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New Jersey Division of Youth and Family Services v. W.F.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 23, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
W.F.W., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF: J.M.W. AND B.Y.W., MINOR CHILDREN.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.N.H., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF: D.N.F.H., J.M.W., AND B.Y.W., MINOR CHILDREN.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-39-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2009

Before Judges Cuff and Payne.

In these consolidated matters, J.N.H., the mother of minor children D.N.F.H., J.M.W. and B.Y.W., and W.F.W., the father of J.M.W. and B.Y.W., appeal from the termination of their parental rights by order dated January 9, 2009. We affirm, determining that entry of the termination order was in the best interests of the three children.

I.

The record reflects that D.N.F.H. was born in the Summer of 2004 and was four years old at the time of trial. The identity of her father is not known. Daughters J.M.W. and B.Y.W. were born in the Spring of 2005 and the Fall of 2006, respectively.

W.F.W., born in 1968, is drug-addicted and has a significant criminal history commencing in 1986, consisting of seven felony convictions, two violations of probation, two parole violations and multiple municipal convictions. In general, the convictions were related to drug possession, burglary and theft, and hindering apprehension. However, W.F.W. was sentenced in 1994 to ten years of imprisonment for first-degree robbery, and he has one additional conviction for a violent crime. When giving testimony on the eighth day of trial, held on October 28, 2008, W.F.W. had recently been released from nineteen months of custody in state prison for violation of probation. On October 28, he was being held in jail for contempt of court, having failed to pay $500 in fines.

J.N.H. likewise is drug-addicted and has a lengthy criminal history commencing in 2001 when she was twenty years old. Records indicate that she has seven felony convictions, including drug offenses and receipt of stolen property, one violation of probation, and several municipal convictions, most of which were drug-related.

Following the birth of D.N.F.H. in 2004, J.N.H. and the baby were reported to the Division of Youth and Family Services (DYFS) as testing positive for cocaine and marijuana. On July 16, 2004, DYFS filed a verified complaint and order to show cause against J.N.H. and the baby's alleged father seeking custody of the child. Custody was granted, and D.N.F.H. was placed in her first foster home, where she remained for approximately one year. On February 18, 2005, the court ordered that physical custody of D.N.F.H. be transferred to her maternal grandmother as soon as all requested items and services were in place. The new placement had been accomplished on March 7, 2005.

In May 2005, DYFS was notified that J.N.H. had given birth to J.M.W. and that W.F.W., the child's father, was incarcerated in the Somerset County jail. DYFS amended its complaint to seek custody of this child, as well. Although legal custody was granted to it, the court ordered that physical custody remain with J.N.H. while she underwent drug treatment at Straight and Narrow. On May 25, 2005, physical custody of D.N.F.H. was also transferred to J.N.H. The plan was for J.N.H. and the two children to move in with D.N.F.H.'s alleged father following treatment. However, J.N.H. eventually moved out of that residence to pursue a family relationship with W.F.W.

On March 20, 2006, DYFS received a referral that D.N.F.H. and J.M.W. had been left at home without adequate supervision. The charge was substantiated by DYFS following an investigation that disclosed that the children had been left in a locked bedroom. Following substantiation of the charges, the two girls were removed and placed in emergency foster care.

In September 2006, DYFS received a referral that J.N.H. had given birth to B.Y.W., that J.N.H. had tested positive for opiates, and that tests of the baby were pending. The tests were later disclosed to be positive. DYFS sought and obtained custody of the child.

In late September 2006, the maternal grandmother offered herself as a resource relative for the two older girls on the condition that DYFS supply daycare, furniture, clothing, Medicaid cards, WIC cards,*fn1 daily schedules, and monetary disbursements. The two girls were placed with their maternal grandmother in November 2006. However, on December 21, 2006, the grandmother refused to give DYFS access to the children, claiming that her needs were not being addressed.

On January 25, 2007, W.F.W., who had previously been incarcerated, offered himself as a caretaker for J.M.W. and B.Y.W. However, W.F.W. tested positive for cocaine and opiates on January 29, 2007 and was incarcerated again on that and other charges from March 2007 until the end of trial in November 2008.

