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In the Termination of the Parent-Child Relationship of: CA.S. and Ch.S. (Minor Children), J.S. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
MEMORANDUM DECISION
Case Summary
[1] J.S. (“Mother”) is the biological mother of Ca.S. and Ch.S. (collectively, “the Children”). D.S. (“Father”) is the Children's biological father.1 As it relates to the instant termination proceedings, the Department of Child Services (“DCS”) became involved with the Children in November of 2020, after receiving allegations of substance abuse and educational neglect. On December 2, 2020, DCS filed petitions alleging that the Children were children in need of services (“CHINS”). The Children were subsequently found to be CHINS and Mother was ordered to complete certain services. DCS eventually petitioned to terminate Mother's parental rights to the Children after she failed to successfully complete the court-ordered services. Following an evidentiary hearing, the juvenile court entered a combined order granting DCS's termination petitions. On appeal, Mother contends that (1) the evidence is insufficient to support the juvenile court's order terminating her parental rights and (2) the juvenile court abused its discretion by denying her request for a continuance of the evidentiary hearing, which was filed on the eve of the scheduled hearing. We affirm.
Facts and Procedural History
[2] Ca.S. was born to Mother on August 4, 2007, and Ch.S. was born to Mother on October 18, 2013. DCS first became involved with Mother and Father (collectively, “Parents”) in 2009, at which time DCS substantiated an allegation of domestic violence between Mother and Father. DCS did not file a CHINS petition at the time because Parents had informed the DCS representative that they were no longer together. Subsequently, in April of 2013, DCS again became involved with Parents after receiving allegations of substance abuse and educational neglect relating to Ca.S., who “had missed a number of days of school.” Tr. Vol. II p. 34. At that time, Ca.S. was removed from Parents’ care, and DCS filed a CHINS petition. Mother served a prison sentence during the pendency of this initial CHINS case. The case was ultimately closed on May 8, 2015, at which time the juvenile court found that Mother had complied with the case plan and had accomplished the objectives of the dispositional order.
[3] DCS again became involved with the family in November of 2020, after DCS received allegations of substance abuse in the home and Ca.S. missing twenty-six “unexcused days of school.” Ex. Vol. IV p. 117. At the time, Mother, Children, and the maternal grandmother were living in a hotel, but were “in danger of being kicked out of the hotel” for being “repeatedly behind on payment.” Ex. Vol. IV p. 117. After DCS attempted several unsuccessful home visits, it filed a motion to compel Mother's cooperation, which the juvenile court granted on December 1, 2020.
[4] Also on December 1, 2020, Mother “admitted to using drugs” and tested positive for methamphetamine, amphetamine, and benzodiazepines. Ex. Vol. IV p. 117. The Children were removed from Mother's care. On December 2, 2020, DCS filed petitions alleging that the Children were CHINS. The CHINS petitions were amended on January 12, 2021, to include allegations that Parents had been involved in a domestic-violence incident on December 27, 2020, and that Mother had been arrested and charged with domestic violence.
[5] The juvenile court conducted a hearing on the CHINS petitions on January 15, 2021. Mother failed to appear for the hearing, at the conclusion of which the juvenile court adjudicated the Children to be CHINS. The juvenile court subsequently ordered Mother to participate in certain services, including maintaining weekly contact with the family case manager (“FCM”); notifying the FCM of any change in address or employment; notifying the FCM of any arrest or criminal charges; allowing the FCM and service providers to make announced or unannounced visits to her home; enrolling in any program recommended by DCS and complete all assessments requested by DCS within thirty days; keeping all appointments with DCS and other service providers; maintaining suitable, safe, and stable housing; securing and maintaining a legal source of income; refraining from consuming any illegal controlled substances or alcohol; obeying the law; completing a parenting assessment and successfully completing all recommendations; completing a substance-abuse assessment, following all treatments, and successfully completing all treatment recommendations; submitting to random drug screens; completing a psychological evaluation and successfully completing all recommendations; meeting weekly with mental-health personnel and taking all prescribed medications; refraining from committing any acts of domestic violence; completing a domestic-violence assessment and actively participating in, cooperating with, and successfully completing all recommendations; attending all scheduled visits with the Children; and providing the Children “with a safe, secure[,] and nurturing environment that is free from abuse and neglect and be an effective caregiver who possesses the necessary skills, knowledge and abilities to provide the [Children] with this type of environment on a long-term basis to provide the [Children] with permanency.” Ex. Vol. IV p. 83.
