Filed 4/8/14 A.C. v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
A.C.,
Petitioner,
A140959
v.
THE SUPERIOR COURT OF CONTRA (Contra Costa County
COSTA COUNTY, Super. Ct. No. J13-00016)
Respondent;
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
Real Party in Interest.
Mother, A.C., petitions this court for an extraordinary writ pursuant to California
Rules of Court, rules 8.452 and 8.456. She seeks relief from the juvenile court’s setting
of a hearing pursuant to Welfare and Institutions Code section 366.261 to consider
terminating her parental rights regarding her infant daughter, J.C. Mother argues the
court improperly set the hearing based on its factually unsupported finding that real party
in interest Contra Costa County Children and Family Services Bureau (bureau) provided
her with, or offered her, reasonable parenting education and mental health assessment
services. We deny mother’s writ because substantial evidence supports the juvenile
court’s finding.
1
All statutory references are to the Welfare and Institutions Code unless
otherwise stated.
1
BACKGROUND
The Bureau’s Petition
Minor was born two months premature via a caesarean section in November 2012,
when mother was brought to the hospital by helicopter after suffering a seizure on a
public street. Two months later, the bureau filed a juvenile dependency petition pursuant
to section 300. It alleged mother had placed minor at risk of harm due to ongoing
domestic violence a week after the birth when mother’s boyfriend, minor’s alleged father,
Joshua O., struck mother in the abdomen, and because mother was non-compliant with
her medications for high blood pressure during the pregnancy. Minor was detained and
removed from mother’s custody.
According to the bureau’s January 2013 detention/jurisdiction report, minor was a
micro-premature infant diagnosed with respiratory distress, anemia of prematurity, and
presumed septicemia, and was still hospitalized. Mother had wanted to take minor home
less than three weeks after minor’s birth despite being repeatedly told minor was a high
risk baby who needed medical intervention for two more months. Mother had very
severe high blood pressure, was non-compliant with her medications, reported that she
had received only sporadic prenatal care, and possibly had mental health problems. She
said she was saddened and disappointed that her medical condition necessitated minor’s
premature delivery, was unaware of the gravity of her condition because of the absence
of symptoms, did not intend to take minor from the hospital before the hospital’s
recommendation for discharge, and did not have any history of substance abuse or mental
illness.
The alleged father, Joshua O., who was present at minor’s birth, was reportedly a
heroin addict who assaulted mother upon her discharge from the hospital. Mother
identified him as the child’s biological father. She denied he had engaged in domestic
violence towards her or had any substance addiction, but said she was experiencing
problems with her “ex-boyfriend,” also an apparent reference to Joshua, who, shortly
after her discharge from the hospital in November 2012, had forced his way into her
apartment and attacked her.
2
Joshua denied assaulting mother. He said he had not lived with her since
September 2012. After her hospital discharge, he had a verbal confrontation with her and
broke out one of her windows to gain entry into her residence. He was uncertain that he
was minor’s biological father and wanted a paternity test. He was incarcerated on
burglary charges.
The bureau concluded mother could not provide a safe environment for minor
because of her alleged “ongoing domestic violence with the alleged father.” It also
reported mother had “ongoing domestic violence with one or more partners.” She was
given resources for domestic violence, and other referrals, including for mental health
counseling and parenting, a housing list, and job recruitment information, but had not
pursued any of these resources. She also missed a team decision-making meeting about
minor after arguing with the social worker who notified her of it; she expressed multiple
reasons for missing the meeting, which appeared questionable.
According to the bureau, minor was “medically fragile and mother [had] been
non-compliant with the hospital’s requirement to participate in the necessary training to
provide safe and appropriate care for [minor] when she transition[ed] home.” The bureau
recommended that minor be placed in an out of the home placement.
In March 2013, mother pled no contest to the petition allegation that she had
placed minor at risk of harm due to ongoing domestic violence. The court sustained this
allegation and dismissed the others. Joshua was ordered to have no contact with mother,
individually or through a third party.
