                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re S. BROWN, Minor.                                               January 18, 2018

                                                                     No. 338467
                                                                     Schoolcraft Circuit Court
                                                                     Family Division
                                                                     LC No. 2016-003224-NA


                                        AFTER REMAND

Before: K. F. KELLY, P.J., and BECKERING and RIORDAN, JJ.

PER CURIAM.

         This case returns to us after remand to the trial court for a proper articulation of the
statutory basis for termination of respondent’s parental rights to her minor child.1 We instructed
the trial court on remand to apply all relevant statutes and court rules, including the Indian Child
Welfare Act (ICWA), 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act
(MIFPA), MCL 712B.1 et seq.2 The trial court addressed these matters at a hearing attended by
the parties and then issued a corresponding written order. Having reviewed the hearing
transcript and the court’s order, we affirm the trial court’s termination of respondent’s parental
rights to the minor child.

                           I. STATEMENT OF PERTINENT FACTS

       On March 17, 2016, petitioner sought jurisdiction over the minor and termination of
respondent’s parental rights at the initial disposition hearing based on respondent’s history of
criminal activity (including maintaining a drug house), serious injuries sustained by another of
respondent’s children while in respondent’s custody, and respondent’s failure to benefit from
services rendered during proceedings involving respondent’s four other children. 3 At an


1
 In re S. Brown, Minor, unpublished opinion per curiam of the Court of Appeals, issued October
12, 2017 (Docket No. 338467).
2
 In re S. Brown, Minor, unpublished order per curiam of the Court of Appeals, entered October
12, 2017 (Docket No. 338467).
3
 Respondent and her children are members of the Sault Ste. Marie Tribe of Chippewa Indians.
The Tribal court removed respondent’s two eldest children from respondent’s home in 2013


                                                -1-
adjudication hearing held April 19, 2016, respondent agreed to enter a plea, accept jurisdiction,
and follow a treatment plan, and petitioner agreed to rescind the request for termination of
respondent’s parental rights to the child at the initial disposition hearing. The trial court took
jurisdiction over the child, but allowed the child to remain in respondent’s custody while
respondent participated in services.

        On October 20, 2016, the trial court held an emergency removal hearing following
respondent’s incarceration after police found several pounds of marijuana in her home.
Respondent’s counsel informed the court that respondent did not object to removal at the time,
but that if circumstances changed, respondent would request a further hearing. At the December
16, 2016 continuation of the removal hearing, CPS worker Matthew Eveningred testified that
respondent had been compliant with her treatment plan, with the exception of completing a
mental health assessment. However, Eveningred was concerned that respondent was continuing
to use drugs because she had tested positive for marijuana on two recent occasions. Eveningred
also stated that when police raided respondent’s apartment in October, they found several pounds
of marijuana. He indicated that respondent could lose her public housing due to her criminal
activity and the fact that her boyfriend, Brandon Burt, was residing in the apartment in defiance
of her treatment plan. Eveningred stated that the marijuana found in respondent’s home
allegedly belonged to Burt, that it posed a risk of harm to the minor, and that petitioner intended
to seek termination of respondent’s parental rights.

        Heidi Cotey, a member of the Sault Ste. Marie Tribe of Chippewa Indians and a
recognized expert in tribal customs, testified that the Tribe supported removal of the minor from
respondent’s custody and termination of respondent’s parental rights. Cotey stated that
respondent had been receiving services for several years but continued to place herself in
precarious situations, such as allowing Brandon Burt to bring a large quantity of marijuana into
her residence. Cotey stated that the Tribe took the position that petitioner had made active
efforts to preserve respondent’s custody, but that termination proceedings should be conducted
and the minor should be placed with her father.

       Respondent testified that she did not use marijuana, but could not provide an explanation
for the positive drug tests. Respondent indicated that she was not in danger of losing her
housing, and that she had scheduled a mental health assessment. Respondent denied that
marijuana had been found in her house, and contended that the police report was false.

       The trial court ordered that the removal of the minor from respondent’s custody be
continued, and that her parenting time continue to be supervised. The trial court found that
respondent’s assertion that no marijuana was discovered in her home was not credible.

