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New Jersey Division of Youth and Family Services v. E.C.


April 28, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-258-06.

Per curiam.



Submitted April 8, 2008

Before Judges Fuentes and Grall.

E.C. and R.M. both appeal from orders terminating their respective parental rights to their son J.M. On our own motion, we consolidated the appeals. Because the trial court's decision is "based on clear and convincing evidence supported by the record," we affirm. N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

E.C. and R.M. are the biological parents of J.M. E.C. also has two older children, D.R. and S.R. Although the Division of Youth and Family Services (DYFS) also sought termination of E.C.'s rights to D.R. and S.R., the trial court concluded that DYFS did not establish that termination was in the best interest of those children.*fn1

According to E.C., she first tried heroin in 2004 after observing R.M. use the drug. Prior to that time, her drug of choice was alcohol, which she started using at age fourteen and abusing shortly thereafter. E.C. admits that she quickly became dependent on heroin. When R.M. and E.C. met, he was serving a sentence of probation imposed as a consequence of his conviction for possession of a controlled dangerous substance on two separate occasions, once in 1999 and once in 2003. In July 2004, E.C. enrolled in a methadone maintenance program.

J.M. was born in March 2005. He tested positive for amphetamines and methadone at birth. Neither E.C. nor R.M. could explain why E.C. tested positive for amphetamines. Because J.M. suffered from tremors due to withdrawal from methadone after his birth, he was not discharged from the hospital with his mother. DYFS was notified.

DYFS assigned a caseworker, who learned that E.C. had received prenatal care and participated in a methadone maintenance program at Kaleidoscope during her pregnancy. E.C. had not tested positive for substances other than methadone since she first attended the program in July 2004, and her counselor described her compliance with the program as "good."

The caseworker spoke to E.C.'s older children, D.R. and S.R., and found them to be happy and well nurtured. They were of age-appropriate weight and height and were both enrolled in school. They told the caseworker that E.C. always gave them breakfast and helped them get ready for school. When asked about punishment, they said they were sent to their rooms. D.R. also said, however, that his mother hit him with a belt once a long time ago. Both children denied ever seeing their mother giving herself a needle or taking any "powder."

The caseworker visited E.C.'s home, a three bedroom apartment. The apartment was "well kept"; sleeping arrangements were "appropriate"; there was "plenty" of food; and a crib, pampers and clothes had been readied for the arrival of a new baby.

In late March 2005, DYFS proposed a plan for the family, which E.C. and R.M. agreed to accept. The parents were to "live in a drug-free environment," accept homemaker assistance and undergo substance abuse evaluations. E.C. had a substance abuse evaluation, but R.M. did not. On April 1, 2005, E.C. presented a urine specimen for testing; the test showed alcohol at a rate of 91mg/dl.*fn2 On three subsequent occasions in April, E.C. was unable to provide a urine sample.

In April 2005, DYFS received a report that D.R. had a bruise on his cheek, which the child had told the "caller" was caused by E.C.'s hitting him with a belt. The caseworker saw a scratch on D.R.'s face, which he explained was caused by his plastic Spiderman glasses. The school nurse, who had seen D.R. a week before at the request of the "caller," told the caseworker that she had seen nothing but a "faint" red mark, which the child dismissed as "nothing." Upon examining D.R. and his sister S.R., the caseworker saw no other marks or bruises indicative of abuse. DYFS concluded that the allegation was unfounded.

By complaint filed on April 27, 2005, DYFS sought and was granted custody, care and supervision of E.C.'s three children. D.R. and S.R. were placed with a relative with whom they remained throughout this proceeding. J.M., who had been designated as "medically fragile," was placed with Hudson Cradle. In November 2005, when J.M. was no longer deemed "medically fragile," he was placed in the care of E.C.'s mother, H.R. In August 2006, after his maternal grandmother was diagnosed with and given surgical and chemical treatment for cancer, J.M. was removed from H.R.'s home and placed in a foster home where he has remained. According to the caseworker, the foster parent is "very much interested" in adopting J.M., and he is "very lovable towards" his foster parent and appears to be unhappy when separated from the home for visitations.

After E.C.'s children were removed from her custody, E.C. did not take prompt action to address her addiction. On May 23, 2005, she told the court that she had used cocaine on May 4 and 21, 2005. The court entered an order directing E.C. to enter a detoxification program. E.C. attended two detoxification programs between May 23 and July 26, 2005. She left both after a one-day stay.

