RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3063-16T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.S.S.,
Defendant-Appellant,
and
A.G.,
Defendant.
___________________________________________
IN THE MATTER OF THE GUARDIANSHIP OF
M.A.G., a Minor.
___________________________________________
Submitted September 12, 2018 – Decided September 24, 2018
Before Judges Yannotti, Gilson and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0216-16.
Joseph E. Krakora, Public Defender, attorney for
appellant (Marc D. Pereira, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Casey J. Woodruff, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Joseph H. Ruiz, Designated
Counsel, on the brief).
PER CURIAM
K.S.S. appeals from a judgment entered by the Family Part, which
terminated her parental rights to M.A.G. and awarded guardianship of the child
to the Division of Child Protection and Permanency (Division). On appeal,
K.S.S. contends the Division failed to establish the criteria for termination of
her parental rights codified in N.J.S.A. 30:4C-15.1(a) with clear and convincing
evidence. K.S.S. also argues that she was denied the effective assistance of
counsel in the trial court proceedings. Having considered these arguments in
light of the record and applicable legal principles, we affirm.
A-3063-16T1
2
I.
The Division first became involved with K.S.S. in September 2010, when
the Division learned that she was living in a shelter with her three children, K.S.,
J.S., and Z.W. K.S.S. reportedly left the children unsupervised. The Division
received additional referrals about K.S.S. in November 2010, June 2011,
October 2011, and August 2012. The referrals included allegations that K.S.S.
failed to provide the children with adequate care, exposed the children to
incidents of domestic violence, used excessive corporal punishment, and
smoked marijuana and drank alcohol in the presence of the children.
In September 2012, the Division filed an order to show cause and verified
complaint in the Family Part seeking custody of K.S., J.S., and Z.W. The trial
court conducted a fact-finding hearing and found that K.S.S. abused or neglected
the children by placing them at substantial risk of harm. On August 7, 2013, the
court approved the Division's plan for termination of K.S.S.'s parental rights to
K.S., J.S., and Z.W., followed by their adoption.
In November 2014, the Division learned that K.S.S. had given birth to
M.A.G. It appears that K.S.S. was incarcerated until August 2014 for a domestic
violence incident involving A.G., the child's father, and K.S.S. did not have
prenatal care while in jail. The Division offered K.S.S. the opportunity for a
A-3063-16T1
3
family team meeting, which she declined. M.A.G. was discharged to K.S.S.'s
care.
In March 2015, T.S., K.S.S.'s mother, reported to the Division that after
K.S.S. met with her probation officer, she became "erratic" and violent.
According to T.S., K.S.S. kicked and banged on doors, pushed and punched her,
and came at her with a butcher knife. M.A.G. was with A.G. at the time of this
incident. The police arrived and transported K.S.S. to East Orange General
Hospital (EOGH).
One of the Division's workers went to A.G.'s home and found M.A.G. The
home was littered with beer cans, and A.G. appeared to be intoxicated. The
Division executed an emergency removal of M.A.G. A caseworker went to
EOGH to meet with K.S.S., but she was reportedly "very out of it." EOGH's
staff informed the caseworker that K.S.S. was sedated because she acted
erratically when she was admitted to the hospital.
On March 2, 2015, the Division filed an order to show cause and verified
complaint in the Family Part seeking custody of M.A.G. The trial court granted
the application, and thereafter the Division began to provide A.G. services. The
Division also monitored K.S.S.'s mental health treatment. She remained
A-3063-16T1
4
hospitalized. A worker noted that K.S.S.'s hands were in restraints, and hospital
records indicated she had engaged in "unprovoked attacks" upon staff members.
In April 2015, K.S.S. was transferred to Meadowview Psychiatric Hospital.
On May 4, 2015, the Family Part entered a judgment of guardianship
terminating K.S.S.'s parental rights to K.S., J.S., and Z.W., and K.S.S. appealed.
We later affirmed the termination of her parental rights to the three children.
Div. of Child Prot. & Perm. v. K.S.S., Nos. A-4216-14 and A-5006-14 (App.
Div. April 12, 2016) (slip op. at 23). In our opinion, we stated:
K.S.S. has a history of mental illness requiring inpatient
hospitalizations. At the time of the trial, she was
committed to a psychiatric institution. [K.S.S.] has
been hospitalized and treated for psychosis and
seizures, and suffers from long term chronic problems
with alcohol and drug abuse. In addition, [K.S.S.] has
a history of unstable and volatile relationships
involving domestic violence. She has subjected her
children to risk of harm because of these unstable
relationships. Significantly, the Division clearly and
convincingly, if not irrefutably, demonstrated K.S.S.'s
inability to provide for the basic needs of the three
children including adequate food and a sanitary shelter.
