J-S12010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF: M.S., A              :   IN THE SUPERIOR COURT OF
 MINOR                                    :        PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: K.S.                          :
                                          :
                                          :
                                          :
                                          :   No. 1895 MDA 2018

              Appeal from the Decree Entered October 18, 2018
            In the Court of Common Pleas of Cumberland County
               Orphans' Court at No(s): 113-ADOPTIONS-2017


BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 09, 2019

      K.S. (“Mother”) appeals from the decree entered on October 18, 2018,

that involuntarily terminated her parental rights to her son, M.S., born in

November of 2012. We affirm and grant counsel’s petition to withdraw.

      This appeal arises from the decree originally entered on January 12,

2018, that involuntarily terminated Mother’s parental rights to M.S. pursuant

to 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b). This Court denied the petition

to withdraw filed by Mother’s counsel in her prior appeal, vacated the decree

without prejudice, and remanded the case. See In the Adoption of M.S.,

198 A.3d 421 (Pa.Super. 2018) (unpublished memorandum).            We directed

M.S.’s legal counsel to interview the child and attempt to discern his preferred
J-S12010-19


outcome of the termination proceeding pursuant to In re Adoption of L.B.M.,

161 A.3d 172 (Pa. 2017) and its progeny.1

       The certified record includes a memorandum from M.S.’s legal counsel

to the orphans’ court, dated October 8, 2018, stating that he met with M.S.,

and that his “preference is to remain in the care and custody of the foster

family . . . and be adopted by them.”            Memorandum, 10/8/18, at 2.   On

October 18, 2018, the orphans’ court reentered the original decree. Mother

timely appealed.2       The orphans’ court filed its Rule 1925(a) opinion on

December 18, 2018, wherein it relied upon its opinion dated April 16, 2018,

filed in response to Mother’s prior appeal.

       On January 17, 2019, Mother’s counsel filed a petition with this Court

requesting to withdraw from representation and submitted a brief pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.




____________________________________________


1  During the termination proceeding, M.S., then five years old, was
represented by legal counsel and by a separate guardian ad litem (“GAL”).
We concluded that there was no record evidence indicating that M.S.’s legal
counsel met with him in order to ascertain his preference, and M.S.’s preferred
outcome was not clear from any other source in the record. In addition, we
concluded that legal counsel did not advocate for M.S.’s preference during the
termination proceeding. See In the Adoption of M.S., supra.
2 Mother concurrently filed a concise statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i)
and (b).




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Santiago, 978 A.2d 349 (Pa. 2009).3 Prior to addressing the Anders brief,

we summarize the relevant facts and procedural history of this case. See

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (“When

faced with a purported Anders brief, this Court may not review the merits of

the underlying issues without first passing on the request to withdraw.”)

(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997)).

       Mother has struggled with drug addiction throughout the history of this

case, including, but not limited to, crack cocaine. The court first removed

M.S. from Mother’s care in August of 2015. Trial Court Opinion, 4/16/18, 1.

M.S. was reunified with Mother in November of 2015, as a result of her

complying with required services and being placed in a drug screening

program. Id. The court removed him again from Mother’s care on May 23,

2016, due to her illegal drug use.             Id. at 2.   The court adjudicated M.S.

dependent on June 6, 2016, but returned him to Mother’s custody that same

date. Id.; N.T., 12/8/17, at 4. Mother was required to satisfy the following

permanency objectives: complete a parenting evaluation; undergo outpatient

mental health and drug/alcohol counseling; practice medication management;

and submit to drug screening. Trial Court Opinion, 4/16/18, at 2. Mother




____________________________________________


3 We note with disapproval that CYS neglected to file anything with this Court
to outline its position on appeal. Similarly, rather than filing appellee briefs,
M.S.’s legal counsel and GAL both filed correspondence with this Court stating
an intention to adopt the rationale presented in the orphans’ court opinion.

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subsequently      commenced       parenting    classes   at   Alternative   Behavioral

Consultants (“ABC”). Id.

