in the Interest of K.H., a Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00427-CV

IN THE INTEREST OF K.H.,
A CHILD

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Father appeals the trial court’s termination of his parental rights

to his son K.H. Father raises five issues, arguing that the evidence is legally and

factually insufficient to support the best interest finding and factually insufficient

to support the trial court’s findings under Texas Family Code section

161.001(1)(D), (E), and (O). We will affirm.

1
See Tex. R. App. P. 47.4.
 II. FACTUAL AND PROCEDURAL BACKGROUND

In June 2008, Child Protective Services (hereinafter referred to as CPS or

the Department) received a referral for physical abuse of K.H. by Mother and her

boyfriend Lawrence. During a fight between Mother and Lawrence, Lawrence

shook six-month-old K.H.,2 turned him upside down, and threw him down on the

wood floor, causing a cut on K.H.’s head and a left tibia fracture. CPS removed

K.H. and placed him in foster care. Mother told CPS that K.H.’s Father’s

whereabouts were unknown and that he had no contact with his son.

Jennifer Merritt, the CPS caseworker assigned to K.H.’s case, testified that

she received the case in June 2008 and set up services for Mother. Merritt also

tracked down Father and gave him a service plan in July 2008. After the initial

termination trial, the trial court terminated Mother’s parental rights to K.H. but

denied the termination of Father’s parental rights.

Following the trial court’s decision denying termination of Father’s parental

rights, on April 7, 2010, the trial court and the parties signed an “Agreed Order

For Actions Necessary For Parent To Obtain Return Of Child” pursuant to family

code section 161.001(1)(O). The trial court ordered Father to comply with the

following tasks on or before August 2, 2010: (1) successfully complete parenting

classes through Merit Family Services; (2) complete a psychological evaluation

through Dr. Nichelle Wiggins; (3) participate in and successfully complete

2
K.H. was born December 28, 2007.

2
individual therapy through Positive Influences; (4) submit to random drug tests

within twenty-four hours of a request by CPS; (5) complete a drug assessment

through Merit Family Services and follow all recommendations of the

assessment; (6) attend Alcoholics Anonymous two times per week and provide

documentation of attendance; (7) obtain an Alcoholics Anonymous (AA) sponsor;

(8) secure and maintain stable housing and provide documentation to CPS; (9)

maintain legal employment; (10) develop a support system that can assist him in

his parenting role and provide information identifying his support system to CPS;

and (11) successfully participate in and complete an anger management course

through Positive Influences.

On October 7, 2010, the Department filed a petition for termination of

Father’s parental rights, alleging, among other grounds, that Father had failed to

comply with the provisions of a court order that specifically established the

actions necessary for Father to obtain the return of K.H. At the termination trial

on May 24, 2011 and June 20, 2011, the trial court heard testimony from the

caseworker and Father that Father had not completed individual therapy, that

Father had not submitted to three requested drug tests within twenty-four hours

of the requests and had also tested positive for drug use throughout the case,

that Father had not followed all of the recommendations from the drug

assessment, that Father had not attended Narcotics Anonymous (NA) two times

3
per week and had not provided documentation of his attendance,3 that Father

had not obtained a sponsor, that Father had not maintained employment, and

that Father had not developed a support system to help him with K.H. The trial

court thereafter found by clear and convincing evidence that Father had

knowingly placed or knowingly allowed K.H. to remain in conditions or

surroundings that endangered the emotional or physical well-being of the child,

that Father had engaged in conduct or knowingly placed the child with persons

who engaged in conduct that endangered the physical or emotional well-being of

the child, and that Father had failed to comply with the provisions of a court order

that specifically established the actions necessary for him to obtain the return of

the child. This appeal followed.

III. EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT
TO SUPPORT TERMINATION FINDINGS

In his five issues, Father argues that the evidence is legally and factually

insufficient to support the best interest finding and factually insufficient to support

the trial court’s findings under section 161.001(1)(D), (E), and (O). After setting

forth the law for terminating parental rights and the Holley factors, Father argues

in a single sentence: “Appellant R.H. contends that he completed all of the

services requested of him by the Department. RR (2/176–177).” Father’s one-

sentence argument, which references only two pages—neither of which are in

3
Father testified that he had talked to his caseworker about attending NA
meetings instead of AA meetings; he said that she did not have any objections to
that.

