Filed 9/30/13 N.G. v. Superior Court CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


N.G.,
         Petitioner,
v.                                                                   A139037
THE SUPERIOR COURT OF
MENDOCINO COUNTY,                                                    (Mendocino County Super. Ct. Nos.
                                                                     SCUK-JVSQ-13-16062 &
         Respondent;                                                 SCUK-JVSQ-13-16063)
MENDOCINO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
         Real Party in Interest.


         Petitioner N.G. (mother) seeks review of a juvenile court order scheduling a
hearing pursuant to Welfare and Institutions Code1 section 366.26 for her children K.G.
and J.G. The mother contends there was insufficient evidence to support a supplemental
petition under section 387, to demonstrate the previous placement order was not
effective, to justify removal of the children from her custody, and to bypass reunification
services under section 361.5, subdivision (b)(13). We deny the petition.




1
  All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.


                                                             1
                          FACTUAL AND PROCEDURAL HISTORY
       In August 2010, the Mendocino County Health and Human Services Agency
(agency) filed a petition alleging that the mother’s two-year-old daughter K.G. and 12-
month-old son J.G. came within the jurisdiction of the juvenile court pursuant to section
300, subdivision (b).2 The petition was filed in response to an incident in which the
children were found at a neighbor’s house after being left with the father’s sister, who in
turn brought the children to a family friend, who ultimately left the children with the
neighbor. When the father was located, he did not want to come home because he had
been drinking alcohol and did not want his children to see him in that condition. When
the mother arrived home, she was intoxicated and claimed to have been in Lake County
for two days with friends.
       The juvenile court declared K.G. and J.G. wards of the court after finding true
allegations that neither the father nor the mother was sober and available to care for the
children, that the father had an alcohol problem inhibiting his ability to parent, and that
the father got overwhelmed in caring for the children when the mother would leave the
home for days at a time. The court dismissed without prejudice an allegation that the
mother had an alcohol problem that inhibited her parenting ability on the condition that
she agreed to submit to random drug testing and attend Alcoholics Anonymous and Al-
Anon. At the disposition hearing, the court adopted a modified case plan that required
the mother to attend Al-Anon twice a week and to submit to random urine testing but
omitted the requirement of attending Alcoholics Anonymous. A stated objective of the
case plan was for the mother to “[s]tay sober and show [the] ability to live free from
alcohol dependency.” The court placed the children with the mother and ordered family
maintenance services for the mother and reunification services for the father.
       On March 15, 2011, the agency filed a supplemental petition pursuant to section
387 seeking a more restrictive placement for the children. In an amended section 387


2
  Because the father has not challenged the order setting a section 366.26 hearing, our
focus is upon the facts relating to the mother.


                                              2
petition, the agency alleged that the mother had been using methamphetamine, marijuana,
and alcohol. The agency also alleged that the mother had failed to participate in case
plan activities and had failed to comply with court orders. Specifically, it was alleged
that the mother had disobeyed a court order to undergo an immediate drug test, had failed
to attend court-ordered parenting classes, and had only minimally participated in court-
ordered Family Empowerment Groups. It was further alleged that the mother had failed
to notify her social worker of individuals who lived in her home, transported her children
to school, and allowed the children to stay overnight at their homes. The court ordered
the children detained at a hearing conducted on March 17, 2011. The court found the
allegations of the amended supplemental petition true at a jurisdiction hearing conducted
in April 2011. At the disposition hearing, the court placed the children in the custody of
the agency and ordered reunification services for the mother. As part of her updated case
plan, the mother was required to participate in and successfully complete a substance
abuse treatment program at Alcohol and Other Drug Programs (AODP).
       The mother did not appear in court for a 30-day substance abuse treatment review
in June 2011. The agency informed the court that the mother had failed to contact
AODP. At a 60-day substance abuse treatment review hearing, the social worker
reported that the mother had not checked into AODP and had missed drug testing the
previous week. In August 2011, the mother was found eligible and suitable for Family
Dependency Drug Court (FDDC). Her revised case plan required her to participate in
and successfully complete FDDC.
       As reflected in a status report filed in October 2011, the mother began attending
FDDC in August 2011. It was reported that she had been arrested for battery on her
husband in June 2011. The mother was not conscientious about keeping the social
worker informed as to where she had been living and had not participated in individual
therapy or parenting classes. Further, she did not participate in a drug test in July 2011
and did not come to a scheduled visit with her children. At the conclusion of the October
2011 review hearing, the court ordered the mother to receive six more months of
reunification services.