[Id. at 3-4.]
On May 12, 2015, K.S.S. was transferred to the Jersey City Medical
Center for medical stabilization. On May 21, 2015, a judge entered a temporary
order for K.S.S.'s involuntary commitment. A psychiatrist provided the court
A-3063-16T1
5
with a screening certificate, stating that K.S.S. suffers from a mental illness, and
was unwilling to be voluntarily admitted to a required treatment program for
care. The certificate also stated that if not committed, K.S.S. would be a danger
to herself or others by reason of her mental illness. The court scheduled the
matter for a commitment hearing on June 9, 2015. It appears that the court
continued K.S.S.'s involuntary commitment.
K.S.S. was returned to Meadowview on June 30, 2015. She was diagnosed
with chronic undifferentiated schizophrenia, a history of polysubstance abuse
and dependency, limited cognitive ability, and seizure disorder. Her thought
process was disorganized, she was selectively mute, and she engaged in
impulsive aggressive behavior.
In August 2015, K.S.S. was transferred to Greystone Park Psychiatric
Hospital (Greystone) so she could receive a higher level of care. After an initial
assessment, Greystone's staff determined that K.S.S. posed a danger to herself
or others. In September 2015, the Division's caseworker spoke with a Greystone
social worker, who reported that K.S.S. denied having any children and thought
M.A.G. was her nephew. The Greystone social worker noted that it was difficult
to communicate with K.S.S. and that at times she was very aggressive.
A-3063-16T1
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In December 2015, a psychiatrist at Greystone provided the court with a
commitment hearing report, which stated that K.S.S. had a significant history of
violence towards others and assaulted her peers numerous times while at the
hospital. K.S.S. also was under observation for unpredictable harm to herself
and others. She had spoken of killing herself and one of her children. The report
stated that K.S.S. posed a danger to herself and others and recommended
continuing K.S.S.'s involuntary commitment. It appears the judge continued the
commitment.
In March 2016, the Family Part judge approved the Division's plan for
termination of K.S.S.'s and A.G.'s parental rights to M.A.G. Thereafter, the
Division filed its complaint seeking guardianship of M.A.G., and the judge
appointed a guardian ad litem for K.S.S. She refused, however, to speak with
the guardian ad litem. She also refused to communicate with the attorney
assigned to represent her.
In June 2016, a judge conducted a review hearing on K.S.S.'s involuntary
commitment. A psychiatrist at Greystone provided the court with a commitment
hearing report, which noted that K.S.S. had been diagnosed with psychotic
disorder, not otherwise specified; schizoaffective disorder, bipolar type;
substance use disorder; and cognitive disorder due to a head injury. The
A-3063-16T1
7
psychiatrist noted that since her previous review hearing, there had been no
significant improvement in K.S.S.'s condition.
The psychiatrist also noted that K.S.S. remained isolated. She was
uncooperative and selectively mute. At times, she was suspicious and paranoid.
In addition, K.S.S. refused medication and daily personal care. The staff had
administered medications by injection because of her aggressive behavior. The
psychiatrist concluded that K.S.S. remained a danger to others and that she was
unable to care for herself. He recommended continuing the involuntary
commitment. The judge continued K.S.S.'s commitment.
In August 2016, Greystone performed an annual psychiatric assessment
of K.S.S., which found that that she was disorganized, uncooperative, and easily
agitated. Her compliance with medications was poor. She did not attend group
meetings or activities, and complained of hearing voices telling her to harm
herself or others. She also had assaulted staff and engaged in physical
altercations with other patients.
Meanwhile, the Division referred A.G. to Dr. Mark Singer for a
psychological evaluation. Dr. Singer found A.G. was not a viable parenting
option for M.A.G. because of his substance abuse problems and his failure to
comply with services. Dr. Singer also performed bonding evaluations of M.A.G.
A-3063-16T1
8
and A.G., and M.A.G. and his resource parents. In addition, the Division
considered and ruled out relatives and family friends as potential placements.
