March 12, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
K.V.N. AND D.D., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF S.W. AND A.W., MINORS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-53-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2009
Before Judges Lisa, Reisner and Sapp-Peterson.
D.D. and K.V.N. (collectively, defendants) appeal from a judgment of the Superior Court, Chancery Division, Family Part, entered on January 30, 2008, terminating their parental rights to their biological children: S.W., born November 26, 1003, and A.W., born November 3, 2005. The judgment also granted guardianship of the two children to the Division of Youth and Family Services (Division). We affirm.
The evidence presented at trial disclosed that the Division first became involved with the family in April 2005 when it received two referrals. The first referral, received April 4, 2005, alleged that on March 15, 2005, K.V.N. abused a child from another family. A second referral, received April 22, 2005, alleged that S.W., who was born HIV positive, missed a medical appointment. The Division investigated this complaint but found no basis to intervene. On July 11, 2005, the Division responded to another referral reporting that D.D., who was also HIV positive, was twenty weeks pregnant, and was not administering S.W.'s HIV medication. During this investigation, the Division learned that D.D. was homeless and was unable to medicate S.W. because the medication required refrigeration and the friend with whom she was living did not allow her access to the home in the friend's absence. The Division conducted an emergency removal of S.W. when D.D.'s godmother, with whom D.D. was temporarily living, advised the Division that she had been unable to retrieve S.W.'s medication despite efforts to do so.
S.W was later returned to D.D. after she secured housing at a local motel. Welfare paid for D.D's stay at the motel until she found housing at an apartment. The Division retained care and supervision of S.W.
In addition to paying for D.D. and the children's stay at a motel, the Division provided mental health services to D.D. When D.D. was hospitalized for the birth of A.W., S.W. resided with his maternal grandmother, C.D. The Division once again received a report that S.W. was not receiving his HIV medication and another emergency removal occurred. Upon her discharge from the hospital in early November, D.D. and the two children commenced living with D.D.'s maternal aunt, P.T.
One month later, D.D. started to live with her maternal uncle, K.D. The Division provided K.D. with diapers, formula, and a pre-paid cell phone. D.D. in turn continued to receive mental health services from Steininger Behavioral Care Services (Steininger). Additionally, D.D. received assistance from the AIDS Coalition, Salvation Army, Catholic Charities, Board of Social Services, Legal Services, and Cooper Hospital Pediatric Infectious Disease Division. The Division also provided D.D. with bus passes for transportation. Although the Division arranged for S.W. to attend Weisman Medical Daycare to ensure that his medications for HIV would be administered on a daily basis, D.D. at times did not take him to daycare.
On January 23, 2006, D.D. expressed a desire to secure an apartment of her own in the same complex as her uncle because living with him proved to be uncomfortable. Before securing her own apartment, however, D.D. was incarcerated in March. K.V.N., who had not been living with her at this point, was also incarcerated in March. Both parents were released and started living together in April along with the children. During this time, D.D. also learned that she was pregnant with a child fathered by K.V.N.
D.D. and K.V.N.'s living arrangements did not last very long. K.V.N. was incarcerated again but was eventually released in June. D.D. told her Division caseworker that she no longer desired to have contact with K.V.N. because he had stolen checks from her and used the checks to buy drugs. She later reported that he stole her bank and food cards. D.D.'s paternal uncle advised the Division that D.D. and the children could no longer live with him. The children started living once again with D.D.'s maternal aunt, P.T., but D.D. was not satisfied with this arrangement because she was experiencing visitation problems.
In July, P.T. notified the Division that she preferred that the Division take custody of the children because she wanted no contact with D.D. The Division conducted a home visit and learned that before returning to live with P.T., the children had been sleeping in the park with their parents, who were using crack cocaine. On July 26, D.D. and P.T. signed a case plan in which the two agreed that the children would remain with P.T. In the meeting, D.D. also agreed to continue to seek services from South Jersey Behavioral Health and Steininger, to look for stable housing, and undergo psychological and substance abuse evaluations. D.D. did not attend her first scheduled evaluation on July 31, 2006. An August 1 criminal background check revealed that P.T. had a 2001 narcotics charge. The Division worker told P.T. that in order for her to keep the children, a waiver would need to be submitted. Finally, on August 11, S.W. was placed at Dooley House and A.W. was placed in a Special Home Special Provider (SHSP) foster home.