R.M. visited J.M. with E.C. at Hudson Cradle during the months of June and July. R.M., however, was arrested on July 27, 2005, and at a review hearing held on that date, E.C. admitted recent heroin use. The court ordered R.M. to contact DYFS upon his release and directed DYFS to offer services to him at that time if his paternity was confirmed and if he offered himself as a caretaker for J.M. The court ordered E.C. to submit to a psychological evaluation and random drug screens.

Although E.C. continued to visit J.M. at Hudson Cradle until October 15, 2005, she had no contact with DYFS between September 9 and December 28, 2005. She failed to appear in court for a review hearing on November 2, 2005. On December 29, 2005, she went to the DYFS office and reported that she had been living in Pennsylvania. She declined to submit a urine sample for testing.

R.M. remained in jail. On October 7, 2005, his probation was terminated, and he was sentenced to a four-year term of imprisonment. In addition to the crimes for which he was sentenced, R.M. had additional prior convictions for possession of a controlled dangerous substance in 1986 and 1988 and a prior conviction for bribery in 1994.

On January 11, 2006, the court again ordered E.C. to submit to random urine screens. The order included a warning that any refusal to submit a specimen for testing would be considered a positive screen for drugs.

On January 20, 2006, E.C. entered an intensive methadone maintenance program at Spectrum. She was using cocaine and heroin at the time. E.C. was placed on methadone maintenance and given counseling, but she did not make immediate progress. Spectrum staff recommended a higher dosage of methadone, but E.C. declined. Between January 20 and May 31, 2006, E.C. had twelve positive and two negative drug tests.

On April 5, 2006, the court approved DYFS's plan to seek termination of E.C.'s parental rights.

In June 2006, E.C. tested positive for tuberculosis. As a consequence, Spectrum was not permitted to allow her to attend any sessions. Spectrum could do no more than deliver methadone to E.C. outside the building. When E.C. appeared for a court hearing that month, her caseworker detected the odor of alcohol on her breath.

In August 2006, E.C. was cleared to return to Spectrum and agreed to take a higher dosage of methadone. The Spectrum program in which E.C. was enrolled included individual counseling, group therapy, relapse prevention and parenting classes. Between August 11, 2006, and February 2007, Spectrum screened E.C.'s urine twenty-six times. Twenty-five of the reports were negative, and one was positive. The positive report was on a specimen taken on December 8, 2006, which indicated her use of cocaine. Three of E.C.'s twenty-five negative tests showed the presence of "creatine." According to John Cox, Spectrum's clinical director, the presence of "creatine" indicated either use of alcohol or tampering with the urine specimen.

At trial, which was held in late February 2007, Cox described the significant progress E.C. made in dealing with her addiction between August 2006 and February 2007. She faithfully attended the programs available, except for a two-week period in the fall of 2006 during which funding for her participation in Spectrum's program was in question. E.C. also successfully completed Spectrum's parenting program, and, at her request, was permitted to continue in that program after her "graduation." In addition, she regularly attended her counseling and group sessions. Cox described E.C. as having a "burning desire to become drug free" without taking methadone. Accordingly, Spectrum had reduced her dosage of methadone from eighty to thirty milligrams. Cox admitted that he was concerned by the urine screens that showed "creatine" and by E.C.'s failure to provide a urine sample on February 26, 2007. He found "comfort" when informed that a screen done by the court on February 27, 2007, was negative for alcohol and drugs other than methadone. In Cox's opinion, despite E.C.'s progress, she was not ready for discharge from Spectrum.

E.C. admitted to use of drugs and alcohol on occasions between August 2006 and February 2007 in addition to those confirmed by the positive drug screens. She used methadone she obtained illegally without prescription during the two-week period in October when she did not attend Spectrum. In February 2007, within weeks of the trial, E.C. told a caseworker that she had been drinking heavily the night before.

By the time of trial, E.C. was reportedly earning money by cleaning houses and baby-sitting. She was paid in cash. The record does not indicate where she was living at that time. As of August 16, 2006, E.C. was still living in the same apartment she occupied in March 2005.

Licensed psychologists who evaluated E.C. and her children were in substantial agreement about her ability to parent her children. She was seen by Dr. Ernesto Perdomo for psychological and bonding evaluations on July 26 and August 16, 2006. Dr. Matthew Johnson saw E.C. on September 15, October 25, and November 1, 2006, for the purpose of evaluating the bond between E.C. and her children.