In February 2017, the judge conducted a trial on the Division's
guardianship complaint, and the Division presented testimony from caseworker
Latoya Bowers and Dr. Singer. Neither K.S.S., A.G., nor the Law Guardian for
M.A.G. presented any witnesses. On February 28, 2017, the judge placed an
oral decision on the record, finding that the Division had established the criteria
for termination of parental rights in N.J.S.A. 30:4C-15.1(a) by clear and
convincing evidence. The judge entered a judgment terminating K.S.S.'s and
A.G.'s parental rights to M.A.G. and awarded the Division guardianship of the
child. K.S.S.'s appeal followed. A.G. has not appealed.
II.
On appeal, K.S.S. argues that the judgment should be reversed because
the Division did not establish the statutory criteria for termination of her parental
rights with clear and convincing evidence.
Initially, we note that the scope of our review in an appeal from an order
terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v.
G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J.
440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact
A-3063-16T1
9
if supported by adequate, substantial, and credible evidence in the record." Ibid.
(citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
Moreover, due to its expertise in family matters, the Family Part's factual
findings "are entitled to considerable deference." D.W. v. R.W., 212 N.J. 232,
245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
The Division may initiate a petition to terminate parental rights in the
"best interests of the child" and the court may grant the petition if the Division
establishes the criteria codified in N.J.S.A. 30:4C-15.1(a) with clear and
convincing evidence. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145,
166–68 (2010). "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." Id. at 166
(quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506–07
(2004)).
A. Prong One
K.S.S. argues that the judge erred by finding that the Division established
prong one of the best interests standard, which requires the Division to prove
"[t]he 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
A-3063-16T1
10
of prong one is not on a single or isolated harm, but rather upon "the effect of
harms arising from the parent-child relationship over time on the child's health
and development." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
K.S.S. contends the judge erred by relying on the criteria for involuntary
civil commitment when finding that the Division established the first prong of
the best interests standard. She contends that the judge failed to make a specific
factual finding that M.A.G.'s safety, health, or development has been harmed by
his relationship with her, as required by N.J.S.A. 30:4C-15.1(a)(1). K.S.S.
further argues that the judge placed undue reliance upon the incident in which
she allegedly came at her mother with a knife. She asserts the police report
stated that no weapon was involved. She contends that while M.A.G. was in her
care, she never put the child "in harm's way."
We are not persuaded by these arguments. In addressing prong one, the
Family Part judge did not err by noting the criteria for involuntary commitment.
A court may order the involuntary commitment of a person if there is clear and
convincing evidence that the person is mentally ill, the illness causes the person
to be dangerous to herself or others, the person is unwilling to be admitted for
care voluntarily, and less restrictive alternative services are not appropriate or
available. R. 4:74-7(f)(1); N.J.S.A.30:4-27.9(b).
A-3063-16T1
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It is undisputed that beginning in March 2015, K.S.S. was hospitalized for
psychiatric care. In May 2015, K.S.S. was involuntarily committed to a
psychiatric hospital, and that commitment was repeatedly extended. The judge
in this case did not err by referring to the legal basis for the involuntary civil
commitment. Indeed, K.S.S.'s involuntary commitment was relevant to whether
M.A.G.'s safety, health, and development were endangered by his relationship
to K.S.S.
Moreover, while K.S.S. was hospitalized for psychiatric care, she was
incapable of parenting M.A.G., and he could not be returned to her care.
Consequently, K.S.S. was unable to provide M.A.G. with a safe and stable home.
Our Supreme Court has observed that "the attention and concern of a
caring family is 'the most precious of all resources.'" In re Guardianship of
DMH, 161 N.J. 365, 379 (1999) (quoting N.J. Div. of Youth & Family Servs. v.
A.W., 103 N.J. 591, 613 (1986)). The Court emphasized that, "[a] parent's
withdrawal of . . . solicitude, nurture, and care for an extended period of time is
in itself a harm that endangers the health and development of the child." Ibid.
(citing K.H.O., 161 N.J. at 352-54). Here, M.A.G. was harmed by K.S.S.'s
inability to provide him with solicitude, nurture and care for an extended period.
A-3063-16T1
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Furthermore, there is ample evidence showing that K.S.S. was at times
violent and threatened to harm others. While there is no evidence that K.S.S.
physically harmed M.A.G., he would have been exposed to a substantial risk of
harm if he had been reunited with K.S.S. We conclude there is substantial
credible evidence to support the trial court's finding that M.A.G.'s safety, health,
and development were harmed by his relationship with K.S.S.