4
the appellate record,4 does not explain how the evidence is legally or factually

insufficient to support a best interest finding under the Holley best interest factors

and does not explain how the evidence is factually insufficient to support the trial

court’s findings under section 161.001(1)(D), (E), and (O). See Tex. Fam. Code

Ann. § 161.001(1)(D), (E), (O) (West Supp. 2011); Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976). Father’s one-sentence argument contains no citations

to case law or statutory law. See Tex. R. App. P. 38.1(i); see also In re A.W., No.

02-03-00349-CV, 2004 WL 1799893, at *6 (Tex. App.—Fort Worth Aug. 12,

2004, no pet.) (mem. op.) (holding that appellant waived best interest argument

because he presented no argument or authority that evidence was legally or

factually insufficient to support trial court’s best interest finding). Because a

parent’s rights to “the companionship, care, custody, and management” of his or

her children are constitutional interests “far more precious than any property

right,” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);

In re M.S., 115 S.W.3d 534, 547 (Tex. 2003), we nonetheless analyze the

sufficiency arguments raised by Father that are necessary to final disposition of

this appeal.

A. Standards of Review

In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

4
Volume two of the reporter’s record ends on page 128, and volume three
of the reporter’s record ends on page 118.

5
listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.

2011); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be

established; termination may not be based solely on the best interest of the child

as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort

Worth 2000, pet. denied) (op. on reh’g).

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) (West 2008).

Evidence is clear and convincing if it “will produce in the mind of the trier of fact a

firm belief or conviction as to the truth of the allegations sought to be

established.” Id. § 101.007 (West 2008). Due process demands this heightened

standard because termination results in permanent, irrevocable changes for the

parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J.,

243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination were

proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the

evidence in the light most favorable to the finding and judgment. Id. We resolve

any disputed facts in favor of the finding if a reasonable factfinder could have

6
done so. Id. We disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We consider undisputed evidence even if it is contrary to the

finding. Id. That is, we consider evidence favorable to termination if a

reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id.

We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573–

74. And even when credibility issues appear in the appellate record, we defer to

the factfinder’s determinations as long as they are not unreasonable. Id. at 573.

In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that Father

violated section 161.001(1)(D), (E), and (O) and that the termination of the

parent-child relationship would be in the best interest of K.H. Tex. Fam. Code

Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire

record, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

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 B. Sufficient Evidence to Support Section 161.001(1)(O) Finding

In his fifth issue, Father argues that the evidence is factually insufficient to

support the trial court’s finding under section 161.001(1)(O). Father argues that

he completed all of the services requested of him by the Department, but he

does not address his compliance with the trial court’s order of April 7, 2010,

requiring him to complete eleven tasks in order for K.H. to be returned to him.

Family code section 161.001(1)(O) states,

The court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

....

(O) failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to
obtain the return of the child who has been in the permanent or
temporary managing conservatorship of the Department of Family
and Protective Services for not less than nine months as a result of
the child’s removal from the parent under Chapter 262 for the abuse
or neglect of the child[.]

Tex. Fam. Code Ann. § 161.001(1)(O).

As set forth above, the record demonstrates that the trial court heard

testimony from the caseworker and Father that Father had not completed

individual therapy, that Father had not submitted to three requested drug tests

within twenty-four hours of the requests and had also tested positive for drug use

throughout the case, that Father had not followed all of the recommendations

from the drug assessment, that Father had not attended NA two times per week

8
and had not provided documentation of his attendance, that Father had not

obtained a sponsor, that Father had not maintained employment, and that Father

had not developed a support system to help him with K.H.

