No. A-2799-15T4.

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. I.S.T., Defendant-Appellant, and L.H. and M.C., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF N.R.T. and B.C., Minors.

Superior Court of New Jersey, Appellate Division.

Decided February 15, 2017.

Attorney(s) appearing for the Case

Joseph E. Krakora , Public Defender, attorney for appellant ( Anna Patras , Designated Counsel, on the brief).

Christopher S. Porrino , Attorney General, attorney for respondent ( Melissa H. Raksa , Assistant Attorney General, of counsel; Nicole T. Castiglione , Deputy Attorney General, on the brief).

Joseph E. Krakora , Public Defender, Law Guardian, attorney for minors ( Danielle Ruiz , Designated Counsel, on the brief).

Before Judges Hoffman and Whipple.


This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.


Defendant, I.S.T. (Irene), appeals from a trial court's March 7, 2016 judgment of guardianship terminating her parental rights to her minor children, N.R.T. (Nadia) and B.C. (Barbara).1 We affirm.

Irene's history with the Division of Child Protection and Permanency (Division) goes back to 2008. This action resulted when the Division investigated a report Irene was using drugs in the presence of her children and Barbara's special medical needs were ignored. Barbara suffers from necrotizing enterocolitis, gastrointestinal complications, cerebral palsy, seizure disorder, a history of strokes, and requires a gastronomy feeding tube. When caseworkers arrived at Irene's home, she refused to come to the door and yelled she was "tired of the Division." The investigation revealed Barbara's feeding tube was infected, and the child had not been seen by her visiting nurse in over six months.

In April 2013, the children's school contacted the Division regarding excessive absences. Irene told the Division the family planned to move out of state, but when the move did not occur, she did not re-enroll the children in school. Irene was substantiated for the educational neglect of Nadia, and the children were placed under the Division's care and supervision.

One of Barbara's nurses also reported to the Division Irene did not respond to the nursing company's letters or telephone calls. The nurse reported concern for Barbara's health and the proper administration of the feeding tube. The Division also learned Irene was arrested.

Irene refused to cooperate with the Division and refused services. The Division subsequently removed the children from Irene's care and hospitalized Barbara because of her medical condition, while the other children were placed in a resource home. Irene was substantiated for the medical neglect of Barbara.

In June 2013, Irene was utilizing some Division services, as a result the Division proposed and the court ordered Nadia and Barbara returned to Irene's care. Barbara's in-home nursing services resumed on June 15, 2013; however, by August 29, 2013, Irene was sending away the nursing staff when they arrived for their scheduled shifts. When the Division contacted Irene, she stated her electricity was shut off but the property owner was running an extension cord from the garage to the house. The Division informed her that was a safety hazard and assisted moving her and the children into a neighbor's home temporarily.

Barbara's nurse contacted the Division on September 16, 2013, because she had seen Nadia administer Barbara's medicine while Irene was gone for the evening. Shortly thereafter, Irene fired the nursing service.

In addition, Irene refused to submit to a drug screen. Based upon Irene's non-compliance with Division recommended services and the ongoing risk to the life, safety, and health of the children, the trial court granted the Division custody of the children on

October 8, 2013.

The Division provided a profusion of services for Irene and while she attended supervised visits in October 2013 with her children, she tested positive for marijuana and morphine. She tested positive for marijuana again when she attended her substance abuse evaluation on November 21, 2013. Irene was diagnosed with cannabis dependence and referred to an outpatient treatment program.

Irene missed scheduled supervised visits in December 2013 and January 2014, because she was incarcerated. Irene failed to attend her psychological evaluation and her outpatient therapy. Irene did attend a substance abuse re-evaluation on March 19, 2014, where she was again diagnosed with cannabis dependence and referred to outpatient treatment.

Irene attended a psychological evaluation on April 10, 2014, with Alan Lee, Psy.D. Dr. Lee diagnosed Irene with cannabis dependence and a multitude of personality disorders. Based upon his observations, Dr. Lee opined Irene's personality and character traits made it difficult for her to carry out proper parenting, especially to a child with special needs, and recommended supervised visits in a public or professional setting. Dr. Lee recommended Irene receive further substance abuse evaluations, frequent drug tests, updated psychiatric evaluations by a board-certified psychiatrist, individual counseling or psychotherapy, parenting education, a domestic violence program, and an anger management program.