Disposition
In its April 2013 disposition report, the bureau cited nine prior referrals regarding
mother as a minor from December 1993 through August 2005, which involved caretaker
absence or general neglect. Police records indicated she was involved in petty theft and
shoplifting in 2006 and 2007. Joshua was incarcerated, having been arrested in
December 2012 for multiple felonies and misdemeanors, including possession of a
controlled substance while armed, carrying a concealed weapon, carrying a loaded
firearm, and second degree robbery.
3
The bureau summarized a November 15, 2012 police report by a police officer
dispatched to mother’s residence in Antioch, California. The officer reported finding
mother hysterical, crying, and bleeding from behind her left ear. She said she had been
in her apartment alone when she heard Joshua at a kitchen window. After she closed it to
keep him out, she heard the front window break and Joshua say, “ ‘I’m going to kill
you.’ ” She ran to the bathroom, locked the door, and called 911. Joshua kicked in the
bathroom door, grabbed her cell phone, and kicked and punched her as she lay on the
floor trying to protect herself. She thought he was going to kill her based on his actions
and previous display of a gun. He left the apartment as he yelled, “ ‘I’m going to kill you
when I get my gun.’ ” She said she had dated him for eight months and, though they did
not live together, he stayed with her sometimes because he was homeless. He had been
physically abusive towards her on five other occasions, but she had not called the police.
The bureau reported that mother had obtained a restraining order against Joshua
and appeared to be addressing the issues that led to the petition. However, she was seen
during a recent court hearing giving Joshua her contact information.
The bureau wrote that it was aware mother had been involved in domestic
violence incidents with male relationships. She reported to police in March 2012 that her
“boyfriend,” otherwise unidentified, had hit her with a closed fist approximately 10 to 15
times and attempted to strangle her as she sat on a bed, and had attacked her 40 to 50
times in the past. She said she had called the police several times before, but the
reporting officer found no record of priors for mother or her boyfriend. Mother told the
bureau during its investigation that “this boyfriend” had also pushed her out of a moving
car in 2008, causing her to sustain abrasions all over her body.
The bureau stated mother had shown a commitment to minor by regularly coming
to the hospital to care for her and providing her with breast milk. Minor had been placed
in foster care. Since then, mother was attending weekly visits with her at the bureau, and
was frustrated by her reduced access. She showed she was a concerned and caring parent
in minor’s doctor visits. Minor, five months old, was susceptible to asthma and other
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breathing issues. She was meeting her developmental milestones, presented as a happy
and content child, seemed to recognize mother’s voice, and was content in her arms.
The bureau reported mother had obtained a restraining order against Joshua, but it
remained concerned about mother’s own aggressive behaviors at the bureau, as well as
her previous threats to remove minor from the hospital prematurely. Mother appeared to
lack the ability to regulate her behavior when she became upset or felt other people were
not responding to her in an acceptable manner. Twice she was “argumentative and
extremely inappropriate” with the bureau’s lobby receptionist, requiring that mother be
escorted from the building by public safety officers. On one such occasion, her behavior
further escalated and several probation officers were called; asked later what provoked
her, she complained that the receptionist had been on the telephone with a friend rather
than helping her. The bureau concluded, “There is a level of risk when returning a young
child to a parent who has several documented domestic violen[ce] episodes and continues
to behav[e] in a concerning manner.”
The bureau reported mother had been provided with referrals for domestic
violence and parent education, financial assistance for parenting/anger management
classes, bus tickets, supervised visits, phone and face-to-face meetings, and assistance
understanding the juvenile court system and court proceedings.
The bureau recommended minor remain in court-supervised protective care until
mother completed a mental health assessment and gained insight into her aggressive and
combative behaviors. It recommended reunification services and supervised visitations
for a minimum of one hour two times each month be ordered for mother, and a case plan
that required her to successfully complete a domestic violence counseling program, a
mental health assessment, and individual counseling by October 24, 2013.
At the April 2013 disposition hearing, the court found that Joshua was not minor’s
biological father based on DNA test results. Joshua was served with a copy of a
restraining order. Mother contested the disposition.
At the subsequent May 2013 contested dispositional hearing, for which no
transcript is contained in the record, mother and the social worker who authored the
5
bureau’s April 2013 disposition report, Lori Castillo, testified. The disposition report and
a progress report from a bureau referral, Amador Institute, were admitted into evidence.
