MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 21 2020, 9:01 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Katharine Vanost Jones Patrick A. Duff
Evansville, Indiana Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of February 21, 2020
M.J.F, A.S.F., J.M.F. II, and Court of Appeals Case No.
A.M.W.F 19A-AD-1905
R.S.F. (Natural Mother), Appeal from the Vanderburgh
Superior Court
Appellant-Respondent,
The Honorable Brett J. Niemeier,
v. Judge
The Honorable Renee Allen
B.F. (Adoptive Mother), Ferguson, Magistrate
Appellee-Petitioner. Trial Court Cause Nos.
82D04-1807-AD-141, 82D04-1807-
AD-142, 82D04-1807-AD-144 &
82D04-1807-AD-145
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, R.S.F. (Mother), appeals the trial court’s Order granting
the petition for adoption of her children M.J.F., A.S.F., J.M.F. II, and
A.W.M.F (collectively, the Children), by Appellee-Petitioner, B.F.
(Stepmother).
[2] We affirm.
ISSUE
[3] Mother presents this court with one issue, which we restate as: Whether the
trial court’s Order dispensing with Mother’s consent to the adoption of the
Children was clearly erroneous.
FACTS AND PROCEDURAL HISTORY
[4] Mother and J.F. (Father) divorced in 2007. Mother received custody of their
two children, M.J.F., born in 2001, and J.M.F. II, born in 2003. Mother and
Father eventually reconciled and had two additional children, A.M.W.F., born
in 2010, and A.S.F., born in 2011. In 2008, Father was awarded custody of the
two older children, and the two younger children have been in his custody since
2012. Mother was ordered by the divorce court to pay $86 per month in child
support, which was deducted from her paycheck. Father married Stepmother
in 2014. In 2016, the divorce court restricted Mother’s parenting time with the
Children to two, one-hour supervised parenting time sessions per month at a
community facility.
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[5] In September 2016, Mother, who has Bipolar Disorder, was awarded Social
Security Income (SSI) disability benefits of $750 per month. Mother’s court-
ordered support obligation for the Children was reduced to nothing after she
began receiving this benefit. Mother provided no money or in-kind support to
Father and Stepmother for the Children’s care after September 2016. Mother
worked for five weeks in 2017, the only employment she had after receiving her
disability benefits.
[6] On February 27, 2017, Mother was charged with three Counts of invasion of
privacy, one of which stemmed from an incident where she was arrested on the
lawn of the Children’s school. In March 2018, Mother left a rambling,
profanity-laced message on Father’s voicemail in which she told Father, among
many other things, to “[c]ome on down here to the Casino big boy and let’s
duke it out.” (Transcript p. 109). On March 16, 2018, Mother was charged
with resisting law enforcement and false informing as a result of going to a fast-
food restaurant and untruthfully reporting a disturbance at Stepmother and
Father’s home so that law enforcement would be summoned. As part of the
resolution of those criminal cases, in March 2018, Mother was referred to
mental health court. On September 27, 2018, Mother declined further
participation in mental health court, citing as her reason that her mother, who
lived in Tennessee, was terminally ill which required Mother to travel
frequently. Mother also felt that she “spent six months in Mental Health Court
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and [she] decided [she] was done.” (Tr. p. 77). Mother subsequently pleaded
guilty to invasion of privacy, resisting law enforcement, and false reporting.
[7] On July 13, 2018, Stepmother filed petitions to adopt the Children. On August
3, 2018, Mother filed her objection to the adoption petitions. On May 8, 2019,
the trial court held a hearing on whether Mother’s consent was required for the
adoptions. Parenting time records admitted into evidence at the consent
hearing showed that Mother routinely provided soft drinks, candy, donuts, and
small monetary gifts to the Children during her parenting time sessions until she
was told by Father to stop. Mother’s gifts of money were never large enough
for the Children to buy shoes, clothing, or anything of substance for their care.
Mother testified at the consent hearing that Stepmother and Father “supply
everything that my children need and I like to supply some things that they
want.” (Tr. p. 75).
[8] Mother testified about her frequent contact with eldest child M.J.F. outside of
supervised parenting time. Mother went to M.J.F.’s place of employment and
school to give her money. Mother would also contact M.J.F.’s school and
leave a message about a key, which was a pre-arranged signal to M.J.F. that
Mother had left something at an agreed-upon location for the child to retrieve.
Mother also contacted the Children through a social media platform. Mother
maintained that she was under a doctor’s care for her mental health issues and
had started counseling.
