                                         I N       T H E         C O U R T     O F   A P P E A L S                 A T         N A S H V I L L E
                                                                                                                                                      FILED
S T A T E O F T E N N E S S E E ,                                                        )         C   /   A       N   o   .     0 1 A 0 1 - 9 8 1 0 - J V - 0 0 5 6 4
                                                                                                                                                         August 2, 1999
D E P A R T M E N T O F C H I L D R E N ’ S                                              )         D   A   V   I   D   S   O   N   C O U N T Y
S E R V I C E S                                                                          )         C   i   r   c   u   i   t     N o s :
                                                                                                                                                       Cecil Crowson, Jr.
                                                                                         )         9   7   1   9   -   3   9   0 6 4
                                                                                                                                                    Appellate Court Clerk
                  P e t i t i o n e r - A p p e l l e e                                  )         9   7   1   9   -   3   9   0 6 5
                                                                                         )         9   7   1   9   -   3   9   1 8 2
                  v .                                                                    )
                                                                                         )
J A M E S             B O S T I C K    O S B O R N E                                     )
                                                                                         )
                  R e s p o n d e n t - A p p e l l a n t                                )
                                                                                         )
I N T H E               M A T T E R O F :                                                )
S H E R R Y             M O N E T H E N D R E N                                          )



A P P E A L E D             F R O M    T H E       J U V E N I L E           C O U R T       O F       D A V I D S O N               C O U N T Y

T H E           H O N O R A B L E      B E T T Y           A D A M S - G R E E N ,           J U D G E



T h o m a s H .                 M i l l e r
P . O . B o x                   6 8 1 6 6 2
F r a n k l i n ,               T N 3 7 0 6 8 - 1 6 6 2

                  A t t o r n e y      f o r       R e s p o n d e n t - A p p e l l a n t


P a u l G . S u m m e r s
A T T O R N E Y G E N E R A L                    A N D         R E P O R T E R

D   o   u   g l   a   s E a r l      D i m   o n   d
A   S   S   I S   T   A N T A T    T O R N   E Y       G   E   N E R A L
G   e   n   e r   a   l C i v i    l D i     v i   s   i   o   n
C   o   r   d e   l   l H u l l      B u i   l d   i   n   g   , 2 n d       F l o o r
4   2   5     F   i   f t h A v    e n u e     N   o   r   t   h
N   a   s   h v   i   l l e , T    N 3 7     2 4   3   -   0   4 9 9

                  A t t o r n e y s      f o r         P e t i t i o n e r - A p p e l l e e


                                                                               A F F I R M E D             A N D           R E M A N D E D

                                                                               H o u s t o n           M .         G o d d a r d ,         P r e s i d i n g   J u d g e

C O N C U R :

F R A N K S ,             J .
S U S A N O ,             J .
                                                                  O     P       I     N     I     O     N




                                                                                                                                  Goddard, P.J.




                        T h i s     c a s e       i n v o l v e s           a       p e t i t i o n           f o r       t e r m i n a t i o n             o f

p a r e n t a l       r i g h t s .             T h e     R e s p o n d e n t / A p p e l l a n t ,                         J a m e s         B o s t i c k

O s b o r n e ,       a p p e a l s       f r o m       a n     o r d e r           o f     t h e       J u v e n i l e           C o u r t       o f       D a v i d s o n

C o u n t y     t e r m i n a t i n g           h i s     p a r e n t a l             r i g h t s           a s     t h e     b i o l o g i c a l             f a t h e r

o f   S h e r r y       M o n e t     H e n d r e n .             W e       a f f i r m           t h e       j u d g m e n t           o f     t h e       T r i a l

C o u r t .




