December 23, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.T. AND G.M., DEFENDANTS-APPELLANTS,
IN THE MATTER OF THE GUARDIANSHIP OF S.M., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Divison, Family Part, Sussex County, Docket No. FG-19-20-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2008
Before Judges Parrillo, Lihotz and Messano.
Defendants S.T. and G.M., respectively the mother and father of S.M., appeal from the February 25, 2008 order of the Family Part that terminated their parental rights and awarded the Division of Youth and Family Services (D.Y.F.S.) guardianship of S.M. in anticipation of his adoption. Both defendants contend that D.Y.F.S. failed to marshal clear and convincing evidence as to each of the four prongs of the statutory standard set forth in N.J.S.A. 30:4C-15.1(a). D.Y.F.S. and S.M.'s law guardian counter by arguing that the trial judge correctly found the evidence was sufficient and properly terminated defendants' parental rights.
We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
S.T. was seventeen years old when S.M. was born on December 20, 2000. Throughout much of the relevant time immediately preceding D.Y.F.S.' initial involvement with the family, S.T. resided in a home in Newton owned by L.W., G.M.'s mother, along with G.M., and K.W., L.W.'s husband. Throughout 2003 and 2004, the local police were frequently called to respond to complaints of physical altercations between members of the household or allegations of alcohol or drug abuse. L.W. on one occasion was charged with stabbing K.W. in the back with a screwdriver. G.M. left the home, L.W. and K.W. became estranged, and thereafter S.T. and K.W. became paramours, residing together in a different apartment with S.M. However, complaints of domestic violence now between K.W. and S.T., and substance abuse by both, continued, and further police intervention was a regular occurrence. On November 3, 2005, D.Y.F.S. received an anonymous call that one day earlier, S.T. was seen dragging S.M. down the walkway of their home while the child screamed and cried. After also reporting regular incidents of domestic violence and substance abuse in the home, the caller indicated that an ambulance had arrived earlier in the day and removed S.T. for reasons unknown. D.Y.F.S. investigated, determined charges of abuse or neglect were unfounded, but opened a case for the purpose of monitoring the family and providing services.
During this time, D.Y.F.S. obtained S.T.'s medical records which revealed a number of recent hospital admissions during which S.T. had complained of "blacking out," had reported to the hospital with alcohol on her breath, and had left the hospital against medical advice. Home visits that D.Y.F.S. made during these months were greeted with hostility by S.T. and K.W. S.T. underwent a substance abuse evaluation on November 30, 2005 and was found to be "alchohol abusive," after which D.Y.F.S.' attempts to obtain urine samples or engage S.T. in counseling were often frustrated. K.W. continued to refuse evaluation. While most of the service providers found S.M. to be in good physical health and indicated that S.T. was meeting the child's basic needs, D.Y.F.S. obtained an evaluation of S.M. that indicated he might suffer from possible developmental delays and needed further evaluation. Although D.Y.F.S. believed S.M. should remain in S.T.'s care at the time, on March 1, 2006, it filed a complaint and order to show cause seeking supervision and investigation. The court's order granting the order to show cause set March 24, 2006 as the return date.
Linda Pumphrey, the D.Y.F.S. caseworker, testified at trial as to the circumstances regarding S.M.'s removal from the home before that return date. On March 22, 2006, D.Y.F.S. was notified that S.T. and K.W. attended a substance abuse evaluation with S.M., and that both adults were intoxicated. D.Y.F.S.' caseworkers responded, interviewed S.T. and K.W., and concluded an emergency removal of S.M. was necessary. D.Y.F.S. filed an amended complaint the next day seeking custody of S.M. and on March 24, the judge entered an order granting the relief. S.M. was placed in foster care where he has remained since.
