J-S56034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: INVOLUNTARY TERMINATION         :   IN THE SUPERIOR COURT OF
 OF PARENTAL RIGHTS TO S.M.H.-          :        PENNSYLVANIA
 G., A MINOR APPEAL OF, J.A.G.          :
                                        :
                                        :
                                        :
                                        :
                                        :
                                        :   No. 1889 EDA 2019

               Appeal from the Order Entered May 30, 2019
 In the Court of Common Pleas of Lehigh County Orphans’ Court at No(s):
                               A2018-0015


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                     FILED DECEMBER 19, 2019

     J.A.G. (Father) appeals from the decree granting the petition filed by

L.M.R. (Mother) for the involuntary termination of his parental rights to his

daughter, S.M.H.-G. (Child), born in May 2012, pursuant to the Adoption Act,

23 Pa.C.S. § 2511(a)(1), (2), and (b). We affirm.

     The trial court summarized the background of this appeal as follow:

     3. Mother and Father were living together [at the home of Mother’s
     father (Maternal Grandfather)] when Child was born, but they
     ended their relationship in June of 2012. [Child] has continued to
     live with Mother since that time.

     4. Between December of 2012 and April of 2014, Mother and
     Father were involved in custody litigation . . . .

     5. In a custody order entered by agreement and filed on April 10,
     2013 (hereafter, “2013 Custody Order"), Mother was granted sole
     physical and legal custody of [Child], with Father to 1) exercise
     therapeutic supervised visits at Catholic Charities; 2) submit to
     random urine screens once per week for six months, and 3)
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     provide Mother’s counsel with a copy of his 2012 drug and alcohol
     evaluation performed by Livengrin Counseling.

     6. It is undisputed that Father completed the therapeutic
     supervised visits through Catholic Charities but did not submit to
     random urine screens as required by the 2013 Custody Order.

                                  *   *     *

     8. The most recent custody Order was entered by agreement and
     filed on April 29, 2014 (hereafter, “2014 Custody Order”).
     Pursuant to the 2014 Custody Order, Mother retain[ed] sole
     custody of [Child]. Father [could] have supervised custody twice
     per month using the supervision services of Jeffrey Searfoss, Rana
     Dimmig, or any other supervisor agreed upon by the parties, the
     cost of which [wa]s to be borne by Father. Father [wa]s also
     required to submit to random urine screens once per week for six
     months and to provide Mother’s counsel with a copy of his 2012
     drug and alcohol evaluation performed by Livengrin Counseling
     Center.

     9. The reasons for the restrictions on Father’s visitation with the
     child were Mother’s belief that Father had an established drug and
     alcohol problem and was living in an extremely unsafe situation;
     Father admitted that his alcoholism was the reason for the urine
     screens.

     10. Father has neither attempted to modify the 2014 Custody
     Order to lift the visitation nor filed a contempt petition related to
     the 2014 Custody Order.

     11. [Father] has not submitted any urine screens.

     12. [Father] has not attempted to set up supervised visits with
     [Child]. He testified he must have overlooked the supervision
     requirement in the 2014 Custody Order and claimed he was
     unaware of the requirement.

     13. [Father’s] last visit with his daughter was [in May 2013]—a
     planned therapeutic supervised visit scheduled through Catholic
     Charities that took place on [Child’s] first birthday.




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       14. Other than a very brief, chance encounter at an Applebee’s
       Restaurant in May [20181], has not seen or communicated with
       [Child] since her first birthday.

       15. In the past five years, he has not sent [Child] any gifts, letters,
       or cards.

       16. He has not asked for direct or indirect communication with
       [Child] through Mother, the maternal grandparents, or other
       family members or friends.

       17. He has not asked Mother, Stepfather, maternal grandparents,
       or other relatives for a report about [Child]’s health, progress, or
       education or asked them to deliver any cards, letters or gifts to
       [Child].

       18. In over five years, Father has not attended any doctor or
       dentist visits, taken [Child] to any activities or to school, or
       attended school functions or parent teacher conferences.