B. Prong Two
Prong two of the best interests standard requires the Division to show that
"[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). In
addressing this prong, the court must focus on whether the parent has overcome
the harms that endanger the child and whether the parent is able to prevent
further harm from the parental relationship. K.H.O., 161 N.J. at 348-49.
On appeal, K.S.S. argues the record does not support the judge's finding
that she is dangerous to herself and others. She claims she never assaulted her
mother with a knife, but merely acted "erratically." 1 K.S.S. further argues that
1
The police report indicates that K.S.S.'s mother reported K.S.S. was acting in
a disorderly manner without weapons. However, the Division's records state
that K.S.S.'s mother stated that K.S.S. came at her with a butcher's knife.
A-3063-16T1
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when she was caring for M.A.G., there were no hazardous conditions in the
home or safety concerns. She claims she provided M.A.G. with adequate and
appropriate care. She contends the record does not support a finding that she is
unwilling or unable to provide a safe and stable home for M.A.G. We disagree.
As we have explained, since March 2015, K.S.S. has been hospitalized for
psychiatric treatment. In May 2015, she was involuntarily committed for such
care. During her hospitalizations, she did not engage in treatment. Moreover,
K.S.S. engaged at times in violent and assaultive behavior, and threatened to
harm herself and others. She also was noncompliant with her medications. She
continues to suffer from a severe mental illness. The record therefore supports
the judge's finding that K.S.S. is unable to eliminate the harm to M.A.G. or
provide the child with a safe and stable home within the foreseeable future. The
record also shows that a delay in a permanent placement will cause the child to
suffer additional harm.
C. Prong Three
Prong three of the best interests standard requires the Division to establish
that it made reasonable efforts "to help the parent correct the circumstances
which led to the child's placement outside the home." N.J.S.A. 30:4C-
15.1(a)(3). For purposes of prong three, the reasonableness of the Division's
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14
efforts is not measured by whether the efforts were successful in bringing about
reunification of the parent and child. DMH, 161 N.J. at 393. The Division's
"efforts must be assessed against the standard of adequacy in light of all the
circumstances of a given case." Ibid.
Here, the judge observed that K.S.S. had not seen M.A.G. since February
2015, when he was three months old, and K.S.S. did not seek visitation until
January 2017. The judge had denied the request but allowed K.S.S. to submit
additional evidence indicating that such visits would be appropriate. K.S.S. did
not, however, present any additional evidence in support of her request for
visitation, and her attorney did not raise the issue again until the trial.
The judge also noted that the Division had considered referring K.S.S. to
Dr. Singer for a psychological evaluation. The evaluation was not performed
because facilities where K.S.S. was involuntarily committed were performing
such evaluations. The judge found that any services the Division would have
offered "would [have been] duplicative."
On appeal, K.S.S. argues that the Division failed to meet its obligations
under prong three because it did not offer her any services. She contends th e
Division made no attempt to contact her from September 2015 to June 2016
because the social worker at Greystone reported that K.S.S. thought M.A.G. was
A-3063-16T1
15
her nephew. She contends the Division made no attempt to return M.A.G. to
her care. She asserts the Division focused all of its efforts on reunification of
the child with his father.
K.S.S. further argues that the Division made no effort to determine
whether she had made the statement about M.A.G. that Greystone's social
worker had attributed to her. She also contends the Division did not consider
the possible effect her prescribed medications may have had upon her behavior.
She asserts that her medication sometimes makes her "forget things."
There is, however, sufficient credible evidence in the record to support
the judge's finding that the Division made reasonable efforts to assist K.S.S.
correct the circumstances that led to M.A.G.'s removal. As the judge found,
while K.S.S. was hospitalized for psychiatric care, she was provided treatment
and services and any additional services the Division would have provided
would have been duplicative. The Division did not have a psychological
evaluation performed of K.S.S., but such evaluations were performed by the
psychiatric hospitals where she was being treated.
Moreover, there is no merit to K.S.S.'s contention that the Division erred
by failing to provide her with visitation. The record supports the judge's finding
that it would not have been appropriate for M.A.G. to visit K.S.S. in the
A-3063-16T1
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psychiatric hospital or where she was being treated, and K.S.S. never presented
the trial court with any evidence indicating that such visits would have been in
the child's best interests.
D. Prong Four
Prong four of the best interests standard requires the Division to show that
termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-
15.1(a)(4). "[T]he fourth prong of the best interests standard cannot require a
showing that no harm will befall the child as a result of the severing of biological
ties." K.H.O., 161 N.J. at 355.