Irene continued to test positive for marijuana while sporadically attending an intensive outpatient program. Irene was discharged from her outpatient program for missing sessions. While attending supervised visits with her children, Irene was often under the influence of prescription medication and at one visit appeared pale, shaking, and vomited into a trashcan as the children were escorted from the room.

On June 11, 2014, the Division learned Irene had been evicted and was staying with her mother. On June 24, 2014, Irene was ordered to attend a psychiatric evaluation, submit to random drug and alcohol screenings, and attend individual counseling. Irene refused to provide the Division with an updated address and stated she would not be participating in any Division recommended services as she wanted to consult with an attorney.

On August 18, 2014, while applying for housing assistance, it was reported to the Division Irene had completed an intake form but appeared to be under the influence, and she tested positive for marijuana and opiates. Irene also misrepresented that Barbara was in her custody in an effort to obtain additional benefits. Irene was removed from the transitional housing because she lied during her intake and application.

Irene continued to miss scheduled substance abuse re-evaluations throughout August and September and missed three more visits with her children. She admitted she had not completed any Division recommended services and did not have a permanent address to provide the court. The trial judge granted the Division's request to change the permanency plan from reunification to termination of parental rights followed by adoption.

In October 2014, Nadia refused to attend supervised visits with her mother, because she was embarrassed and uncomfortable around her. Nadia did go to a supervised visit with her mother on October 23, 2014, but told her she would not be attending any more visits as she was tired of her mother's "B.S." When Irene asked Nadia what will happen when Nadia comes home, Nadia answered, "we aren't coming home."

The Division filed a guardianship complaint on November 6, 2014. Irene attended a substance abuse evaluation on November 19, where she admitted she was smoking marijuana twice a day up until two weeks prior and takes Percocet every four hours. Irene was referred to an intensive outpatient program.

At a case management conference on December 12, 2014, the trial judge again ordered Irene submit to a drug screen, attend a drug treatment program, and obtain adequate housing. The hair follicle screen taken that day was positive for heroin, cocaine, marijuana, morphine, and oxycodone.2 At the next case management conference on February 13, 2015, the trial judge ordered another drug screen. The results of the hair follicle screen were positive for heroin, morphine, and oxycodone.

Irene attended yet another psychological evaluation with Dr. Lee on March 9, 2015, but his diagnosis remained unchanged. Finding her likelihood for significant and lasting change to be poor, Dr. Lee recommended other permanency planning for the children.

Nadia refused to participate in bonding evaluations with Irene, so Dr. Lee conducted an individual interview. Dr. Lee found Nadia had a disorganized, insecure, and upsetting relationship with her mother, and found no significant positive psychological bond and a low risk of Nadia suffering severe and enduring psychological or emotional harm if the bond were severed. Dr. Lee found Nadia had a secure and positive relationship with her foster parents, who have expressed interest in adopting her. Additionally, removing Nadia from her foster parents would cause a significant risk of psychological or emotional harm.

Dr. Lee conducted a bonding evaluation of Barbara's relationship with Irene and found it "ambivalent and insecure," noting there was a low risk Barbara would suffer severe psychological and emotional harm if her bond with Irene ended. Barbara had an extremely significant bond with her foster mother, who had been Barbara's nurse starting in October 2013. Dr. Lee found Barbara would suffer severe and enduring psychological and emotional harm if separated from her foster mother. While Barbara's attachment with the foster father was still developing, Dr. Lee found it likely he would become a source of stability for the child.

Andrew P. Brown, III, Ph.D. conducted a psychological and bonding evaluation on behalf of Irene. Dr. Brown found Irene had a "good" prognosis for parenting and found the "genuine culprit" of her neglect to be "the state of sustained poverty." Despite Nadia's refusal to participate in the bonding evaluation, Dr. Brown found her to be "deeply bonded" with Irene and would suffer "irreparable psychological harm and trauma" if her bond with Irene were to be terminated. Irene informed Dr. Brown it was the Division caseworker who ruined her relationship with her child, despite no evidence to establish that claim. Dr. Brown suggested family therapy would help repair the damage done. Dr. Brown also found it was in the best interest for Barbara to be reunited with Irene and family therapy would help mitigate the transition.

On April 10, 2015, a counseling treatment center initially reported Irene was following her treatment program, but six days later reported Irene was taking medications not currently prescribed to her. They discharged Irene from the program.

On April 22, 2015, Irene attended a psychiatric evaluation with Donald Fong, M.D., who recommended she participate in individual therapy, attend substance abuse programs, and continue to seek assistance in order to obtain housing, as well as participate in domestic violence and family focused therapy.