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[9] Stepmother testified regarding her life with the Children. In 2015 and 2016,
Stepmother routinely picked up Mother and took her and the Children places so
that they could spend time together. This ended when Mother and M.J.F. got
into a heated argument at a restaurant which scared the other children and
made them all cry. Stepmother attended to the Children’s daily needs, helped
them with their homework, and took them to appointments. Stepmother had a
good relationship with the Children. The two older children executed consents
to their adoption by Stepmother.
[10] The guardian ad litem (GAL) appointed in the adoption proceedings had also
been the Children’s GAL during Mother and Father’s divorce and custody case.
The GAL reported at the consent hearing that during the divorce proceedings,
Mother fled with the Children on two occasions and had told the Children that
she would kill Stepmother and Father. This caused the Children to be afraid of
Mother. Mother had repeatedly violated the divorce court’s orders by
contacting the Children outside of court-ordered parenting time. Mother had
not cooperated with the GAL’s requests to meet with her during the adoption
proceedings. The GAL was concerned for Mother’s mental health because
there was no evidence that Mother had done anything to change her behavior.
The GAL opined that Mother was not a fit parent for the Children and that it
was in the Children’s best interests that the adoption be granted over Mother’s
objection.
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[11] At the conclusion of the consent hearing, the trial court ruled that Mother’s
consent was not necessary because she had failed to provide the Children with
care and support for at least one year despite her ability to do so. The trial court
also found that Mother was unfit and that it was in the Children’s best interests
to dispense with Mother’s consent to the adoption. On July 11, 2019, the trial
court held a hearing on Stepmother’s adoption petition, which it granted.
[12] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[13] Mother challenges the evidence supporting the trial court’s determination that
her consent to the adoptions was not required. Upon reviewing a trial court’s
ruling in an adoption proceeding, “we presume that the trial court’s decision is
correct, and the appellant bears the burden of rebutting this presumption.” In re
Adoption of J.L.J., 4 N.E.3d 1189, 1194 (Ind. Ct. App. 2014), trans. denied. We
will not disturb an adoption ruling unless the evidence leads to but one
conclusion and the trial court reached an opposite conclusion. Matter of
Adoption of C.A.H., 136 N.E.3d 1126, 1128 (Ind. 2020). We refrain from
reweighing the evidence, instead examining the evidence most favorable to the
trial court’s ruling, together with the reasonable inferences to be drawn from
that evidence, to determine whether sufficient evidence exists to sustain the
decision. In re Adoption of M.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012).
“Moreover, we generally give considerable deference to the trial court’s
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decision in family law matters, as we recognize that the trial court judge is in
the best position to judge the facts, determine witness credibility, get a feel for
the family dynamics, and get a sense of the parents and their relationship with
their children.” Id.
[14] In addition, where, as here, the trial court enters sua sponte findings and
conclusions, we exercise a two-tiered standard of review. See M.S. v. C.S., 938
N.E.2d 278, 281 (Ind. Ct. App. 2010). We first determine whether the evidence
supports the findings and then we determine whether the findings support the
trial court’s conclusions. Id. We will only set aside a trial court’s findings and
conclusions if they are clearly erroneous, meaning that they lack any evidence
or any reasonable inferences to support them. Id. at 281-82. Sua sponte findings
“control only as to issues upon which the court has found, but they do not
otherwise affect our general judgment standard of review, and we may look
both to other findings and beyond the findings to the evidence of record to
determine if the result is against the facts and circumstances before the court.”
Matter of Adoption of E.M.L., 103 N.E.3d 1110, 1115 (Ind. Ct. App. 2018), trans.
denied.
[15] A trial court’s grant of an adoption petition over the objection of a natural
parent results in the termination of parental rights and implicates the traditional
right of parents under the Fourteenth Amendment to the United States
Constitution to establish a home and raise their children. In re Adoption of O.R.,
16 N.E.3d 965, 972 (Ind. 2014). A parent’s interest in the care, custody, and
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control of her children is “‘perhaps the oldest of the fundamental liberty
interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054,
2060, 147 L.Ed.2d 49 (2000)). “However, even the status of natural parent,
though a material consideration, is not one which will void all others, and
under carefully enumerated circumstances, the statute allows the trial court to
dispense with parental consent and allow adoption of the child.” In re Adoption
of N.W., 933 N.E.2d 909, 913 (Ind. Ct. App. 2010), opinion adopted, 941 N.E.2d
1042 (Ind. 2011).
[16] Indiana Code section 31-19-9-8(a) provides, in relevant part, as follows:
Consent to adoption, which may be required under section 1 of
this chapter, is not required from any of the following:
(2) A parent of a child in the custody of another person if for a
period of at least one (1) year the parent:
****
(B) knowingly fails to provide for the care and support of
the child when able to do so as required by law or judicial
decree.