On February 21, 2007, the maternal grandmother requested that the two older girls be removed from relative home care and transferred to foster care. As a result, in March 2007, the two girls were transferred to the foster home in which they remained at the time of trial. The transfer constituted D.N.F.H.'s sixth change in caretakers and J.M.W.'s third. D.N.F.H. has been diagnosed as suffering from ADHD and Reactive Attachment Disorder (RAD) of the disinhibited type. RAD has been described in the following terms:

The essential feature of [RAD] is markedly disturbed and developmentally inappropriate social relatedness in most contexts that begins before age 5 years and is associated with grossly pathological care.... In the Disinhibited Type, there is a pattern of diffuse attachments. The child exhibits indiscriminate sociability or a lack of selectivity in the choice of attachment figures.... The condition is associated with grossly pathological care that may take the form of persistent disregard of the child's basic emotional needs for comfort, stimulation, and affection... persistent disregard of the child's basic physical needs... or repeated changes of primary caregiver that prevent formation of stable attachments.

[American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 116 (4th ed. 1994).]

On March 9, 2007, B.Y.W. was transferred to the home of a family friend, but was transferred to another foster home in June 2007 after falling from her bed and breaking her femur. B.Y.W. remained in that placement at the time of trial.

In February and March 2007, DYFS ruled out placing the children with other relatives as the result of their positive drug tests and DYFS's concerns regarding child safety. On April 19, 2007, J.N.H. was incarcerated after missing appointments with her parole officer. She was paroled in December 2007. On May 14, 2007, W.F.W. was sentenced to three years of imprisonment, with 233 days of jail credits.

On May 23, 2007, the court approved DYFS's plan for termination of parental rights as to all three children, followed by adoption by their current foster parents. DYFS filed its guardianship complaint on August 10, 2007.

In December 2007, the maternal grandmother again asked DYFS to assess her as a resource. In February 2008, she was examined by psychologist Dr. Eric Kirschner, who administered the Adult-Adolescent Parenting Inventory-2, which revealed a very low score... as far as empathy goes, which suggests her ability to recognize and tune into the... feelings of children... were limited or... minimal. She also had a similar type of score on what's called the... role reversal scale, which suggests from a family standpoint the likelihood of a reversal of roles, meaning she likely sought children out as a way of making her feel better about herself....

Dr. Kirschner also felt that the grandmother minimized or downplayed D.N.F.H.'s reported behavioral difficulties and temper tantrums, which raised concerns regarding her ability to respond appropriately to the child's special needs.

In a bonding evaluation between the grandmother, D.N.F.H., J.M.W., and B.Y.W., the grandmother was observed to display minimal signs of warmth or affection. The doctor concluded that the evaluation did not indicate the presence of a secure attachment or emotional bond between the grandmother and any of her granddaughters, and did not demonstrate that she was attuned to their psychological needs. In light of more positive bonding evaluations with the children's foster parents, Dr. Kirschner supported adoption by them, rather than placement with the children's maternal grandmother.

On July 2, 2008, DYFS ruled the grandmother out as a potential caretaker, concluding that the children's interests were best served by permitting them to remain with their current caretakers. Psychologists Robert Raymond and Mark Seglin essentially agreed with Dr. Kirschner, although Dr. Seglin, who did not examine the grandmother, thought she might become a resource in the event of a kinship placement. At trial J.N.H. expressed a willingness to surrender her parental rights to her mother. W.F.W. testified that, if his own rights were terminated, he supported the alternative prospect of placing the children with the grandmother.

On July 21, 2008, J.N.H. was incarcerated for violating her parole after admitting to drug use. Over the years, J.N.H. was offered substantial opportunities for drug treatment, none of which was successful. In September 2004, she was incarcerated on drug charges, but was soon transferred to Delaney Hall for a two-month drug treatment program. She testified at trial that, upon leaving Delaney Hall, she remained clean until February 2005, when she was arrested for drug possession.

In April 2005, J.N.H. entered the Straight and Narrow drug treatment program with her two oldest children, where she received instruction in parenting skills, anger management and relapse prevention. She was discharged in November 2005, but determined not to participate in an out-patient program because she did not think it necessary.

J.N.H. relapsed again in April 2006. On September 29, 2006 she was discharged from Steps Recovery Rehabilitation as the result of non-attendance. J.N.H. tested positive for cocaine and heroin at an October 4, 2006 compliance review. She was incarcerated from April 19, 2007 through December 22, 2007 for violating probation. Upon her release, J.N.H. once more entered the Straight and Narrow program, completing it in June 2008. Upon discharge, she attended an out-patient drug program at the JFK Behavioral Center three times per week.

J.N.H. again relapsed. As previously stated, in July 2008, she was incarcerated after submitting a positive urine screen in violation of her parole. She spent three weeks in prison. At the time of trial, J.N.H. resided at Kentock House, a halfway house in Newark. She anticipated release on December 12, 2008.

J.N.H. testified at trial that she was aware that W.F.W. was using drugs when he was living with her and the children, and that she had discovered this fact after living with W.F.W. for four or five months. However, she stated that "[t]here is nothing that you can do to stop somebody from using drugs."