        Petitioner filed a supplemental petition requesting termination of respondent’s parental
rights on February 28, 2017. The petition alleged that marijuana was discovered at respondent’s
home during a police raid on October 14, 2016, that respondent sold Suboxone to a police
informant in December 2016, and that respondent was currently incarcerated on charges of

because of criminal activity in the home. The children were placed into a relative guardianship
in 2015. Respondent voluntarily released her parental rights to two other children in April 2015.


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maintaining a drug house and delivery of a controlled substance. The petition also included
allegations referencing respondent’s history with substance abuse and the prior proceedings
involving her other children. The petition requested termination of respondent’s parental rights,
but it did not identify a specific statutory ground for termination in MCL 712A.19b(3).

       The trial court held a two-day termination hearing on April 20 and April 25, 2017.
Michigan State Police Trooper Paul Ferraro testified that in October 2016, he executed search
warrants on residences occupied by respondent and Brandon Burt to look for stolen items. While
doing so he observed marijuana plants and marijuana. Michigan State Police Troopers Thomas
Kinnunen and Eric Johnson testified to their involvement in two controlled narcotic purchases of
Suboxone from respondent in December 2016.

        CPS caseworker Eveningred testified that he had been working with respondent since the
summer of 2016. Eveningred stated that petitioner assisted respondent with referrals for
substance abuse treatment, parenting classes, and therapy services for the children. Petitioner
assisted respondent in securing housing, provided transportation, paid some utility bills, and
helped respondent obtain a bridge card. However, respondent was evicted from the apartment
where the controlled narcotics purchases took place, and had been incarcerated since February
22, 2017, as a result of charges stemming from the controlled purchases. Eveningred stated that
two or three of respondent’s drug screens were positive for marijuana. Respondent complied
with her treatment plan in that she obtained a mental health assessment, but failed to comply
with the plan by living with Brandon Burt, who had a criminal record and previous involvement
with CPS. Eveningred acknowledged that respondent acted appropriately during supervised
parenting time, but stated that the petition for termination was filed due to the risk of harm to the
minor from respondent’s continuing criminal activity.

        Linda Ryerse, a Family Continuity caseworker for the Sault Ste. Marie Tribe of
Chippewa Indians, testified that she met with respondent in May 2016, with the intention of
helping respondent connect with other resources. When Ryerse became involved in the case,
respondent was also working with a family support worker from the health department. Ryerse
stated that respondent chose to continue working with the health department, and so she
terminated her involvement in the case. Julie Hardy, a family services caseworker, testified that
she worked with respondent and respondent’s other four children. The services included
parenting, substance abuse, and Family Continuity. Hardy said that her work with respondent
ended after the two eldest children went into guardianship and respondent released her parental
rights to the two younger children, and that she did not have any direct interaction with
respondent regarding the minor at issue. Hardy indicated that respondent had a problem with the
abuse of the prescription drug Suboxone.

        Tammy Renard, a Family First supervisor and respondent’s witness, testified that she
worked with respondent in 2014 and 2016. Renard stated that she worked with respondent on
skills such as stress management and communications, that respondent was receptive and
completed the services, and that respondent acted appropriately with the child. Kelli Beaudry,
respondent’s former caseworker and respondent’s witness, testified that she observed respondent
interact with the child, and that respondent acted appropriately. Wendy Joslin, respondent’s
aunt, testified that respondent took good care of the child and provided the child with all
necessities. Joslin stated that she observed a close bond between respondent and the child, that

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she never saw marijuana in respondent’s residence, and testified that she had no concerns about
the child’s safety with respondent.

        Cotey testified that she had been following respondent’s case since respondent came into
contact with petitioner, and that she could not think of any services that would be of benefit to
respondent that had not been provided. Cotey opined that respondent was unable to provide an
adequate home for the minor because respondent had become involved with the legal system for
selling marijuana and Suboxone. Cotey stated that such activities were not traditional in the
Tribe. Cotey noted that respondent was incarcerated, and opined that respondent would have
difficulties finding housing upon her release due to prior evictions. Cotey concluded that the risk
to the minor from residing with respondent outweighed the risk of ending the mother-child
relationship, and stated that active efforts had been made to reunite respondent and the minor.