D.Y.F.S. referred S.T. for parenting classes, intensive inpatient substance abuse treatment at Sunrise House, outpatient treatment thereafter, and anger management counseling. S.T. completed parenting classes and a twenty-eight day intensive substance abuse program in May 2006. Pumphrey testified that S.T. had inconsistently engaged in an intensive follow-up outpatient program since May 2006, attending only ten sessions throughout the year. However, a supplemental letter sent in August 2007, shortly before the October trial commenced, indicated that S.T. had improved her outpatient program attendance. In the interim, in November 2006 and again in January 2007, S.T. suffered relapses by using cocaine and alcohol.
The November incident came to light when S.T., visibly intoxicated and crying, reported to the police that she had been raped. In fact, after investigation, the police determined that S.T. had fabricated the story. On December 20, 2006, she was charged with filing a false report after admitting the same to police. Following her January 2007 use of cocaine, S.T. was admitted to a short-term inpatient program at St. Clare's Hospital. S.T. also refused to submit to at least one urine screen thereafter.
In February 2007, G.M. was located at the Keogh-Dwyer Correctional Facility in Newton. He had been living in Virginia, was arrested in that state for a driving offense, and transported back to New Jersey to face open charges of aggravated assault. G.M. told the D.Y.F.S. caseworker who interviewed him at the jail that he was arrested because of a "fist fight" and that he had not seen his son for a year. In fact, G.M. had not seen his son since 2004.
Pumphrey further testified that since September 2006, S.T. consistently participated in psychological evaluations and counseling sessions with an assigned therapist, Melissa Ciottone. Ciottone also supervised visitation between S.T. and S.M. and regularly furnished reports to D.Y.F.S. At trial, Pumphrey indicated that based in large part upon these reports, D.Y.F.S. concluded that S.T. had not made any significant progress in therapy and decided to seek guardianship of S.M. In March 2007, the Division filed another complaint naming S.T. and G.M. as defendants and seeking to terminate their parental rights.
Pumphrey also revealed that S.M. had made allegations to his foster mother and his therapist, Dr. Katherine Hickey, that S.T. and K.W. touched him in his private area. Hickey and the foster mother noted changes in S.M.'s behavior including a rise in violence and frequent bed-wetting. Pumphrey testified that D.Y.F.S. regarded the charges of sexual abuse by either S.T. or K.W. as unfounded.
Pumphrey noted that Hickey's reports described S.M. as guarded in his therapy, angry at S.T., and increasingly attached to his foster mother. In the five or six times that she herself had observed visitation sessions, Pumphrey believed the interaction between S.T. and S.M., while sometimes appropriate, at other times, revealed problems. S.M. became frustrated; he would usually walk past his mother, without any gesture of affection, to see what toys she had brought for him; and S.T. had ongoing difficulty setting boundaries and saying no to the child. S.M. no longer indicated that he wished to return home to live with S.T.
Pumphrey testified that S.M. had grown less withdrawn since being removed from S.T.'s care, was now able to "feed himself," and responded to other people to a greater degree. Pumphrey opined that S.M. was attached to his foster mother and that all of his needs were being met by his foster family at the time of trial.
As to G.M., Pumphrey testified that he had not seen S.M. since 2004, when S.M. was three or four years old. After performing a psychological evaluation and criminal background check on G.M., D.Y.F.S. concluded that he was not an appropriate caretaker for S.M. As of trial, G.M. remained incarcerated on pending aggravated assault charges.
Hickey, S.M.'s clinical psychologist, also testified at trial that when she first met S.M., he was defensive and refused to speak with her. She confirmed that S.M. had alleged sexual abuse by K.W., but she also noted that much of the information she acquired about the abuse allegations came from S.M.'s foster mother. Hickey opined that S.M. should not be reunified with S.T. because the child had an ambivalent attachment to his mother, and this ambivalence combined with his poor verbal skills might cause him to not report future incidents of abuse. During cross-examination, Hickey admitted that she had no information on G.M. and could not really opine as to his parental fitness.