Irene continued to miss substance abuse evaluations and supervised visitations with her children throughout May 2015. When she did attend the supervised visitations, she was lethargic, unfocused, and withdrawn. Irene attended a case management conference on May 14, 2015; however, she arrived late, her speech slowed, and she appeared to fall asleep for a few moments. On July 6, 2015, the Division ruled out the maternal grandmother as a potential placement for the children.

The guardianship trial began on September 2, 2015; however, Irene did not attend.3 The trial judge heard testimony from Heather Ott, R.N., Barbara's nurse at her pre-placement examination, about Barbara's medical condition. Ott explained Barbara had delayed gross motor skills and was nonverbal during her first exam. Ott testified Barbara had not been receiving any required therapies nor follow-ups with specialists, such as a cardiologist or ophthalmologist. Ott testified Nadia was acting as Barbara's primary caretaker based upon Nadia's answers to medical questions posed. Ott testified Barbara has improved since placement.

Division caseworker Jeanine Colastano testified about her efforts with the family to address Irene's substance abuse, failure to secure employment and housing, and her refusal to keep in contact with the Division. Colastano explained the Division considered the maternal grandmother as a placement for the children but ruled her out. Division caseworker Alexandra Pangelos testified Irene was discharged unsuccessfully from her substance abuse program and how Nadia wanted to be adopted by her foster parents and Barbara's foster parents wished to adopt her.

The trial resumed January 14, 2016, with testimony from Dr. Lee concerning the psychological and bonding evaluations. Dr. Lee expressed significant concern about Irene's ability to parent young children and saw no significant or positive bond between Irene and either Nadia or Barbara. Dr. Lee found Irene's knowledge of parenting and child rearing limited, and did not find Irene to have a strong likelihood of significant or lasting change to support her being the independent caretaker of the children. Dr. Lee found Nadia had a significant bond with her foster parents, and there would be a significant risk of severe and enduring psychological harm if the bond were terminated. Dr. Lee expressed the same sentiment regarding Barbara's foster mother. In contrast, Dr. Lee stated Barbara was neither overjoyed nor happy to see Irene but ultimately became overwhelmed and disorganized by Irene's behavior during the evaluation and Barbara would not suffer severe or enduring psychological harm if her relationship with Irene ended. The trial judge considered the testimony of the Division's witnesses credible.

The trial resumed on February 18, 2016, this time with Irene appearing by telephone. Dr. Brown testified Irene functioned at a high average range of intelligence and her admitted marijuana usage did not preclude her from being a good parent nor did the positive screens for opiates, morphine, or heroin change his opinion on her ability to parent. Dr. Brown opined Barbara had a bond with her foster mother, but were Barbara reunified with Irene, Irene would be intellectually capable of remediating the harm to Barbara. The trial judge did not consider Dr. Brown's testimony credible.

The trial judge rendered his oral decision on February 24, 2016, finding clear and convincing evidence to terminate Irene's parental rights as to Barbara and Nadia, and entered a judgment of guardianship on March 7, 2016. This appeal followed.


On appeal, Irene argues the trial court's decision was not supported by sufficient credible evidence to find all four prongs. After conducting a thorough review of the record, we disagree.

This court's review of a trial judge's findings and decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We defer to the trial court's credibility findings and fact-findings because of its expertise in family matters and its ability to develop a "feel of the case that can never be realized by review of the cold record." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citation omitted).

A parent's right to enjoy a relationship with his or her child is fundamental and constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). However, "[p]arental rights ... are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (citation omitted).

Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to terminate parental rights on the basis that such termination is in the "best interests of the child" if the following standards are met:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good.

"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The State must prove each prong of this test by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986).


The first prong of the best interest test requires the Division prove the child's safety, health, or development has been or will continue to be endangered by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1). The focus of the first prong is not necessarily on a single incident of harm, but on "the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. Additionally, the harm to the child need not be physical, but can also include "[s]erious and lasting emotional or psychological harm ... as the result of the action or inaction of their biological parents." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citing In re Guardianship of J.C., 129 N.J. 1, 18 (1992)).