Father did not dispute that he had failed to comply with several provisions

of the trial court’s April 7, 2010 order; instead, he contended that his efforts to

complete a portion of the services constituted substantial compliance. The

statute, however, does not provide for substantial compliance. See In re M.C.G.,

329 S.W.3d 674, 675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (supp.

op. on reh’g) (stating that the family code does not provide for excuses for failure

to comply in assessing a statutory violation; any excuse goes only to the best

interest determination); In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009,

no pet.) (stating that the family code does not provide for substantial compliance

with a family service plan). Giving due deference to the factfinder’s findings and

not supplanting the judgment with our own, we hold that, on the entire record, a

factfinder could reasonably have formed a firm conviction or belief that Father

had violated section 161.001(1)(O) by failing to fully comply with the trial court’s

April 7, 2010 order specifically establishing the actions necessary for Father to

obtain the return of K.H. See H.R.M., 209 S.W.3d at 108; In re C.M.C., 273

S.W.3d 862, 874–76 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding

evidence legally and factually sufficient to support section 161.001(1)(O) finding

because mother had failed to comply with numerous provisions of her service

plan); In re C.D.B., 218 S.W.3d 308, 312 (Tex. App.—Dallas 2007, no pet.)

9
(holding evidence legally and factually sufficient to support jury’s section

161.001(1)(O) finding, even though mother testified that she did not finish all the

services because she did not have transportation to some appointments and was

in jail at the time of some appointments). We overrule Father’s fifth issue.5

C. Sufficient Evidence to Support Section 161.001(2) Finding

In his first and second issues, Father argues that the evidence is legally

and factually insufficient to support the trial court’s best interest finding.

There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008).

Nonexclusive factors that the trier of fact in a termination case may use in

determining the best interest of the child include:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the
future;

(C) the emotional and physical danger to the child now and in the
future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote
the best interest of the child;
5
Because only one ground under section 161.001(1) is needed, we need
not reach Father’s third and fourth issues pertaining to the trial court’s findings
under subsections (D) and (E). See Tex. R. App. P. 47.1 (stating that appellate
court need only address every issue necessary to final disposition of appeal).

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 (F) the plans for the child by these individuals or by the agency
seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley, 544 S.W.2d at 371–72.

These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

1. K.H.’s Desires

Here, the record does not contain K.H.’s desires because K.H. did not

testify. The record reveals that Father visited with K.H. every two weeks for two

hours and said that K.H. was happy to see him “[a]ll the time” and that they have

a “great relationship.”

Guadalupe Palomino, a case aide with CPS who had supervised Father’s

visits with K.H., testified that Father was really good with K.H. and that K.H. loved

going to see Father. When Palomino picked up K.H. from his foster home, he

looked forward to visiting with Father and became excited to see him.

11
 Jennifer Merritt, the caseworker, testified that Father and K.H. were

“somewhat close” and seemed to have fun together every other week at the

visits. Merritt also testified that K.H. was doing wonderfully in his foster

placement and that he loved his new home, which he had been in for

approximately seven months at the time the termination trial concluded.

The trial court was entitled to find that this factor weighed neither in favor

of nor against termination.

2. K.H.’s Emotional and Physical Needs Now and in the Future

With regard to K.H.’s emotional and physical needs now and in the future,

the record revealed that K.H. was “very smart,” “very verbal,” was

developmentally on target (having completed speech therapy while in care), and

did not appear to have any special or mental health needs. As a three-and-a-

half-year-old boy, K.H. undoubtedly required safe, stable housing and financial

provision. Father, however, was not supporting K.H. financially or emotionally

when the case started, and that had not changed significantly by the time of the

termination trial. And as set forth in more detail below, Father was unable to

provide safe, stable housing for K.H. The trial court was entitled to find that this

factor weighed in favor of termination.

3. Emotional and Physical Danger to K.H. Now and in the Future

With regard to the emotional and physical danger to K.H. now and in the

future, Merritt testified that Father’s drug use at the time of the termination trial

was “still consistent, which would affect the child.” Merritt recalled that Father’s

12
psychological evaluation revealed that he had continued drinking after being

required to install an interlock device on his car and that it would take him twenty

to thirty minutes to pass the test. Father’s personality disorder diagnosis (which

included substance abuse issues and antisocial personality disorder), as well as

his dangerous decisions that related to law violations, concerned Merritt.

Moreover, throughout the case Father had shown instability in his employment

and an inability to obtain safe housing; Father had made the decision to live in a

home with people who had abused him and acknowledged that the home

environment would be hostile to K.H. because his father did not like that K.H.

was biracial. The trial court was entitled to find that this factor weighed in favor of

termination.