       The trial court delivered a ruling from the bench, summarizing the evidence presented at
the hearing, and noting specifically that respondent chose to become involved in criminal
behavior while this case was ongoing and chose to put her own needs before those of the child.
The trial court found clear and convincing evidence establishing a statutory ground for
termination. However, as we indicated in our previous decision, rather than properly identifying
one of the grounds for termination found in MCL 712A.19b(3), the trial court referred to
“circumstances described in MCL 712A.2(b)(1) and (2), which is the statute authorizing a court
to exercise jurisdiction over a child.” In re S. Brown, Minor, unpublished opinion per curiam of
the Court of Appeals, issued October 12, 2017 (Docket No. 338467), p 2. The trial court then
reviewed the relevant best-interest factors and concluded that termination of respondent’s
parental rights was in the child’s best interest.

                                          II. ANALYSIS

                                  A. STANDARD OF REVIEW

        We review for clear error the court’s factual findings in order to terminate parental rights.
See MCR 3.977(K); In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). We review de novo
issues involving application and interpretation of the ICWA, and a trial court’s factual findings
underlying the application of the ICWA for clear error. In re Payne/Pumphrey/Fortson, 311
Mich App 49, 56; 874 NW2d 205 (2015). “ ‘A finding is “clearly erroneous” [if] although there
is evidence to support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been made.’ ” Rood, 483 Mich at 91, quoting In re Miller,
433 Mich 331, 337; 445 NW2d 161 (1989); In re Payne/Pumphrey/Fortson, 311 Mich App at
56-57.

                      B. STATUTORY GROUNDS FOR TERMINATION

        In an action to terminate parental rights, the petitioner must prove by clear and
convincing evidence that at least one statutory ground for termination in MCL 712A.19b(3)
exists. MCR 3.977(A)(3) and (H)(3); In re Trejo, 462 Mich 341, 356; 612 NW2d 407 (2000). In
addition, when terminating a respondent’s parental rights to an Indian child, the trial court must
also make findings under the ICWA that serious emotional or physical harm to the child would



                                                -4-
result from being placed in the parent’s custody. 25 USC 1912(f); MCL 712B.15(4); MCR
3.977(G)(2).

        In its order following remand, the trial court adopted its original findings of fact and
identified the statutory grounds supporting termination of respondent’s parental rights as MCL
712A.19b(3)(c)(i) and (ii). MCL 712A.19b(3)(c)(i) and (ii) permit termination under the
following circumstances:

       (c) The parent was a respondent in a proceeding brought under this chapter, 182
       or more days have elapsed since the issuance of an initial dispositional order, and
       the court, by clear and convincing evidence, finds either of the following:

        (i) The conditions that led to the adjudication continue to exist and there is no
       reasonable likelihood that the conditions will be rectified within a reasonable time
       considering the child’s age.

        (ii) Other conditions exist that cause the child to come within the court's
       jurisdiction, the parent has received recommendations to rectify those conditions,
       the conditions have not been rectified by the parent after the parent has received
       notice and a hearing and has been given a reasonable opportunity to rectify the
       conditions, and there is no reasonable likelihood that the conditions will be
       rectified within a reasonable time considering the child's age.

        The trial court’s findings regarding respondent’s substance abuse problem and her
continuing criminality support termination of respondent’s parental rights under MCL
712A.19b(3)(c)(i). Petitioner based its original petition for removal in part on respondent’s
history of criminal activity (including operating a drug house). From the time of the initial
dispositional hearing in June 2016 until the termination hearing in April 2017, respondent tested
positive for marijuana at least two times, was arrested for having several pounds of marijuana in
her house, and sold Suboxone to police informants on at least two occasions. At the time of the
termination hearing, respondent was incarcerated on drug charges stemming from the controlled
purchases. The criminal activity that had served as a basis for removal of respondent’s eldest
children and of petitioner’s original petition to remove the minor at issue continued to exist more
than 182 days after issuance of an initial disposition order. Given respondent’s lengthy
involvement in criminal activity, her denial of substance abuse, and her insistence that police
falsified reports of finding marijuana at her home, there seems “no reasonable likelihood that the
conditions will be rectified within a reasonable time considering the child’s age.” Accordingly,
the trial court did not err on remand by finding clear and convincing evidence to terminate
respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i). Because only one statutory
ground is required for termination of parental rights, we need not address the evidence
supporting termination pursuant to MCL 712A.19b(3)(c)(ii). MCR 3.977(A)(3) and (H)(3); In re
Trejo, 462 Mich at 356.