The inability of parents to provide day-to-day nurturing for their child for a prolonged period is a harm which can satisfy the first prong of the best interests test. K.H.O., supra, 161 N.J. at 356 (citing A.W., supra, 103 N.J. at 604-611). Alternatively, a failure to establish a permanent, safe, and stable home for a child presents a risk of significant harm sufficient to meet the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

The Division has provided substantial credible evidence establishing prong one. Irene caused harm, and would continue to cause harm, to her children if the parental relationship was not terminated based upon the educational and medical neglect, instability, and long term unaddressed substance abuse. Unlike the facts set forth in New Jersey Division of Youth and Family Services v. V.T., 423 N.J.Super. 320, 330 (2011), where the State failed to prove, without the benefit of expert testimony, that a father's drug use posed a risk to his child during two supervised visitations, Irene's behavior far exceeded simple drug use. She failed to adequately address her substance abuse issues over a two-year period, despite evidence showing she was neglecting the needs of the children. The Division's attempts to provide Irene with therapy and substance abuse evaluations were ineffective because Irene continued to test positive for marijuana, opiates, heroin, morphine, and cocaine. The evidence shows her behavior during this period negatively affected her children as she missed visits, lost her housing, was incarcerated, and failed to attend to Barbara's medical needs, which caused Nadia to assume the role as her siblings caretaker. The trial judge finding of prong one was sufficiently supported.


The second prong of the best interest test relates to parental unfitness, as well as "determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348, 352. The statute directs that "[s]uch harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child[.]" N.J.S.A. 30:4C-15.1(a)(2). Our courts recognize that "reunification becomes increasingly difficult with the passage of time because a child may develop bonds with his or her foster family and gain a sense of permanency." M.M., supra, 189 N.J. at 291. This is particularly true where biological parents are inattentive to their children, thereby encouraging them to bond with their foster families. K.H.O., supra, 161 N.J. at 352 (citation omitted). Comparative evaluations of a child's relationship with her or his foster parents and biological parents are generally necessary and relevant to a proper analysis of both the second and fourth prongs of the best interests test. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 440 (App. Div. 2009).

The trial judge found Irene continuously made excuses for why she could not complete substance abuse programs. Notably, the trial judge stated, "there's nothing that she has done which shows that she's really taken any steps to solve these problems or address these problems and instead blames everyone else, accuses everyone else and has not taken responsibility." The Division provided Irene with a range of mental health and substance abuse programs, all of which Irene either refused to attend or was discharged from for lack of compliance. Her unwillingness to take the proper steps to alleviate the harm continued to place her children in danger. Based upon the evidence in the record, the trial judge properly found prong two was satisfied.


The third prong requires the Division to prove it has undertaken "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Reasonable efforts may include helping the parent develop a plan for appropriate services; providing the agreed upon services in furtherance of family reunification; periodically informing the parent of the child's progress, development and health; and facilitating appropriate visitation. N.J.S.A. 30:4C-15.1(c). However, the Division need not continue services indefinitely; even with reasonable efforts, the Division may not be able to salvage a parental relationship. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 452 (2012).

Irene argues the services provided by the Division were not reasonable under the circumstances and failed to meet the requirements of prong three. We disagree. The Division provided Irene with numerous services, a large majority of which Irene either refused or failed to attend. These services enumerated by the trial judge included "psychological evaluations [], psychological counseling, psychiatric evaluations, individual counseling, group counseling, substance abuse assessment, substance abuse counseling and programs, random drug testing, referrals, visitation services, in-home services, medical care training, safety protection plan [], financial assistance, housing assistance, health care assistance, early intervention services, transportation services, [and] bus passes." Irene refused to submit to several urine and hair follicle screens and failed to attend substance abuse evaluations. When Irene did attend substance abuse programs, she was discharged for continual drug usage and unsatisfactory attendance.

Not only did the Division provide Irene with referrals for her substance abuse, the Division also referred Irene to in-home nursing services for Barbara, whom Irene ultimately fired. The Division also supplied bus passes and scheduled transportation in order for Irene to attend the different services and visits. Even with these services, Irene continuously failed to attend her scheduled visits, services, and evaluations. The Division made substantial reasonable efforts to refer Irene to the proper services and provide her with transportation in order to attend those services but ultimately, the Division could not physically force Irene to attend. Irene's failure to attend any recommended services is of her own doing.

In evaluating the Division's efforts in assisting the parent, "the court must consider the alternatives to termination of parental rights" and whether those efforts were reasonable. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 435 (App. Div. 2001). While it is "well established that it is the Division's policy to place children with relatives whenever possible," N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J.Super. 515, 527 (App. Div. 2003), "[t]here is no presumption... in favor of placement with a relative as opposed to a third party." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 619 (App. Div.) (citing M.F., supra, 357 N.J. Super. at 528-29), certif. denied, 192 N.J. 68 (2007). The Division did consider alternatives to the termination of parental rights but ultimately they were each ruled out. We are satisfied the Division made reasonable efforts in considering other alternatives to termination of Irene's parental rights and met its burden under prong three.