                                             3
       A further status review hearing was conducted in March 2012. At the time, it was
reported that the mother has missed a drug test in December 2011 and had received 14
“sanctions” in FDDC, “mostly for not showing to AODP or calling when she was ill.”
She had advanced to Phase 4 of the FDDC program. The social worker opined that the
mother had made very good progress, with a documented length of sobriety of eight
months. In addition, she had obtained adequate housing, had stabilized her marriage, and
was expecting another baby in March 2012. Based upon the recommendation of the
social worker, the juvenile court ordered the children returned home to their parents and
directed them to receive family maintenance services.
       Following the return of the children to the mother, she tested positive for
methamphetamine in June 2012. The social worker did not recommend removal of the
children but sought a stern warning that the mother had already received 12 months of
reunification services for children who were under three years of age when originally
removed from the home.
       In the report prepared for an August 2012 review hearing, the social worker
reported the mother was testing clear of all drugs and alcohol since her relapse in June
2012. The mother had made progress in parenting groups and began attending anger
management classes. The social worker reported that the parents’ relationship was
tumultuous at times, with the mother stating they were separating one week and getting
back together the next. The parents had participated in services offered by the agency but
did not attend regularly. The social worker made it clear that the mother and the father
had already received 12 and 18 months of reunification services, respectively, and that
they needed to remain aware that they must make sufficient progress in resolving the
problems that led to the dependency. The court adopted the findings and orders
recommended by the agency, continued family maintenance services, and modified the
mother’s case plan to include anger management or domestic violence treatment as
decided in conjunction with the social worker and therapist.
       In a report prepared for the February 2013 status review hearing, the social worker
reported that the mother was currently in Phase 4 of the FDDC program and was


                                             4
struggling to complete the program. In 2012, she had been ordered to return to Phase 3
after failing to show up for a drug test. She advanced to Phase 4 in November 2012 and
then to Phase 5 of the FDDC program in December 2012. However, she was ordered
back to Phase 4 in January 2013 after testing positive for marijuana (THC). Neither
parent appeared in court for the status review hearing in February 2013. The minors’
counsel expressed concern that the father’s conduct was putting the mother’s sobriety in
jeopardy. The court adopted the findings and orders recommended by the agency and set
a review date for July 2013.
       In March 2013, the agency filed a supplemental petition under section 387 as to
the father, alleging that his use of alcohol while caring for the children put them at
serious risk of harm. The court detained the children from the father.
       In April 2013, just over two years after filing the first supplemental petition as to
the mother, the agency filed a second section 387 supplemental petition regarding the
mother. The agency alleged that the mother’s use of alcohol while caring for her children
put them at risk of serious harm. The detention report prepared by the agency described
an incident on March 29, 2013, in which the mother was arrested following a domestic
altercation with the father. The mother resisted arrest, kicked a police officer, and
refused to get into the back of a patrol car. Although the children were not present for the
domestic altercation between the parents, they were present for the mother’s subsequent
arrest. The mother had a blood alcohol content of 0.127 percent at the time of the arrest.
She was charged with domestic battery and resisting arrest for the March 2013 incident.
       At the detention hearing, the mother’s counsel objected to detaining the children,
arguing that there were “protect[ive] measures put in place when she was drinking.” Her
counsel claimed there were “appropriate persons” present to care for the children. Both
counsel for the agency and counsel for the minors requested detention of the minors, with
the minors’ counsel citing the mother’s long history of substance abuse. The court
ordered K.G., J.G., and their younger sibling, G.G., detained.
       In a jurisdiction report filed on April 10, 2013, the social worker indicated that
rule 5.565(f) of the California Rules of Court applied to both parents in that the mother