Amador Institute indicated mother had attended three parenting psycho-educational
sessions and missed none. Her “beliefs and behavior” in several categories relevant to
her circumstances were assessed as “adequate.”2 The court ordered family reunification
services for mother and adopted the bureau recommendations that we have discussed
above.
The Bureau’s Six-Month Review Report
In its six-month status review report, prepared at the end of October 2013, the
bureau indicated minor, now 11 months old, remained in foster care. She was a very alert
and interactive infant who was aware of her surroundings and people. She had a trusting
relationship with her foster father and looked to him for reassurance. She appeared to be
meeting her developmental milestones. She was a little stiff in her body and her doctor
and foster parent had concerns about her gross and fine motor skills, but she was
improving.
The bureau, along with repeating information contained in its disposition report,
reported that mother at first had refused to authorize it to contact Amador Institute to
inquire about her participation in their parenting and domestic violence classes, not doing
so until late May 2013. Mother told Castillo that the parenting class she was attending at
Amador Institute addressed issues pertaining to older children, and agreed that it would
be beneficial for her to attend an additional parenting class that focused on infants and
toddlers.
According to the report, mother had previously told Castillo she had not yet
participated in a mental health evaluation because she did not have Medi-Cal. The
2These categories were her demonstrated awareness of using abusive behavior in
the past and present, acceptance of responsibility and accountability for abusive behavior,
commitment to constructive personal change, appropriate behavior in group sessions,
demonstrated empathy for victims’ experiences, demonstrated awareness of the effect of
violence on children and others, demonstrated constructive change in her beliefs, and
development of strategies to prevent the reoccurrence of violent and abusive parenting.
6
bureau assumed financial responsibility for mother’s participation in Amador Institute
classes. In July 2013, mother told Castillo she would follow through with scheduling a
mental health assessment now that she had a telephone. She reported in August that she
had made an appointment for an evaluation at Pathways to Wellness, but she did not
attend such an appointment. In September 2013, the bureau provided her with
authorization to begin mental health services. In late October, mother reported that she
had attended only one evaluation session.
According to the bureau, mother’s visits with minor were not going well. Minor
cried during a majority of the visits, causing her and mother anxiety. Although mother
was told about minor’s stranger anxiety, mother became frustrated. At one visit, she
asked a social caseworker to take minor and said she was no longer going to visit because
minor did not like her and mother could not handle the crying any more. Mother tried to
soothe minor, but sometimes contributed to her crying by changing minor’s clothes
immediately upon visiting. Minor was crying less since visits incorporated her riding in a
stroller, but continued to cry when she saw mother and during most visits. Castillo
encouraged mother to attend therapy to address her feelings of loss and sadness of having
her daughter placed out of her care.
Castillo also had concerns about mother’s lack of verified employment, and her
honesty about it. Mother asserted that she did hair and make-up for others to make
money, but did not provide a place of employment to the bureau.
The bureau stated it had provided or offered services to mother along the lines of
what it had previously reported, but mother had not completed the necessary services and
requirements to address the issues that contributed to minor’s dependency. It cited
mother’s frustration with minor’s crying and stated, “There is substantial risk that [minor]
will be harmed if [mother] does not address her mental health and anger behaviors.” In
its case plan update, the bureau indicated mother had not yet met any of her case plan
objectives, including because she had stopped attending the domestic violence classes at
Amador Institute.
7
The bureau recommended termination of reunification services and the setting of a
section 366.26 hearing because of its concerns about mother’s failure to follow through
with services to address her violent behaviors and emotional well-being. After noting
that mother had reported other family members also exhibited violent and aggressive
behaviors, the bureau concluded it was “clear that [mother] is immature in many ways
and continues to have unaddressed anger issues. Its seems that [minor] is almost like a
toy doll that mother dresses up and takes pictures of during most of the visits. [Mother’s]
verbal exchanges with her daughter are immature, especially when she tells her daughter
not to be mad at mommy. [¶] [Mother] has been provided with services and the financial
assistance required for her to complete the mental health evaluation and attend the
appropriate education classes to improve her behavior and parenting skills,” but was
“slow to complete the necessary steps to demonstrate her ability to care for her daughter
in a healthy manner.”