The fourth prong of the child's best interest test asks whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This standard does not require a showing that no harm will come from removal, but rather, after balancing both relationships, whether more harm will come to the child from terminating the relationship with their natural parents than from terminating the relationship with the resource parents. K.H.O., supra, 161 N.J. at 355. This prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007).

The trial judge found there would be more harm to both children if their relationship with their respective resource parents was disrupted "than if they were reunited with a parent who is inadequate, not caring, selfish, addicted to drugs, self centered, and someone who just does not have the ability or really the desire to be a good parent." The trial judge found credible Dr. Lee's assessment, because Irene had difficulty carrying out proper parenting and was at a heightened risk of substance abuse relapse, as evidenced by continued positive screens for marijuana and opiates. The court found Dr. Lee attested to a strong propensity for instability in Irene's life and recommended other permanency planning for the children besides reunification. In contrast, the trial judge found the testimony of Dr. Brown not credible because his positive prognosis of Irene's ability to parent would not change notwithstanding her escalating drug use.

Bonding evaluations are normally required in evaluating comparative harm under the forth prong, A.R., supra, 405 N.J. Super. at 440; however, Dr. Lee's observations of Nadia combined with Nadia's refusal to meet with her mother are sufficient to support a finding Nadia's bond with Irene is significantly less than that of her current resource family. In contrast, Dr. Brown testified Nadia is "deeply bonded" to her mother, despite the child's refusal to participate in the evaluation.

Dr. Lee opined Barbara's relationship with Irene was "ambivalent and insecure" and there was a low risk she would suffer severe psychological harm if their bond were severed. In comparison, Barbara had an extremely significant bond with her resource mother, as she was Barbara's nurse starting in 2013 and were the bond between them terminated, she would suffer severe and enduring psychological and emotional harm. While Barbara's bond with her resource father was still developing, it did provide a likely source of consistency and stability.

Based upon Dr. Lee's credible testimony, the trial court properly determined there was sufficient evidence to support prong four. The trial judge considered evidence as to each of the two children individually in their respective foster homes and found Irene could not safely parent her children or eliminate the harm to them if reunified. We discern no reason to disturb that determination.


Finally, Irene argues the trial judge did not base his legal conclusion on factual findings in the record. We disagree.

How a judge decides to state his findings of fact and conclusions of law pursuant to Rule 1:7-4(a)4 is vested in the judge's sound discretion. In re Trust Agreement Dec. 20, 1961, by and between Johnson and Hoffman, Lienhard and Perry, 399 N.J.Super. 237, 253 (App. Div. 2006) (citing Homann v. Torchinsky, 296 N.J.Super. 326, 340 (App. Div.), certif. denied, 149 N.J. 141 (1997)). Here, the trial judge discussed the credibility of witnesses and reviewed evidence submitted throughout the trial. He summarized the arguments for each party, detailing the reasons why he believed certain arguments to be more persuasive than others, and described each of the four prongs and the reasons why the Division satisfied its burden under each. Based upon the detailed oral opinion, the trial judge made sufficient findings of fact and stated his conclusions of law pursuant to Rule 1:7-4(a).



1. We use pseudonyms to protect the identity of the family and for ease of reference.

Irene has two other children, Randy and Quinn, who are not the subject of the present appeal as they have been reunified with their father.

2. Irene claimed she was in and out of the hospital for various medical conditions and her doctors provided her with a variety of medication. The trial judge stated she had no reason to be positive for marijuana, cocaine, or heroin, as no doctor provides that to a patient.
3. At a case management conference on November 13, 2015, the judge ordered the Division provide Irene with transportation to the supervised visitations, as she was now living in Pennsylvania. The judge denied Irene's request to have a cousin, J.R., evaluated as a possible placement for the children, as the guardianship trial was already underway and Irene never previously mentioned a cousin. Irene continued to test positive for oxycodone, marijuana, and oxymorphine in November and December of 2015. Irene also failed to attend the next scheduled guardianship trial date on January 14, 2016, and defense counsel's request for an adjournment was denied.
4. Rule 1:7-4(a) states: the court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, and also as required by Rule 3:29. The court shall thereupon enter or direct the entry of the appropriate judgment.


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