                                              5
and the father had already received 12 and 18 months of reunification services,
respectively.3 The agency did not recommend offering additional reunification services
and requested the setting of a hearing pursuant to section 366.26. The mother’s counsel
filed a brief in support of dismissing the allegations, arguing that K.G. and J.G. came
under the court’s jurisdiction with respect to the mother because she left the children with
inappropriate caregivers in the past. Counsel argued there was no evidence the persons
who were taking care of the children at the time of the mother’s March 2013 arrest were
inappropriate. Counsel also argued the first supplemental petition was sustained based on
the mother’s use of marijuana and methamphetamine, whereas the most recent allegations
involved the use of alcohol. The agency opposed the motion to dismiss the allegations
and filed an addendum report stating that the oldest child, K.G., had witnessed her mother
being arrested while under the influence of alcohol. K.G. had told the social worker that
she saw her mother screaming after her mother was handcuffed. She also stated that
three policemen pushed her mom into a car and “socked her in the neck.”
       At the jurisdiction hearing on the second section 387 petition as to the mother, the
mother testified that she was feeling overwhelmed on March 29, 2013, and purchased
alcohol to drink. She admitted arguing with her husband but denied striking him. She
bought and consumed more alcohol after the confrontation with her husband. She
testified that she “did kind of kick and scream” when she was arrested because she felt
she was being charged for something she did not do. The mother claimed she was not
alone with the children at any point when she was intoxicated and that there were sober
people present. The mother’s boyfriend testified that he was present on the evening of
March 29, 2013, and had not been drinking. The boyfriend acknowledged that he was


3
  Rule 5.565(f) of the California Rules of Court provides: “If a dependent child was
returned to the custody of a parent or guardian at the 12-month review or the 18-month
review or at an interim review between 12 and 18 months and a 387 petition is sustained
and the child removed once again, the court must set a hearing under section 366.26
unless the court finds there is a substantial probability of return within the next 6 months
or, if more than 12 months had expired at the time of the prior return, within whatever
time remains before the expiration of the maximum 18-month period.”


                                              6
supposed to submit to a background check with the agency but had not done so. The
mother’s cousin also testified and stated that he was present with the children on the
evening of March 29, 2013. He testified that he was sober that evening and had been
asked by the mother to watch the children because she had been drinking. The cousin
stated that he had been asked to provide his fingerprints to the agency for a background
check but had failed to do so. The social worker testified that she had attempted to do a
background check on the cousin but could not do so without a social security number or a
fingerprint. Her attempt to do a background check based solely on the cousin’s name and
birthdate had turned up a lengthy criminal history. At the conclusion of the jurisdiction
hearing, the court found the allegations of the section 387 supplemental petitions true as
to both the mother and the father. The court set a disposition hearing for June 13, 2013.
       In the report prepared for the disposition hearing, the social worker stated that the
mother was subject to bypass for further services under rule 5.565(f) of the California
Rules of Court because she had received 12 months of reunification services from March
17, 2011, to March 13, 2012. The report also indicated that the mother was subject to
bypass for reunification services based upon section 361.5, subdivision (b)(13), in that
she had a history of extensive, abusive, and chronic use of drugs or alcohol and had failed
or refused to comply with a program of drug or alcohol treatment in the preceding three-
year period. In the summary evaluation, the social worker stated that the mother had a
history of “acting out” her anger. Also, the mother had been involved in the dependency
case for close to three years as of August 2013. She reasonably knew she must remain
sober in order to keep her children safe but had not done so over time and consistently
relapsed every six months or less, “keeping her forever in FDDC.” The report stated that
the mother had received at least 18 months of family maintenance services and 12 months
of reunification services.
       At the disposition hearing in June 2013, the court found clear and convincing
evidence that there was a substantial risk of harm to K.G. and J.G. as a result of the
mother’s recent relapse. The court expressed concern not only about the use of alcohol
but also the “serious incident of acting out while drinking . . . with the children around.”


