that the discrepancy exists because the clerks transcript does not accurately reflect schedules and makeup visits.

DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] All statutory references are to the Welfare and Institutions Code, unless otherwise noted.

[2] The childrens father is not a party to this appeal.

[3] Annes argument that she had difficulty seeing a licensed therapist, only confirms there has been no change here.

[4] The statutorily prescribed options are, in stated order of preference, (1) Terminate the rights of the parent  . . . and order that the child be placed for adoption . . . . [] (2) Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue. []  (3) . . . identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. []  (4) Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue. []  (5) Order that the child be placed in long-term foster care, subject to the periodic review of the juvenile court . . . . ( 366.26, subd. (b)(1)‑(5), italics added.)

California Rules of Court, rule 5.725(e)(6) reads:  If the court finds that (1)(A) or (1)(B) applies [exceptions to termination of parental rights], the court must appoint the present custodian or other appropriate person to become the childs legal guardian or must order the child to remain in foster care.  []   . . .  []  (B) Legal guardianship must be given preference over foster care when it is in the interest of the child and a suitable guardian can be found. (Italics added.)

[5] As the Department observes, Anne did not object to the juvenile courts order in February 2007 allowing father monitored visits if he was testing clean and attending programs. Thus, her argument on appeal that fathers contact was an impediment to H.D.s suitability as a legal guardian, is unavailing.

[6] We also grant the motion for judicial notice brought by Anne on April 3, 2008.