Dr. Perdomo's diagnoses were: opiod dependency in remission but on methadone maintenance; alcohol dependency in remission; personality disorder not otherwise specified with some obsessive-compulsive, histrionic and narcissistic characteristics; and psychological stressors due to separation from her children and involvement with DYFS. Dr. Perdomo found no indication of any affective or thought disorders, psychosis, central nervous system disorder, learning disability or depression. He concluded that E.C. has a grasp of reality and an ability to organize her life and work and establish adequate interpersonal relationships. He found "significant reasonable psychological evidence" of a bond between E.C. and D.R. and S.R. and a "good relationship" between E.C. and J.M., which could not be considered a "bond" because J.M. was too young to have developed a bond. Although Dr. Perdomo recommended that DYFS "proceed cautiously if unifying [E.C.] with her children," he noted that E.C. has "certain abilities that may help her to provide effective parenting to the children, as long as she keeps off drugs." Dr. Perdomo did not evaluate J.M.'s bond with his foster family. He noted that J.M. had just reached the age when he would start to develop a bond with his primary caretaker and could internalize within the next six months.

Dr. Johnson found a positive bond between E.C. and D.R. and S.R. He also concluded that J.M., due to his age and separation from E.C. at birth, had not bonded with E.C. In Dr. Johnson's opinion, E.C.'s maintenance of a stable and fulfilling home for D.R. and S.R. indicated that her children would benefit if returned to her. Acknowledging E.C.'s difficulty in recovering from substance abuse, he concluded that E.C.'s continual commitment and effort to that goal were apparent. He recommended E.C. attend a twelve-step program to learn more about recovery. Dr. Johnson concluded that E.C.'s children should be returned to her upon her demonstration of her stability on methadone maintenance, without use of alcohol or illegal drugs, for a period of no less than six months.

R.M. had limited contact with DYFS after his arrest in July 2005. DYFS arranged for an evaluation of R.M. by Dr. Perdomo while R.M. was completing service of his sentence in a halfway house. His diagnoses were: poly-substance dependence, "possibly" in remission; and personality disorder, not otherwise specified, with narcissistic and antisocial characteristics.

Dr. Perdomo concluded that R.M. was a "rather immature individual[,] who may lose control under emotional stimulation" and was in need of parenting classes and long-term individual therapy. In Dr. Perdomo's opinion, even with those services, R.M. would have problems parenting a child with a history of medical fragility and was not "a viable primary caretaker."

R.M. had no contact with J.M. after July 2005. Although he had told Dr. Perdomo he would complete service of his sentence in the halfway house in October 2006, he did not contact DYFS or the child after his release. According to the records maintained by the Department of Corrections, R.M. was not reincarcerated until February 2, 2007. Although he was confined at the time of trial, arrangements were made for him to attend.

R.M. did not testify and offered no explanation for his failure to contact DYFS or visit J.M. when he was not confined.

R.M. had no plan for J.M.'s care other than placement with his sister, M.M. DYFS determined that J.M. could not be placed with M.M. because of her prior history. M.M. previously had assumed guardianship of a relative's child, which she relinquished by leaving the child at a DYFS office. The trial court denied R.M.'s request to present his sister's testimony to rebut DYFS's reasons for concluding she could not care for J.M.

The trial court's decision to terminate E.C.'s parental rights was based on her addiction, which harmed the child, her inability to address her addiction even with the reasonable assistance provided by DYFS, and the absence of a bond between mother and child. The court found that J.M. suffered harm, withdrawal symptoms, because E.C. used methadone during pregnancy. Recognizing that E.C.'s methadone was prescribed, the court determined that a woman using heroin or on methadone maintenance should find out about the risks to a child before becoming pregnant and opt to avoid that harm if the risks are great. The court also found harm based on E.C.'s failure to rehabilitate herself, despite reasonable efforts by DYFS, and her continued need for an indefinite period of time to become stable in her recovery. The court concluded that her need for an indefinite recovery period continued to endanger J.M.'s health and development by preventing E.C. from providing the stability, parental attention and permanency J.M. needed. Because J.M. had not developed a bond with E.C., the court determined that termination of his mother's parental rights would not do more harm than good.

The court's termination of R.M.'s parental rights was based on the father's consistent and continued failure and inability to care for J.M. Although DYFS did not provide services to R.M., the court concluded that DYFS was unable to assist R.M. due to his incarceration and his own failure to contact DYFS upon his release. The court further concluded that termination of R.M.'s parental rights would not do more harm than good, because the child had no relationship or bond with R.M.

"[A] reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." P.P., supra, 180 N.J. at 511. "[T]he trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Even where a parent alleges error based on implications drawn from the facts, we defer unless the trial court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Our review of this record in accordance with the foregoing standards convinces us that there is no adequate basis for us to disturb the trial court's decision to terminate the rights of either R.M. or E.C.

Termination of parental rights requires clear and convincing evidence of the following:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [ N.J.S.A. 30:4C-15.1a.]