                                              7
The court adopted the agency’s proposed findings and orders, denied reunification
services to the mother pursuant to section 361.5, subdivision (b)(13), and set the matter
for a permanency planning hearing pursuant to section 366.26 as to K.G. and J.G. The
mother timely sought writ review of the court’s orders with respect to K.G. and J.G.
under rule 8.450 of the California Rules of Court. The mother’s counsel also filed
notices of appeal from the same orders.4
                                        DISCUSSION
I.     Standard of review.
       Our review of a challenge to the sufficiency of the evidence is guided by familiar
principles. “In juvenile cases, as in other areas of the law, the power of an appellate court
asked to assess the sufficiency of the evidence begins and ends with a determination as to
whether or not there is any substantial evidence, whether or not contradicted, which will
support the conclusion of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540,
547.) All conflicts must be resolved in favor of the respondent and all legitimate
inferences must be indulged in support of the juvenile court’s findings. (Ibid.) The party
challenging the finding bears the burden of showing there is insufficient evidence to
support the juvenile court’s finding. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The substantial evidence standard also applies to findings that must be made by clear and
convincing evidence. (See In re Henry V. (2004) 119 Cal.App.4th 522, 528-529.)




4
  In her writ petition, the mother requests that we consolidate her writ with the appeals.
We decline to do so. Section 366.26, subdivision (l) bars direct appeals from orders
setting a section 366.26 hearing. (See In re Tabitha W. (2006) 143 Cal.App.4th 811, 816-
817; In re Charmice G. (1998) 66 Cal.App.4th 659, 667-668.) The proper disposition is
to dismiss the appeals. (Ibid.) We observe that, although the mother filed notices of
appeal in the juvenile court, the notices were apparently not transmitted to this court
(other than as part of the record in this writ proceeding). Consequently, there are no
pending appeals in this court from the order setting a section 366.26 hearing as to K.G.
and J.G. Insofar as the mother sought to appeal from the juvenile court’s order setting a
section 366.26 hearing as to K.G. and J.G., those purported appeals are dismissed.


                                             8
II.      Substantial evidence supports the court’s finding that the previous disposition
         had not been effective in protecting K.G. and J.G.
         “A section 387 supplemental petition is used to change the placement of a
dependent child from the physical custody of a parent to a more restrictive level of court-
ordered care. [Citations.] In the jurisdictional phase of a section 387 proceeding, the
court determines whether the factual allegations of the supplemental petition are true and
whether the previous disposition has been ineffective in protecting the child. [Citations.]
If the court finds the allegations are true, it conducts a dispositional hearing to determine
whether removing custody is appropriate. [Citations.] A section 387 petition need not
allege any new jurisdictional facts, or urge different or additional grounds for dependency
because a basis for juvenile court jurisdiction already exists. [Citations.] The only fact
necessary to modify a previous placement is that the previous disposition has not been
effective in protecting the child.” (In re T.W. (2013) 214 Cal.App.4th 1154, 1161; see
also § 387; Cal. Rules of Court, rule 5.565(e); In re Joel H. (1993) 19 Cal.App.4th 1185,
1200.)
         The mother contends there was insufficient evidence to support a finding that the
previous disposition had not been effective in protecting the children. She argues that the
prior petitions alleged that she left the minors with inappropriate caregivers and used
marijuana and methamphetamines. She claims that the incident on March 29, 2013,
involved neither leaving the children with inappropriate caregivers nor the use of illicit
drugs. Consequently, she claims the previous disposition was effective in addressing the
issues giving rise to the dependency. She further claims there was no evidence the
children were placed at risk at any time.
         We disagree with the mother’s characterization of the March 2013 incident, which
raised many of the same concerns underlying the original dependency petition as well as
the 2011 supplemental petition. The initial incident that brought the children within the
jurisdiction of the juvenile court involved the mother being absent from the home and
intoxicated. One of the objectives of her case plan was to remain sober and live free from
alcohol. Although the mother’s use of drugs precipitated the filing of a section 387