The Six-Month Review Hearing and Termination of Reunification Services
The six-month review hearing commenced on November 21, 2013. The bureau’s
report was admitted into evidence and its author, Castillo, testified. She said mother had
been provided information about mental health services at the Hume Center, Pathways to
Wellness, and Amador Institute. Mother told her in July 2013 that she would follow
through with a mental health assessment and said in August 2013 that she had one
scheduled at Pathways to Wellness, which Castillo had not verified. In September 2013,
the bureau arranged for mother to have an assessment at no cost to her at the
Psychotherapy Institute, but she did not appear for an October 2 appointment with the
psychologist, Dr. Robinson. She cancelled another scheduled for October 15, saying she
had a visit with minor, but, according to Castillo, the visit was not until three hours after
the appointment. Dr. Robinson met with mother once in late September and twice in the
days just before the November review hearing. He was not able to complete a report, but
did complete a personality assessment tool that gave limited information.
As for other services and classes, the bureau had agreed to pay for mother’s
parenting, therapy, and domestic violence services at Amador Institute. Castillo only had
8
verification that mother had attended three sessions there. In July 2013, mother told
Castillo she was no longer attending Amador Institute’s domestic violence, anger
management, or parenting classes.
Castillo testified that it was “very important” for mother “to have awareness of
infant care.” Mother told her during a visit with minor in approximately July 2013, that
the parenting class she was taking at Amador Institute, with her sister, was geared
towards older children. Mother’s sister, who provided good support and modeling to
mother in visits with minor, stated she knew of a class that was more appropriate.
Castillo did not provide mother with a referral because she understood mother would
follow through on her sister’s suggestion.
Castillo testified about mother’s visits with minor consistent with the bureau’s
report. To deal with minor’s stranger anxiety, mother’s visits had been increased to
weekly and lengthened. Mother had a few good visits in October 2013, when she
remained calm and minor stopped crying. However, overall, it was difficult for Castillo
to say the quality of the visits had improved.
The hearing was continued in the middle of Castillo’s testimony, and the court
ordered mother be allowed weekly visitations. When the hearing recommenced on
January 30, 2014, Castillo further testified that Dr. Robinson told her he had not
completed the mental health assessment, and that mother’s attendance record was poor.
He had met with mother five times overall since September 2013, including three times
between December 24 and January 22. Mother had not attended or cancelled three
October appointments and cancelled three in December. Also, Castillo said, mother had
missed a mid-December appointment with Dr. Robinson, but later told Castillo she had
had an appointment with him at that time.
Since the last hearing, Castillo said, mother had visited minor approximately once
a week and had acted appropriately. She was improving in recognizing minor’s cues, but
needed prompting from Castillo to avoid agitating minor at times. Recently mother
explained her late arrival for a visit by saying the bus was running late, but was later
overheard to say she had slept late. Castillo did not recommend unsupervised visits
9
because mother had not demonstrated any progress on her case plan and Castillo was
concerned about her behaviors.
A December 2013 Amador Institute progress report was also admitted into
evidence. It indicated mother had attended 13 sessions, but missed 12, all unexcused.
She was not in compliance with the conditions of the program contract, not benefitting
from the program, at risk of being terminated, and assessed as poor in all but one of the
relevant categories of her beliefs and behavior (the other being an “adequate”
assessment), including regarding her development of strategies to prevent the
reoccurrence of violent and abusive parenting. She was dropped from the parenting
program in October 2013 for excessive unexcused absences.
There was also evidence presented that mother’s characterization of the Amador
Institute parenting class was inaccurate. As the court noted during the hearing, the
December 2013 Amador Institute progress report contained a comments section. This
states in relevant part, “The parenting curriculum covers all aspects of appropriate
parenting techniques. Infant care is covered during lessons five and 12.” (Italics added.)
According to the report and Castillo’s testimony, mother missed class 5, held in May
2012, and class 12, held in June 2012.