These four statutory criteria "are not discrete and separate . . . [but] provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

The harm required by paragraph one "involves the endangerment of the child's health and development resulting from the parental relationship." Ibid. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. "That requirement is reinforced by the second prong of the statutory standard, which focuses on the parent's ability to overcome the harm to the child." Id. at 352 (finding that the child's symptoms of withdrawal, coupled with her mother's failure to provide continuing care or take measures to help the child, met the first prong of the statutory test). Evidence that supports one of these prongs may support the evidence that supports the other "as part of the comprehensive basis for determining the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Paragraph two of the statute requires a showing that the harm "continue[s] because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348.

Its focus is "on conduct that equates with parental unfitness." D.M.H. supra, 161 N.J. at 379. The State may establish the requisite continued harm addressed in paragraph two in two ways: evidence that the parent has not cured the initial harm and is unable to continue a parental relationship without recurrent harm that endangers the health, safety, or welfare of the child; or evidence "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49 (explaining N.J.S.A. 30:4C-15.1a(2)). "[T]he second prong may be met by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care . . . ." Id. at 353.

In this case, the trial court found that J.M. was harmed by his relationship with E.C., within the meaning of paragraph one of the statute, because J.M. suffered symptoms of withdrawal from methadone after his birth and was unable to provide a safe and stable home during the twenty-three months following the child's birth. That finding is amply supported by the record.*fn3

The trial court's conclusion that withdrawal is a "harm" within the meaning of the statute is also consistent with precedent. The Supreme Court has held "that a child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of [the] mother's substance abuse during pregnancy has been harmed . . . and that [the] harm endangers the child's health and development." K.H.O., supra, 161 N.J. at 349.

We need not endorse the trial court's conclusion about the duty a woman taking heroin or methadone owes to a child yet not conceived to conclude that J.M. was harmed by his mother's addiction. As a consequence of E.C.'s need for methadone, prescribed or otherwise, J.M. suffered from tremors after his birth, needed medication to address the symptoms of withdrawal, was deemed to be "medically fragile" and required specialized care for several months, which neither parent could provide. That harm is attributable to the parental relationship. Id. at 347. Blameworthiness is not determinative. In a termination case, the best interests of the child, not fault and punishment, are at issue. Id. at 350-51.

This court previously considered a case involving an infant who suffered symptoms of withdrawal apparently attributable to the mother's use of prescribed methadone. N.J. Div. of Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 528-29 (App. Div. 2006). Although the court reversed the order of termination on the ground that the termination proceeding, held only six months after the child's birth, was "unjustifiably rushed," we did not conclude that the child was not harmed within the meaning of N.J.S.A. 30:4C-15.1a(1). Id. at 538; see also P.P., supra, 180 N.J. at 539-40 (addressing termination in a case involving two children who suffered withdrawal symptoms at birth; the mother was participating in methadone maintenance during the second pregnancy and, although the mother admitted heroin use within days of the birth, the infant tested positive for methadone, not heroin).

The trial court also found that J.M. would continue to be endangered by the parental relationship with E.C. because she had not addressed her addiction and remained unwilling or unable to provide a safe and stable home for the child while the delay of permanent placement added to the harm. That finding was amply supported by the record. Although E.C. eventually made significant progress toward achieving stability on methadone, she had little or no success until after DYFS decided to seek termination of her parental rights more than a year after J.M.'s removal from her custody. According to the expert testimony most favorable to E.C., a period of stability of at least six months would be required before she could be considered sufficiently stable to care for J.M. Due to E.C.'s acknowledgment of alcohol consumption weeks before the trial, which was inconsistent with the requisite stability, the six-month period had just commenced. That period overlapped with the period during which J.M. could develop a bond with a primary caretaker, but E.C., due to her failure to achieve stability on methadone, was not available to J.M. to fulfill that need or otherwise care for the child.

R.M., like E.C., endangered the health, safety and well being of J.M. by failing to provide care for or take measures to help the child after he was born suffering from withdrawal.

K.H.O., supra, 161 N.J. at 352; see ibid. (stressing that the importance of measures taken by the parent "to foster an environment leading to normal child development"). As the trial court found, after gaining leave to serve a portion of his sentence for drug crimes in a halfway house and being released from that program, R.M. did not contact DYFS to seek services, as directed by the court, or make any effort to see J.M. By the time of trial, R.M. was re-incarcerated. During the twenty-three months of J.M.'s life, including periods during which he was not confined, R.M. had not made any effort to care for the child and twice became wholly unavailable because of conduct subsequent to J.M.'s birth that resulted in incarceration. See D.M.H., supra, 161 N.J. at 379 (noting that a parent's withdrawal of "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child.").

