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New Jersey Division of Youth and Family Services v. C.R.M.


October 1, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-36-09.

Per curiam.



Submitted: September 15, 2010

Before Judges Axelrad, Lihotz and J. N. Harris.

R.A.D., the mother, and C.R.M., Sr., the father, appeal from a Family Part order of September 11, 2009, terminating their parental rights and awarding guardianship of their children to the Division of Youth and Family Services (DYFS) following a contested trial.*fn1 R.A.D. seeks review of the judgment of termination as to all three of her children - her two daughters, M.S.R. and J.R.D., then seven and one-half years old and six years old, respectively, and her son, C.R.M., Jr., then two and one-half years old. C.R.M., Sr. only seeks review of the judgment of termination regarding his son, C.R.M., Jr.*fn2

On appeal, both parents contend that DYFS did not prove by clear and convincing evidence the requisite statutory prongs to establish that the best interests of their children required severance of their parental ties. We note that the Law Guardian supports termination of both parents' rights to their children. After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006).


We need not describe in detail the many facts which the trial court considered. We instead provide a brief summary of the cogent facts we considered in concluding that the judge's findings were well-supported by the evidence.

The following testimony and evidence were presented at the trial that took place over ten days, commencing on May 26, 2009, and concluding on September 11, 2009, with the court's oral decision. DYFS presented the testimony of Kattia Olson, the caseworker; Dr. Barry Katz, a psychologist who evaluated both parents and performed bonding evaluations of R.A.D. and C.R.M., Sr. with the children; and Detectives Athanasios Mikros, Vincent Napoli and James Diorio and Officers Peter Novack and Paulo Fidalgo of the Elizabeth Police Department. Only R.A.D. testified. C.R.M., Sr. presented the testimony of his sister, B.M., and Dr. Richard Klein, a psychologist who performed a bonding evaluation of C.R.M., Sr. and his son.

DYFS initially became involved with this family in 2006, noting that R.A.D. tested positive for marijuana on May l2, June 2, July 24 and December 12, 2006, and on March 26, 2007, and positive for cocaine on March 12, 2007. The referrals that gave rise to DYFS' filing of an abuse and neglect complaint against R.A.D. and C.R.M., Sr. and the children's removal and placement in foster care on August 9, 2007 involved: (1) R.A.D. being arrested on June l5, 2007 for possession of marijuana at her public housing apartment, also resulting in an eviction; (2) an incident of domestic violence on July 13, 2007 between R.A.D. and C.R.M., Sr. and initiated by R.A.D., for which she was charged with assault with a deadly weapon and subsequently received a one-year probationary sentence; and (3) R.A.D. failing to timely refill J.R.D.'s prescription, resulting in the child having a seizure and being hospitalized. On the review date a week later, both parents submitted to urine screens and tested positive for THC.

During a psychological evaluation initiated by DYFS in October 2007, C.R.M., Sr. reported that he was not living with R.A.D. and his son at the time of his son's removal. Although he generally spent every day, and often overnight, at R.A.D.'s home, C.R.M., Sr. denied he was aware of her drug use. C.R.M., Sr. acknowledged that he had been incarcerated from l99l until l996 for selling cocaine, and again from l998 until 2001 for selling drugs, but represented that he had ceased dealing drugs after his last release from prison.

Around the same time, R.A.D. reported to the psychologist that she began using marijuana in 2004, which she used approximately three times a day when she "had the money." She also sold cocaine for approximately three years until about 2005, when she was convicted of possession of crack cocaine with intent to distribute and given a three-year probationary sentence. R.A.D. expressed that she did not think her drug use or sale of drugs placed her children at risk as she did not sell the drugs when her children were at home.

DYFS filed a complaint for guardianship of the children on October l5, 2008, primarily on the basis that R.A.D. continued to relapse and remained angry, hostile and resistant during her counseling sessions at Family and Children's Services and C.R.M., Sr. had no stable residence. The parties had completed a variety of anger management, parenting skills, and family therapy programs, and fairly consistently exercised their weekly therapeutic visits with the children. Although R.A.D. had completed substance abuse programs, she tested positive for THC during an in-court urine screen on November 20, 2008, and again on January 5, 2009.

The permanency goal for the children was adoption by their respective foster families. However, DYFS soon began considering changing the goal for C.R.M., Jr. to reunification with his father. C.R.M., Sr. needed to provide proof of income, a backup caregiver, daycare information, and complete a home assessment for reunification to be considered. C.R.M., Sr. told the caseworker he was living with his sister; however, DYFS was concerned that R.A.D. was residing with him as she told the caseworker, despite C.R.M., Sr. having been informed they could not cohabit and raise the children due to R.A.D.'s drug use, anger issues and sporadic compliance with services.