Castillo said mother had obtained an emergency restraining order early in the case
against Joshua, but had not followed through on it. She had repeatedly been given
information or referred to STAND, a domestic violence program. Although she had
reported to Antioch police that Joshua had attacked her, she later recanted her story,
saying that she had lied.
Mother also testified. She said she had a restraining order against Joshua, but left
it at home.3 She had no contact with him. She attended one domestic violence class at
Amador Institute and stopped, which was a mistake. She had recently reenrolled, but
missed the class to attend the hearing.
3 After mother testified, the court determined from its records that a restraining
order regarding Joshua was in effect until May 2018.
10
Mother did not recall being given a referral for a mental health assessment,
including to Pathways to Wellness, and had left all her papers at home. She had received
some mental health services at Pathways, but had not completed them because she was
going to parenting and domestic violence classes at the time and, given her lack of a car,
found it more convenient to see Dr. Robinson. She said she went to Dr. Robinson “every
week” for sessions that were “more like therapy,” and Dr. Robinson had not talked to her
about completing a mental health assessment. She had asked him a week or two ago
about it, but “he didn’t really say anything about it,” and only scheduled her for
appointments every other week.
Since early January, mother said, she had attended three sessions of a 12-week
infant parenting class at the First Five Center, which was near Dr. Robinson’s office. She
had attempted the day before to obtain documentation of her attendance, but her teacher
said she was too busy to prepare it before the hearing.
Mother said she changed minor’s clothes when she visited because minor’s diaper
was extremely wet. She and minor played kitchen and had “mommy and baby time.” In
the beginning, minor cried a lot. During one visit mother became irritated and hurt by
minor’s crying, and was ready to go home towards the end of the visit. Now, she was
able to control minor, who laughed during their visits when mother tickled and played
with her.
Counsel for the bureau and the minor argued that the juvenile court should follow
the bureau’s recommendations by terminating services and scheduling a section 366.26
hearing because the minor remained at risk in light of mother’s failure to progress on her
case plan. Counsel for mother argued the court should not because mother had made a
lot of progress and should be given more time.
The court then ruled. It referred to the evidence that mother had been the victim
of domestic violence on dozens of occasions, but nonetheless had recanted her story of
Joshua’s assault of her and “done absolutely nothing to address the history of domestic
violence other than this restraining order.” Her participation in the services offered to her
was “non existent or extremely poor,” and the numerous “poor” assessments in the
11
Amador Institute’s latest progress report were “really troubling.” The court was also
concerned about mother’s irritability in her visits with minor and with bureau staff. The
court concluded that mother posed “a significant risk of danger and harm” to minor and
nothing in the record indicated there was a substantial probability minor would be
returned to her by the end of the 12-month period, which, by the January 30, 2014
hearing, was less than two months away, on March 9, 2014.
Accordingly, the court adopted the bureau’s recommendations. It found by clear
and convincing evidence that the bureau had provided or offered reasonable services to
mother that were designed to aid her with overcoming the problems that had led to the
initial removal and continued custody of minor, Castillo had worked very diligently to try
to engage mother in these services, and minor’s return to the custody of her mother would
create a substantial risk of detriment to minor’s safety, protection, and physical or
emotional well-being. It terminated mother’s services and scheduled a section 366.26
hearing.
Mother subsequently filed this petition for an extraordinary writ. She also
requested a temporary stay of the section 366.26 hearing, scheduled for April 30, 2014,
pending the outcome of this writ. We issued an order to respondent superior court to
show cause why the petition should not be granted and denied mother’s request for a
temporary stay. Subsequently, the bureau filed a response, which we have deemed a
return to our order.
DISCUSSION
Mother argues the juvenile court improperly scheduled a section 366.26 hearing
based on the factually unsupported finding that the bureau provided her with, or offered
her, reasonable parenting education and mental health assessment services. We conclude
substantial evidence supports the court’s finding.
Under the present circumstances, the juvenile court could not schedule a section
366.26 hearing unless it made a determination by clear and convincing evidence that
“reasonable services” have been provided or offered to mother. (§ 366.21, subd. (e); Cal.