       In addition to finding a statutory ground for termination, in order to terminate
respondent’s rights to the Indian child at issue, the trial court also had to make findings under the
ICWA that serious emotional or physical harm to the child would result from being placed in the
parent’s custody. 25 USC 1912(f) provides:

                                                -5-
               No termination of parental rights may be ordered in such proceeding in the
       absence of a determination, supported by evidence beyond a reasonable doubt,
       including testimony of qualified expert witnesses, that the continued custody of
       the child by the parent or Indian custodian is likely to result in serious emotional
       or physical damage to the child.

The MIFPA and the Michigan Court Rules impose similar requirements. See MCL 712B.15(4)
and MCR 3.977(G)(2).

        In its order following remand, the trial court adopted its findings of fact relevant to
application of the ICWA and the MIFPA. In its original ruling, the trial court found beyond a
reasonable doubt that leaving the minor in respondent’s continued custody would likely result in
serious emotional or physical damage to the child. Testimony from a qualified expert witness,
and other witnesses regarding respondent’s continuing criminality and the consequences of that
behavior (i.e., having persons come to the residence to buy drugs, police raids, etc.), supports this
finding. Heidi Cotey, a member of the Sault Ste. Marie Tribe of Chippewa Indians and a
recognized expert in tribal customs, testified that in her opinion the minor at issue was at risk of
serious emotional and physical harm if she remained in respondent’s custody. At the termination
hearing, Cotey noted that respondent engaged in criminal behavior during the pendency of the
case even though her parental rights were at risk. This behavior included allowing Brandon Burt
to have drugs, including a large quantity of marijuana, in the home, selling Suboxone from the
home, and being evicted from her public housing apartment because of charges stemming from
the sale of Suboxone.

        In light of the foregoing evidence, we conclude that the trial court did not clearly err in its
finding that evidence established beyond a reasonable doubt that leaving the minor in
respondent’s custody would likely result in serious emotional or physical harm to the minor.
This finding, along with the trial court’s finding that petitioner proved by clear and convincing
evidence that at least one statutory ground for termination exists, provides the necessary grounds
for the termination of respondent’s parental rights, should termination be in the child’s best
interests.

        Respondent raises several issues regarding the trial court’s finding of statutory grounds to
terminate her parental rights and satisfaction of the requirements imposed by the ICWA and the
MIFPA. She first contends that the trial court violated her due process rights by failing to advise
her that her plea could be used to terminate her parental rights. Because respondent did not raise
it during the plea proceeding, in a motion to withdraw her plea, or otherwise challenge the
validity of her plea at any point during the proceedings in the trial court, this issue is
unpreserved. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). We
review unpreserved issues for plain error affecting substantial rights. In re Utrera, 281 Mich
App 1, 8-9; 761 NW2d 253 (2008).

       In order for a trial court to take jurisdiction over minor children, it must find that at least
one statutory ground for jurisdiction exists. MCL 712A.2(b). The trial court may make the
finding after a trial or based on a plea. In re SLH, 277 Mich App 662, 669-670; 747 NW2d 547
(2008). In this case, jurisdiction was established pursuant to respondent’s plea. Before


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accepting a plea, the trial court must satisfy several procedural safeguards. MCR 3.971(B)
requires among other things:

               Before accepting a plea of admission or plea of no contest, the court must
       advise the respondent on the record or in a writing that is made a part of the file:

                                               * * *

       (4) of the consequences of the plea, including that the plea can later be used as
       evidence in a proceeding to terminate parental rights if the respondent is a parent.