       19. Mother has moved several times since Mother and Father split
       up, but she has kept the same phone number.[fn3]
          [fn3]Father knew Mother’s address at the time he left her in
          2012 as they had both been living [with Maternal
          Grandfather]. In 2014 Mother moved to [a different town].
          She believes [her 2014 address] was disclosed to Father
          though court custody papers. In 2016, she moved back in
          with Maternal Grandfather . . ., bringing [Stepfather] with
          her. In 2017, Mother and Stepfather moved to [a new town
          to live with Stepfather’s mother,] and they remain in that
          home with [Child] to date. Mother admits she did not make
          Father aware of her [2016 return to Maternal Grandfather’s
          home or her move to the home of Stepfather’s mother], but
          [Mother] testified unequivocally that she remembers giving
          Father the new phone number that she has maintained since
          2013. . . . Father admitted he no longer has the last phone
          number Mother gave him, but accuses her of changing her
          number and not giving the new one to him[.]




____________________________________________


1Father stated that during the encounter in 2018, he saw Child, said “hi” to
Child, and then left the restaurant. N.T., 12/11/18 at 7.

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     20. Prior to the hearing, Father did not know where Mother and
     [Child] were living and had not made any attempts to discover
     their address. He was unaware whether Mother had moved from
     [Maternal Grandfather’s home, which] he shared with [Mother]
     when [Child] was born.

     21. Father has not called or texted Mother regarding [Child] since
     2014.

     22. Father has not tried to contact Mother by any means since
     2016, when he attempted to reach her through a message to her
     Facebook account, even though he is aware Mother blocked him
     from Facebook.

     23. Father knows where each of the maternal grandparents lives
     and how to get in contact with them, but he made no effort to do
     so as a means by which to have contact with [Child].

     24. Mother and her family use social media, but Mother was not
     aware of any attempts by Father to contact Mother or [Child]
     through her family members’ social media.

     25. Father sent a Facebook message to maternal grandfather on
     July 30, 2017, but the message did not request contact with
     Mother or [Child] or ask how [Child] was. The message states,
     “Hello . . . you have always told me actions speak louder then
     word please all i ask is you look at the body of work and i have
     become ..please.”

     26. Father’s only attempt to contact Stepfather about [Child]
     occurred via Facebook after Father received notice of the
     termination hearing.

     27. Father explained that he and/or his family members have
     inconspicuously followed the social media accounts of Mother and
     her family members over the last several years in order to get
     pictures and news of [Child].

     28. Father admits he was an alcoholic, was using marijuana, and
     knew that he could not pass the urine screens ordered by the 2014
     Custody Order.

     29. [Father] was on probation at the time of the hearing. His
     criminal record includes a [driving under the influence] and guilty
     pleas to nine counts of theft as well as one count of knowing and
     intentional possession of a controlled substance in 2018.


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       30. Father pays child support regularly at this time. He stopped
       making payments for a period of time in 2018 but was paying
       every two weeks at the time of the termination hearing.

Trial Ct. Op., 5/30/19, at 2-5 (record citations and some footnotes omitted).

       On March 9, 2018, Mother filed a petition for the involuntary termination

of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b).

The trial court held a hearing on December 10 and 11, 2018, at which Mother,

Stepfather, and Father testified.2

       By decree dated and entered on May 30, 2019, the trial court

involuntarily terminated Father’s parental rights under Section 2511(a)(1), (2)

and (b). Father timely filed a notice of appeal.3
____________________________________________


2 All parties were represented by counsel. Child, who was then six years old,
was represented by legal counsel, Alfred Stirba, IV, Esquire. As such, the trial
court complied with 23 Pa.C.S. § 2313(a). See In re Adoption of L.B.M.,
161 A.3d 172, 174-75, 180 (Pa. 2017) (plurality) (stating that, pursuant to
23 Pa.C.S. § 2313(a), a child who is the subject of a contested involuntary
termination proceeding has a statutory right to counsel who discerns and
advocates for the child’s legal interests, defined as a child’s preferred
outcome); In re Adoption of K.M.G., ___ A.3d ___, 2019 PA Super 281,
2019 WL 4392506 (Sept., 13, 2019) (en banc) (holding that (1) “this Court’s
authority is limited to raising sua sponte the issue of whether the orphan’s
court violated Section 2313(a) by failing to appoint any counsel for the Child
in a termination hearing,” and (2) we may not “review sua sponte whether a
conflict existed between counsel’s representation and the child’s stated
preference in an involuntary termination of parental rights proceeding”
(citations omitted) (emphasis in original).