       In October of 2016, Mother tested positive for cocaine, and the court

removed the child from her custody for the final time. Id. On February 27,

2017, M.S. was placed in a pre-adoptive foster home, where he remained at

the time of the subject proceeding. Id. at 3.

       On November 28, 2017, Cumberland County Children and Youth

Services (“CYS”) filed a petition for the involuntary termination of Mother’s

parental rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b).             A

hearing on the petition against Mother occurred on December 8, 2017,4 during

which CYS presented the testimony of its caseworker, Katie Whitney, and

D.H., the child’s foster mother. Mother testified on her own behalf.5

       We turn now to the request to withdraw and Anders brief submitted by

Mother’s counsel in the instant appeal.          This Court “extended the Anders

principles to appeals involving the termination of parental rights.” In re X.J.,




____________________________________________


4 In addition, CYS requested a permanency goal change to adoption for M.S.
and his two half-siblings, who are not subjects of this appeal. M.S.’s half-
siblings reside in a foster home separate from him. N.T., 12/8/17, at 5-6. At
the conclusion of the testimony on December 8, 2017, the court changed
M.S.’s goal to adoption. Id. at 40. Mother did not appeal from the goal
change order.

5 At the conclusion of the testimonial evidence on December 8, 2017, the GAL
recommended on the record in open court that Mother’s parental rights be
involuntarily terminated. N.T., 12/8/17, at 39.

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105 A.3d 1, 3 (Pa.Super. 2014). To withdraw pursuant to Anders, counsel

must:

        1) petition the court for leave to withdraw stating that, after
        making a conscientious examination of the record, counsel has
        determined that the appeal would be frivolous; 2) furnish a copy
        of the [Anders] brief to the [appellant]; and 3) advise the
        [appellant] that he or she has the right to retain private counsel
        or raise additional arguments that the [appellant] deems worthy
        of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super.

2009)). With respect to the third requirement of Anders, that counsel inform

the appellant of his or her rights in light of counsel’s withdrawal, this Court

has held that counsel must “attach to their petition to withdraw a copy of the

letter sent to their client advising him or her of their rights.” Commonwealth

v. Millisock, 873 A.2d 748, 752 (Pa.Super. 2005).

        Additionally, an   Anders    brief   must   comply   with the   following

substantive requirements:

        (1) provide a summary of the procedural history and facts, with
        citations to the record;

        (2) refer to anything in the record that counsel believes arguably
        supports the appeal;

        (3) set forth counsel’s conclusion that the appeal is frivolous; and

        (4) state counsel’s reasons for concluding that the appeal is
        frivolous. Counsel should articulate the relevant facts of record,
        controlling case law, and/or statutes on point that have led to the
        conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

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      In the subject appeal, Mother’s counsel filed a petition to withdraw

certifying that he had reviewed the case and determined that Mother’s appeal

was frivolous. Counsel also filed a brief that includes a summary of the history

and facts of the case, the issues raised by Mother, the facts that arguably

support the appeal, and counsel’s assessment of why the appeal is frivolous

with citations to relevant legal authority. In response to an order from this

Court directing Mother’s counsel to file a letter pursuant to Millisock, supra,

counsel filed the requisite letter sent to Mother, which he inadvertently had

not attached to his petition to withdraw. Therefore, counsel complied with the

requirements of Anders and Santiago.

      We must next “conduct a review of the record to ascertain if on its face,

there are non-frivolous issues that counsel, intentionally or not, missed or

misstated.” Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.Super.

2018) (en banc). Counsel’s Anders brief raises the following two issues for

our review:

      1.    Whether the [orphans’] [c]ourt abused its discretion and
      committed an error of law when it found, despite a lack of clear
      and convincing evidence, that sufficient grounds existed for a
      termination of parental rights under [§] 2511(a) of the Adoption
      Act, 23 Pa.C.S. § 2511(a)[?]

      2.    Whether the [orphans’] [c]ourt abused its discretion and
      committed an error of law in determining it would be in the child’s
      best interest to have parental rights terminated, when it failed to
      primarily consider the child’s developmental, physical and
      emotional needs and welfare, thus contravening [§] 2511(b) of
      the Adoption Act, 23 Pa.C.S. § 2511(b)[?]