[6] Mother, however, failed to comply with the juvenile court's order, failing to (1) maintain housing and employment, (2) attend all visits with the Children, (3) submit to all ordered drug screens, (4) refrain from committing criminal acts, and (5) refrain from consuming any illegal controlled substances. Mother also failed to complete the ordered assessments or successfully complete the recommended services. On February 24, 2022, DCS filed petitions seeking to terminate Mother's parental rights to Children. DCS personally served Mother with notice of the July 8, 2022 evidentiary hearing at the Warrick County Jail on June 22, 2022.
[7] At approximately 7:40 p.m. on July 7, 2022, Mother filed a motion to continue the evidentiary hearing, which was scheduled to begin the next morning, claiming that she had “just been accepted to in[-]patient treatment at N.O.W. Counseling in Evansville.” Appellant's App. Vol. II p. 100. Mother did not appear before the juvenile court for the scheduled hearing, but her counsel appeared on Mother's behalf. With regard to Mother's motion to continue, her counsel stated the following:
I apologize for the lateness in filing that. I spoke with my client late yesterday afternoon and she had informed me that, uh, she had contacted NOW Counseling, they told her they had a bed for her and that she needed to come down that evening and I had a voicemail from her this morning saying that she didn't get the bed and that she was told that she could be accepted at Stepping Stone. That was her backup plan. We've never had a continuance in this case, Judge, and the case is new. It was filed in February of this year so, I would ask the Court to grant my motion for continuance in each of the cause numbers, uh, so that my client, first of all, can follow through with her treatment plan and also so that I can have her here with me when – when this case would be heard.
Tr. Vol. II pp. 26–27. The State objected to Mother's motion, arguing
First, I want to clarify, while the JT cause was filed in February, DCS has been involved, uh, with the family on this cause since November of ’20, so [Mother] has had a year and a half to seek the treatment and to complete the treatment that she's just getting into this morning. Secondarily, she has made promise after promise to go to inpatient, I know that the motion to continue says that it's not being sought for purposes of delay, I believe that is true on [Mother's counsel's] part, but that is not true on [Mother's] part. That is exactly what she's trying to do is to delay what's going on here. I have, and you'll see, I have 30 years of criminal records showing criminal convictions for substance abuse, where she gets PTR'd and she shows up and she says I'm going to treatment, I'm going to treatment, or I'm in treatment, I'm in treatment. This is her M.O. and she's doing it again. She also told [FCM Alyssa Detalente] 3 times since March she was going to inpatient treatment. That has not happened. I also have 2 officers and their bodycamera footage here today who are going to show you that on June 5th she was arrested for numerous charges, one of which is again substance or drug possession of paraphernalia, um, and she told them during her arrest she was on her way to treatment, but she was also stealing cat food at the time. So, she tells them please take me to treatment. I want to go to treatment. On June 5th of this year, they arrest her, take her to jail, she gets out a few days later. She didn't go to treatment and it's the day of the trial and now she's trying to throw this hail mary and delay what is necessary in this case. These are just stall tactics and ultimately, it's delaying permanency for these boys, both of whom don't want to go home with [Mother]. There's gonna be testimony today about the oldest boy, [Ca.S.], who's 14, he agrees with adoption. He doesn't want to go home with his mom and just setting this out again is gonna delay what these boys, which is permanency. We are ready to go forward today.