W.F.W. testified that, while incarcerated, he enrolled in Narcotics Anonymous. He was not offered drug treatment by DYFS in those short periods when he had been released from prison. However, he testified at trial that he had not used drugs since August 2005, despite the ready availability of cocaine, his drug of choice. He testified that by the end of 2006, he decided his life was "worth more than to use drugs," and subsequently checked himself into a forty-five-day program. W.F.W.'s testimony appears to be inaccurate, since the record indicates he tested positive for cocaine and opiates in January 2007.

W.F.W. testified that he had inherited a home in South Plainfield from his adoptive mother and that he had lived there with J.N.H. and the two older children from November 2005 through March 2006. At that time, W.F.W. was working as a cook at the College of New Jersey. He testified that, during their residence together, he developed a parental relationship with D.N.F.H., despite not being her biological father. He did not know B.Y.W. because of his incarceration and the alleged failure of DYFS to arrange for the child's visits while he was in prison. However, he testified that when DYFS only gave J.N.H. travel expenses, he did not complain regarding the oversight, but rather he cancelled the visits.

DYFS caseworker Julia Singleton testified that no services were offered to W.F.W. while he was incarcerated "because... there were no services to offer to him." W.F.W. testified that while he was incarcerated, he enrolled in narcotics anonymous, and in life skills, anger management and parenting skills courses.

A psychological assessment of J.N.H. was performed by Dr. Kirschner in the period from February to June 2008. Although Dr. Kirschner found J.N.H. to be more attuned to D.N.F.H.'s special needs than her grandmother, and he praised J.N.H.'s participation in drug treatment, he found that J.N.H.'s only documented abstinence from drugs had been in the context of the restrictive environments of jail and residential treatment. The doctor concluded:

[J.N.H.] has not previously demonstrated the ability to live independently in the community, take care of her parental responsibilities and remain drug free for a sustained period of time. When faced with the daily demands of parenting, [J.N.H.] remains vulnerable to relapse.

As a result, Dr. Kirschner determined that placing the children with J.N.H. at that stage would compromise their well-being.

At trial, Dr. Kirschner testified that J.N.H.'s relapse, despite completing two inpatient programs, suggested a risk of further relapse that was "quite high." He stated that "[J.N.H.] hasn't demonstrated the ability... to do what's necessary... to have the children returned back to her with a... reduced level of risk involved." Further, he testified that bonding studies with B.Y.W. did not exhibit signs of a secure attachment or emotional bond. He stated that, while the other two girls were comfortable in their mother's presence, they would remain threatened by J.N.H.'s likelihood of relapse.

In addition to Dr. Kirschner, Dr. Denise M. Williams Johnson conducted a bonding evaluation between J.N.H. and her children, but did not testify at trial. Although Dr. Johnson found that J.N.H. presented herself as "happy, pleasant, nurturing, affectionate, and calm," the doctor believed the children's special needs would make raising them stressful and challenging to a mother in recovery. Further, Dr. Johnson saw no proof that J.N.H.'s current recovery efforts were viable, and she recommended "at least one year of stability in the community... before consideration of placing the children back into her care." Dr. Johnson believed that the two older girls had sufficient attachment to their mother to result in some level of distress if parental rights were terminated. The doctor found no harm would be sustained by B.Y.W., whose relationship with J.N.H. was "minimal, or ambivalent at best."

W.F.W. was psychologically evaluated by Dr. Andrew P. Brown, III. The doctor's overall impression of W.F.W. was of one with "a significant history of anti-social behaviors.... As a result of his behaviors, [W.F.W.] has had little sustained success in either educational, occupational, or social realms." He found that W.F.W. "demonstrates poor ability to sustain conventional social function free of institutionalized structure." Given this impression, and in light of W.F.W.'s continuing legal problems and failure to evince "parental preparation," Dr. Brown concluded that W.F.W.'s "prognosis for parenting is poor."

After a further psychological evaluation by Dr. Barry A. Katz, the doctor concluded that W.F.W. suffered from clinical depression and that he abused substances to deal with that depression. Dr. Katz, who conducted a bonding evaluation only between W.F.W. and the middle child, J.M.W., indicated that the evaluation demonstrated that J.M.W. "has some vague memory of [W.F.W.], but does not identify him at this time as a parental figure." The doctor was of the opinion that both D.N.F.H. and J.M.W. showed evidence of RAD, and for that reason, he would not terminate their relationship with W.F.W. Rather, he thought the two older children should be returned to W.F.W. if, after six months of visitation, they showed a bond with him and if W.F.W. had improved himself by attending therapy, maintaining sobriety, and establishing stable work and housing. Significantly, Dr. Brown rated the likelihood of compliance as "not likely." Dr. Katz additionally opined that B.Y.W. was entitled to be raised by her biological father if he could show that he could care for her appropriately before she became permanently bonded to her foster mother.