4. Father’s Parental Abilities

With regard to Father’s parental abilities, Palomino testified that during the

visits, no threat of any violence or danger was observed with regard to Father’s

treatment of K.H., and Father never appeared to be under the influence of drugs

or alcohol at the visits. Father communicated with K.H. in an appropriate

manner, played with whatever toys K.H. wanted to play with during the office

visits, and played with him on the playground equipment when the visits were

held at the park. Palomino testified that it appeared that Father and K.H. had fun

together. Father appropriately redirected K.H. when he got into something that

he should not play with. Palomino said that Father’s absences were few and far

between.

13
 Father had completed the parenting classes and testified that he did not

think using drugs was an appropriate parenting decision. Father, however,

believed that he could parent properly after using amphetamines, cocaine, or

marijuana. Father denied that he was committing an act of endangerment to

K.H. each and every time he used illegal drugs. During his psychological

evaluation, Father said that his problems with drinking and using drugs were in

the past and that it was no longer an issue for him. This was not consistent with

evidence that Father had submitted drug tests and hair tests showing that he had

used drugs throughout the three years that the case was pending.

Because of his drug use, Merritt thought that Father had not demonstrated

that he is ready to be a dad to his son. Moreover, Merritt did not think that Father

had exhibited the behavior that would show that he could provide a loving,

nurturing, and stable environment for K.H. Merritt testified that Father appears to

have a “very buddy” relationship with K.H.; Merritt would not say that Father is “a

complete parent figure.”

Dr. Wiggins testified that Father

has personality disorder traits [Axis 1 substance abuse issues and
Axis 2 antisocial personality disorder] that will lead to chronic
substance and alcohol abuse issues, most likely. That will lead to
repeated difficulties with the law. That it will be the type of person
who is not going to show any stability or consistency in terms of his
responsibilities in life.

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According to Dr. Wiggins, Father talked very lovingly about his son but did not

seem to have a realistic understanding of how to provide for him.6

The trial court was entitled to find that this factor weighed in favor of

termination.

5. The Parties’ Plans for K.H. and Programs to Assist His Best Interests

With regard to Father’s plans for K.H., the Department acknowledged that

Father loved K.H. very much and always expressed the desire to have his son

live with him. Father, however, was being financially supported by his father, did

not have any money saved up, and had not purchased any furniture for K.H.

Father testified that he was ready for K.H. to go home with him even though he

would be homeless because his father and uncle would not allow K.H. to live with

them.

Sharon Giraud, the attorney ad litem for K.H., asked that Father’s parental

rights be terminated. She said that the issues of housing and drug addiction had

not been cleared up during the three and half years that the case was pending.

She also mentioned that Father appeared to be “a great babysitter” but that she

did not see a parental bond there.

According to Merritt, the Department believed that it was in K.H.’s best

interest for Father’s parental rights to be terminated. Merritt asked the trial court

to terminate Father’s parental rights, so that the foster parents could adopt K.H.

6
Father admitted that he had fathered another child whom he had not
parented and for whom he had not done anything to establish his paternity.

15
The record revealed that the foster family “has all kinds of programs available to

assist them,” including counseling for K.H., if necessary, and that K.H. would be

covered with medical insurance.

The trial court was entitled to find that these factors weighed in favor of

termination.

6. The Stability of the Home or Proposed Placement

During the three years that Merritt worked the case, Father had only one

residence: he lived with his father and uncle. K.H. had never lived with Father.7

Merritt testified that Father’s housing was stable but not appropriate. Father told

Merritt that a police officer had recently moved close by and that his father and

uncle had to smoke marijuana inside the house instead of outside. Additionally,

Father’s father told Merritt in May 2010 that K.H. would not be welcome in the

home because he was biracial. Thus, Father did not have a home that he could

take K.H. to and had not secured one for three years. Merritt was therefore

concerned about Father’s ability to find his own housing. Father said that he

would be living on the street if he was not living with his father and his uncle.

And Father agreed that if the court returned K.H. to him, K.H. would either live in

an environment that would be hostile to him or that he would be homeless.

7
Merritt located Father when K.H. was approximately seven months old,
and Father’s service plan, which included visitation with K.H., was implemented
at that time.