****
(11) A parent if:
(A) a petitioner for adoption proves by clear and
convincing evidence that the parent is unfit to be a parent;
and
(B) the best interests of the child sought to be adopted
would be served if the court dispensed with the parent’s
consent.
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The party seeking to adopt has the burden to prove by clear and convincing
evidence that a noncustodial parent’s consent is not required. See In re Adoption
of M.A.S., 815 N.E.2d 216, 220 (Ind. Ct. App. 2004). Because the adoption
consent statute is written in the disjunctive, the existence of any of the
circumstances listed provides adequate reason to dispense with the noncustodial
parent’s consent. In re Adoption of M.L., 973 N.E.2d at 1222.
I. Care and Support of the Children
[17] Mother first challenges the trial court’s conclusion that she failed to provide
care and support for the Children despite having the ability to do so. Mother
does not contend on appeal that the evidence showed that she provided support
for the Children. Rather, she argues that Stepmother failed to show by clear
and convincing evidence that Mother had the ability to provide support.
[18] In order to prevail under this portion of the statute, the petitioner must show
that the parent had the ability to provide support that she failed to provide.
Matter of Adoption of E.M.L., 103 N.E.3d at 1116. The ability to pay is not
adequately shown by proof of income alone. Id. Instead, it is necessary to
consider the totality of the circumstances, which could include whether income
is steady or sporadic and what the noncustodial parent’s necessary and
reasonable expenses were. Id. “A parent’s failure to support may have
occurred during any year in which the parent had an obligation and the ability
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to provide support, but failed to do so.” In re Adoption of J.L.J., 4 N.E.3d at
1194 (quotation omitted).
[19] In support of its conclusion that Mother had the ability to provide care and
support, the trial court found that Mother began receiving disability income in
2016, federal law prohibits such income from being paid as child support, but
that Mother had worked in 2017. It also found that Mother spent money on
snack food and gifts for the Children and gave them money directly, all of
which could have been provided to Father to support the Children. Although
recognizing Mother’s limited means, the trial court found that “[a]ny amount of
money that would have been given to [F]ather for support would have been an
acknowledgement by [M]other that she is aware that the [C]hildren need to be
financially supported.” (Appellant’s App. Vol. II, p. 3).
[20] The gravamen of Mother’s argument is that because her income came from SSI
disability benefits, the trial court was precluded from finding that she was able
to provide the Children with care and support. Stepmother offers no response
to this argument. In Winters v. Talley, 784 N.E.2d 1045 (Ind. Ct. App. 2003),
this court addressed the issue of whether a mother whose only source of income
was from SSI could be found to have the ability to provide care and support for
her child for purposes of the consent to adopt statute. Examining the treatment
of SSI income for child support purposes, the court found that
SSI is a federal social welfare program designed to assure that the
recipient’s income is maintained at a level viewed by Congress as
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the minimum necessary for the subsistence of that individual.”
Cox v. Cox, 654 N.E.2d 275, 277 (Ind. Ct. App. 1995). Means-
tested public assistance programs such as SSI are specifically
excluded from a parent’s income for the purpose of computing
child support under Ind. Child Support Guideline 3 (A)(1). Id.
Child support may not be set such as the obligor is denied a
means of self-support at a subsistence level. Id.; Ind. Child Supp.
G. 2, cmt. (“Minimum Support”). As a matter of law, SSI
recipients lack the money or means to satisfy child support
obligations. See Cox, 654 N.E.2d at 277 (imputing potential
income to SSI recipient father despite his SSI status “effectively
constitutes an impermissible collateral attack upon the
determination of [f]ather’s entitlement to SSI benefits.”).
Winters, 784 N.E.2d at 1947-48. The court held that “[f]or purposes of
determining that a parent’s consent to adoption is not required, we find that a
parent whose only source of income is SSI is not able to provide for the support
of the child.” Id. at 1048. Our supreme court originally granted transfer of
Winters, vacating the decision of this court, but it subsequently dismissed its
grant of transfer. We find the reasoning of Winters to be persuasive.
[21] Here, Mother’s only reported source of regular income was from SSI.
Following Winters, we conclude that the trial court erred when it determined
that Mother had the ability to provide care and support. While it is true that
Mother worked for five weeks at some unspecified time in 2017, the trial court
did not state in either its oral or written rulings what one-year period it found
that Mother had failed to provide care and support, so it is unclear whether
Mother’s one-time employment in 2017 had any relevance. In any event, one
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period of five weeks of employment is sporadic employment, at most. See
Matter of Adoption of E.M.L., 103 N.E.3d at 1116 (holding that we may consider
whether any reported employment is steady or sporadic). The only evidence of
Mother’s necessary and reasonable expenses was that she paid $55 each time
she exercised her right to parenting time.