Bonding evaluations by Dr. Kirschner between the three girls and their foster parents were positive. Each had developed a healthy attachment to her foster parent and, according to the doctor, severance would result in "serious and enduring psychological harm, significantly impacting [the children's] cognitive, emotional interpersonal functioning."

Dr. Katz, who also performed bonding evaluations between the children and their foster parents, was less positive in his assessment than Dr. Kirschner. Dr. Katz criticized the foster mother of the two older children for using food as a reward and suggested that the use by the children of the terms mommy and daddy to refer to their foster parents appeared to him to have been rehearsed. After observing the interaction between B.Y.W. and her foster mother, the doctor found a developing bond to exist, but that the bond was not cemented to the point that removal would cause permanent harm.

Although B.Y.W. has been placed in a foster home different from the two older girls, there was testimony at trial that the foster parents knew each other and maintained contact. It was unclear whether the children spent time together.

The trial of the matter concluded on November 7, 2008. On January 9, 2009, the judge issued an oral decision in which he found, by clear and convincing evidence, that termination of the parental rights of J.N.H. and W.F.W. was in the best interests of the three children. These appeals followed.

II.

On appeal, the parents argue that DYFS failed to meet its burden of satisfying by clear and convincing evidence the four-pronged best interests of the child test initially enunciated in New Jersey Div. of Youth & Fam. Serv's v. A.W., 103 N.J. 591, 604-11 (1986) and codified in N.J.S.A. 30:4C-15.1(a). That test requires proof that:

(1) The child's health and development have 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 foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made diligent 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.

The four prongs of the best interests standard are not discrete and separate, but rather, they are interrelated and overlap with one another to provide a comprehensive standard by which to judge the child's best interests. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

On appeal from a trial court's decision to terminate parental rights, our review is limited. We must defer to the trial judge's findings of fact if supported by adequate, substantial and credible evidence in the record and must accord particular deference to the judge's decisions on issues of credibility. New Jersey Div. of Youth & Fam. Serv's v. G.L., 191 N.J. 596, 605 (2007). "[A] trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" New Jersey Div. of Youth & Fam. Serv's v. P.P., 180 N.J. 494, 511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). However, "[t]here is an exception to that general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom' we expand the scope of our review."

G.L., supra, 191 N.J. at 605 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)).

Turning to the record in this matter, there is little doubt but that the first prong of the best interests test has been met. In this regard, the Family Part judge found that both D.N.F.H. and B.Y.W. were born drug-exposed and without prenatal care.*fn2 The judge stressed the degree to which the children, especially D.N.F.H. and J.M.W., had suffered as the result of the impermanency and instability caused by their multiple placements. The judge additionally construed J.N.H.'s testimony that she would be willing to execute an identified surrender of the children to her mother to constitute a tacit admission that J.N.H. was incapable of providing adequate care for her children. And he found that W.F.W.'s frequent incarceration and antisocial personality disorder to have contributed to the harm. We find the judge's factual findings and legal conclusion to have been amply supported by the record.

In assessing the second prong, the judge found, with ample support in the record, that the children's history of multiple placements provided evidence of the inability of the birth parents to eliminate the harm facing the girls by providing a safe and stable home environment. Elsewhere in the opinion, the judge noted that W.F.W. had in large measure been absent from his children's life, living with J.M.W. only during a four-month period after J.N.H.'s first treatment at Straight and Narrow, and never having lived with B.Y.W. Further, the judge found W.F.W. was unlikely to become a successful parent in the future. In this regard, the judge read into the record the evaluation of W.F.W. by Dr. Brown, in which he stated:

[W.F.W.'s] chronic legal issues compromise his ability to adequately care for and protect his children as well as provide an environment that is nurturing, suitable, predictable and sustainable. While [W.F.W.] has expressed that he is not interested in surrendering his parental right, within a degree of psychological certainty or probability, [W.F.W.] does not demonstrate that he is able to execute parenting obligations and responsibilities as his psychological status, chronic and sustained legal problems, chronic and sustained lack of parental preparation and sustained narcotic use are not conducive to execution of any expressed plan for parenting. Furthermore, his prognosis for parenting is poor.

Additionally, the judge noted evidence that the girls had bonded with their foster parents. In contrast, the record reflects a lesser bond between J.N.H. and the two older girls, and a minimal or absent emotional bond between her and B.Y.W. Understandably, the only bonding study conducted on W.F.W. was with the middle child, and it was negative.