Anders brief at 4.

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     Our standard of review is 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
     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 § 2511 of the Adoption

Act, 23 Pa.C.S. §§ 2101-2938, 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).

     Instantly, we conclude that the certified record supports the decree

pursuant to § 2511(a)(2) and (b), which provides as follows.




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       (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:

           ....

           (2) The repeated and continued incapacity, abuse, neglect
           or refusal of the parent has caused the child to be without
           essential parental care, control or subsistence necessary
           for his physical or mental well-being and the conditions and
           causes of the incapacity, abuse, neglect or refusal cannot
           or will not be remedied by the parent.

           ....

      (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. With respect to any petition filed pursuant
      to subsection (a)(1), (6) or (8), the court shall not consider any
      efforts by the parent to remedy the conditions described therein
      which are first initiated subsequent to the giving of notice of the
      filing of the petition.

23 Pa.C.S. § 2511(a)(2), (b); see also In re B.L.W., 843 A.2d 380, 384

(Pa.Super. 2004) (en banc) (stating that we need only agree with the trial

court as to any one subsection of § 2511(a), as well as § 2511(b), in order to

affirm).

      This Court has explained that the moving party must produce clear and

convincing evidence with respect to the following elements to terminate

parental rights pursuant to § 2511(a)(2): (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or

refusal caused the child to be without essential parental care, control or

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subsistence necessary for his physical or mental well-being; and (3) the

causes of the incapacity, abuse, neglect or refusal cannot or will not be

remedied. In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003).

      Pursuant to § 2511(a)(2), parents are required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities. In

re A.L.D. 797 A.2d 326, 340 (Pa.Super. 2002). A parent’s vow to cooperate,

after a long period of uncooperativeness regarding the necessity or availability

of services, may properly be rejected as untimely or disingenuous.          Id.

Further, the grounds for termination of parental rights under § 2511(a)(2),

due to parental incapacity that cannot be remedied, are not limited to

affirmative misconduct; to the contrary, those grounds may include acts of

refusal as well as incapacity to perform parental duties. Id. at 337.

      With respect to § 2511(b), this Court has explained, “[i]ntangibles such

as love, comfort, security, and stability are involved in the inquiry into the

needs and welfare of the child.”      In re C.M.S., 884 A.2d 1284, 1287

(Pa.Super. 2005) (citation omitted). Further, the trial court “must also discern

the nature and status of the parent-child bond, with utmost attention to the

effect on the child of permanently severing that bond.” Id. (citation omitted).

However, this Court has stated, “[i]n cases where there is no evidence of any

bond between the parent and child, it is reasonable to infer that no bond

exists. The extent of any bond analysis, therefore, necessarily depends on




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the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-

763 (Pa.Super. 2008) (citation omitted).

      In this case, the orphans’ court concluded that Mother’s conduct

warranted termination pursuant to § 2511(a)(2), as follows:

      The main basis for the termination of Mother’s parental rights was
      her long and continued use of illegal drugs. By her own admission,
      [Mother] was using drugs at the time she became pregnant and
      submits this as her excuse for not knowing the identity of [M.S.]’s
      father. The record shows that [Mother’s] duties to [M.S.] (and his
      siblings) took a backseat to her drug use. . . .

      Mother was offered numerous resources to assist her in
      overcoming her drug addiction so that she could reunify with
      [M.S.]. Instead of taking advantage of those resources, [Mother]
      chose to continue using illicit drugs. Such use caused her to be
      expelled from the programs aimed to help her. [Mother’s] drug
      use also prevented reunification, which in turn unduly delayed
      permanency for [M.S.]. Moreover, at the time of the termination
      hearing, she still had not made any progress on addressing her
      drug addiction. . . .

Trial Court Opinion, 4/16/18, at 5-6 (citation to case law omitted).         The

testimony of Mother and Ms. Whitney, the CYS caseworker, supports the

court’s findings.

      Mother acknowledged on direct examination, “I’ve struggled with

addiction a good part of my life.” N.T., 12/8/17, at 33. She testified on inquiry

by the orphans’ court that she does not know who M.S.’s father is “because I

was very messed up on drugs when I was pregnant with [M.S.].” Id. at 38.

