J-S52015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: D.N.                         IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

APPEAL OF: J.C.M.N., FATHER                     No. 288 EDA 2014


               Appeal from the Order entered January 2, 2014,
            in the Court of Common Pleas of Philadelphia County,
              Family Court, at No(s): CP-51-AP-0000315-2013;
             CP-51-DP-0000156-2012, FID 51-FN-001196-2011

BEFORE:     GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED DECEMBER 18, 2014

      J.C.M.N. (“Father”) appeals from the order involuntarily terminating

his parental rights to his minor child, D.N. (“Child”), born in January of 2012,

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b) of the Adoption

Act.1 We affirm.

      The trial court summarized the facts and procedural history of this

case as follows:

          On January 23, 2012, Mother contacted the Department of
          Human Services [(“DHS”)] and left telephone messages
          indicating that she was refusing to cooperate with the
          reunification efforts with her one year old son, [I. M]other
          insisted she was overwhelmed and wanted to relinquish
          custody of another child, [Child.] Mother then requested
          the [DHS] social worker visit and speak with her at home.
          The [DHS] social worker made a visit to [M]other’s home
          and [M]other was not present.


* Former Justice specially assigned to Superior Court.
1
  The parental rights of Child’s mother, I.M.O.S. (“Mother”), were terminated
by a separate decree entered December 14, 2012. Mother is not a party to
this appeal.
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       Mother contacted [DHS] as a result of a physical
       altercation with [F]ather in the presence of [Child]. Upon
       further investigation, [DHS] learned that [M]other and
       [F]ather had a history of domestic violence.

       On January 26, 2012[, DHS] obtained an order of
       Protective Custody (OPC) and placed [Child] in a foster
       home through the Juvenile Justice Center.

       A shelter care hearing was held on January 27, 2012. The
       [OPC] was lifted and [Child] was temporarily committed to
       [DHS]. [Child] was placed in the care of a family member.

       On February 1, 2012, an adjudicatory hearing was held
       before the Honorable Jonathan Q. Irvine. [Child] was
       adjudicated dependent and committed to [DHS].           The
       [c]ourt ordered both parents to the Clinical Evaluation Unit
       for a forthwith drug screen, dual diagnosis, assessment
       and monitoring.       Both parents were ordered to the
       Achieving Reunification Center (ARC) program for
       reunification services.

       A Family Service Plan [(“FSP”)] meeting was held by
       [DHS]. The [FSP] objectives for the parents were (1) to
       continue to occupy suitable housing, (2) to achieve and
       maintain recovery from drug and/or alcohol abuse (3) to
       sign authorization forms to allow the release of copies of
       the evaluation and progress reports (4) to comply with all
       treatment recommendations including therapy and/or
       medications.    The objectives specifically identified for
       [F]ather were (1) participate in mental health evaluation
       and treatment, (2) refrain from use of physical violence or
       threats to resolve family conflicts, (3) maintain
       employment and (4) enroll in a GED or job training
       program[.]

       The parents did not attend the FSP meeting and did not
       sign the Family Service plan.

       A permanency review hearing was held on April 30, 2012.
       The [c]ourt received a report of noncompliance from
       Clinical Evaluation Unit regarding [F]ather’s court ordered
       drug screens.      [DHS] was to explore the maternal

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         grandmother’s home as a placement resource. The [c]ourt
         ordered that [Child] could be moved prior to the next court
         date if maternal grandmother’s home was appropriate.

         The matter was then listed on a regular basis before
         Judges of the Philadelphia Court of Common Pleas-Family
         Court Division-Juvenile Branch pursuant to Section 6351 of
         the Juvenile Act, 42 Pa. C.S.[ § ] 6531] and evaluated for
         the purpose of determining or reviewing the permanency
         plan of [Child] with the goal of reunification of the family.

Trial Court Opinion, 4/16/14, at 1-2 (unnumbered).

      On May 28, 2013, DHS filed a petition to terminate Father’s parental

rights to Child. A termination hearing was held on January 2, 2014, and the

trial court thereafter entered an order terminating Father’s rights.     Father

filed a timely notice of appeal, along with a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      Father raises the following issues for our review.