The Division contacted P.T. on August 22 to secure proper information for the waiver. P.T. never gave the Division the proper information to complete the waiver. P.T. later informed the Division that she no longer desired to keep the children, as she would be working and would be unable to care for the children. D.D. was told on August 24, 2006 that P.T. would not retain care of the children. D.D. only expressed her desire that the children be placed together. She did not offer the names of other relatives for the children's placement. Both children were placed in Dooley House.
D.D. had tested positive for cocaine during a substance abuse evaluation on August 22, 2006 and was referred to inpatient treatment for substance abuse and counseling. D.D. was subsequently admitted to Hogan House for housing and substance abuse counseling. The program was scheduled for twenty months. However, if D.D. complied with the program, she would be released earlier. Hogan House provided the opportunity for D.D. to move to a housing program sponsored by Welfare. D.D. and her children would be seen weekly by a case manager to monitor S.W.'s medication intake. Hogan House was next door to Dooley House where the children resided. D.D. completed five weeks in the program, after which she was discharged.
On October 3, during a case management review session, D.D and K.V.N. were ordered to submit to psychological evaluations, substance abuse evaluations, treatment, as well as random urine screenings. Although she completed five weeks in the program, D.D. was discharged from Hogan House as she failed to comply with house rules and expectations.
A fact-finding hearing was held on November 16, 2006 before the Honorable Octavia Melendez, J.S.C. Judge Melendez determined that the children, S.W. and A.W., were abused and neglected as: D.D. tested positive for cocaine on August 22, 2006; D.D. did not provide the children with stable housing; K.V.N. was incarcerated and did not provide a plan for the care of the children; S.W. had a life-threatening illness and his parents placed him with individuals who were unaware of his illness. K.V.N. and D.D. were ordered to submit to psychological evaluations, counseling, substance abuse evaluations and treatment, and random urine screenings.
Upon release from jail in December of 2006, K.V.N. did not contact the Division. D.D. also failed to contact the Division from November 22 to January 23, 2007. Additionally, D.D. missed a psychiatric evaluation scheduled for November 30, and a third scheduled psychological evaluation set for December 12. As of January 17, 2007, D.D. tested positive for cocaine and opiates at the time of her admission to Cooper Hospital for a skin infection on January 17.
On February 6, a compliance review hearing was held in which D.D. was ordered to attend a psychological evaluation, psychiatric evaluation, as well as to undergo substance abuse evaluation and treatment. D.D. was also ordered to comply with Steininger and South Jersey Behavioral Health. On February 6, the maternal grandmother's application to care for the children was dismissed based upon her prior aggravated assault conviction and recent release from prison for violation of probation.
S.W. and A.W. remained at Dooley House from August 2006 until February 2007, during which D.D. visited them fifteen times. K.V.N. was present for four of the fifteen visits. D.D. completed a psychological evaluation on February 13, 2007 with Dr. Meryl Udell. The following day, D.D. completed a psychiatric evaluation with Dr. Edward M. Baruch. D.D. completed a second substance abuse evaluation on February 15, 2007. Although D.D. requested an inpatient program, it was recommended that she attend intensive outpatient treatment. D.D. was referred to but later dismissed from the Family First Program when she missed several intake appointments.
On March 19, 2007, the Division learned that both D.D. and K.V.N. were residing at the Water Street Rescue Mission in Lancaster, Pennsylvania. While D.D. and K.V.N. reported that the home was a substance abuse treatment program, the Division contacted the home and learned that it was an emergency shelter and not a substance abuse treatment program.
On April 4, 2007, S.W. and A.W. were placed in their current foster care home. On May 13, both parents were incarcerated for charges of first-degree robbery and possession of a weapon. The Division filed a Complaint for Guardianship for S.W. and A.W. on July 13, 2007. A permanency hearing was held before Judge Melendez on July 23, in which Judge Melendez accepted the Division's plan to terminate the parental rights of D.D. and K.V.N. followed by their adoption. The same day, the court terminated the abuse/neglect litigation. Custody of the two children was continued with the Division under the guardianship litigation.
The Division's expert, Dr. Frank Schwoeri, Ph.D., conducted a psychological evaluation and bonding evaluation of D.D. Dr. Schwoeri also conducted a psychological evaluation and a bonding evaluation of K.V.N. Additionally, he conducted a bonding evaluation with the foster parents. K.V.N. underwent a psychological evaluation with his expert, Dr. Kenneth Goldberg, Ph.D., as well. Dr. Goldberg did not conduct a foster parent bonding evaluation. D.D. did not separately undergo a psychological evaluation by an expert retained by the defense.