[22] In addition, Mother’s small gifts to the Children are the type of token
contributions which we have long held to be insufficient to demonstrate that a
parent has provided support. See, e.g., Irvin v. Hood, 712 N.E.2d 1012, 1013
(Ind. Ct. App. 1999) (holding that father failed to provide care and support
where he merely provided six items of clothing and some food during visitation
over three years); In re Adoption of M.A.S., 815 N.E.2d at 220 n.1 (concluding
that Father’s occasional provision of groceries, diapers, formula, clothing,
presents and cash were inadequate to show care and support). If such token
contributions are insufficient to show provision of care and support, they
cannot be relied upon exclusively and conclusively as evidence of a parent’s
ability to provide care and support. This was not a case where Mother was
shown to have expended money on other non-essential expenses for herself,
despite claiming that her only source of income was SSI. Cf. In re Adoption of
J.L.J., 4 N.E.3d at 1194-95 (considering evidence that the father, whose only
claimed source of income was SSI, could maintain his own residence, had
funds to purchase cigarettes, and could travel between Michigan and Indiana as
evidence that he had ability to provide support). We conclude that the trial
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court’s determination that Mother had the ability to provide care and support to
the Children was not supported by the evidence and was, therefore, clearly
erroneous. See M.S., 938 N.E.2d at 281-82.
II. Unfitness to Parent and Children’s Best Interests
[23] Mother also challenges the evidence supporting the trial court’s second basis for
dispensing with her consent, namely its determination that she was unfit to
parent the Children and that it was in the Children’s best interests to grant the
adoption without her consent. We address each of these conclusions in turn.
A. Unfitness
[24] Although the term “unfit” is not defined by the adoption statute, we have
looked to termination of parental rights cases for guidance as to its meaning. In
re Adoption of M.L., 973 N.E.2d at 1223. Those cases have led us to conclude
that “factors such as a parent’s substance abuse, mental health, willingness to
follow recommended treatment, lack of insight, instability in housing and
employment, and ability to care for a child’s special needs” are all relevant to
our inquiry. Id.
[25] The trial court found that Mother was unfit to parent the Children because she
had untreated mental health issues, those mental health issues had caused her
to engage in behavior that resulted in her harassing the family and, ultimately,
her conviction for invasion of privacy, and that she had demonstrated poor
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impulse control and decision making, unconscionable, selfish behavior, and a
lack of insight by encouraging M.J.F. to also violate court orders. Mother does
not contend that these factors, in the abstract and taken together, could never
support a determination that a parent was unfit; rather, she argues that those
factors do not amount to unfitness as they apply to her.
[26] Mother challenges several of the trial court’s factual findings regarding her
mental health, and therefore, we will examine the record to determine if there is
any evidence to support them. See M.S., 938 N.E.2d at 281-82. Mother first
challenges the trial court’s findings that she failed to follow through with all
available treatment because she had voluntarily removed herself from mental
health court and that there was no verification of Mother’s claims that she was
currently in counseling. Mother contends that the trial court impermissibly
shifted the burden of proof to her, it was “uncontradicted” that Mother was in
counseling and being treated by a physician, and her participation in mental
health court was voluntary. (Appellant’s Br. p. 19).
[27] We observe that the trial court was in the best position to judge Mother’s
credibility. In re Adoption of M.L., 973 N.E.2d at 1222. The trial court
apparently did not believe Mother’s claims that she was currently in treatment
and noted as part of that credibility assessment the lack of other evidentiary
support for these claims in the record, which did not constitute an unfair
shifting of the evidentiary burden to her. In addition, Mother does not dispute
that she withdrew herself from mental health court. It was within the trial
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court’s discretion to conclude that Mother’s withdrawal because she “spent six
months in Mental Health Court and [she] decided [she] was done” was simply
an excuse and was a failure to pursue treatment that was open to her. (Tr. p.
77).
[28] Regarding her mental health as it related to her record of harassment and
conviction for invasion of privacy, Mother concedes that the evidence showed
that she “was convicted of [i]nvasion of [p]rivacy as a result of charges
stemming from an inappropriate phone call to Father, a call to [a fast-food
restaurant], and an appearance at the [C]hildren’s school to see if they were
present for ISTEP testing.” (Appellant’s Br. p. 20) (record citations removed).