Dr. Frank J. Dyer, a psychologist, also testified on behalf of D.Y.F.S. regarding evaluations he made of both S.T. and G.M., and bonding evaluations he made between S.M., his biological parents, and his foster mother. Dyer opined that G.M. was unable to be an appropriate psychological parent to S.M. because he was narcissistic, angry, resentful, irresponsible, unreliable, evasive, and had total contempt of the law, all of which implied a negative psychological profile for parenting skills. Dyer noted that S.M. and G.M. lacked any parental bond because the child did not even know his father as a result of his long absence.
Dyer found S.T. was the victim of sexual abuse as a child and has a long history of depression with instances of suicidal thinking. Dyer also concluded that S.T. demonstrated extremely limited judgment and impulse control and had little capacity to foresee consequences of her actions. He pointed to her relapses with alcohol as evidence of these traits. He also expressed great concern about S.T.'s ability to sustain sobriety and opined that S.M. would be at risk of neglect if S.T. were to continue drinking. Dyer's overall opinion was that S.T. did not have the capacity to parent.
On the other hand, Dyer believed that S.M. was developing a strong bond with his foster mother, that she was becoming the child's psychological parent, and that she could properly nurture S.M. Dyer supported adoption as being in S.M.'s best interests.
Ciottone testified that she had individually counseled S.T. and supervised her visitation with S.M., having completed sixty therapy sessions with S.T. as of trial. Ciottone opined that S.T. was an unreliable historian who had difficulty sorting out past from present, suffered from post-traumatic stress disorder, flashbacks, and nightmares. She referenced S.T.'s self-destructive nature and inability to respond to crises evidenced by her reliance on alcohol in amounts that could prove fatal.
Several members of the Franklin Borough police department testified regarding an incident involving S.T. that occurred while the trial was ongoing. On November 12, 2007, the police responded to a call of an alleged sexual assault. When they arrived at the scene, they found S.T., visibly intoxicated and alleging she had been sexually assaulted after she had passed out. S.T. was taken to the hospital and subsequent tests revealed her blood alcohol level to be .428.
S.T. testified in her own behalf on December 18, 2007. She conceded that she had been intoxicated on occasions while S.M. was in her care, and admitted being intoxicated on the afternoon of the November 2007 call to the police. She testified that she had complied with D.Y.F.S.' referrals, including inpatient drug programs, outpatient counseling, and supervised visitations. S.T. claimed she was taking medication for depression and seizures, and that the stress of S.M.'s removal from her care caused her to relapse into alcohol and substance abuse.
G.M. also testified at trial. He acknowledged that S.M. was out of his care since 2004, and that he had relocated to Virginia. G.M. claimed that he did not learn of the child's removal from S.T.'s care until he waived extradition and returned to New Jersey to face his pending criminal charges. He further indicated that he had no substance abuse problems, had not been convicted of any crimes, and had always been employed. G.M. indicated that he believed S.M. could be reunited with him and his girlfriend in Virginia after resolution of the current criminal charges.
G.M. and S.T. presented Dr. Paul Fulford as their joint expert witness. Fulford testified that no bond existed between G.M. and S.M., though after defendant was released from custody, visitation should be increased. As to S.T., Fulford concluded that she was capable of parenting S.M., but that she would require customized services and would have to remain abstinent from alcohol and drugs for at least a year before reunification would be appropriately considered.
Defendants' case concluded, but at a February 5, 2008 hearing, the judge permitted D.Y.F.S. to "supplement" its case against S.T. Police officer William Ryan Churchwell of the Franklin Borough police department testified that on December 27, 2007, he and other officers responded to S.T.'s apartment building because a 9-1-1 caller had hung up without providing any information. He found defendant, once again intoxicated, and when he sought to remove her for medical treatment, she assaulted the officers. He also found prescription medication in defendant's purse, Trazadone, for which S.T. lacked any prescription.