                        O n     D e c e m b e r         2 2 ,     1 9 9 7 ,           t h e       S t a t e         o f     T e n n e s s e e ,

D e p a r t m e n t       o f     C h i l d r e n ’ s           S e r v i c e s ,               t h e       P e t i t i o n e r / A p p e l l e e ,

o b t a i n e d       c u s t o d y       o f     B a r b a r a         a n d         W i l l i e           H e n d r e n ’ s           t h r e e       c h i l d r e n :

S h e r r y     M o n e t       H e n d r e n ,         R i c k y       D o n n e i l             H e n d r e n ,           a n d       S h a n t a         M o n i q u e

H e n d r e n .         A l t h o u g h         M r .     H e n d r e n             i s     l i s t e d           a s     t h e     f a t h e r         o n       e a c h

c h i l d ’ s     b i r t h       c e r t i f i c a t e ,             D C S         d i s c o v e r e d             d u r i n g         i t s

i n v e s t i g a t i o n         t h a t       M r .     O s b o r n e             m i g h t         b e     t h e       b i o l o g i c a l           f a t h e r         o f

S h e r r y     H e n d r e n       a n d       t h a t       M i c h a e l           P a t t e r s o n             m i g h t       b e       t h e     b i o l o g i c a l

f a t h e r     o f     R i c k y     a n d       S h a n t a         H e n d r e n .                 A f t e r         t h i s     d i s c o v e r y ,             D C S

s o u g h t     t o     n o t i f y       M r .     O s b o r n e           a n d         M r .       P a t t e r s o n           o f     i t s       p e t i t i o n         t o

t e r m i n a t e       t h e     p a r e n t a l         r i g h t s           t o       t h e       t h r e e         c h i l d r e n .             T h i s       a p p e a l

c o n c e r n s       o n l y     t h e     t e r m i n a t i o n               o f       M r .       O s b o r n e ’ s           p a r e n t a l           r i g h t s       t o

S h e r r y     M o n e t       H e n d r e n ,         w h o     w a s         a l m o s t           t w e l v e         y e a r s       o l d       a t     t h e     t i m e

o f   t h e     t r i a l .


                                                                                      2
                          M r .     O s b o r n e               p r e s e n t s         t h r e e           i s s u e s ,       w h i c h       w e     r e s t a t e ,

f o r     o u r       c o n s i d e r a t i o n :



                                      1 . W h e t h e r t h e c o u r t e r r e d i n
                                      f i n d i n g t h a t h e w i l l f u l l y a b a n d o n e d
                                      h i s d a u g h t e r ;

                                      2   .       W   h   e t h   e   r t h       e c o     u   r   t e r r e d i n
                                      t   e   r   m   i   n a t   i   n g h       i s p     a   r   e n t a l r i g h t s
                                      b   a   s   e   d     u p   o   n p e       r s i s   t   e   n c e o f
                                      c   o   n   d   i   t i o   n   s d a       n g e r   o   u   s t o h i s
                                      d   a   u   g   h   t e r   ;     a n d

                                      3   . W h           e   t h e r t h e c o u r t e r                     r e d i n
                                      f   i n d i         n   g t h a t t e r m i n a t i o                   n o f h i s
                                      p   a r e n         t   a l r i g h t s w a s i n                       t h e b e s t
                                      i   n t e r         e   s t o f h i s d a u g h t e                     r .




                              A f t e r       M s .           K a t i e       F i n n e y ,           a     D C S     c a s e     m a n a g e r ,           d e t e r m i n e d

t h a t       M r .     O s b o r n e         w a s           i n c a r c e r a t e d ,               s h e       s e n t     h i m     a     l e t t e r       i n     M a y

1 9 9 8       i n q u i r i n g       w h e t h e r               h e       i s     S h e r r y ’ s           f a t h e r .           I n     J u n e       1 9 9 8 ,     M r .

O s b o r n e ,         w h o     w a s       s e r v i n g             a     s e n t e n c e             f o r     b u r g l a r y ,         r e s p o n d e d         t h a t

h e     i s     i n d e e d       h e r       f a t h e r .                 O n     J u n e         3 0 ,     1 9 9 8 ,       D C S     f i l e d       a     p e t i t i o n

t o     t e r m i n a t e         M r .       O s b o r n e ’ s               p a r e n t a l             r i g h t s .




                          T h e     D C S         p e t i t i o n             s t a t e d           t h a t       u n d e r     T e n n e s s e e           C o d e

A n n o t a t e d         § §     3 6 - 1 - 1 0 2 ( 1 ) ( A ) ( i )                     a n d         3 6 - 1 - 1 0 2 ( 1 ) ( A ) ( i v ) ,                 M r .

O s b o r n e         h a d     w i l l f u l l y               a b a n d o n e d           h i s         d a u g h t e r       a n d       t h a t     t e r m i n a t i o n

o f     M r .     O s b o r n e ’ s           p a r e n t a l               r i g h t s         w a s       i n     h i s     d a u g h t e r ’ s           b e s t

i n t e r e s t .