She further explained, “And I did a lot of sleeping around.”        Id.   Mother

acknowledged that she has not met the permanency goals established for her

in this case. Id. at 34. However, she testified, “I’m trying to get back on

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track right now. I have transportation set for everything. I just had my first

mental health counseling this morning. . . . I mean I know it’s late, but I got

transportation now.” Id. at 34-35.

      Although Mother explained she had difficulty satisfying her permanency

objectives due, in part, to transportation problems, Ms. Whitney testified as

follows:

      I have had multiple discussions with [Mother] in regards to
      transportation. I have offered a mileage reimbursement if she has
      an individual that is willing to bring her into the agency [for her
      to] provide drug screens.

      I have discussed with her bus transportation and that being an
      option and that perhaps the agency could assist in that manner if
      it came to bus passes. I’ve also suggested a family group
      conference as well to get her supports together and address a plan
      for transportation and how she is going to comply with drug
      screens.

Id. at 9. Ms. Whitney also testified that she offered to perform drug screens

at Mother’s home.     She testified, “I had an appointment scheduled for

September 11th [at] [Mother’s] home, and that was announced, but when I

had arrived at the home, [Mother] was not present. . . .” Id. at 10.

      With respect to her alleged sobriety, Mother testified, “I haven’t done

anything for almost three weeks now as far as cocaine.” Id. at 35-36. She

continued:

      A. And I’m not going to lie, I have taken a couple hits of weed. It
      relaxes me. I have anxiety and depression and everything, and a
      lot of times my pills don’t help me. So there was some weed in
      my system also [during her drug screen on November 16, 2017].
      I stopped drinking. I don’t drink anymore. I haven’t drank for a
      long time.

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        Q. What’s a long time?

        A. Probably four months for me, and I was drinking probably once
        a week.

Id. at 36.

        However,   Ms.   Whitney    testified   that,   during   the   most    recent

permanency review period leading to the subject proceeding, Mother “has

been contacted twenty-six times for drug screens. Twenty of those were no

call,   no-shows[,]   and   six    times   [Mother]     was   unavailable     due   to

transportation.” Id. at 7. She continued, “I did conduct a visit to [Mother’s]

house on November 16th unannounced and requested a drug screen on that

date[,] and [Mother] was agreeable to submit to a drug screen which was

positive for cocaine and marijuana.” Id. Ms. Whitney testified that Mother

tested positive for cocaine and marijuana again on November 21, 2017. Id.

at 8.

        On December 5, 2017, Mother completed a drug and alcohol evaluation,

which Ms. Whitney testified recommended that she have “intensive outpatient

treatment.” Id. Ms. Whitney emphasized that, on two prior occasions during

M.S.’s most recent placement, Mother received drug and alcohol treatment

and “was discharged due to lack of attendance.” Id.

        Ms. Whitney further testified that ABC, the agency that provided the

parenting classes, discharged Mother in November of 2016, due to drug

concerns. Id. at 12. She stated that Mother, to re-enter the program, “would


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need to demonstrate her sobriety through drug screens and consistency in

treatment.”   Id. at 13.   Ms. Whitney clarified that ABC “at least wanted

[Mother to provide] three negative drug screens. . . .” Id.

      With respect to M.S.’s prior reunification with Mother, Ms. Whitney

testified on cross-examination by Mother’s counsel:

      Q. So [Mother] has at least at times shown that she has the ability
      to work on her goals, complete them, and get [M.S.] back in her
      care?

      A. She has shown the ability that she can do it. The concern has
      been her ability to maintain that.

Id. at 18.

      The foregoing evidence demonstrates that Mother’s repeated and

continued incapacity or refusal to maintain sobriety has caused M.S. to be

without essential parental care, control or subsistence necessary for his

physical or mental well-being. Further, based on the evidence demonstrating

that Mother has been unable to maintain sobriety during M.S.’s life, we discern

no abuse of discretion by the court in concluding that the causes of Mother’s

incapacity cannot or will not be remedied. Accordingly, we do not disturb the

court’s conclusion that CYS satisfied its evidentiary burden pursuant to §

2511(a)(2).