Over defendant's objection, the judge also permitted D.Y.F.S. to supplement the record with Ciottone's final report, dated January 29, 2008. That document detailed a phone conversation S.T. had with Ciottone on the night of January 17, 2008 in which defendant "was in a state of crisis and evidenced suicidal and homicidal ideations . . . ." Ciottone called the Franklin Borough police department who responded to defendant's apartment, found her to be again intoxicated, and once again removed her for emergency medical assistance. Ciottone opined that defendant needed inpatient counseling immediately due to her "decompensating" condition.
In an oral decision entered on the record February 25, 2008, the judge extensively reviewed the documentary evidence and testimony. He concluded that D.Y.F.S. had demonstrated by clear and convincing evidence that S.T.'s relationship with S.M. had "endangered [the child's] safety, health and development, and w[ould] continue to do so for far beyond the time the Court [wa]s willing to prognosticate." The judge rejected any proof regarding sexual abuse of S.M., instead focusing on S.T.'s psychiatric and substance abuse issues. In particular, he noted S.T.'s alcoholism was "the overriding and enveloping issue," finding it to be a continuing "source of neglect."
The judge also determined that D.Y.F.S. had demonstrated S.T. was "unable to overcome the harm to [S.M.]," that she was "unable to provide a safe and stable home, and that the delay in permanent placement w[ould] add to that harm." Citing Fulford's testimony, the judge noted it would be more than a year before reunification could be contemplated, and, given the time that S.M. had already spent out of the home, further delay was detrimental. Citing Hickey's testimony, the judge noted that S.M. "d[id] not feel completely safe with his mother" and had an "ambivalent attachment to [S.T.]." The judge also noted Dyer's opinion that even after a year of sobriety, S.T. might be able to care for herself but could not provide for S.M.'s care.
As to G.M., the judge found D.Y.F.S. had demonstrated that S.M.'s "safety, health and development have been and will continue to be endangered by the parental relationship," noting defendant's disappearance from his son's life and his "lack [of] credibility when it comes to the reasons for leaving New Jersey." The judge noted G.M. had not "reach[ed] out to his son for personal contact or even telephonic contact once he left."
Citing Dyer's evaluation, and noting Fulford's testimony "len[t] no support to [G.M.'s] position," the judge concluded that G.M. was "unable to provide a safe, stable, secure, nurturing and stimulating home environment for [S.M.]." The judge also noted G.M.'s testimony, i.e., that he "would not want D.Y.F.S. services," despite the fact that S.M. was a "special needs child, totally isolated from his father," and concluded that both the first and second statutory prongs had been met as to G.M.
The judge reviewed the services D.Y.F.S. had provided to S.T., as well as the placement alternatives it investigated. He concluded that D.Y.F.S. "made reasonable efforts to provide services to these [d]efendants." As to G.M., the judge noted his absence from the scene and his incarceration made those efforts "extremely limited." As to S.T., the judge noted that despite twenty-seven months of services, "circumstances [have] not been ameliorated, but  are spiraling downward." He found adoption of S.M. by his foster mother was "the only viable plan."
Noting that Dyer had indicated S.M. would "suffer emotional and psychological harm from the loss of [S.T.]," the judge nonetheless observed that Dyer himself did not think the child's attachment to S.T. was "necessarily healthy," and that "by all other accounts, the bonding with the foster mother  continued to get stronger and the bond with [S.T.] weaker." The judge determined that "[i]t [wa]s crystal clear that termination will not do more harm than good," referencing the fourth statutory prong. He entered the order under review.
We begin our review noting some basic principles. In reviewing the factual findings and conclusions of a trial judge, the appellate court is "obliged to accord deference to the trial court's credibility determination and the judge's 'feel of the case' based upon his  opportunity to see and hear the witnesses." Div. of Youth and Family Services v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13, (1998)), certif. denied, 190 N.J. 257 (2007). However, while deference to a trial court's findings is appropriate, where a fact-finding error is alleged in a termination of parental rights case, "the traditional scope of review is expanded." Div. of Youth and Family Services v. M.M., 189 N.J. 261, 279 (2007) (citations omitted). Reversal is required if the trial judge's findings were "so wide of the mark that a mistake must have been made." Ibid.