Tr. Vol. II pp. 27–28. Jill Robinson, the Children's court-appointed special advocate (“CASA”), also objected to Mother's motion, stating that Mother “does have quite the history of saying that she will get it together come court time and then she doesn't.” Tr. Vol. II p. 29.
[8] In denying Mother's motion, the juvenile court stated that “this clearly looks like an avoidance mechanism to me on the part of [Mother] in attempt to have the hearing continued and not allowed to go forward. I'm going to show that the motion to continue in each of the two cases is denied at this time.” Tr. Vol. II pp. 29–30. Before proceeding with the evidentiary hearing, the juvenile court gave Mother's counsel the opportunity to contact Mother and advise her that the motion had been denied, but Mother's counsel “was unable to reach [Mother] during the break.” Tr. Vol. II p. 30. The evidentiary hearing then proceeded over Mother's objection.
[9] During the evidentiary hearing, both FCM Detalente and CASA Robinson testified regarding their ongoing concerns about Mother's ongoing inability to adequately parent the Children. In explaining their concerns, both testified that they had observed Mother behave inappropriately with Ca.S. For example, during one visit, Mother had showed off a piercing on her chest to Ca.S., “flaunting that to him with her chest in his face.” Tr. Vol. II pp. 56–57. Mother had also engaged in other inappropriate behavior with Ca.S., such as constantly petting and grooming him. Mother's inappropriate interactions with Ca.S. were especially concerning to CASA Robinson because Ca.S. had been obsessed with Mother at the beginning of the CHINS case. On another occasion, Mother had appeared at a visit unprepared, with no food and no money for food and Ca.S. “ended up giving her $40 during the visit to provide food for him and his brother.” Tr. Vol. II p. 57. Mother subsequently told FCM Detalente that she had returned the money to Ca.S., but Ca.S. indicated that she had not.
[10] FCM Detalente also expressed the following concerns about Mother's ability to parent the Children, stating
[Mother] has not been stable for some time. She has told me that herself, um, prior to her first employment at Hoosier – Hoosier Stamping, she told me she had not worked in 15 years. Um. She's not ever been able to maintain on her own. She's always lived with her mother or others. Um. She has a history of being domestically violent. She can't hold down a job. Transportation seems to be an issue. Her mental health is untreated. Um. Again, the substance use. It's a big one. She can't remain sober long enough to provide these children with a stable and safe home environment.
Tr. Vol. II pp. 59–60. FCM Detalente further testified that she believed continuing the parent-child relationship could pose a danger to the Children, explaining that
[w]ith [Mother] being under the influence of illicit substances, she is not able to provide adequate care to the [C]hildren. The domestic violence, they're exposed to because they're witnessing that. Bouncing from house to house does not provide them with a safe and stable environment, um, and being exposed to other people that have the same history with [Mother].
Tr. Vol. II p. 60.
[11] CASA Robinson also expressed concern about Mother's ability to parent the Children stating that Mother “has significant drug issues. She has not completed a treatment plan [and ․] has not had any stable housing. She's been in and out, um, moving from place to place. She has extensive criminal history.” Tr. Vol. II p. 69. CASA Robinson was especially concerned about Mother's criminal history because “a lot of it has to do with substance abuse and ․ domestic violence.” Tr. Vol. II p. 70. CASA Robinson also expressed concerned about Mother's inability to maintain employment “for more than just a few weeks,” opining that Mother had not used or benefited from the services DCS offered. Tr. Vol. II p. 70. It was also concerning to CASA Robinson that Mother acknowledged that she suffered from mental-health issues, including allegedly PTSD, but that Mother had not completed any steps toward addressing these issues.
[12] Although FCM Detalente had made it clear to Mother that the purpose of the services was to reunify her with the Children, FCM Detalente opined that Mother had neither taken advantage of the services that had been offered to her nor remedied the conditions that had resulted in the Children's removal from her care. FCM Detalente indicated that she believed that termination of Mother's parental rights was in the Children's best interests. CASA Robinson also opined that she did not believe that Mother had resolved “any of the issues that brought DCS into” her life and indicated that she agreed that termination of Mother's parental rights was in the Children's best interests. Tr. Vol. II p. 72.