         1. Did [DHS] sustain the burden that [F]ather’s rights
         should be terminated when there was evidence that
         [F]ather had completed almost all of his permanency
         goals?

         2. Was there sufficient evidence presented to establish
         that it was in the best interest of [Child] to terminate
         [F]ather’s parental rights?

Father’s Brief at 4.

      Our standard and scope of review is well-established:

         In an appeal from an order terminating parental rights, our
         scope of review is comprehensive: we consider all the
         evidence presented as well as the trial court’s factual
         findings and legal conclusions. However, our standard of
         review is narrow: we will reverse the trial court’s order
         only if we conclude that the trial court abused its
         discretion, made an error of law, or lacked competent
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         evidence to support its findings. The trial judge’s decision
         is entitled to the same deference as a jury verdict.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). “[O]ur

standard of review requires an appellate court to accept the findings of fact

and credibility determinations of the trial court if they are supported by the

record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).

      Furthermore:

            Termination of parental rights is controlled by statute.
         See 23 Pa.C.S.A. § 2511[.] Our case law has made clear
         that under Section 2511, the court must engage in a
         bifurcated process prior to terminating parental rights.
         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 at 511 (some citations omitted).

      We have previously stated:

         The 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.” It is well established that a court must
         examine the individual circumstances of each and every
         case and consider all explanations offered by the parent to


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        determine if the evidence in light of the totality of the
        circumstances clearly warrants termination.

In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted).

        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 K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted).

           Before filing a petition for termination of parental rights,
        the Commonwealth is required to make reasonable efforts
        to promote reunification of parent and child. However, the
        Commonwealth does not have an obligation to make such
        efforts indefinitely. The Commonwealth has an interest
        not only in family reunification but also in each child’s right
        to a stable, safe, and healthy environment, and the two
        interests must both be considered. . . .

In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa. Super. 2006) (citations

omitted).

     Our Supreme Court has opined:

        that incarceration, while not a litmus test for termination,
        can be determinative of the question of whether a parent
        is incapable of providing “essential parental care, control
        or subsistence” and the length of the remaining
        confinement can be considered as highly relevant to
        whether “the conditions and causes of the incapacity,
        abuse, neglect or refusal cannot or will not be remedied by
        the parent,” sufficient to provide grounds for termination
        pursuant to 23 Pa.C.S. § 2511(a)(2).

In re S.P., 47 A.3d at 830.



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      Section 2511 of the Adoption Act, which sets forth grounds for

involuntary termination, provides in pertinent part:

               (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.

23 Pa.C.S.A. § 2511(a)(2).

      This Court “need only agree with [a trial court’s] decision as to any

one subsection in order to affirm the termination of parental rights.” In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In the case at bar,

the trial court terminated Father’s parental rights pursuant to Sections

2511(a)(1), (2), (5), (8) and (b). We first address whether the trial court

properly    terminated    Father’s       parental   rights   pursuant   to   Section

2511(a)(2).2




2
  We note that the trial court concluded incorrectly that Father’s parental
rights could be terminated under Sections 2511(a)(5) and (a)(8). Both of
these subsections require that the subject child have “been removed from
the care of the parent by the court or under a voluntary agreement with an
agency.” 23 Pa.C.S. § 2511(a)(5), (8). Because Child was never in Father’s
care, his parental rights cannot be terminated under these sections. See In
re C.S., 761 A.2d 1197, 1200 (Pa. Super. 2000) (en banc) (concluding
termination was inappropriate under Sections 2511(a)(5) and (8) “because
the record reflects that C.S. was never in [the a]ppellant’s care and,
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      The Pennsylvania Supreme Court set forth our inquiry under section

2511(a)(2) as follows:

         . . . § 2511(a)(2) provides statutory grounds for
         termination of parental rights where it is demonstrated by
         clear and convincing evidence that “[t]he 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. . . .