Rules of Court, rule 5.708(m).) To be clear and convincing, “ ‘evidence must be so clear
12
as to leave no substantial doubt. It must be sufficiently strong to command the
unhesitating assent of every reasonable mind.’ ” (In re Monica C. (1995) 31 Cal.App.4th
296, 306.) However, “[t]he standard is not whether the services provided were the best
that might be provided in an ideal world, but whether the services were reasonable under
the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) We review the
record to determine whether substantial evidence supports the juvenile court’s ruling.
(Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) Therefore, we review the
facts most favorably to the judgment, drawing all reasonable inferences and resolving all
conflicts in favor of the order. (In re Misako R., at p. 545.)
Mother, relying on Castillo’s testimony, first contends the bureau did not provide
her with, or offer her, sufficient parenting education services because it only referred her
to Amador Institute for classes geared towards older children, not infants, and did not
provide a further referral after mother told Castillo about the inappropriateness of these
classes. However, the record contains substantial evidence that the parenting class was
appropriate and that mother’s own inattention, not the bureau’s, resulted in her failure to
timely complete the parenting education portion of her case plan. The bureau referred
mother to Amador Institute for parenting and domestic violence services. While Castillo
appears to have believed mother’s July 2013 report to her that the Amador Institute
parenting class was geared towards older children, this was Castillo’s only error. As
indicated by the December 2013 Amador Institute progress report admitted into evidence
at mother’s six-month review hearing, two of the first 12 parenting classes were
specifically devoted to infant care. Yet, mother failed to attend either of them before
complaining to Castillo. At best, mother was incorrect about the nature of the parenting
class because of her negligent attendance. There was substantial evidence that the class
was not inappropriate.
Further, mother provides no reason why Castillo should not have relied on
mother’s apparent willingness to pursue another parenting class suggested by mother’s
sister in July 2013, rather than provide her with another referral. It is reasonable to
conclude that to do so was unnecessary in light of the sister’s recommendation, and
13
ultimately futile in light of mother’s failure to follow up on this recommendation until six
months later in January 2014, and even then only after the November 2013 review
hearing had been continued. Mother offers no explanation why she waited until January
2014 to follow through on this recommendation. It appears that mother’s negligence
alone resulted in her failure to timely pursue these classes as well.
Finally, Castillo testified that she worked with mother during her visits with minor
at the bureau to help her learn how to appropriately parent minor. In short, substantial
evidence supports the conclusion that the bureau provided mother with, or offered her,
reasonable parenting education services.
Mother also contends the bureau did not provide her with services that would have
enabled her to timely complete the mental health assessment portion of her case plan.
She casts aspersions on Dr. Robinson because he did not complete such an assessment
despite conducting a number of sessions with her. She further contends, based on her
own testimony, that Dr. Robinson was conducting weekly therapy sessions with her
rather than conducting a mental health assessment, and that the bureau was responsible
because it did not tell Dr. Robinson about the nature of services he was to provide.
Mother’s contentions in effect ask that we reweigh the evidence, which we do not
do under a substantial evidence standard of review. (In re Spencer W. (1996) 48
Cal.App.4th 1647, 1650.) Castillo’s testimony and the bureau’s reports provide
substantial evidence that the bureau provided reasonable mental health assessment
services. They indicate that the bureau provided mother with at least one referral for a
mental health assessment months before mother’s first session with Dr. Robinson, but
that mother did not follow through. It can be reasonably inferred from the evidence that
mother delayed seeking such an assessment for some months despite assuring Castillo
that she was doing so. The evidence also indicates the bureau provided services enabling
Dr. Robinson to conduct an assessment of mother at no cost to her. However, mother
cancelled or did not attend numerous sessions with him from October through December
2013, including sessions scheduled after the court continued the six-month review
hearing, when mother should have keenly understood the importance of these sessions.
14
The juvenile court could reasonably infer from this evidence that it was mother’s delays,
repeated cancellations, and absences that prevented her from completing the requisite
mental health assessment, and that the bureau provided reasonable services that otherwise
would have enabled her to do so. Mother’s argument again lacks merit.
DISPOSITION
Mother’s petition is denied on the merits. Our decision is final as to this court
immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Mother’s request for a stay of
the April 30, 2014 section 366.26 hearing is, therefore, moot.
_________________________
Brick, J.*
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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