At trial, Dr. Schwoeri testified that there was a risk of harm to both children if they were returned to D.D. or K.V.N. In his opinion, the parents were at a high risk of relapse. He indicated that both parents needed to secure housing, become employed, and remain drug-free for a year prior to their being able to parent the children. Dr. Schwoeri also testified that neither parent had a specific plan for reunification with the children, and he noted that both parents were incarcerated at the time of trial. He expressed concerns about S.W. and his foster mother, opining that S.W. would be a challenge "for the best[-]equipped and least vulnerable of parents" and that S.W. "is going to be a handful for anybody." He opined that returning the children to their biological parents "would expose them to further risk of harm due to neglect and inadequate care[,] in addition to compounding their attachment problems by causing another disruption and risking a subsequent one if the parents failed again to care properly for them." Moreover, Dr. Schwoeri opined that it was in the children's best interest to stay with their foster parents and removal of the children from their current home would be harmful to both children and catastrophic for S.W. Finally, Dr. Schwoeri concluded that termination of parental rights would not do more harm than good.
Dr. Goldberg testified regarding K.V.N.'s history of addiction to crack cocaine and incarceration as well as the risk of his proclivity for relapse. In his opinion, K.V.N. needed to be drug-free for six months before the children could be placed with him. He viewed K.V.N.'s plans for the children as general rather than specific. Dr. Goldberg did not render an opinion as to whether termination of parental rights would do more harm than good as he did not conduct a bonding evaluation with the children and their foster parents.
In reaching her decision terminating defendants' parental rights, the judge found that defendants' conduct had endangered the safety, health and welfare of the children with no likelihood that the conduct would change, that they had failed to take the requisite steps to eliminate the harm confronting the children, the Division had undertaken reasonable efforts to assist the parents in their reunification with their children, and that terminating D.D.'s and K.V.N.'s parental rights would not do more harm than good. The present appeal followed.
On appeal, K.V.N. raises the following points for our consideration:
THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FINDINGS CONCERNING THE FOUR PRONGS OF BEST INTERESTS TEST WERE NOT CONSISTENT WITH CONTROLLING STATUTORY CRITERIA.
UNDER THE FIRST PRONG, CLEAR AND CONVINCING EVIDENCE OF "HARM" DID NOT EXIST.
UNDER THE SECOND PRONG, CLEAR AND CONVINCING EVIDENCE OF PARENTAL UNFITNESS DID NOT EXIST.
UNDER THE THIRD PRONG, CLEAR AND CONVINCING EVIDENCE OF "REASONABLE EFFORTS" DID NOT EXIST.
THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" STANDARD THAT WAS CONTRARY TO THE "BEST INTERESTS" TEST UNDER FOURTH PRONG STATUTORY CRITERIA.
THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION ABUSED ITS PARENS PATRIAE POWERS BY REFERRING THE DEFENDANT FOR A "REUNIFICATION" SERVICE WITH THE INTENT TO USE THE SERVICE AS CORROBORATIVE EVIDENCE IN SUPPORT OF ITS COMPLAINT.
On appeal, D.D. raises the following points for our consideration:
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A 30:C-15 AND 30:4C-15.1.
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO HELP D.D. CORRECT THE CIRCUMSTANCES WHICH LED TO S.W. AND A.W.'S PLACEMENT WITH FOSTER PARENTS AND THE COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF D.D.'S PARENTAL RIGHTS.
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF D.D.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD UNDER PRONG NUMBER 4.
We have considered the arguments advanced on appeal in light of the record and we conclude the evidence clearly and convincingly establishes that the best interests of S.W. and A.W., when assessed under the statutory standards set forth in N.J.S.A. 30:4C-15.1(a), warrant termination of D.D.'s and K.V.N.'s parental rights. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). We affirm substantially for the reasons cogently expressed in Judge Octavia Melendez' comprehensive January 30, 2008 oral opinion. We add the following comments.
Parents have a fundamental right to raise their children, which presents concerns of a constitutional nature in any action to terminate that right. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002); See Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 1397, 71 L.Ed. 2d 599, 610 (1982); see also Stanley v. Ill., 405 U.S. 645, 651-52, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972). However, these constitutional protections are not absolute and are tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of J.N.H., supra, 172 N.J. at 471 (citing K.H.O., supra, 161 N.J. at 347).