Mother argues that the trial court’s determination was unsupported because her
harassment was not violent, there was no evidence that the Children were
present when she did these things, she engaged in no other similar conduct after
Stepmother procured a protective order, and these incidents were too remote in
time from the consent hearing to be significant. These arguments are
unpersuasive because they essentially require us to reweigh the evidence and
consider evidence that does not support the trial court’s determination in
contravention to our standard of review. See In re Adoption of M.L., 973 N.E.2d
at 1222.
[29] Lastly, Mother challenges the trial court’s determination that she was unfit due
to her admitted pattern of seeing M.J.F. outside of court-ordered supervised
parenting time. Mother argues that the trial court’s findings that she
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communicated in code with M.J.F. and taught M.J.F. to “sneak, be dishonest,
and that rules do not apply if you do not like them” are not supported by the
evidence. (Appellant’s App. Vol. II, p. 4). Mother’s arguments are not well-
taken. Mother testified at the consent hearing that when she had gifts for the
Children, she would “call up to school and tell [M.J.F.] that I left the keys
under the car for her to get into the house and that was our code that I dropped
their stuff off.” (Tr. p. 91). This evidence supported the trial court’s finding
that Mother communicated with M.J.F. in code. Evidence that Mother met
with M.J.F. surreptitiously at the child’s work, in the bathroom at a restaurant,
and communicated with her in code, all in violation of the divorce court’s
parenting-time order, and all because she was concerned that if Father and
Stepmother found out M.J.F. “would get in trouble,” supported the other
disputed factual finding. (Tr. p. 81).
[30] Mother admits that she met with M.J.F. outside of the parenting time order.
However, Mother argues that her knowing violation of the parenting time order
had no detrimental effect on M.J.F because M.J.F. was not harmed, parenting
time records indicated that she was always appropriate with the Children, and
the parenting time records showed that she posed no immediate threat to the
Children. These arguments are additional requests for us to reweigh the
evidence and to consider evidence that does not support the trial court’s
determination, something we will not do in light of our standard of review. See
In re Adoption of M.L., 973 N.E.2d at 1222. In addition, Mother’s assertion that
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she had not spoken to, or made contact with, any of her other children outside
of parenting time is belied by her testimony at the consent hearing that she
communicates with the Children on a social media platform. In short, Mother
does not persuade us that the trial court’s findings and conclusions regarding
her unfitness were clearly erroneous.
B. Best Interests
[31] Mother also briefly contends that the trial court’s “best interests” determination
was unsupported by the evidence, but Mother does not develop any separate
argument on the issue. We conclude that Mother has waived this issue by
failing to develop a cogent argument. See Ind. Appellate Rule 46(A)(8); see also
Martin v. Brown, 129 N.E.3d 283, 285 (Ind. Ct. App. 2019) (holding that failure
to present a cogent argument results in waiver of the issue on appeal).
[32] Mother’s waiver of the issue notwithstanding, we conclude that the trial court’s
determination regarding the Children’s best interests was supported by the
evidence. “The primary concern in every adoption proceeding is the best
interests of the child.” In re Adoption of M.L., 973 N.E.2d at 1224. This court
has observed that
[t]he adoption statute does not provide guidance for which
factors to consider when determining the best interests of a child
in an adoption proceeding, but we have noted that there are
strong similarities between the adoption statute and the
termination of parental rights statute in this respect. In
termination cases, we have held that the trial court is required to
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look to the totality of the evidence to determine the best interests
of a child. Relevant factors include, among others, a parent’s
historical and current inability to provide a suitable environment
for the child, the recommendations of the child’s case worker or
guardian ad litem, and the child’s need for permanence and
stability.
In re Adoption of M.S., 10 N.E.3d 1272, 1281-82 (Ind. Ct. App. 2014) (citations
omitted).
[33] Stepmother has shared in the care of the Children for several years. She is with
the Children on a daily basis, helps them with their homework, and takes them
to their appointments. Stepmother is well-bonded with the Children, and they
appear to have thrived in her care. Stepmother demonstrated love for the
Children and excellent parenting when she facilitated parenting time between
Mother and the Children until that became untenable. The two older children
executed consents to their adoption. The Children’s GAL testified at the
consent hearing that she believed that it was in the Children’s best interests to
dispense with Mother’s consent to the adoption because it did not appear to the
GAL that Mother had done anything to address her mental health or change
her behavior. This evidence supported the trial court’s determination, and
therefore, we cannot conclude that determination was clearly erroneous. See
M.S., 938 N.E.2d at 281-82.
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CONCLUSION
[34] Based on the foregoing, we conclude that the trial court’s determination that
Mother’s consent for adoption was not required was supported by the evidence
and was, therefore, not clearly erroneous.
[35] Affirmed.
[36] Baker, J. and Brown, J. concur
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