            This Court has addressed incapacity sufficient for
         termination under § 2511(a)(2):

         A decision to terminate parental rights, never to be made
         lightly or without a sense of compassion for the parent,
         can seldom be more difficult than when termination is
         based upon parental incapacity. The legislature, however,
         in enacting the 1970 Adoption Act, concluded that a parent
         who is incapable of performing parental duties is just as
         parentally unfit as one who refuses to perform the duties.

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

      Instantly, Father argues that the trial court abused its discretion by

terminating his parental rights to Child, because he “had completed most of

his FSP goals and was actively completing the remaining goals.”       Father’s

Brief at 10. Father states that he did not “fail to perform his parental duties

insofar as he was permitted to do so by DHS,” and that he “was visiting

consistently with [Child] except the time he was in custody and attending his

inpatient drug treatment program.” Id. at 10-11. We disagree.



therefore, could not have been removed from his care.”); see also In re
Z.P., 994 A.2d 1108, 1123 n.2 (Pa. Super. 2010) (same).
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         At Father’s termination hearing, DHS social worker, Ms. McCloud,3

testified as follows: Child had been in foster care since she was two months

old, for a total of twenty-three months. N.T., 1/2/14, at 5. Child has been

in the custody of DHS since that time. Id. Father had never provided for

Child’s needs, nor had Child ever lived with Father.        Id. at 20, 33-34.

Father was attending supervised visits with Child.      Id. at 19.   However,

besides being a “visitation resource,” Father had not “expressed behavior or

actions of being a parent” to Child. Id. at 15. Father had not contacted Ms.

McCloud “to ask about the development of his child or the well[-]being of his

child . . . .” Id. at 11-12, 19. Father had another child adopted “during the

pendency of this case.” Id. at 16-17. The record also reveals that Father

has a criminal history.       Ms. McCloud testified that when Father was

incarcerated, he did not contact DHS to ask about the welfare of Child. Id.

at 13.

         Additionally, Ms. McCloud explained that Father had failed to complete

a variety of FSP goals. Besides visiting Child, Father was required to obtain

a GED and employment, complete mental health treatment, domestic


3
   The notes of testimony indicate that the DHS social worker was Ms.
McCloud, and her first name was “inaudible.” N.T. at 3. However, in its
Appellee’s brief, DHS indicates that the social worker testifying for DHS at
the hearing was Ms. McLeod. DHS Appellee’s Brief at 5 n.2. The record
reveals that both a Ms. McCloud and Rosetta McLeod participated in this case
on behalf of DHS. See, e.g., DHS’ Pet. Goal Change to Adoption, 5/28/13;
Permanency Review Order, 2/6/13; Am. Order of Adjudication & Disposition-
Dependent, 2/1/12. In our above summary of the testimony, we adopt the
transcript’s identification of “Ms. McCloud” as the witness.
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violence treatment, and drug and alcohol treatment.       Id. at 6-8.   With

respect to Father’s progress in accomplishing these goals, Ms. McCloud

noted that “Father was taking classes at ARC for his GED and he was also

taking classes at ARC for employment.”     Id. at 8.   Father was “receiving

some type of treatment at ARC for mental health.” Id. She testified that

Father never finished mental health treatment. Id. at 11. When Father was

incarcerated he did not contact DHS “to ask about the well[-]being of” Child.

Id. at 13. In order to satisfy his drug and alcohol FSP goal, she explained

Father would need to complete “[i]ntensive outpatient” treatment, which

would take “[a]pproximately another six to nine months.”       Id. at 15-16.

She testified that Father was on probation and living in a “recovery house”

at the time of the hearing. Id. at 18. A recovery house is a group home

where other people who are on probation reside. Id.

     The Child Advocate cross-examined Ms. McCloud, inter alia, as follows:

           Child Advocate: Now, you have been on this case the
        entire time, haven’t you?

           A: Correct.

          Q: And can you just briefly tell us a little about [Child].
        Does she have medical needs?

           A: There were some issues about developmental delays
        and a birth defect, but all those were ruled out. She had
        MRIs and testing done and there are no issues with
        [Child’s] developmental milestones.

          Q: Did [Father] ever attend any of her medical
        appointments?


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           A: Not that I can recall.

           Q: Did Father participate in any of ther [sic] early
        intervention studies or classes?