When addressing the third prong, the judge focused on the extensive, but ultimately fruitless, efforts by DYFS to place the girls with family members. In this regard, he discussed the efforts to place the two older girls with their maternal grandmother in detail, ultimately concluding that because the grandmother's primary focus was on her daughter, not the grandchildren, the determination by DYFS not to use her as a resource was justified. The judge stated:

These children need consistency. These children need one who is attentive to their needs. By the psychological evaluations presented, this court concludes that the convincing opinions of the psychologists are such that the court finds that [the maternal grandmother] cannot be considered a viable resource.

Addressing the provision of services, the judge noted that DYFS had offered multiple psychological evaluations and had assessed many family members as relative resources in an attempt to achieve permanency for the girls. The record additionally reflects the opportunities for drug treatment offered to J.N.H. by DYFS. W.F.W.'s lengthy periods of incarceration were offered as a reason for the lack of additional services provided to him.

As a final matter, in evaluating the record in light of the fourth prong of N.J.S.A. 30:4C-15.1(a), the judge found that because of the stronger bonds between the girls and their foster parents than those existing with their birth parents, termination of parental rights would not do more harm than good, and that it would foster the salutary goal of permanency through adoption.

Our independent review of the record satisfies us that the judge's conclusions with respect to the children's best interests were correct and that DYFS met the statutory standard by clear and convincing evidence. The record is clear that both parents are drug-addicted and, as the result of crimes most likely related to their addiction, they have been incarcerated frequently. As a consequence, they have been absent from their children's lives for significant periods of time. "A parent's withdrawal of... nurture... and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). "The effect of a parent's incarceration on the permanency and stability of the child's life may be substantial. A parent's imprisonment can have a disruptive and destabilizing effect on the child's life." In re Adoption of Children by L.A.S., 134 N.J. 127, 140 (1993). In this case, parental absence has had particularly severe consequences as the result of the multiple placements of all three of the children and the psychological reaction of the two oldest to the instability caused by those placements. As foreseen in Division of Youth & Fam. Serv's v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996), in B.Y.W.'s case, the absence of her parents from her life has resulted in the lack of any bond between her and her natural parents and the creation of a bond with others. The record does not suggest that either parent has successfully addressed their problems, or that either is likely to do so within a reasonable period of time.

In connection with an evaluation of the second statutory prong, we note that there must be a showing that the harm "continue[s] because the parent is unable or unwilling to overcome or remove [it]....

Included in that inquiry is whether delay in permanency will cause further harm and whether the child has bonded to his or her foster parents to the extent that separation from them would in itself "cause serious and enduring emotional or psychological harm to the child." [P.P., supra, 180 N.J. at 506-07 (citations omitted.]

In this case, evidence of bonding with the foster parents was produced, and the record supports the conclusion that separation of the children from their foster parents would cause more serious and enduring emotional or psychological harm than termination of the children's natural parents' rights. We find of great significance in this regard the absence in the record of competent evidence that either J.N.H. or W.F.W. had overcome their problems or would within a reasonable period be capable of providing a secure home to their children. Thus, return of the children to them would likely foster the additional instability that the child guardianship laws were designed to avoid.

With respect to the third statutory prong, we have previously acknowledged "the difficulty and likely futility of providing services to a person in custody." New Jersey Div. of Youth & Fam. Serv's v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006). We note as well that, when faced with a situation in which visitation between W.F.W. and J.M.W. in prison was not facilitated, W.F.W. did not complain, but instead cancelled familial visits. Given W.F.W.'s almost continuous incarceration, we find it reasonable for DYFS to have focused its reunification efforts on J.N.H., who was more frequently out of custody and appeared amenable to drug treatment, which she received on multiple occasions. See D.M.H., supra, 161 N.J. at 393. Further, we note, as did the trial judge, the extensive but unsuccessful efforts made by DYFS to place the children with their maternal grandmother - a person ultimately determined to be unattuned to the children's needs.

Insofar as the fourth prong is concerned, we recognize that terminating the rights of a biological parent necessarily implies a risk of harm to the biological child.

The fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties. The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents.

To determine whether the comparative harm is proscribed by the fourth prong in a case involving a child in foster care... the court must inquire into the child's relationship both with her biological parents and her foster parents. [K.H.O., supra, 161 N.J. at 355.]

Having made the inquiry that K.H.O. requires, we are satisfied that severing the parental bonds of J.N.H. and W.F.W. to their three children will not do more harm than good. The girls have bonded with their foster parents, and their placements with them offer the necessary security that previously has been absent from their lives.

Affirmed.


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