In addressing prong four, the court must balance the relationships of the
biological parent and the child, and determine whether the child will suffer
greater harm from terminating the child's ties with his or her biological parent
than from permanent disruption of the child's relationship with a resource parent.
N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 435 (App.
Div. 2001).
Here, the trial judge noted that there was no evidence that M.A.G. had a
significant parental relationship with K.S.S. Beginning in March 2015, K.S.S.
was hospitalized for psychiatric treatment. While she was hospitalized, K.S.S.
did not have any contact with M.A.G. The judge pointed out that K.S.S. had not
A-3063-16T1
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seen M.A.G. since he was three months old. The judge noted that Dr. Singer
testified that M.A.G. had formed secure bonds with his resource parents, which
continued to grow stronger every day.
Moreover, Dr. Singer testified that M.A.G.'s resource parents were
functioning as his psychological parents, and he opined that the child would
experience "significant and enduring harm" if he were removed from them. In
addition, the resource parents indicated they intended to adopt M.A.G. The
judge found that the Division had clearly and convincingly established that
termination of K.S.S.'s parental rights to M.A.G. would not do more harm than
good.
On appeal, K.S.S. argues that Dr. Singer's opinion that termination of her
parental rights to M.A.G. would be in the child's best interests amounts to "pure
speculation" because the doctor never met her and did not perform a bonding
evaluation of her relationship with M.A.G. She asserts the absence of a bonding
evaluation cannot be justified in this case.
We reject K.S.S.'s contention that Dr. Singer's opinion amounts to "pure
speculation." It is undisputed that M.A.G. was removed from K.S.S. when he
was three months old and thereafter M.A.G. had no relationship with K.S.S.
Under the circumstances, the Division was not required to provide the court with
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a bonding evaluation of K.S.S.'s relationship with M.A.G. Moreover, Dr. Singer
testified that the child has formed secure bonds with his resource parents, which
continued to grow stronger each day.
There is sufficient credible evidence in the record to support the trial
judge's finding that M.A.G. will suffer no harm if K.S.S.'s parental rights to
M.A.G. are terminated, and the child would suffer significant and enduring harm
if removed from his resource parents. Therefore, the record supports the judge's
finding that the Division clearly and convincingly established that termination
of K.S.S.'s parental rights would not do more harm than good.
III.
K.S.S. argues she was denied the effective assistance of counsel in the
trial court proceedings. She contends her attorney was deficient because counsel
failed to object to the admission of testimony that K.S.S. told a social worker at
Greystone she believed M.A.G. was her nephew. K.S.S. maintains the social
worker's statement was inadmissible double hearsay. She also argues that her
attorney erred by failing to schedule a bonding evaluation of her relationship
with M.A.G.
A claim of ineffective assistance of counsel in a guardianship proceeding
must be raised in a direct appeal from the final judgment. See R. 5:12-7
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("Claims of ineffective assistance of trial counsel shall be raised exclusively on
direct appeal of a final judgment or order."). To establish the ineffective
assistance of counsel, K.S.S. must meet the two-prong test established in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our
Supreme Court for matters involving the termination of parental rights. N.J.
Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308–09 (2007).
Therefore, K.S.S. first must show that her attorney's performance was
deficient because it "fell below an objective standard of reasonableness."
Strickland, 466 U.S. at 688. K.S.S. also must establish there is a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. Here, K.S.S.'s claims of
ineffective assistance of counsel fail because she has not established either
prong of the Strickland test.
K.S.S.'s attorney could have objected to the admission of the Greystone
social worker's statement, but if such an objection had been raised, the Division
could have subpoenaed the social worker to testify. Furthermore, counsel's
failure to object did not prejudice K.S.S. because the result here would have
been the same even if the social worker's statement had been excluded. The
other evidence presented by the Division was more than sufficient to establish
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all four prongs of the best interests standard and show that termination of
K.S.S.'s parental rights was in M.A.G.'s best interests.
Moreover, K.S.S.'s attorney did not err by failing to schedule a bonding
evaluation. K.S.S. has not established that such an evaluation would have shown
she had a meaningful bond with M.A.G. As noted, the child was removed from
K.S.S.'s custody when he was three months old and he had no relationship with
K.S.S. thereafter due to her hospitalizations and involuntary civil commitment.
Therefore, K.S.S. was not prejudiced by the absence of a bonding evaluation.
In addition, K.S.S. has not established that the result of this proceeding would
have been different if such an evaluation had been performed.
Affirmed.
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