                                              9
supplemental petition in 2011, the agency alleged in the supplemental petition that the
mother had been using alcohol as well as methamphetamine and marijuana. Thus, her
abuse of alcohol remained a concern, and her case plan retained the objective of
remaining alcohol-free as well as free from drugs. Plainly, the prior disposition was
ineffective in preventing the mother from abusing alcohol and putting her children at risk.
Further, despite her claim that she left the children with sober and responsible caregivers,
the evidence before the juvenile court was that the boyfriend and cousin whom the
mother had entrusted with the children had failed to undergo background checks as
requested by the agency. A consistent theme in the dependency proceedings was that the
mother failed to notify the social worker of persons who cared for or otherwise had
contact with the children at home. Consequently, the March 2013 incident raised many
of the same concerns that triggered the dependency proceedings in the first place.
       The mother cites In re Rocco M. (1991) 1 Cal.App.4th 814, 824, for the
proposition that a risk of harm to a child must exist at the time of the jurisdiction hearing
to support a jurisdictional finding. She claims she was intoxicated on only one occasion
in March 2013 and was not under the influence of drugs or alcohol at the time of the
jurisdiction hearing. The mother takes a much too narrow view of Rocco M., which
clarifies that past conduct may be probative of current conditions if there is reason to
believe the problematic acts will continue in the future. (Ibid.) Here, given the mother’s
past history of drug and alcohol relapses, there is reason to believe the March 2013
incident was not an isolated occurrence.
       The mother’s reliance on In re Drake M. (2012) 211 Cal.App.4th 754 is similarly
misplaced. In that case, the Court of Appeal concluded there was insufficient evidence to
support a jurisdictional finding that the father’s use of medical marijuana caused the
minor to be at risk of substantial physical harm. (Id. at p. 769.) The court reasoned that
mere use of medical marijuana did not demonstrate that the father had a substance abuse
problem or that the child was placed at risk of harm. (See id. at pp. 763-769.) Here, by
contrast, the mother had a substance abuse problem involving both alcohol and drugs, as
the court had previously recognized. Further, unlike in Drake M., the mother’s substance


                                             10
abuse problem placed the children at risk of harm. Not only did she leave the children
with persons who had not been subjected to background checks, as required by the social
worker, but she also exposed at least one of her children to her involvement in a violent,
drunken episode with the police.
       It must be recognized, too, that Drake M., supra, involved an initial jurisdictional
finding at the inception of the dependency process. In this case, the court had already
assumed jurisdiction over the minors years ago. “The law does not require that a fact
necessary to establish jurisdiction under section 300 be established to warrant a change in
placement” under section 387. (In re A.O. (2010) 185 Cal.App.4th 103, 110.) Rather,
once the juvenile court assumes jurisdiction over a child, it has greater authority to
intervene in order to protect the child. (Ibid.) The pertinent question in a section 387
proceeding is whether the previous disposition has been effective in protecting the minor.
We conclude there was sufficient evidence to support a finding that the previous
disposition was ineffective in protecting K.G. and J.G.
III.   Substantial evidence supports the order removing the children from the
       mother’s custody.
       The mother next contends that, even if there was sufficient evidence to sustain the
supplemental petition, there was insufficient evidence to support the order removing the
children from her custody. We disagree.
       In order to remove a child from parental custody under a section 387 supplemental
petition, the juvenile court must make the same findings as those necessary to remove a
child from parental custody at the initial disposition hearing under section 361. (In re
Javier G. (2006) 137 Cal.App.4th 453, 462.) Thus, before a minor can be removed from
the parent’s custody, the court must find, by clear and convincing evidence, that there is a
“substantial danger to the physical health, safety, protection, or physical or emotional
well-being of the minor if the minor were returned home, and there are no reasonable
means by which the minor’s physical health can be protected without removing the minor
from the minor’s parents . . . .” (§ 361, subd. (c)(1); In re Javier G., supra, at p. 462.)
“A removal order is proper if it is based on proof of (1) parental inability to provide