        The record of the April 19, 2016 plea proceeding discloses that the trial court violated
MCR 3.971(B)(4) by failing to advise respondent that her plea could be used as evidence to
terminate her parental rights. The trial court’s failure to so advise respondent constituted plain
error. In re Mitchell, 485 Mich 922; 773 NW2d 663 (2009) (the court committed plain error by
failing to advise the respondent that his plea could be used in a later proceeding to terminate his
parental rights). However, to be entitled to relief based on this unpreserved issue, respondent
must also demonstrate that the error affected her substantial rights. An error affects substantial
rights if it is prejudicial, i.e., if it affects the outcome of the proceedings. See People v Jones,
468 Mich 345, 355; 662 NW2d 376 (2003).

        The error involves the trial court’s failure to advise respondent that her plea could later be
used as evidence in a proceeding to terminate parental rights. In support of her plea to the trial
court’s exercise of jurisdiction, respondent admitted to certain historical facts relating to the
removal of her other children. Respondent acknowledged that her two older children had been
removed from her care in 2013, following a drug raid on her home, and that those children were
under a guardianship. Respondent also acknowledged that another child had serious medical
issues and suffered a broken leg, which respondent could not explain, that a fourth child was
born with Suboxone in his system, and that she had voluntarily released her rights to these two
children. These same facts were established at the termination hearing through the testimony of
Julie Hardy, the family services caseworker who worked with respondent in the prior
proceedings involving the four children. Because petitioner presented independent evidence at
the termination hearing to establish the facts elicited in respondent’s statements at the plea
hearing, the trial court was not required to rely on respondent’s statements at the plea hearing.
Thus, the trial court’s failure to advise respondent that her plea could later be used as evidence in
a proceeding to terminate parental rights did not affect the outcome of the proceeding, and
therefore, did not affect respondent’s substantial rights. Jones, 468 Mich at 355.

        Respondent next contends that the evidence did not support a finding that petitioner made
the requisite active efforts to avoid breakup of an Indian family. We disagree. This Court
reviews de novo the application of statutes such as the ICWA and the MIFPA, but reviews the
trial court’s underlying factual findings for clear error. In re Payne/Pumphrey/Fortson, 311
Mich App at 56. The clear and convincing evidence standard applies to a determination whether
active efforts were made to prevent the breakup of the family. In re England, 314 Mich App
245, 253; 887 NW2d 10 (2016).




                                                 -7-
        Before a trial court may terminate a respondent’s parental rights to an Indian child, the
court must find that at least one state statutory ground for termination of parental rights in MCL
712A.19b(3) was proven by clear and convincing evidence, and must also make findings under
the ICWA that active efforts were made to avoid the breakup of the Indian family, and that those
efforts were unsuccessful. 25 USC 1912(d) sets out the active efforts requirement, and provides:

               Any party seeking to effect a foster care placement of, or termination of
       parental rights to, an Indian child under State law shall satisfy the court that active
       efforts have been made to provide remedial services and rehabilitative programs
       designed to prevent the breakup of the Indian family and that these efforts have
       proved unsuccessful.

       The MIFPA has a similar provision. MCL 712B.15(3) provides:

               A party seeking a termination of parental rights to an Indian child under
       state law must demonstrate to the court’s satisfaction that active efforts have been
       made to provide remedial services and rehabilitative programs designed to
       prevent the breakup of the Indian family and that the active efforts were
       unsuccessful.

        The phrase “active efforts” is defined in MCL 712B.3, and requires “more than a referral
to a service without actively engaging the Indian child and family.” MCL 712B.3(a). In this
case, the undisputed evidence showed that petitioner engaged the Tribe in the case from the
beginning, and consulted the Tribe throughout the case to ensure that the services offered were
culturally appropriate. Matthew Eveningred, respondent’s caseworker, testified that he provided
referrals for substance abuse treatment, parenting classes, and therapy for the children. He
assisted respondent in obtaining a public housing apartment, provided respondent with
transportation when she needed it, assisted her in obtaining a bridge card, and provided funds for
past-due utility bills. However, respondent did not cooperate or benefit from the services
provided to her. Two or three of respondent’s drug screens were positive for marijuana,
respondent was evicted from her public housing apartment due to criminal activity (i.e., selling
drugs), and respondent continued to live with Brandon Burt, who had a felony record and
previous involvement with CPS. Heidi Cotey, a tribal expert witness, testified that she could not
think of any relevant service that had not been offered to respondent, and that in her opinion
active efforts had been made to reunite respondent and the child. In light of this evidence, we
conclude that respondent’s allegation that petitioner did not make the requisite active efforts to
avoid breakup of an Indian family fails.