The Supreme Court's decision in P.P. is instructive. In that case the parents entered drug treatment programs near the time that DYFS filed a guardianship complaint and about one year after the children were removed from their custody following the birth of their youngest child, who tested positive for methadone. 180 N.J. at 499-500, 512. Although the parents "were persisting in their rehabilitation efforts at the time of trial approximately ten months later," neither had completed the programs or was in position to provide a stable home for the children. Id. at 512. The evidence did not establish how long it would take the parents to be in a position to meet the children's needs. Ibid.

On those facts, the Supreme Court held:

The trial court's finding under the statute that "[t]he parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm," N.J.S.A. 30:4C-15.1a(2), will not be disturbed on this record. [Ibid.]

Following P.P., we see no basis for disturbing the trial court's findings: J.M. was and continued to be harmed by the parental relationship with E.C. and R.M.; the parents remained unable or unwilling to provide a safe and stable home; and the harm of their unavailability to nurture and care for the child would be increased by further delay of permanent placement.

E.C. and R.M. argue that DYFS failed to make the diligent efforts required by N.J.S.A. 30:4C-15.1a(3) to reunite them with J.M. and provide the court with alternatives to termination. The arguments lack merit.

After J.M. no longer required specialized care at Hudson Cradle, DYFS successfully placed him with his maternal grandmother. He remained in her care until she became too ill to continue providing for him. Although the grandmother was invited to notify DYFS when she was able to resume the responsibility of caring for J.M., she never did.

With assistance from DYFS, E.C. maintained regular contact with her children. Also with assistance from DYFS, E.C. attended, without success, two detoxification programs and, then, for a period of several months, left the State of New Jersey. On her return, DYFS arranged for E.C. to participate in an intensive methadone maintenance program that included individual and group therapy, drug screening, relapse prevention and parenting classes. Nothing that was recommended went undone. The trial court found that DYFS was providing all of the treatment, other than Alcoholics Anonymous or Narcotics Anonymous, recommended for E.C. by Dr. Johnson through Spectrum's intensive methadone maintenance program. The court also found that E.C. required no assistance from DYFS to participate in Alcoholics Anonymous or Narcotics Anonymous. Diligent efforts require no more than reasonable "attempts . . . to assist the parents in remedying the circumstances and conditions that led to the placement . . . and in reinforcing the family structure." N.J.S.A. 30:4C-15.1c; D.M.H., supra, 161 N.J. at 386-91 (discussing the efforts required).

With respect to R.M., DYFS could not reasonably provide services to him while he was in custody. As the trial court found, R.M. was responsible for DYFS's inability to provide services to him upon his release. The trial court directed R.M. to contact DYFS when no longer confined, but he did not comply.

The trial court's findings on diligent efforts are adequately supported by the record.

The record also provides adequate support for the trial court's conclusion that termination of E.C.'s and R.M.'s parental rights would not do more harm than good. J.M. was not bonded with either parent. While the child was too young to have developed a bond with his foster family, J.M. was at an age where he could establish a bond if permitted to build upon the good relationship he enjoyed with the foster parent who had become his primary caretaker and wanted to adopt him. The good, which outweighed the harm of termination, was the opportunity for permanency that neither parent was able or willing to provide at the time of trial or at a future date that could be determined with any certainty. See P.P., supra, 180 N.J. at 513. This is not a case in which there is any evidence that the foster parent has wavered from the plan to adopt or that either parent has turned their life around. See ibid.; J.N.H., supra, 172 N.J. at 479.

Because the trial court's decisions on termination are based on a proper application of the law and factual findings that are supported by substantial, credible evidence in the record, we affirm.

R.M. and E.C. argue, for the first time on appeal, that DYFS records admitted into evidence improperly include entries that were not made at or near the time of the caseworker's observations. Because neither E.C. nor R.M. present any argument demonstrating a relationship between the entries they deem inadmissible for failure to comply with N.J.R.E. 803(5) and the court's decision to terminate their respective parental rights, neither establish plain error. R. 2:10-2.

R.M. argues that the court erred in precluding him from presenting the testimony of his sister M.M., which he offered to rebut DYFS's finding that J.M. could not be placed with her. Even if we were to assume that it was error to exclude M.M.'s testimony, that error could not have had any impact on the trial court's decision to terminate R.M.'s parental rights. R. 2:10-2. Because J.M.'s adoption by his foster parent was likely, kinship legal guardianship was not available as an alternative to termination. See P.P., supra, 180 N.J. at 512-13.

E.C. argues, for the first time on appeal, that J.M. should have been placed with D.R. and S.R. and that post-adoption visitation between the children should resume immediately. This argument, not raised below, lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).


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