When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:
(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-15.1(a)(1) through (4); In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
These four prongs "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
The first prong involves inquiry into whether there has been "endanger[ing] of the child's health and development resulting from the parental relationship," and whether there will be future harm to the child's safety, health or development if the parental relationship is not terminated. Ibid. The focus of the inquiry is not necessarily on a "single or isolated harm, or past harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Id. at 348.
S.T. contends that D.Y.F.S. failed to prove that any actual harm came to S.M. as a result of her conduct and that the trial judge erred by relying extensively upon the presence of domestic violence against her to support his conclusion. She relies upon our decision in Div. of Youth and Family Services v. S.S., 372 N.J. Super. 13, 28 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), in this regard. G.M. contends that any harm suffered by S.M. was the result of S.T.'s conduct, not his, and therefore D.Y.F.S. failed to sustain its burden as to him.
In S.S., we concluded that D.Y.F.S. had failed to demonstrate harm to the child required under the first prong simply because defendant remained in an abusive relationship with the child's father, and the child may have witnessed some of these incidents. S.S., supra, 372 N.J. Super. at 28. This case, however, is much different. As the judge noted, the record was replete with numerous specific instances of S.T.'s conduct that harmed S.M., including her frequent bouts of intoxication, the incidents of domestic violence, and her failure to address her psychological and general medical conditions. The expert testimony regarding the effect of this upon S.M. was not significantly disputed.
As to G.M., the judge concluded that he lacked credibility and that he had abandoned his child both physically and emotionally. This was not the result of S.T.'s conduct. S.M. did not know his father because of G.M.'s willful absence from the child's life, and we find no merit in defendant's contention in this regard.
The second prong contemplates parental unfitness and for termination to occur, it requires the conclusion that the parent is "unwilling or unable to eliminate the harm" that had initially endangered the child's health, safety and development. N.J.S.A. 30:4C-15.1(a)(2). The potential further harm caused by a "delay in permanent placement" is also a consideration under the second prong. Ibid. Lastly, under this prong, D.Y.F.S. must prove that "the harm is likely to continue" as a direct result of the parent's inability or unwillingness to eliminate the harm. K.H.O., supra, 161 N.J. at 348.
S.T. argues that the fundamental focus of the second prong inquiry is whether the parent can become fit in time to meet the needs of the child. In Re J.C., 129 N.J. 1, 10 (1992). She contends that the evidence failed to demonstrate her inability to parent S.M. if services continued to be provided. G.M. contends that the evidence failed to demonstrate that he was unable to adequately parent S.M. when he was released from prison. We find both arguments unavailing.
The judge specifically relied upon S.T.'s proven history of frequent intoxication, her repeated relapses despite inpatient and outpatient treatment, and the fact that even during the trial, the problems associated with her addiction had not lessened, but rather had become worse. He credited Dyer's expert opinion that S.T. was at risk to relapse again and that even if she were ultimately able to care for herself, which she presently cannot, that she would not be able to properly care for S.M. because the added stressors only compounded the risk to relapse.
As to G.M., we recognize that it is inappropriate to equate a parent's incarceration with parental unfitness. Div. Of Youth and Family Services v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006). "Nonetheless, [i]imprisonment necessarily limits a person's ability to perform the 'regular and expected parental functions,' [and] [i]t also may serve to frustrate nurturing and the development of emotional bonds and as a 'substantial obstacle to achieving permanency, security, and stability in the child's life.'" Ibid. (internal citations omitted). Any analysis as to parental fitness must include a "broad inquiry" into the "nature of the crime causing incarceration[,]" the "potential for rehabilitation" and the "length of the custodial term." Ibid.