On April l6, 2009, the day before C.R.M., Sr.'s home assessment, he was arrested for distribution of heroin. Detective Mikros testified he was parked within sight of C.R.M., Sr.'s residence and observed him complete four "hand to hand" transactions, one of which was to an undercover officer. The narcotics were dispensed in glassine envelopes, marked with a known dealer's insignia. C.R.M., Sr. was arrested and consented to a search of his residence, explaining that the first floor was vacant, he resided on the second floor with R.A.D., and his brother-in-law lived in the attic. In the first floor common hallway the officers recovered from inside a shoe box a bundle of glassine envelopes with identical markings to that purchased by the undercover officer and containing heroin. The officers also seized $500 in cash from C.R.M., Sr.'s top dresser drawer, including the marked $20 bill the undercover officer used to make the purchase from him. R.A.D. was not present but the detectives observed female clothing and pictures of her in C.R.M., Sr.'s apartment. C.R.M., Sr. was charged with two counts of distribution of heroin, two counts of distribution of heroin in a school zone, and one count each of possession of heroin and possession of heroin with intent to distribute. The criminal case had not been resolved as of the conclusion of the guardianship trial.

The other officers testified about incidents they reported involving one or both of the parents. Detective Napoli discussed R.A.D.'s June l5, 2007 arrest for possession of marijuana. Officer Novak testified about R.A.D.'s arrest on April l6, 2009 on warrants relating to municipal fines that were in arrears and for failure to appear. Officer Fidalgo testified about the July l3, 2007 domestic violence incident between the parties, noting J.R.D. was present when he arrived and R.A.D. was charged with aggravated assault, possession of a weapon, possession of a weapon for an unlawful purpose, terroristic threats and criminal mischief. Detective Diorio corroborated Detective Mikros' testimony regarding the April l6, 2009 drug incident involving C.R.M., Sr.

Dr. Katz described the results of his December 2008 evaluations and opined that R.A.D. would not be able to parent then or in the foreseeable future due to her history of antisocial behavior, substance abuse, anger management issues, and lack of understanding of the children's medical and daily care needs. He found that R.A.D.'s drug use and criminal activity resulted in instability in the home and hampered her ability to provide for her children's needs. The psychologist also discussed R.A.D.'s "very limited coping ability" and frequent responses with anger, often resulting in violent behavior and incidents of domestic violence. He opined that despite R.A.D.'s completion of two anger management programs, the prognosis for her behavior to improve was not positive. Dr. Katz explained that the anger issues adversely affected R.A.D.'s ability to parent and provide a stable home, disrupted visits with her children, interfered with her ability to receive substance abuse treatment, and adversely affected her ability to maintain employment.

Dr. Katz discussed the correlation between substance abuse and psychological functioning and the cycle of dysfunction and substance abuse. Dr. Katz also noted the correlations between marijuana use and decrease in motivation, inhibition in achievement, and impairment of abilities of coping and parenting when the user was under the influence. He opined that R.A.D.'s positive drug test on January 5, 2009 demonstrated a continuing chronic pattern of substance abuse and an inability to abstain even when R.A.D. knew she was being monitored and "how much [wa]s riding on the line in terms of getting her children back . . . ." The psychologist thus concluded that R.A.D. was "highly unlikely" to resolve her substance abuse problem.

Dr. Katz also testified that C.R.M., Sr. had "extremely limited coping ability in [the parenting] area, was hampered by a history and pattern of antisocial behavior . . . drug involvement, and lack of ability to provide stability." He was concerned by the parents' current cohabitation and C.R.M., Sr.'s expressed parenting plan to raise the children with R.A.D. in the same household in view of their history of domestic violence, criminal activity, and instability in the home. Dr. Katz also found problematic C.R.M., Sr.'s denial to DYFS of R.A.D.'s drug use and sale of drugs, which demonstrated a minimization of the negative. Though noting that C.R.M., Sr. was compliant and made adequate progress with the services offered by DYFS, Dr. Katz opined that C.R.M., Sr. still had "limitations of providing for the children independently and being able to maintain a criminal-free lifestyle . . . ." The psychologist referenced C.R.M., Sr.'s recent sale of drugs from the home and noted the detrimental effect such criminal activity and potential incarceration would have on a child's development and stability.