                                                                                            3
                        O n     O c t o b e r       9 ,     1 9 9 8 ,     D C S       f i l e d     a n       a m e n d e d       p e t i t i o n         w h i c h

s t a t e d       t h a t     M r .       O s b o r n e     w a s     i n c a r c e r a t e d           a t     t h e     t i m e       t h e     p e t i t i o n

w a s     f i l e d     a n d       s t a t e d     t h a t     M r .     O s b o r n e         h a d     f a i l e d       t o     v i s i t       o r

s u p p o r t       h i s     d a u g h t e r       i n     t h e     f o u r       m o n t h s     p r e c e d i n g           h i s

i n c a r c e r a t i o n           o r     e n g a g e d     i n     c o n d u c t         p r i o r     t o     h i s     i n c a r c e r a t i o n

t h a t     s h o w e d       w a n t o n       d i s r e g a r d       f o r       h i s     d a u g h t e r ’ s         w e l f a r e .




                        I n     e a r l y       O c t o b e r       1 9 9 8 ,       M s .     F i n n e y       v i s i t e d       M r .       O s b o r n e

t o     d i s c u s s       h i s     d a u g h t e r       a n d     h e r     s i b l i n g s .             A c c o r d i n g         t o     M s .

F i n n e y ’ s       t e s t i m o n y ,         M r .     O s b o r n e       w a s       n o t   o p p o s e d         t o     t h e

t e r m i n a t i o n         o f     h i s     p a r e n t a l       r i g h t s       i f     h i s     d a u g h t e r         c o u l d       r e m a i n

w i t h     h e r     s i b l i n g s .           A l t h o u g h       M r .       O s b o r n e       s t a t e d       t h a t       h e     w o u l d

l i k e     t o     s e e     h i s       d a u g h t e r ,     M s .     F i n n e y         s t a t e d       t h a t     h e     n e v e r

r e q u e s t e d       a     v i s i t .




                        A t     t h e       t r i a l     on October 12, 1998, Mr. Osborne testified

that he was participating in a behavior modification program

called “Lifelines” while in jail and that the program had made a

profound impact on his life.                                              He testified that he was scheduled

to be released from jail on November 2, 1998 and then go to a

halfway house for three months.                                                     He further stated that he hoped

to rear his daughter and her two siblings, although he was not

their father, but he did not know when he could provide a home

for them.                   He was uncertain as to what his relationship with his



                                                                                4
wife and young son would be since he had had no contact with them

in seven months.




          Mr. Osborne admitted that there was a period of

approximately four years of Sherry’s life that he lost total

contact with her.    Mr. Osborne never legitimated Sherry as his

child, although she is aware that he is her father, and he never

paid child support for his daughter.




          Ms. Finney of DCS testified that Mr. Osborne could not

be considered as a placement for children until he had been sober

at least one year.   Ms. Finney further testified that termination

of Mr. Osborne’s parental rights was in Sherry’s best interest

and that Sherry, who was almost twelve years old at the time,

needed a permanent, stable home to prepare her for her teenage

years.




          Mr. Steve Walker, Sherry’s guardian ad litem, stated to

the Trial Court that Sherry was willing to live with her father

if her two siblings could live with them.    If that was not

possible, then Sherry preferred to be placed in a home along with

her brother and sister.




                                 5
          On October 13, 1998, the Trial Court filed a decree of

guardianship and thus, terminated Mr. Osborne’s parental rights.

The Trial Court concluded that Mr. Osborne had willfully

abandoned his daughter for more than four consecutive months

preceding the filing of this petition to terminate his parental

rights by not visiting during that period of time.   Furthermore,

the Trial Court found that Mr. Osborne was



     incarcerated during all or part of the four months
     immediately preceding the filing of the petition and
     willfully failed to visit or support or make reasonable
     payments toward the support of the child for four
     consecutive months immediately preceding such
     incarceration OR has engaged in conduct prior to
     incarceration which exhibits a wanton disregard for the
     welfare of the child.
          That pursuant to T.C.A. 36-1-113(g)(3)(A), the
     said children have been removed from Defendant parents
     for more than six (6) months and the conditions which
     led to removal or other conditions which in all
     reasonable probability would cause the children to be
     subjected to further abuse or neglect and which,
     therefore, prevent the children’s return to the care of
     the Defendants still persists; that there is little
     likelihood that these conditions will be remedied at an
     early date so that the children can be returned to the
     Defendants in the near future; and the continuation of
     the legal parent and child relationship greatly
     diminishes the children’s chances of early integration
     into a stable and permanent home.