In this case, the judge noted the violent nature of the crime with which G.M. was charged, the fact that it was not likely to reach trial for some time, and the psychological evaluation performed by Dyer which indicated that if convicted, G.M.'s rehabilitation would be problematic given his personality traits. Considering all of this in the context of S.M. having no existing bond with G.M., the judge properly concluded that G.M. would not be able to overcome the harm to S.M. in a reasonable amount of time.
The third prong requires D.Y.F.S. to make "reasonable efforts" to assist the parents in correcting or eliminating the circumstances that caused the harm and consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3). The reasonableness of D.Y.F.S.' efforts for reunification "is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).
S.T. contends that D.Y.F.S. failed in this regard. In particular, she argues that her referral to Ciottone by D.Y.F.S. with the prospect that her statements to the therapist could be used against her was the provision of "inverse services" to defendant. S.T. contends the therapist's subsequent testimony at trial violated the privilege contained in N.J.R.E. 505. G.M. argues that D.Y.F.S. simply failed to provide any services to him because he was incarcerated.
The judge enumerated the long list of services provided to S.T. over the years since D.Y.F.S. first had contact with her family. These were directed toward D.Y.F.S.' original goal of maintaining the family unit and, after S.M. was removed from the home, reunification. He examined all the potential alternative resource parents. It is beyond serious question that D.Y.F.S. made reasonable attempts on both fronts. G.M.'s argument is unpersuasive in light of the judge's specific finding that defendant had absented himself from his son's life and was only now claiming he wished to be involved. That, combined with G.M.'s current and anticipated future incarceration made it unlikely that the provision of services, essentially starting from square one, could reasonably accomplish the necessary results.
As to the contention that requiring S.T. to attend counseling with Ciottone and using the disclosures in those sessions against her, was the provision of "inverse services," defendant relies on Div. Of Youth and Family Services v. B.W., 157 N.J. Super. 301 (Juv. & Dom. Rel. Ct. 1977). Defendant's reliance upon dicta in the case is not persuasive, nor is the decision binding upon us.
In B.W., D.Y.F.S. attempted to terminate a mother's parental rights to the two surviving children of an accidental fire that killed their two siblings and occurred when the children were left alone by defendant. Id. at 302. The judge concluded that D.Y.F.S. failed to meet its burden of proof, somewhat parenthetically noting that the provision of supportive services to assist defendant "c[ould not] be inverted and used as supporting evidence for the dissolution of [the] famil[y]." Id. at 309.
Here, there was significant evidence, other than Ciottone's testimony and reports, to support the judge's conclusions. Ciottone fully explained the limits upon the confidentiality of S.T.'s disclosures beforehand, and defendant executed a waiver for release of the information. There is nothing in the record to support a conclusion that S.T. failed to understand the implications or that she was otherwise coerced into signing the form. Moreover, the logical extension of S.T.'s argument is that while attempting to preserve the family by providing services as it did in this case, D.Y.F.S. would at the same time be hindered in taking the necessary steps to assure the health, safety and welfare of its charges if further information is revealed in the process. Such a result would be contrary to the express legislative purpose of the Division's enabling statute. See N.J.S.A. 9:6-8.8 (providing "[t]he safety of the children served shall be of paramount concern"); State v. Snell, 314 N.J. Super. 331, 338 (App. Div. 1998) (noting in another context, "[t]he protection of children from injury, harm, or abuse by means of the statutory reporting requirement may not be blocked or hindered by the assertion of a blanket testimonial privilege").
Lastly, the statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court must inquire into the child's bond with both biological and foster parents. "[A]fter considering and balancing the two relationships," the question becomes will "the child  suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of h[is] relationship with the foster parents[?]" K.H.O., supra, 161 N.J. at 355. Answering the question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. This prong does not and "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.
We reject both defendants' arguments that the judge failed to apply the appropriate standard of analysis to this prong, or that D.Y.F.S.' proofs were deficient on this score. As we noted above, the judge scrupulously reviewed the expert testimony in the case, and reached his conclusion based upon the evidence he found credible and persuasive. We find no reason to overturn the result.
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