[13] On September 19, 2022, the juvenile court entered its order terminating Mother's parental rights to the Children. In doing so, the juvenile court found
19. There is more than a reasonable probability that the conditions that resulted in the [Children's] removal from their [M]other will not be remedied. There is no reason whatsoever for the court to believe otherwise based upon the record before the court.
20. There is also more than a reasonable probability that continuing the parent-children relationship in these cases would be a threat to the [Children's] emotional and physical well-being, as well as a threat to their safety and stable permanency. It is without question in the [Children's] best interest that termination be granted and ordered, and the court therefore does so accordingly.
21. The current permanency plan of adoption is the only realistic and reasonable outcome in these cases, based upon the record and totality of evidence before the court, as established by clear and convincing evidence.
22. The court has considered the circumstances at the time of the factfinding hearing, and [M]other's circumstances are at least as bad as they have ever been, and most likely even worse than when the underlying cases were filed. Her personal situation now appears to be as dire as it has ever been, and the court has genuine concern for her future personal welfare, separate and apart from these matters.
Appellant's App. Vol. II p. 149.
Discussion and Decision
[14] “The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children.” Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). Although parental rights are of a constitutional dimension, the law allows for the termination of those rights when parents are unable or unwilling to meet their parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Parental rights, therefore, are not absolute and must be subordinated to the best interests of the child. Id. Termination of parental rights is proper where the child's emotional and physical development is threatened. Id. The juvenile court need not wait until the child is irreversibly harmed such that her physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id.
[15] In reviewing termination proceedings on appeal, this court will not reweigh the evidence or assess the credibility of the witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile court's decision and reasonable inferences drawn therefrom. Id. Where, as here, the juvenile court includes findings of fact and conclusions thereon in its order terminating parental rights, our standard of review is two-tiered. Id. First, we must determine whether the evidence supports the findings and, second, whether the findings support the legal conclusions. Id.
[16] In deference to the juvenile court's unique position to assess the evidence, we set aside the juvenile court's findings and judgment terminating a parent-child relationship only if they are clearly erroneous. Id. “A finding of fact is clearly erroneous when there are no facts or inferences drawn therefrom to support it.” Id. A judgment is clearly erroneous only if the legal conclusions made by the juvenile court are not supported by its findings of fact, or the conclusions do not support the judgment. Id.
I. Sufficiency of the Evidence
[17] Mother contends that the evidence is insufficient to support the termination of her parental rights to the Children. In order to support the termination of Mother's parental rights to the Children, DCS was required to prove the following:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree․
(iii) The child has been removed from the parent ․ for at least fifteen (15) months of the most recent twenty-two (22) months ․ as a result of the child being alleged to be a child in need of services․
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2). Mother essentially argues that the evidence is insufficient to prove subsection (B).
[18] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the juvenile court need only find that one of the conditions listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied. Therefore, where the juvenile court determines that one of the factors has been proven and there is sufficient evidence in the record supporting the juvenile court's determination, it is not necessary for DCS to prove, or for the juvenile court to find, the other factors listed in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.
[19] When determining whether a reasonable probability exists that the conditions justifying a child's removal and continued placement outside the home will not be remedied, the trial court must judge a parent's fitness to care for his or her children at the time of the termination hearing, taking into consideration evidence of changed conditions. In so doing, the trial court may consider the parent's response to the services offered through [DCS]. A pattern of unwillingness to deal with parenting problems and to cooperate with those providing social services, in conjunction with unchanged conditions, support a finding that there exists no reasonable probability that the conditions will change. Additionally, [DCS] was not required to rule out all possibilities of change; rather, it needed to establish only that there is a reasonable probability that the parent's behavior will not change.
In re B.J., 879 N.E.2d 7, 18–19 (Ind. Ct. App. 2008) (internal citations and quotations omitted), trans. denied.