At the time of trial, seven and one-half-year-old M.S.R. was in the home of a relative caretaker who was suggested by R.A.D. and approved and licensed by DYFS. The caseworker related that the foster parent preferred adoption over kinship legal guardianship (KLG), N.J.S.A. 3B:12A-6(d). Six-year-old J.R.D., who was declared medically fragile by DYFS due to her seizure disorder, was in a Special Home Service Provider (SHSP)*fn3 placement; however, due to the caretaker's ambivalence regarding adoption, DYFS was exploring other placement options.*fn4 Two and one-half-year-old C.R.M., Jr. was also in a DYFS-approved foster placement with a foster parent who wished to adopt him. For a variety of reasons, however, DYFS was also exploring placement and potential adoption of C.R.M., Jr. by his paternal aunts, B.M. and T.M., who resided together in a three-bedroom single family home, were employed, had frequently visited with him prior to his removal and foster placement, had completed all necessary training, background checks and home assessments, and were waiting for their foster parent license.*fn5

According to Dr. Katz, R.A.D. and the children interacted well during the bonding evaluation; however, he was concerned that the children were under the impression they would be returning to her care, thus hindering their ability to attach to their current caregivers and heightening their insecurities. Dr. Katz also noted that C.R.M., Sr. was responsive to his son's needs and that "the child showed a familiarity with him, but did not identify him as . . . his primary nurturing figure." Dr. Katz related that all three children had formed bonds with their current caregivers and identified them, rather than R.A.D. or C.R.M., Sr., as the primary nurturing figures. With respect to M.S.R., the psychologist opined that the current caregiver would be able to assuage whatever harm the child would suffer as a result of terminating R.A.D.'s parental rights, and that separation from her current placement would put her at risk of developing reactive attachment disorder.*fn6 He emphasized J.R.D.'s particular need for stability and permanency, and recommended she be removed and placed in an adoptive home, if possible, rather than remain in a transient placement. The psychologist further opined that C.R.M., Jr. would suffer little, if any, harm as a result of terminating R.A.D. or C.R.M., Sr.'s parental rights, particularly considering that he had been in foster placement since he was six months old.

Dr. Klein, a psychologist retained by C.R.M., Sr., testified that C.R.M., Jr. had bonded with his biological father and opined that due to the child's young age, he would not suffer any permanent harm if removed from his caregiver. Dr. Klein found no impediment to C.R.M., Sr.'s ability to parent his son and recommended reunification with him. The psychologist acknowledged having learned since his evaluation that C.R.M., Sr. had been arrested on drug-related charges. Although the criminal charges raised concerns in Dr. Klein's mind about C.R.M., Sr.'s judgment, whether any children "were put in harm's way," and whether C.R.M., Sr. would be incarcerated and not available for his son, it did not change his recommendation of reunification.

Having observed the demeanor and impartially assessed the testimony of the lay and expert witnesses, examined the exhibits entered into evidence, and heard arguments of counsel, Judge Spatola concluded that the best interests of M.S.R., J.R.D. and C.R.M., Jr. required severance of R.A.D. and C.R.M., Sr.'s parental ties. In her comprehensive oral decision on the record, the judge recited the factual and procedural history of the case, made findings of fact and credibility assessments in favor of DYFS' witnesses, noted the applicable law, and found DYFS had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-10 (l986), and as codified in N.J.S.A. 30:4C-15.1. The determination was memorialized in a judgment of guardianship, and these appeals by R.A.D. and C.R.M., Sr. ensued.


We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In Re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We also have a limited scope of review of the Family Part's factual findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 22 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Additionally, because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13; M.M., supra, 189 N.J. at 279. Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citations omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that the best interests of the children require termination of R.A.D.'s and C.R.M., Sr.'s parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982)), vacated on other grounds, 163 N.J. 158 (2000). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. & M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972)). However, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role within time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that the risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of the parental ties." W.P. & M.P., supra, 308 N.J. Super. at 383 (alteration in original) (quoting J.C., supra, 129 N.J. at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15(c) and 15.1(a) require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; In Re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires DFYS to prove:

(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 [formerly referred to as "foster"] parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision 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.

These standards are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).


Our examination of the record discloses that all four prongs of the test as they pertain to both R.A.D. and C.R.M., Sr. have been met by clear and convincing evidence. Judge Spatola properly performed a separate analysis as to each parent under the four-prong test and also appropriately considered their interaction, particularly in view of their continued cohabitation and plan to co-parent the children. See N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005); N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 101-03 (App. Div. 2006), certif. denied, l90 N.J. 257 (2007). As contrasted with New Jersey Division of Youth and Family Services v. G.L., l9l N.J. 596, 608 (2007), there is clear and convincing evidence, not mere speculation, that the relationship between R.A.D. and C.R.M., Sr. posed a threat to the children because of past domestic violence incidents and their history of using and distributing drugs through the home.