          First, Mr. Osborne argues that he did not willfully

abandon his daughter.    He explains that he was incarcerated in

December 1997 on a burglary conviction when his daughter was

placed in DCS custody.   Mr. Osborne contends that although DCS

did not know that he was Sherry's father until March 1998, it did

not contact him until May 1998 and did not speak with him until

                                 6
October 1998.   Mr. Osborne maintains that before meeting with Ms.

Finney from DCS the week before the trial in October 1998, "he

had no meaningful way to inform DCS that he desired visitation

with [Sherry]."   He asserts that before he was incarcerated he

saw Sherry "frequently" and had a "good relationship" with her.




           Furthermore, Mr. Osborne argues that he had no income

during his incarceration, and thus, was unable to pay child

support.   Consequently, his failure to pay child support was not

willful.   Moreover, Mr. Osborne contends that the State did not

show by clear and convincing evidence that his conduct before his

incarceration exhibited a "wanton disregard" for his daughter's

welfare.   Although Mr. Osborne admits to a long history of drug

abuse, he maintains that such abuse or a criminal conviction does

not constitute "wanton disregard" for a child's welfare.




           Next, Mr. Osborne argues that the court erred by

finding that dangerous conditions to his daughter would likely

persist.   Mr. Osborne maintains that he has undergone a "life-

changing" behavior modification program while incarcerated and no

longer uses drugs.   He further contends that there are no

allegations of abuse or neglect against him because at the time

his daughter was removed from her home, she was living with her

mother.



                                7
            Mr. Osborne further argues that termination of his

parental rights is not in the best interest of his daughter.              He

asserts that DCS failed to make reasonable efforts to “reunite”

him with his daughter, with whom he had a good relationship.




            The State argues that the Trial Court properly

terminated Mr. Osborne's parental rights for abandonment.             The

State maintains that Mr. Osborne was incarcerated in the four

months preceding the filing of the petition on June 30, 1998 to

terminate his parental rights.        While the State concedes that Mr.

Osborne's options for visitation were limited, it maintains that

he did not contact his daughter or request a visit with her until

the week before the trial, which was several months after he

learned of the State's efforts to locate him.           The State

maintains that these facts constitute a willful failure to visit

under Tennessee Code Annotated § 36-1-101(1)(A)1.




            The State further argues that Mr. Osborne abandoned his

daughter pursuant to Tennessee Code Annotated § 36-1-

102(1)(A)(iv) in the four months before his incarceration.              It

maintains that Mr. Osborne paid no child support, instead

spending all his paycheck on crack cocaine, and had no more than

"token visitation" with his daughter.         It argues that after five

     1
       Although the State refers to Tennessee Code Annnotated § 36-1-101(1)(A)
in its brief, the section that refers to a willful failure to visit is § 36-1-
102(1)(A).

                                      8
years of no contact, Mr. Osborne saw his daughter on some

Saturdays during the eight months before his incarceration and

even then, was out of contact with her for as long as a month.




            Moreover, the State asserts that Mr. Osborne's drug

abuse and criminal conduct constitute "wanton disregard" for his

daughter's welfare, citing In re Shipley, an unreported opinion

of this Court, filed in Knoxville on September 29, 1997 (finding

that the father’s criminal conduct and drug abuse showed a wanton

disregard for the welfare of his children).    The State contends

that Mr. Osborne has demonstrated by past performance that he

could remain sober only while incarcerated, and when released,

retreats to a life of drug abuse.     The State maintains that Mr.

Osborne, who claimed to be in recovery while incarcerated, had

one month remaining to serve in jail and an additional three

months in a halfway house before he would be free.    The State

also notes that DCS would not consider placing Mr. Osborne’s

daughter with him until he had demonstrated a year of sobriety.




            The State contends that the termination of Mr.