3 Father did not file a concise statement of errors complained of on appeal
concurrently with his notice of appeal in contravention of Pa.R.A.P.
1925(a)(2)(i) and (b). Because no party claims prejudice, we will not quash
or dismiss his appeal. See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009);
Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010) (holding that appellant
waived all issues by failing to file a concise statement of errors complained of
on appeal when directed by the trial court).


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      On appeal, Father presents the following issues for our review:

       [1]. Whether the [trial court] abused its discretion in terminating
       the parental rights of [Father] to [Child], a minor?

      [2]. Whether the [trial court] erred in finding that [Mother] had
      met her burden pursuant to 23 Pa.C.S. § 2511(a)(1) and (2) and
      § 2511(b)?

Father’s Brief at 4.

      Father argues that the evidence was insufficient to terminate his

parental rights. Specifically, Father argues that Mother prevented him from

having a relationship with Child. Id. at 12. He emphasizes that Mother failed

to provide him with her changes of address and telephone number. Id. Father

further notes that Mother blocked him from her Facebook account. Id. Father

insists that “[t]hough [he] was prevented from having a physical relationship

with [Child] he maintained child support to ensure that [Child’s] financial

needs were met.” Id. at 16. Father relies upon In re T.L.G., 505 A.2d 628

(Pa. Super. 1986), among other cases, to support his claim that the

termination   of   his   parental   rights   was   not   appropriate   under   the

circumstances. See id. at 12.

      Our standard of review is abuse of discretion, which our Supreme Court

has explained as follows.

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an abuse
      of   discretion    only   upon     demonstration      of   manifest

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      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely because
      the record would support a different result. We have previously
      emphasized our deference to trial courts that often have first-hand
      observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing evidence
      that the parent’s conduct satisfies the statutory grounds for
      termination delineated in Section 2511(a). Only if the court
      determines that the parent’s conduct warrants termination of his
      or her parental rights does the court engage in the second part of
      the analysis pursuant to Section 2511(b): determination of the
      needs and welfare of the child under the standard of best interests
      of the child. One major aspect of the needs and welfare analysis
      concerns the nature and status of the emotional bond between
      parent and child, with close attention paid to the effect on the child
      of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We have

explained that “[t]he standard of clear and convincing evidence is defined as

testimony that is so ‘clear, direct, weighty and convincing as to enable the

trier of fact to come to a clear conviction, without hesitance, of the truth of

the precise facts in issue.’” Id. (citation omitted).




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      This Court may affirm the trial court’s termination of parental rights if

any one subsection of Section 2511(a) and Section 2511(b) has been

established. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc). Here, we initially focus on Section 2511(a)(1), which provides:

      (a) General Rule.—The rights of a parent in regard to a child
      may be terminated after a petition filed on any of the following
      grounds:


          (1) The parent by conduct continuing for a period of at least
          six months immediately preceding the filing of the petition
          either has evidenced a settled purpose of relinquishing
          parental claim to a child or has refused or failed to perform
          parental duties.

23 Pa.C.S. § 2511(a)(1).

      “A court may terminate parental rights under Section 2511(a)(1) where

the parent demonstrates a settled purpose to relinquish parental claim to a

child or fails to perform parental duties for at least the six months prior to the

filing of the termination petition.”   In re Z.P., 994 A.2d 1108, 1117 (Pa.

Super. 2010) (emphasis in original). Our Supreme Court has held,

      [o]nce the evidence establishes a failure to perform parental duties
      or a settled purpose of relinquishing parental rights, the court must
      engage in three lines of inquiry: (1) the parent’s explanation for his
      or her conduct; (2) the post-abandonment contact between parent
      and child; and (3) consideration of the effect of termination of
      parental rights on the child pursuant to Section 2511(b).


Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)

(citation omitted); accord In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).

      It is well settled that:


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     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A child
     needs love, protection, guidance, and support. These needs,
     physical and emotional, cannot be met by a merely passive
     interest in the development of the child. Thus, this court has held
     that the parental obligation is a positive duty which requires
     affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.

     Because a child needs more than a benefactor, parental duty
     requires that a parent exert himself to take and maintain a place
     of importance in the child’s life.