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. K.H.O., supra, 161 N.J. at 348. 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." Ibid.

The facts, as found by the trial judge from credible evidence, reveal that both parents have a history of involvement with illegal drugs that continued after the children's removal and during the litigation, clearly demonstrating an unwillingness or inability to place their children's health, safety, and general welfare above their immediate enjoyment and criminal activity. R.A.D. and C.R.M., Sr. also had the parenting deficiencies of limited coping ability and poor judgment, and were unable to provide a stable home for their young children. In one instance, R.A.D. neglected the needs of four-year-old J.R.D. in failing to refill her anti-seizure medication. Furthermore, R.A.D. had anger management issues and instigated domestic violence with C.R.M., Sr., who refused to distance himself from her despite being expressly informed by the caseworker that their cohabitation would jeopardize his chances of reunification with his son. Based on conflicting comments to DYFS, C.R.M., Sr. also knew about R.A.D.'s drug involvement and minimized it or placed the children in jeopardy by leaving them with their mother during her self-professed thrice daily marijuana use.

The second prong contemplates the determination of parental unfitness. DYFS must prove that the harm is likely to continue as a direct result of the parent's unwillingness or inability to eliminate the harm that has endangered the child's health and development or the parent has failed to provide a "safe and stable home for the child" and a "delay in securing permanency" will further harm the child. Id. at 348-49. As Dr. Katz testified, both parents continued to engage in drug-related criminal activity even after the children were removed by DYFS. Despite repeated substance abuse treatment, R.A.D. failed to end her drug involvement and relapsed in November 2008 and January 2009. As testified to by Dr. Katz, R.A.D. had not been drug- free for a sufficient period of time and remained at high risk of relapse when faced with minor stress. R.A.D. was also arrested in April 2009 on outstanding municipal warrants for failure to appear and delinquent fines. On the eve of trial, with the potential of reunification with his son, C.R.M., Sr. was caught dealing drugs, and although the charges were pending as of trial, there was clear and convincing evidence presented by the officers supporting his guilt. As to the assessments of the experts regarding this issue, Judge Spatola had ample basis to credit the testimony of Dr. Katz over Dr. Klein and conclude that:

Dr. Klein's opinion was overly simplistic . . . and he employed such . . . 'tunnel vision' . . . as to render his opinion near valueless. His opinion that criminals can be good parents as long as they are not arrested or incarcerated ignores the significant issue of what kind of role model that parent would be to any child in his care . . . .

Of the two psychological assessments, Dr. Katz's was the more logical, rational and weighty.

The third prong requires DYFS 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). It is undisputed that DYFS provided both parents with a multitude of services and referrals to a variety of programs from 2006, which did not appear to significantly alter their conduct or behavior. Moreover, the documentary evidence includes DYFS' attempts to contact and explore identified relatives as potential placements for the children. Judge Spatola had sufficient basis to conclude that there were no reasonable alternatives to terminating R.A.D.'s and C.R.M., Sr.'s parental rights. The judge recognized it would be "a positive thing" for either or both of C.R.M.'s sisters to be alternate placements and potential adoptive parents of C.R.M., Jr., and amply explained the reasons why KLG would not be a feasible alternative to adoption.

Lastly, the statute's fourth prong mandates a determination as to "whether a child's interests 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). There is ample evidence that termination of R.A.D.'s and C.R.M., Sr.'s parental rights would not do more harm than good. As of the time of trial, the children had been in foster placements for almost two years. C.R.M., Jr. was only six months old when he was removed and had very little contact with his biological parents even despite their visits. The judge thus credited Dr. Katz's opinion that C.R.M., Jr. did not respond to his father as a "permanent nurturing caregiver" and concluded that "Dr. Klein's opinion that [C.R.M., Jr.] is strongly and positively bonded to [his father] frankly lacks credibility."

Notwithstanding some lingering questions at the time of trial about the intentions of the children's potential adoptive families, our jurisprudence and strong public policy favors permanency of child placement. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.), certif. denied, l80 N.J. 456 (2004). We are convinced that although R.A.D. and C.R.M., Sr. love their children, they are unable to provide a safe, stable and permanent home that the children so desperately need. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. Children cannot afford to wait until such time as their parents might possibly be able to provide a safe, secure and nurturing environment for them. The trial court properly concluded that termination of parental rights will not do more harm than good for M.S.R., J.R.D., or C.R.M., Jr. as it will free them for potential adoption by families who can provide permanency and stability.


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