                                              11
proper care for the minor and (2) potential detriment to the minor if he or she remains
with the parent. [Citation.] The parent need not be dangerous and the minor need not
have been harmed before removal is appropriate.” (In re T.W., supra, 214 Cal.App.4th at
p. 1163.)
       The record in this case supports a finding that the mother was unable to provide
proper care for K.G. and J.G. and that they would be at risk of harm if they remained in
her custody. At the time of the section 387 disposition hearing in June 2013, the mother
had almost three years of family maintenance and reunification services, including
participation in the FDDC program, therapy, anger management classes, and other
services. In spite of these services, the mother had established a poor track record of
remaining sober and staying away from drugs. She had multiple relapses involving
methamphetamine, marijuana, and alcohol. The March 2013 incident involved a relapse
with alcohol and was yet another occasion on which she left the children with caregivers
either unknown to the agency or who had failed to submit to background checks.
Further, the oldest child was exposed to a violent episode involving her intoxicated
mother when the police attempted to arrest the mother. Under the circumstances,
removal of the children from the mother’s custody was supported by clear and
convincing evidence.
       The facts in Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, on which
the mother relies, are distinguishable. In that case, the minor remained in his mother’s
care after being declared a dependent based on the mother’s “inability to care for him due
to mental illness and/or alcohol abuse.” (Id. at p. 1071.) Pursuant to a section 387
petition, the juvenile court removed the minor from the mother’s custody after the mother
arrived 20 minutes late to pick up the child from school. (Id. at pp. 1075, 1079.) The
Court of Appeal concluded there was insufficient evidence to support a removal order,
reasoning that “[a] single instance of parental tardiness in retrieving a child from a
supervised setting does not pose a substantial risk of harm to the child and is not an
uncommon occurrence.” (Id. at p. 1079.) In contrast to the facts in Kimberly R., the
mother in this case was, in fact, intoxicated at the time of the March 2013 incident. Her


                                             12
behavior upon being arrested could not be described as a common experience to anyone
that might have witnessed it, including her daughter K.G. Further, the March 2013
episode was not an isolated incident but was instead part of a pattern of drug or alcohol
relapses, some of which involved violent behavior or leaving the childen with
inappropriate caregivers. Simply put, the facts underlying the March 2013 incident bear
little resemblance to the single instance of parental tardiness described in Kimberly R.
IV.    The juvenile court did not err in denying further reunification services to the
       mother.
       Finally, the mother argues there was no clear and convincing evidence to support a
finding that she should be bypassed for further reunification services under section 361.5,
subdivision (b)(13). We are not persuaded.
       Section 361.5, subdivision (b)(13) provides in relevant part that the juvenile court
need not provide a parent or guardian with reunification services if the court finds by
clear and convincing evidence “[t]hat the parent or guardian of the child has a history of
extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-
ordered treatment for this problem during a three-year period immediately prior to the
filing of the petition that brought that child to the court’s attention . . . .”
       Although the mother does not dispute that she has a history of extensive, abusive,
and chronic use of drugs and alcohol, she argues there has been no showing she resisted
treatment because she voluntarily participated in the various programs offered to her.
The Court of Appeal faced a similar claim in Karen S. v. Superior Court (1999) 69
Cal.App.4th 1006. There, although the parent voluntarily sought out treatment programs,
the evidence established the parent never had a significant period free from substance
abuse. (Id. at p. 1009.) The court concluded the parent resisted treatment within the
meaning of the statute “by failing to benefit from treatment for his chronic use of illicit
drugs and alcohol.” (Ibid.) In interpreting the meaning of the word “resist,” the court
observed that resistance can be either active or passive. A parent can “passively resist by
participating in treatment but nonetheless continuing to abuse drugs or alcohol, thus
demonstrating an inability to use the skills and behaviors taught in the program to


                                                13
maintain a sober life.” (Id. at p. 1010.) Here, just as in Karen S., the evidence shows
passive resistance by the mother to court-ordered treatment. As evidenced by the
multiple instances of relapse, the mother repeatedly demonstrated an inability to use the
skills taught to her in various treatment programs to maintain a sober and drug-free life.
Consequently, there was substantial evidence to support the court’s order denying
reunification services to the mother under section 361.5, subdivision (b)(13).
                                       DISPOSITION
       The petition for extraordinary relief is denied on the merits. (§ 366.26,
subd. (l)(1)(C); Kowis v. Howard (1992) 3 Cal.4th 888, 893-895.) Our decision is final
immediately as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(3).)




                                                  _________________________
                                                  McGuiness, P. J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.




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