      Based on the statutory bifurcated analysis in involuntary termination

matters, we next review the orphans’ court’s analysis pursuant to § 2511(b).

This Court has emphasized:




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      While a parent’s emotional bond with his or her child is a major
      aspect of the subsection 2511(b) best-interest analysis, it is
      nonetheless only one of many factors to be considered by the
      court when determining what is in the best interest of the child.

         [I]n addition to a bond examination, the trial court can
         equally emphasize the safety needs of the child, and should
         also consider the intangibles, such as the love, comfort,
         security, and stability the child might have with the foster
         parent. Additionally, this Court stated that the trial court
         should consider the importance of continuity of
         relationships and whether any existing parent-child bond
         can be severed without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)). In addition, our Supreme

Court has stated that, “[c]ommon sense dictates that courts considering

termination must also consider whether the children are in a pre-adoptive

home and whether they have a bond with their foster parents.” In re T.S.M.,

71 A.3d at 268.    Moreover, the Court directed that, in weighing the bond

considerations pursuant to Section 2511(b), “courts must keep the ticking

clock of childhood ever in mind.” Id. at 269. The T.S.M. Court observed,

“[c]hildren are young for a scant number of years, and we have an obligation

to see to their healthy development quickly. When courts fail . . . the result,

all too often, is catastrophically maladjusted children.” Id.

      The orphans’ court herein concluded:

      We found little evidence that severing the ties between Mother
      and [M.S.] would have any detrimental effect on [M.S.].
      Furthermore, we were satisfied that if there would be any adverse
      effect, it could be easily overcome by the love and support of
      [M.S.]’s foster family. [M.S.] is thriving in a foster home. He is
      an integral part of the foster family. They love him and want to

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      adopt him. His life with Mother had been hard and unpredictable.
      With his foster family[,] [M.S.] has stability, and most
      importantly, permanency. Consequently, we were satisfied that
      the needs and welfare of [M.S.] will be best served by terminating
      parental rights and allowing him to be adopted by his foster
      parents.

Trial Court Opinion, 4/16/18, at 7.      The certified record supports these

findings.

      Ms. Whitney testified that the ABC parenting program provides Mother

supervised visits weekly with M.S. together with his half-siblings.        N.T.,

12/8/17, at 14, 25. During the most recent review period, “There have been

nineteen visits offered[,] and thirteen that have been attended.” Id. at 14.

Ms. Whitney testified that, to her knowledge, “the visits go well.” Id. at 17.

Nevertheless, she testified that M.S., then five years old, has been removed

from Mother’s custody for fourteen consecutive months.        Id. at 24.    Our

careful review of the record supports the orphans’ court’s finding that no

parent-child bond exists between Mother and M.S. that would be detrimental

to sever.

      M.S. has resided with his current foster parents since February of 2017,

and Ms. Whitney testified that he is bonded to them. Id. at 3, 26. Further,

she indicated that, upon observing M.S. for the past year, she believes that

his behavior “has improved greatly.” Id. at 25. She explained that M.S. is “a

lot more calm [and] respectful. He will say please, thank you, [is] polite [and]

well-mannered.” Id. Ms. Whitney testified that M.S. has no special needs,

and that he “is doing very well.” Id. at 14-15. She testified, as confirmed by

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D.H., M.S.’s foster mother, that the foster parents are pre-adoptive resources.

Id. at 14. In sum, Ms. Whitney opined that terminating Mother’s parental

rights will not have a negative effect on M.S. Id. at 26. Accordingly, the

orphans’ court did not err in concluding that involuntarily terminating Mother’s

parental rights will serve M.S.’s developmental, physical, and emotional needs

and welfare pursuant to § 2511(b).

       In conclusion, our independent review of the certified record revealed

no preserved non-frivolous issue that would arguably support this appeal.

Therefore, we grant counsel’s petition to withdraw and affirm the decree

terminating Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and

(b).

       Petition of Joseph L. Hitchings, Esquire, to withdraw from representation

is granted. Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/09/2019




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