           A: No.

           Q: . . . [W]hat is the nature of Father’s visitation,
        supervised or unsupervised?

           A: Supervised.

           Q: Has he ever progressed beyond supervised?

           A: No.

           Q: He has not ever had any overnights, correct?

           A: No.

           Q: And who takes care of all [Child’s] needs?

           A: Currently the foster parent[s].

          Q: And they give her comfort and they take care of her
        when she is sick?

           A: Yes.

           Q: Has her Father ever done that for her in her life?

           A: No.

           Q: And as you testified, she has been in foster care
        almost since birth, correct?

           A: Correct.

Id. at 18-20.

     Ms. McCloud testified that she visited Child’s maternal great aunt and

uncle’s house on several occasions and found them to be a “good adoptive


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resource.” Id. at 27. She stated that Child had not been placed with her

prospective adoptive parents because they “only speak Spanish,” and DHS

was trying to match the parents with an agency that could provide a

Spanish-speaking social worker, and that this was “going to take awhile.”

Id. at 21-22.   Child’s maternal great-aunt and uncle were also “watining

[sic] on an FBI review from the State” because the maternal great-aunt’s

sister “is disabled and her hands are closed tightly, and the agency was

unable to get an FBI clearance on her fingerprints.      So, a waiver is being

done by the State and that is still pending.” Id.

      Father testified at the termination hearing that he was receiving drug

and alcohol treatment at “the NET Frankford” starting “about a week ago.”

Id. at 29. He further stated that he received drug treatment “[a]bout last

year” at the “Greater Philadelphia Health Association.” Id. at 30. He stated

that he was attending drug treatment because he “had a drug and alcohol

problem.” Id. at 31.

      Father estimated he had approximately “six convictions for selling,

dealing and using drugs.”    Id. at 32.      Father was incarcerated sometime

during “June 2012 and July 2012”; he admitted that he spent “about five

months” in jail, at three different locations. Id. at 33. The sole testimony

elicited from Father regarding Child was that Child never lived with him and

that he “did actually” parent child. Id. at 33-34.




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      The   trial   court   found   that   testimony   adduced   at    the   hearing

“established that Father neglected to meet the parental care needs for”

Child. Trial Court Opinion, 4/16/14, at 4. The court stated that Father failed

to attend Child’s medical appointments, and that he did not “express any

interest in learning about the well[-]being of [Child].”     Id.      His “repeated

incarcerations caused instability in the care of” Child. Id. The court noted

that Father “admitted a history of drug abuse and mental health issues.” Id.

He also “admitted repeated periods of incarceration due to drug convictions

for selling and/or using drugs.” Id.

      After careful review, we determine that the record supports the trial

court’s conclusion that DHS proved by clear and convincing evidence that

Father has not resolved the issues that led to his inability to parent Child.

As we find that there is competent evidence in the record to support the trial

court’s credibility and weight determinations, we find no abuse of the court’s

discretion in concluding that DHS sustained its burden with regard to Section

2511(a)(2). See In re S.P., 47 A.3d at 826. Father’s repeated periods of

incarceration have impaired his ability to parent Child. He has shown little

interest in Child’s well-being.      Further, at the time of the termination

hearing, Father had failed to complete the FSP objectives necessary to

obtain custody of Child. Child has been without parental care and control for

nearly her entire life, and it was reasonable for the trial court to conclude

that Father cannot, or will not, remedy this incapacity. We therefore agree


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with the trial court that DHS has sustained its burden to show grounds for

termination under Subsection 2511(a)(2). See id.

      Next, we consider Father’s claim that DHS failed to establish by clear

and convincing evidence that termination of his parental rights would best

serve the “developmental, physical, and emotional needs and welfare of”

Child. Father’s Brief at 12. Father contends there was insufficient evidence

to establish that it was in Child’s best interest to be adopted.     Id. at 13.

Father avers there was not “enough information to accept the opinion of the

DHS worker” that there was no bond between Child and Father. Id. at 14.

We disagree.

      The focus in terminating parental rights under 23 Pa.C.S.A. § 2511(a)

is on the parent, but the focus turns to the child under Subsection 2511(b).