     Parental duty requires that the parent act affirmatively with good
     faith interest and effort, and not yield to every problem, in order
     to maintain the parent-child relationship to the best of his or her
     ability, even in difficult circumstances. A parent must utilize all
     available resources to preserve the parental relationship, and
     must exercise reasonable firmness in resisting obstacles placed in
     the path of maintaining the parent-child relationship. Parental
     rights are not preserved by waiting for a more suitable or
     convenient time to perform one’s parental responsibilities while
     others provide the child with his or her physical and emotional
     needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations and quotation

marks omitted).

     Instantly, the trial court initially found that

     [t]he last time Father ostensibly performed any parental duties
     . . . was May [of] 2013, during his last visit with [Child] at Catholic
     Charities. That was nearly five years before Mother filed the
     termination petition. Since then, other than paying child support
     for [Child], Father has not performed any parental duties. . . .
     When Mother was asked, “[W]ithin the past year, has [Father]
     done anything with regard to parenting of your child, supervising
     your child, or providing for your child?” Mother answered, “No,
     nothing at all.” Father did not dispute this testimony, although he

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         offered his own reasons for his non-involvement. Mother clearly
         and convincingly demonstrated that Father has failed to perform
         parental duties for his daughter for a period much longer than six
         months.

Trial Ct. Op., 5/30/19, at 9 (record citations and footnote omitted).

         Father does not dispute that aside from paying child support, he has not

performed any parental duties since 2013. Instead, Father claims that Mother

impeded his ability to maintain contact with Child.

         As to Father’s explanations for not remaining in contact with Child, the

record reveals the following. Regarding Father’s failure to exercise supervised

custody under the 2014 Custody Order, Father asserted that he was not aware

that he could have arranged for supervised custody. N.T., 12/11/18, at 24.

Father also maintained that Mother and the court overseeing the custody

matter would not have allowed him to see Child. Id. at 41. At the same time,

Father acknowledged that his continued involvement with drugs and failure to

appear for urine screens would have prevented him from exercising custody

of Child under the 2014 Custody Order.          Id. at 42-44.

         Regarding Father’s claim that Mother blocked him on Facebook, Mother

explained that she blocked Father after Father sent her harassing messages

that did not relate to Child. N.T., 12/10/19, at 43. Mother further testified

that she had Twitter, Instagram, and LinkedIn accounts, but Father did not

contact her using those accounts. Id. at 25. Additionally, Mother testified

that her family was on social media, but Father did not contact them about

Child.     Id. at 24-26, 43-44.    Father, in turn, testified that he contacted

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Maternal Grandfather through Facebook in July of 2017. N.T., 12/11/18, at

14-16, 21. However, Father did not ask about Child in that message. Id. at

16. Rather, Father testified the purpose of his Facebook message was to show

the Maternal Grandfather “how far I’ve come from [when I] liv[ed] with him.”

Id. Moreover, Mother stated that her telephone number has been the same

since before the issuance of the 2014 Custody Order, that Father knew the

number, but that Father did not call or her text her. N.T., 12/10/18, at 19-

20, 45, 52.

      Lastly, as to Father’s assertion that Mother moved without informing

him, Father only recently discovered Mother moved out of Maternal

Grandfather’s home, where Father and Mother lived when Child was born.

N.T., 12/11/18, at 25.    There was no evidence that Father attempted to

contact Child or send Child any cards or gifts to Maternal Grandfather’s home.

      Based on the foregoing, we find no merit to Father’s claim that the trial

court erred in terminating Father’s parental rights under Section 2511(a)(1).

The trial court properly determined that Father failed to perform his parental

duties since 2013. See id. at 9. The trial court acknowledged that Mother

raised some barriers to Father’s ability to maintain contact with Child. See

id. at 10-14. However, the trial court concluded that that those barriers did

not prevent Father from contacting Child, and that Father failed exercise

reasonable firmness in overcoming the obstacles. See id. at 14. Following

our review, we conclude the record supports the trial court’s findings, and we


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find no abuse or discretion or error of law in the trial court’s determinations.

See T.S.M., 71 A.3d at 267; see also J.T.M., 193 A.3d at 410.

      Moreover, to the extent Father relies on on T.L.G., that case is

distinguishable.   In T.L.G., the mother did not provide her most recent

address or telephone number to the father, who lived in Texas. T.L.G., 505

A.2d at 629-30. Nevertheless, the father in T.L.G. attempted to maintain

contact with the children by sending gifts and money to the mother’s aunt and

by inquiring of the aunt about the children’s needs. Id. Here, by contrast,

Father did not use the available resources in Mother’s family to maintain

contact with Child. Accordingly, Father’s claims merit no relief.