[20] In concluding that there was not a reasonable probability that the conditions that resulted in the Children's removal from Mother's care would be remedied, the juvenile court found as follows:
6. [Mother's] criminal record extends back some thirty years, and includes numerous property crimes and controlled substance charges, as well as petitions to revoke because of her failure to comply with probation or deferral requirements․
9. Certified copies of the record in the underlying cases, 87D01-2012-JC-000230 and 000231, were admitted into evidence and duly considered by the court, along with records of all the services offered to [Mother] throughout those cases, none of which were completed by [Mother]. Mother's counsel, an experienced and competent attorney, was left with very little or no evidence to effectively defend against the petitions in these matters because of [Mother's] history and non-compliance with offered services.
10. [Mother's] consistent and varied controlled substance abuse, never resolved, has dominated her life for decades and has materially affected her ability to care for her children, to their detriment. She has not been able to maintain stable housing and employment, often being homeless and seeking temporary shelter of some sort. Her failure or inability to follow rules resulted in her being expelled from residential facilities on more than one occasion.
11. DCS arranged transportation for [M]other to see her parent aide. Mother attended only 19 of 46 scheduled sessions. When DCS offered to resume this at a later time, [M]other declined.
12. At the time of her arrest on June 5, 2022 for shoplifting at the Newburgh Dollar General store, she advised the police that she had been stealing since she was a child. Unlawful controlled substances were recovered from her at that time as well. The officers’ body cam videos showed [Mother] to be in an erratic and disheveled condition at that time. The police recognized her on sight from prior contact. She admitted to recent methamphetamine use as well, and told the police she was then in her worst condition ever.
13. Mother missed or failed to call to arrange drug screens over two hundred times, produced positive tests, including for methamphetamine and fentanyl, and has not at any time during this period of supervision been able to maintain sobriety and, based upon her performance during this time, cannot reasonably be expected to ever do so.
14. Because of [M]other's inconsistent visit attendance with the boys, she was put on a three-hour call ahead, but would frequently miss the call ahead or would make the call and then fail to appear for the visit anyway. As of the hearing in these matters, she had attended two of nine offered visits since May 6, 2022 and missed one the day before the hearing.
15. DCS efforts for [Mother] have been over, above and beyond what might be reasonably expected in cases such as these, but she either failed what she attempted or even declined to attempt offered services.
16. Prior [CHINS] proceedings did not serve to resolve [Mother's] issues, nor have the pending cases.
17. The children are stable and the relative placement is willing to adopt the boys once both parents’ parental rights are terminated. [Ca.S.] is now fifteen years old and agrees with the proposed plan of adoption. It is without question in the boys’ best interests that [Mother's] parental rights be terminated and they be adopted by placement.
18. The testimony of the witnesses is credible, including that of child advocate Jill Robinson, who noted that [Ch.S.], diagnosed with autism, has developmentally progressed outside of [Mother's] care. She agrees it is in the boys’ best interest to be adopted by [the] relative placement.
Appellant's App. Vol. II pp. 147–49.
[21] In challenging the sufficiency of the evidence to sustain the juvenile court's order, Mother challenges finding number 13 (“Finding No. 13”), claiming that she only missed forty-three drug screens and “[w]hether [she] missed 200 or 43 drug screens is relevant to her habitual patterns of behavior and her long-term behavior. If the [juvenile] court believed [her] to be more non-complaint that she was, it is reasonable to believe that it may have come to a different conclusion.” Appellant's Br. p. 11. Mother does not specifically challenge any of the juvenile court's other findings on appeal, so they “must be accepted as correct.” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992); see also M.M. v. A.C., 160 N.E.3d 1133, 1135 (Ind. Ct. App. 2020).