Osborne's parental rights was in the best interest of his

daughter.    It explains that Mr. Osborne was unable to provide a

home for his daughter, had not maintained regular contact or

visitation with her, had paid no child support during her

lifetime, and had a chronic drug abuse problem.

                                  9
            Finally, the State argues that Mr. Osborne’s argument

that DCS did not make reasonable efforts to “reunite” his

daughter with him is without merit.    Although the State lists

numerous reasons why this argument is without merit, it asserts

primarily that its mandate to “reunify” families does not apply

to putative parents such as Mr. Osborne, who has not established

a familial relationship to which his daughter could have

returned.




            In accordance with Rule 13(d) of the Tennessee Rules of

Appellate Procedure, this Court reviews a Trial Court's decision

to terminate parental rights de novo upon the record, with a

presumption of correctness of the findings of fact by the Trial

Court unless the preponderance of evidence is otherwise.

However, no presumption of correctness attaches to a lower

court's decisions regarding questions of law.     Ganzevoort v.

Russell, 949 S.W.2d 293, 296 (Tenn. 1997).




            The decision to terminate parental rights must be

established by “clear and convincing evidence.”     See State

Department of Human Services v. Defriece, 937 S.W.2d 954, 960

(Tenn. Ct. App. 1996).    Tennessee Code Annotated § 36-1-113(c)

provides in relevant part:

                 Termination of parental or guardianship
            rights must be based upon:


                                 1 0
                 (1) A finding by the court by clear and
            convincing evidence that the grounds for
            termination or [sic] parental or guardianship
            rights have been established; and
                 (2) That termination of the parent’s or
            guardian’s rights is in the best interests of the
            child.




            Tennessee Code Annotated § 36-1-113(g)(3)(A) (Supp.

1997)2 provides the possible grounds for termination of parental

rights:

                 Termination of parental or guardianship
            rights may be based upon any of the following
            grounds:

                                    * * * *

                 The child has been removed from the home of
            the parent or guardian by order of a court for a
            period of six (6) months and:
                 (i) The conditions which led to the child’s
            removal or other conditions which in all reason-
            able probability would cause the child to be
            subjected to further abuse or neglect and which,
            therefore, prevent the child’s return to the
            care of the parent(s) or guardian(s), still
            persist;
                 (ii) There is little likelihood that these
            conditions will be remedied at an early date so
            that the child can be returned to the
            parent(s) or guardian(s) in the near future; and
                 (iii) The continuation of the parent or
            guardian and child relationship greatly diminishes
            the child’s chances of early integration into a
            stable and permanent home.




      2
       This statute was amended with an effective date of July 1, 1998. The
State filed its petition for termination of parental rights on June 30, 1998.
The 1998 amendment substituted “Initiation of termination” for “termination”;
in (g)(3)(A)(i), “safe” was inserted preceding “return”; in (g)(3)(A)(ii)
“safely” was inserted preceding “returned”; in (g)(3)(A)(iii) “safe” was
inserted preceding “stable.” See Amendments, Tenn. Code Ann. § 36-1-113
(Supp. 1998).

                                     1 1
            Tennessee Code Annotated §§ 36-1-102(1)(A)(i) and 36-1-

102(1)(A)(iv) provide in relevant part:

                “Abandonment” means, for purposes of
      terminating the parental or guardian rights of
      parent(s) or guardian(s) of a child to that child in
      order to make that child available for adoption, that:
           (i) For a period of four (4) consecutive months
      immediately preceding the filing of a proceeding or
      pleading to terminate the parental rights of the
      parent(s) or guardian(s) of the child who is the
      subject of the petition for termination of parental
      rights or adoption, that the parent(s) or guardian(s)
      either have willfully failed to visit or have willfully
      failed to support or make reasonable payments toward
      the support of the child;

                              * * * *

           (iv) A parent or guardian is incarcerated at the
      time of the institution of an action or proceeding to
      declare a child to be an abandoned child, or the parent
      or guardian has been incarcerated during all or part of
      the four (4) months immediately preceding the
      institution of such action or proceeding, and either
      has willfully failed to visit or has willfully failed
      to support or make reasonable payments toward the
      support of the child for four (4) consecutive months
      immediately preceding such parent’s or guardian’s
      incarceration, or the parent or guardian has engaged in
      conduct prior to incarceration which exhibits a wanton
      disregard for the welfare of the child.