The balance struck between parental rights and the State's protective interest over the welfare of children is achieved through application of the statutory "best interests of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), now codified in N.J.S.A. 30:4C-15.1. The statute provides:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . . if the following standards are met:
(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.]
The four statutory criteria "are not discrete and separate." K.H.O., supra, 161 N.J. at 348. Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.
Judicial determinations of whether the Division has satisfied the statutory prerequisites to termination of parental rights are fact sensitive. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005). For the trial judge, who sits as the fact-finder, this process involves assessing credibility, which means that the trial judge must sift through the evidence presented, evaluate the demeanor of the witnesses under both direct and cross-examination, consider any potential bias or prejudice of the witnesses, and then arrive at a determination of whether the Division, by clear and convincing evidence, has met the four-part test. See N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 274-76 (2004).
On appeal, the factual findings and conclusions of the trial judge are generally given deference, especially "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). As a reviewing court, our task is not to disturb the "'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
In reaching her decision, Judge Melendez considered the requisite statutory factors. With respect to the first prong, she found that both D.D. and K.V.N. had been intermittently homeless, incarcerated and addicted to crack cocaine for more than two years prior to the Division initiating proceedings to terminate their parental rights. The judge stated:
Just prior to the children's removal in August of 2006, [D.D.] and [K.V.N.] were homeless and were sleeping in the park with their children. Their failure to properly administer [S.W.]'s medication placed him at increased risk of harm. [D.D.]'s failure to take the medications required during her pregnancy with [A.W.] placed him at great risk of contracting HIV from his mother.
At times, both [K.V.N.] and [D.D.] disappeared from their children's lives leaving them to be cared for by others. Often people who were unaware of [S.W.]'s life threatening illness. [K.V.N.] has a protracted history of substance abuse. . . .
The original concerns about [D.D.]'s inability to properly administer [S.W.]'s medications were reported by doctors, nurses and social workers involved with the family.
[D.D.] has also failed to follow her own medical regime for treatment of her HIV, mental illness and substance abuse. . . .
[D.D.] and [K.V.N.] have been unable to maintain stable housing, even since their children were taken into the custody of the Division. . . .
Dr. Schwaree [sic] testified that [S.W.] suffers from a reactive attachment disorder. This has been exacerbated by his many placements, institutionalization and, apparent, rejection by his mother. The consequences of [D.D.] and [K.V.N.]'s choices have had a direct and negative impact on the lives of these boys.
[K.V.N.] has never cared for these boys for an extended period of time. [D.D.] suffers from untreated mental illness. From all accounts, [S.W.] continues to be a difficult child to care for. The burden which this would place on [D.D.] and [K.V.N.] seems [i]nsurmountable.
As to the second prong, the record clearly and convincingly demonstrated that defendants have not successfully completed substance abuse programs prior to, before or after the birth of S.W. and A.W. At the same time, the judge noted the foster parents have provided the children with stability.
Currently, [D.D.] and [K.V.N.] are incarcerated. They each have a history of incarceration and hopeless - - homelessness.
[K.V.N.] has been absent for much of the boys['] lives due to multiple lengthy incarcerations.
Despite assistance from the Division, [D.D.] has failed to address her mental illness and substance abuse issues. She was admitted for in-patient treatment at Hogan House, but was discharged for non-compliance. She then discontinued all contact with the Division for a period of several months, only to test positive for cocaine, again, when she resurfaced, P-11.
[K.V.N.] has a lengthy history of substance abuse, which he also failed to address. [K.V.N.] remained incarcerated throughout the FM litigation making it impossible for the Division to provide him with services. He did receive some treatment at My Father's House, but failed to comply by continuing to use crack-cocaine.
Dr. Schwaree [sic] testified that both children would be at risk of harm if returned to the care of [D.D.] or [K.V.N.]. And that both parents are at a high risk for relapse . . . .
By deciding not to participate in drug treatment despite recommendations and diagnosis of cocaine abuse and cocaine dependency, respectively, [D.D.] and [K.V.N.] demonstrated to this [c]court that they are unwilling and unable to eliminate the harm facing their children.
Dr. Schwaree [sic] conducted bonding evaluations between the children and their biological parents, as well as between the children and their current foster parents on behalf of the Division. At the time of the evaluation, [D.D.] had not seen her boys for approximately nine months.
In his report Dr. Schwaree [sic] wrote that [D.D.] quote, "Was, clearly, able to be emotional[ly] attuned and responsive. Given optimal - - given an optimal environment with support and structure, she may be able to meet these boys' needs, at least, when not under stress," end quote . . . .