[22] The record reveals that Mother was ordered to complete drug screens through Cordant Health Solutions (“Cordant”). As part of her services with Cordant, Mother was provided with a “call-in code” and was required to call in daily and submit her code to see “whether or not” she was required to submit to a drug screen on that day. Tr. Vol. II p. 53. FCM Detalente explained that the Cordant “compliance report shows whether she called in that day and if she had to test and if she showed for her test or not.” Tr. Vol. II p. 53. The Cordant compliance report was admitted into evidence and indicated that Mother had (1) 215 missed calls, (2) fifty total random tests, (3) thirty-four total unforgiven missed tests, and (4) nine abnormal tests.
[23] As it relates to the 215 missed calls, Mother argues that “it is unclear” what the Cordant compliance report means. Appellant's Reply Br. p. 4. We disagree. The evidence clearly indicates that Mother was required to call Cordant each day to see whether she was required to submit to a drug screen and that she failed to do so on 215 days. The challenged portion of Finding No. 13 provides that Mother “missed or failed to call to arrange drug screens over two hundred times.” Appellant's App. Vol. II p. 148 (emphasis added). The juvenile court's finding is supported by the evidence, specifically the Cordant compliance report.
[24] The unchallenged findings also demonstrate that Mother has long exhibited substance-abuse issues and had either refused or failed to complete services for these issues. Further, while Mother, through counsel, indicated at the evidentiary hearing that she wished to obtain treatment for her substance-abuse issues, DCS was “not required to provide evidence ruling out all possibilities of change; rather, it need only establish that there is a reasonable probability the parent's behavior will not change.” A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013) (internal quotation omitted), trans. denied. Mother's claim on appeal amounts to nothing more than an invitation for this court to reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879. The evidence is sufficient to support the juvenile court's order terminating Mother's parental rights to the Children.
II. Denial of Mother's Motion to Continue
[25] Mother also contends that the juvenile court “should have” granted her request for a continuance of the evidentiary hearing. Appellant's Br. p. 11. “Generally speaking, a trial court's decision to grant or deny a motion to continue is subject to abuse of discretion review.” In re K.W., 12 N.E.3d 241, 243–44 (Ind. 2014). “An abuse of discretion may be found in the denial of a motion for a continuance when the moving party has shown good cause for granting the motion, but no abuse of discretion will be found when the moving party has not demonstrated that he or she was prejudiced by the denial.” Id. at 244 (internal quotations omitted). “The party seeking a continuance must show that he or she is free from fault.” In re B.H., 44 N.E.3d 745, 748 (Ind. Ct. App. 2015), trans. denied.
[26] In arguing that the juvenile court abused its discretion by denying her request to continue the evidentiary hearing, Mother asserts that she “showed good cause for a continuance, her desire to enter into a substance abuse program, which was part of the treatment plan [DCS] had recommended.” Appellant's Br. p. 12. For their parts, DCS and CASA Robinson objected, noting that Mother's motion appeared to be little more than a delaying tactic. The juvenile court agreed with DCS and CASA Robinson, stating that Mother's request for a continuance “clearly looks like an avoidance mechanism ․ on the part of [Mother].” Tr. Vol. II p. 29. The evidence demonstrated that Mother had long promised various courts, DCS, and law enforcement officials, that she would seek substance-abuse treatment, but that each time she had failed to do so. Furthermore, in the underlying CHINS actions, DCS had offered Mother numerous opportunities to seek substance-abuse treatment, all of which had been rejected by Mother. Mother was provided with notice of the July 8, 2022 evidentiary hearing and waited until the day before to allegedly seek treatment. The evidence suggests that Mother's sudden change of heart and request for a continuance reflected more of an attempt to delay the proceedings than a genuine desire to obtain treatment for her long-standing substance-abuse issues. As such, we cannot say that the juvenile court abused its discretion in denying Mother's motion to continue the evidentiary hearing.
[27] The judgment of the juvenile court is affirmed.
FOOTNOTES
1. Father does not participate in this appeal.
Bradford, Judge.
May, J., and Mathias, J., concur.
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Docket No: Court of Appeals Case No. 22A-JT-2480
Decided: February 24, 2023
Court: Court of Appeals of Indiana.
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