In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).

The statute provides in pertinent part:

      (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. …

23 Pa.C.S.A. § 2511(b) (underline added).         The requisite analysis is as

follows.

                 Subsection 2511(b) focuses on whether termination
           of parental rights would best serve the developmental,
           physical, and emotional needs and welfare of the child. In
           In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this
           Court stated, “Intangibles such as love, comfort, security,
           and stability are involved in the inquiry into the needs and
           welfare of the child.”

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In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some

citations omitted). Our Supreme Court has confirmed, “the mere existence

of a bond or attachment of a child to a parent will not necessarily result in

the denial of a termination petition.” In re T.S.M., 71 A.3d 251, 267 (Pa.

2013). Our Supreme Court quoted this Court with approval:

      … Judge Tamilia cautioned against denying termination of
      parental rights based solely on the fact that a child has an
      attachment to the parent: “The continued attachment to the
      natural parents, despite serious parental rejection through abuse
      and neglect, and failure to correct parenting and behavior
      disorders which are harming the children cannot be
      misconstrued as bonding.” Id. at 535 (quoting In re Involuntary
      Termination of C.W.S.M., 839 A.2d 410, 418 (Pa. Super. 2003)
      (Tamilia, J., dissenting).

In re T.S.M., 71 A.3d at 267 (footnote omitted). In addition, our Supreme

Court stated, “[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.”       Id. at 268 (citation

omitted).   “[T]he mere existence of a bond or attachment of a child to a

parent will not necessarily result in the denial of a termination petition.”

T.S.M., 71 A.3d at 267.      Moreover, in weighing the bond considerations

pursuant to Subsection 2511(b), “courts must keep the ticking clock of

childhood ever in mind.    Children 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.


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      Here, the trial court found that Child “would not suffer any irreparable

emotional harm if [F]ather’s parental rights were terminated,” and that

termination was in Child’s best interests. Trial Court Opinion, 4/16/14, at 5.

The court reasoned that Child had been in care since she was two months

old, that Child did not have a bond with Father, and that Child’s maternal

aunt and uncle are “willing to adopt her and provide long term stability and

permanency.”    Id. The court stated that Father did not “progress beyond

supervised visits due to his non compliance [sic] with his FSP objectives.”

Id.   The court emphasized that Father “did not have appropriate housing”

for Child, and has a “history of drug abuse and failure to seek mental health

treatment.” Id.

      Our review confirms that Child was born in January of 2012, and has

been dependent since she was two months old.          N.T., 1/2/14, at 5, 11.

Father has never had custody of Child.       Father has multiple issues which

negatively impact his capacity to parent (including approximately “six

convictions for selling, dealing and using drugs”, id. at 32); those issues

support termination pursuant to 23 Pa.C.S.A. § 2511(a). See, supra. Ms.

McCloud, the DHS social worker throughout Child’s dependency, testified

that Father had not progressed beyond supervised visits with the Child, and

had no overnights with the Child.     Id. at 19.    Conversely, Ms. McCloud

testified that Child’s foster parents were the ones who “take care of all of

[Child’s] needs.” Id. (emphasis added). Ms. McCloud opined that adoption


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was in Child’s best interests, and that Child’s great aunt and uncle were

anxious to adopt Child. Id. at 15.

      Ms. McCloud testified unequivocally that adoption was in Child’s best

interests and no bond existed between Father and Child.          Id.   We find

further evidence of the bond between Father and Child to be unnecessary to

the trial court’s ultimate determination that termination served Child’s needs

and welfare. Even if there was a bond between Father and Child, that bond

would not “necessarily result in the denial of a termination petition.” T.S.M.,

supra.     Accordingly, we reject Father’s contention that DHS failed to

establish by clear and convincing evidence that termination of his parental

rights would best serve the developmental, physical, and emotional needs

and welfare of Child.

      For the above reasons, we find no error in the trial court’s exercise of

its discretion, and affirm the order terminating Father’s parental rights.

      Order affirmed.

      President Judge Gantman joins the memorandum.

      Justice Fitzgerald files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014


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