            Tennessee Code Annotated § 36-1-113(h) (Supp.

1997)3 provides the following regarding the best interest of

a child:

           In determining whether termination of parental or
      guardianship rights is in the best interest of the
      child pursuant to this part, the court shall consider,
      but is not limited to, the following:


      3
       This statute was amended with an effective date of July 1, 1998. The
State filed its petition for termination of parental rights on June 30, 1998.
The 1998 amendment added a new (h) and redesignated the former (h)-(p) as
present (i)-(q); in present (i)(1) inserted “safe and” following “it”; in
present (i)(7) inserted “in a safe and stable manner” following “child” and in
present (i)(8) inserted “safe and stable” preceding “care.” See Amendments,
Tenn. Code Ann. § 36-1-113 (Supp. 1998).

                                     1 2
          (1) Whether the parent or guardian has made such
     an adjustment of circumstance, conduct, or conditions
     as to make it in the child’s best interest to be in the
     home of the parent or guardian;
          (2) Whether the parent or guardian has failed to
     effect a lasting adjustment after reasonable efforts by
     available social services agencies for such duration of
     time that lasting adjustment does not reasonably appear
     possible;
          (3) Whether the parent or guardian has maintained
     regular visitation or other contact with the child;
          (4) Whether a meaningful relationship has
     otherwise been established between the parent or
     guardian and the child;
          (5) The effect a change of caretakers and physical
     environment is likely to have on the child’s emotional,
     psychological and medical condition;
          (6) Whether the parent or guardian, or other
     person residing with the parent or guardian, has shown
     brutality, physical, sexual, emotional or psychological
     abuse, or neglect toward other children in the family
     or household;
          (7) Whether the physical environment of the
     parent’s or guardian’s home is healthy and safe,
     whether there is criminal activity in the home, or
     whether there is such use of alcohol or controlled
     substances as may render the parent or guardian
     consistently unable to care for the child;
          (8) Whether the parent’s or guardian’s mental
     and/or emotional status would be detrimental to the
     child or prevent the parent or guardian from
     effectively providing care and supervision for the
     child; or
          (9) Whether the parent or guardian has paid child
     support consistent with the child support guidelines
     promulgated by the department pursuant to
     § 36-5-101.




          This Court must determine whether the evidence in the

record preponderates against the Trial Court’s findings of fact

supporting termination.   The State argues that the primary

evidence of Mr. Osborne’s "wanton disregard" for the welfare of

his daughter is his criminal conduct and drug abuse prior to his

incarceration.


                                1 3
           During his testimony, Mr. Osborne acknowledged that

twelve years ago he had been convicted of burglary and that he is

currently serving a sentence for burglary.   He also admitted that

he had abused drugs since the age of twelve and began using

cocaine when he was fifteen or sixteen years old, thus admitting

to abusing drugs for approximately twenty-seven years.    Mr.

Osborne testified that except for periods of incarceration, the

longest period of time that he has been free from drugs is sixty

days.   He testified that he did not think that abusing drugs

indicated abuse or neglect for a child’s welfare.




           Furthermore, Mr. Osborne admitted that he never

legitimated Sherry, never paid child support, and had no home to

provide for his daughter, although he had completed a parenting

class and had participated in a behavior modification course

called “Lifelines” while incarcerated.




           We are of the opinion that the evidence in the record

does not preponderate against the Trial Court’s findings of fact.

Mr. Osborne admitted to chronic drug abuse and criminal conduct

and admitted that he had no home to provide for his daughter.

During his daughter’s life, Mr. Osborne never provided support

for her, and his relationship with her was sporadic at best.     Mr.

Osborne’s daughter has experienced a disturbing childhood, so her

placement into a stable, permanent home as soon as possible is

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critical as she enters adolescence.   Therefore, we agree with the

Trial Court that termination of Mr. Osborne’s parental rights is

in the best interest of his daughter.



          For the foregoing reasons, the judgment of the Trial

Court is affirmed.   Costs on appeal are taxed to Mr. Osborne.

This case is remanded to the Trial Court for enforcement of the

judgment and collection of costs below.



                              _______________________________
                              Houston M. Goddard, P.J.


CONCUR:



________________________________
Herschel P. Franks, J.



________________________________
Charles D. Susano, Jr., J.




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