      As to Section 2511(b), we initially note that Father does not discuss the

needs and welfare of Child in the argument section of his brief. While we could

find such an issue waived for failure to present an argument or cite legal

authority, we will address the issue. See In re C.L.G., 956 A.2d 999, 1009

(Pa. Super. 2008) (en banc) (addressing the best interests of the child under

Section 2511(b) sua sponte). But see M.Z.T.M.W., 163 A.3d 462, 466 & n.3

(Pa. Super. 2017).

      Section 2511(b) states:

      (b) Other considerations.—The court in terminating the rights
      of a parent shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child. The rights
      of a parent shall not be terminated solely on the basis of
      environmental factors such as inadequate housing, furnishings,
      income, clothing and medical care if found to be beyond the
      control of the parent.


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23 Pa.C.S. § 2511(b).

        This Court has stated that the focus in terminating parental rights under

Section 2511(a) is on the parent, but the focus of Section 2511(b) is on the

child. See C.L.G., 956 A.2d at 1008. In reviewing the evidence in support of

termination under Section 2511(b), our Supreme Court has stated as follows:

        [I]f the grounds for termination under subsection (a) are met, a
        court “shall give primary consideration to the developmental,
        physical and emotional needs and welfare of the child.” 23 Pa.C.S.
        § 2511(b). The emotional needs and welfare of the child have
        been properly interpreted to include “[i]ntangibles such as love,
        comfort, security, and stability.” In In re E.M., 620 A.2d [481,
        485 (Pa. 1993)], this Court held that the determination of the
        child’s “needs and welfare” requires consideration of the emotional
        bonds between the parent and child. The “utmost attention”
        should be paid to discerning the effect on the child of permanently
        severing the parental bond.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations omitted).

        When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.    Additionally, Section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations

omitted). Further, “in cases where there is no evidence of a bond between a

parent and child, it is reasonable to infer that no bond exists.” In re Adoption

of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (citation omitted).

        Instantly, the trial court found as follows:

        [A]ny parental role Father played was limited to the first year of
        [Child’s] life. Since then, he has had no contact with her.
        Stepfather has taken on a parental role and is the only father
        figure [Child] knows. . . .

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      Mother and Stepfather are [Child’s] primary parental
      relationships. They provide her with love, comfort, security, and
      stability. They have met all of her daily physical and emotional
      needs. Testimony adduced at the hearing established that she
      enjoys an affectionate relationship with Stepfather and that he
      already acts in the role of father to [Child]. He has been a stable
      paternal presence in her life since 2012. Continuity of that
      relationship and permanence in a stable, loving home will best
      serve [Child’s] developmental, physical and emotional needs and
      welfare. Considering her tender years and the fact that any
      contact with Father was limited to the first year of her life, the
      [c]ourt does not believe that permanently severing the bond will
      have any negative effect on [Child], and, in fact, the bond with
      Stepfather is a bond that should be preserved. Accordingly, we
      find the termination of Father’s parental rights is in [Child’s] best
      interest so that the [c]ourt can give legal effect to the relationship
      that already exists in fact between [Child] and Stepfather.

Trial Ct. Op., 5/30/19, at 15-16 (citations omitted).

      Our review reveals that Mother’s and Stepfather’s testimony supports

the court’s findings. Mother testified that Child has never had a relationship

with Father, and that she knows Stepfather as her father. N.T., 12/10/18, at

22-23. Stepfather described his relationship with Child having “no difference

as far as whether or not I’m the biological father. . . . [Child]’s really just

everything to me. [I have b]een there since she was four months old. And I

think I fell in love with her before I did her mom. . . . I love her to death.”

Id. at 57.   Mother testified that it is in Child’s best interest to terminate

Father’s parental rights “because [Child] knows my husband as her father[,]

and he has provided for every single need that she [has] ever had since she

was less than one year[] old. And we have established a family together; and

she is happy, safe, and well-cared for in that family.” Id. at 23.

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     Based on the foregoing, we discern no abuse of discretion by the trial

court in concluding that terminating Father’s parental rights serves the

developmental, physical, and emotional needs and welfare of Child pursuant

to Section 2511(b). See T.S.M., 71 A.3d at 267. Accordingly, we affirm the

decree.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/19




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