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Because Father was still living with his father at the time of the termination trial,

Dr. Wiggins opined that Father was stuck and was not ready to make changes.

Merritt testified that K.H. was living in a foster home with a biracial couple.

K.H. was doing wonderfully in his foster placement; he had opened up and was

talking very well. He loved his new home, which he had been in since November

2010.

The trial court was entitled to find that this factor weighed in favor of

termination.

7. Father’s Acts or Omissions that May Indicate that the Existing Parent-
Child Relationship Is Not a Proper One

The record details Father’s criminal history. Father pleaded guilty to the

misdemeanor offense of possession of marijuana in 2006 (which was committed

on June 21, 2005), was placed on community supervision for twelve months, was

later adjudicated guilty for violating the conditions of his community supervision,

and was sentenced to thirty days in jail and fined $100. Father pleaded guilty to

failing to stop at an accident that occurred on June 10, 2007, and was sentenced

to thirty days in jail. Father pleaded guilty to the misdemeanor offense of

possession of marijuana in 2008 (which was committed on August 17, 2007) and

was sentenced to thirty days in jail. Father was convicted for the February 5,

2008 offense of driving while intoxicated with an open container.

17
 Carol Blackmon, the executive director of Merit8 Counseling Services,

testified that Father was not open and honest about the level of his addiction

during his drug assessment. But at trial, Father admitted to being a drug addict

and testified that he had been addicted to drugs since high school. While the

case was pending, Father took a hair strand drug test in April 2009 and tested

positive for amphetamines, cocaine, and ecstasy; a hair strand test in October

2009 tested positive for cocaine; while Father was in drug counseling, he tested

positive for cocaine on July 13, 2010; a hair strand collected on September 30,

2010, tested positive for cocaine, the amount indicated to Merritt that Father had

continued to use illegal substances all along; and a hair follicle test from May 4,

2011, tested positive for cocaine and marijuana. On April 13, 2011, Father told

Merritt that he had last used cocaine four or five months prior and had not “used

weed in a while.” Father admitted that he did not take advantage of all of the

programs that he was offered to help with his drug addiction.

Father had obtained his GED and was completing classes to become a

physical trainer. Father’s employment history was sporadic, and he relied on his

father for financial provision. He said that he had found a job in March 2011, but

he had not shown Merritt any paystubs and admitted that he did not have enough

money to secure an appropriate living arrangement. Father had a child support

arrearage of $2,975.65 at the time of the termination trial.

8
This entity’s name is spelled a variety of ways in the reporter’s record, but
this is the correct spelling.

18
 The trial court was entitled to find that this factor weighed in favor of

termination.

8. Excuses for Father’s Acts or Omissions

Merritt testified that Father had not given her any excuses for his continued

illegal drug use. During Father’s testimony, he said that he did not submit to

three drug tests within twenty-four hours of the requests because one time he did

not have any identification and other times he did not have transportation. Father

said that he was not notified in 2011 that he had failed any drug tests. Father

also complained that it was hard to develop a parent-child relationship because

he was allowed to see his son only four hours per month. The trial court was

entitled to find that this factor weighed in favor of termination.

9. Analysis of Factors

After weighing the evidence as it relates to the Holley factors, we hold that

the evidence is both legally and factually sufficient to support the trial court’s

finding that termination of Father’s parental rights to K.H. is in his best interest.

See Tex. Fam. Code Ann. § 161.001(2); Jordan v. Dossey, 325 S.W.3d 700, 733

(Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding evidence legally and

factually sufficient to support the trial court’s finding that termination of mother’s

parental rights was in child’s best interest when most of the best interest factors

weighed in favor of termination); In re U.P., 105 S.W.3d 222, 230–32 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied) (holding evidence legally and

factually sufficient to support best interest finding because, among other things,

19
father had abused drugs for years, could not provide a permanent home, had

been convicted of two crimes, and had failed to provide child support). We

overrule Father’s first and second issues.

IV. CONCLUSION

Having overruled all of the issues necessary for final disposition of this

appeal, we affirm the trial court’s judgment terminating Father’s parental rights to

K.H.

SUE WALKER
JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: July 12, 2012

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