Unfortunately, [D.D.] has not been able to demonstrate the stability necessary to create such an optimal environment.
In his report, Dr. Schwaree [sic] wrote, quote "While [K.V.N.] appears to have a warm and loving attitude towards his sons, he has either been incarcerated or involved in drug use during most of their lives. In addition, he has not yet established any period of sobriety and reduced risk of relapse outside of the structured environment of jail," P-29.
Dr. Schwaree [sic] testified that in order to consider returning [S.W.] and [A.W.] to their parents, they would both need to obtain housing and employment and remain substance free for, at least, one year. In his report, Dr. Schwaree [sic] noted that returning the children to [D.D.] and [K.V.N.], quote, "Would expose them to further risk of harm due to neglect and inadequate care in addition to compounding their attachment problems by causing another disruption and risking a subsequent one if the parents failed, again, to properly care for them," end quote, P-29.
Dr. Schwaree [sic] testified that both, [S.W.] and [A.W.], need stability . . . . Dr. Schwaree [sic] testified that given the circumstances, the foster mother's ambivalence is, actually, a good sign. . . .
. . . [T]he foster mother has sought counseling to address the concerns she has. He further testified that removing the children from their current foster placement would cause harm to both children and would be catastrophic to [S.W.]
They have been in placement for the last 17 months. And delay, certainly, will add to the harm.
Focusing on the safety of [S.W.] and [A.W.] is our paramount concern. This
[c]court must stop - - must put a stop to the ongoing delays that they have been forced to suffer.
Regarding the third prong, as Judge Melendez found, the record clearly and convincingly established the Division's numerous efforts to help D.D. and K.V.N. correct the circumstances which resulted in the placement of S.W. and A.W. Those efforts included assistance in housing and mental health support, specifically psychological and substance abuse treatment. Additionally, the Division provided diapers, formula, a pre-paid cell phone, clothing, a crib, and a toddler bed to family members who cared for the children.
The record also discloses similar efforts by the Division to assist K.V.N., despite his incarceration for a majority of the time the present matter was before the court. Upon his release from prison in December 2006, K.V.N. did not contact the Division. K.V.N. returned to jail in May 2007 and was incarcerated at the time of trial.
Lastly, many family members were considered for the placement of S.W. and A.W., including a maternal great-uncle, maternal godmother, and maternal great-grandmother. Moreover, a maternal great-aunt, P.T., with whom the children temporarily resided, was unable to continue caring for the children. She had a criminal charge and did not complete the necessary waiver for the children to be placed with her. Other options for placement included maternal grandmother, C.D. However, C.D. had a history of substance abuse and a criminal conviction. The paternal grandmother declined placement given her age and health.
Judge Melendez, in her findings, specifically addressed the numerous services offered to D.D., as well as the incarceration of K.V.N. and his failure to contact the Division upon his release from prison:
[T]his [c]court finds that the Division has made reasonable efforts to provide services to help both parents remedy the circumstances that led to [S.W.] and [A.W.]'s placement. And at this time, neither parent is able to provide a safe and stable home for them.
Additionally, the [c]court has considered alternatives to termination of parental rights and determined that there are none. The Division has proven the third prong by clear and convincing evidence.
Finally, as to the fourth prong, Judge Melendez found:
What is best for all children is to be raised in a loving home by their biological family. Termination of parental rights will always leave scars. Ultimately, the parents['] interest must yield when, quote, "The child's best interest will be substantially prejudiced if parental rights are not terminated." In Re Guardianship of [Cope] . . . , 106 N.J. Super. 336 at 341, [(App. Div. 1969)].
Dr. Schwaree [sic] testified that termination of parental rights will not do more harm than good in this case.
These children, particularly, [S.W.], are likely to cause immense stress for any caregiver. [D.D.] and [K.V.N.] have demonstrated that their response to stressful situations is to turn to abuse of crack-cocaine. This cycle has continued. And, according to the testimony of both expert witnesses in this case, is highly likely to continue.
These foster parents are well aware of the difficulty in raising these children, especially, [S.W.] They are realistic in their concerns. [The foster parents] offer them stability. Sadly, [D.D.] and [K.V.N.] cannot.
In short, on this record, Judge Melendez' factual findings and legal conclusions are well supported by substantial credible evidence in the record. We discern no basis to intervene.
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