        Respondent also contends that the trial court focused on her criminality when terminating
her parental rights, but did not specifically cite MCL 712A.19b(3)(h) as a statutory ground for
termination; therefore, the trial court improperly relied on the fact of respondent’s current
incarceration as a basis for termination of her parental rights. This Court reviews the trial court’s
factual findings for clear error. MCR 3.977(K); In re Rood, 483 Mich at 90.

       MCL 712A.19b(3)(h) permits termination of parental rights in the following
circumstance:


                                                 -8-
               The parent is imprisoned for such a period that the child will be deprived
       of a normal home for a period exceeding 2 years, and the parent has not provided
       for the child’s proper care and custody, and there is no reasonable expectation that
       the parent will be able to provide proper care and custody within a reasonable
       time considering the child’s age.

        Respondent argues that although the trial court stated that incarceration alone could not
serve as a basis for termination of parental rights, the court in fact improperly relied on the fact
of her incarceration when deciding to terminate her parental rights. Respondent contends that
incarceration alone is not a sufficient basis for terminating parental rights, In re Mason, 486
Mich 142, 146; 782 NW2d 747 (2010), and that given that the child was in an appropriate
placement with her father, termination was improper. In re Pops, 315 Mich App 590, 599; 890
NW2d 902 (2016) (father’s incarceration was an insufficient basis for termination of his parental
rights when father provided proper care and custody for the child through placement with the
grandmother).

        First, the trial court did not rely on MCL 712A.19b(3)(h) as a basis for terminating
respondent’s parental rights. Indeed, the trial court could not have done so because no evidence
showed that respondent would be incarcerated for a period exceeding two years. Second, the
court acknowledged that incarceration alone is not a sufficient basis for terminating parental
rights, but clarified that it was not terminating respondent’s parental rights for that reason. The
trial court cited repeated instances of respondent’s criminality when making its findings, and
noted that respondent was incarcerated in the county jail on pending charges, but did not cite an
extended period of incarceration as a basis for terminating respondent’s parental rights. Thus,
the record does not support this claim of error.

         In light of the foregoing, we conclude that the trial court did not err in determining that
there is a statutory ground for terminating respondent’s parental rights, evidence established
beyond a reasonable doubt that leaving the minor in respondent’s custody would likely result in
serious emotional or physical harm to the minor beyond a reasonable doubt, and that active
efforts had been made to prevent breakup of the family, but they were unsuccessful. Therefore,
the trial court did not err in finding grounds to terminate respondent’s parental rights.

                                      C. BEST INTERESTS

        “If the court finds that there are grounds for termination of parental rights and that
termination of parental rights is in the child’s best interests, the court shall order termination of
parental rights and order that additional efforts for reunification of the child with the parent not
be made.” MCL 712A.19b(5). “[T]he preponderance of the evidence standard applies to the
best-interest determination.” In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).

         In determining a child’s best interests, the trial court may consider the child’s need for
stability and permanency and whether the child is progressing in his or her current placement. In
re VanDalen, 293 Mich App 120, 141; 809 NW2d 412 (2011). In addition, the trial court may
consider the children’s bond to the parent, the parent’s parenting ability, and the advantages of a
foster home over the parent’s home. In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144
(2012).

                                                -9-
        In its order following remand, the trial court adopted its original findings of fact and best-
interest analysis. The evidence showed that at the time of the termination hearing, respondent
was incarcerated on pending criminal charges, was unemployed, and had unstable housing, and
that the child had been placed with her father. The trial court acknowledged that respondent and
the child shared a bond, but found that respondent consistently put her own interests ahead of
those of the child, and that the child deserved stability and permanence. Based on this evidence,
we conclude that the trial court did not clearly err in finding that termination of respondent’s
parental rights was in the minor’s best interests.

       Affirmed.



                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Jane M. Beckering
                                                              /s/ Michael J. Riordan




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