TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00255-CV
D. H., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 312,572-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
OPINION
Appellant D.H. (Mother) appeals from the trial court’s decree terminating her
parental rights to her four children—son J.H., born in 2008; son N.H., born in 2009; daughter
A.H., born in 2011; and daughter D.A.H., born in 2013.1 In a single issue, Mother challenges
the legal and factual sufficiency of the evidence supporting the district court’s finding that she
engaged in conduct or knowingly placed the children with someone who engaged in conduct that
endangered the children’s well-being. See Tex. Fam. Code § 161.001(b)(1)(E). For the reasons
that follow, we affirm the trial court’s decree of termination.
1
The district court’s decree also terminated the parental rights of the children’s father,
J.H., but he did not file a notice appeal and therefore is not a party to these appellate proceedings.
BACKGROUND
On September 19, 2019, the Department received a report from staff at a local
hospital of suspected medical neglect. D.A.H, who was six years old and has spina bifida, had
been taken to the hospital by J.H. (Father) for an infection on her foot related to her paralysis,
and the infection was so severe that bone was visible in multiple places. In addition, hospital
staff reported that D.A.H. had been hospitalized for the same foot infection in June 2019 and that
since being released, she had missed six doctor’s appointments.
On September 23, 2019, the Department filed an original petition seeking
conservatorship of the children and termination of Mother’s and Father’s parental rights. In
the removal affidavit accompanying the petition, Department investigator Marnita Blanks
summarized the family’s previous involvement with the Department. In part, Blanks stated in
the removal affidavit that in July 2016, the Department had sought and obtained a court order in
Coryell County for removal of the children from Mother’s and Father’s care and that the
Department initiated those proceedings after receiving a report that Mother had threatened
suicide “while being under the influence of [methamphetamine] in the presence of the children.”
On August 16, 2017, the district court in Coryell County signed a final order granting primary
managing conservatorship of the children to Father’s parents and, after finding that appointment
of Mother and Father as possessory conservators would not be in the children’s best interest and
that possession or access would endanger the children’s physical or emotional welfare, denying
Mother and Father possession and access to the children.2 See Tex. Fam. Code § 153.191
(requiring court to appoint parent as possessory conservator when not appointed managing
2
On October 16, 2019, the district court signed an order transferring the case from
Coryell County to Bell County and consolidating the case with this case.
2
conservator, “unless it finds that the appointment is not in the best interest of the child and that
parental possession or access would endanger the physical or emotional welfare of the child”).
Despite the 2017 final order, Blanks discovered that when Father took D.A.H. to the hospital, the
children were living with him. Although Mother was not residing with Father and the children,
she had recently begun visiting the children on weekends.
A final hearing before an associate judge was conducted on November 12, 2020.
See id. § 201.201. At the conclusion of the hearing, the associate judge signed an order
recommending termination of Mother’s and Father’s parental rights. Upon Mother’s request, the
district court conducted a de novo hearing. See id. § 201.2042. After the de novo hearing, the
district court signed a de novo decree of termination. As to Mother, the district court found
by clear and convincing evidence that Mother engaged in conduct or knowingly placed the
children with someone who engaged in conduct that endangered the children’s well-being
and that termination of her parental rights was in the children’s best interest.3 See id.
§ 161.001(b)(1)(E), (2). The district court also appointed the Department as the children’s
managing conservator. See id. § 161.207.
On appeal, Mother does not challenge the district court’s decision as to
conservatorship or the court’s finding that termination of her parental rights is in the children’s
best interest. See In re J.A.J., 243 S.W.3d 611, 617 (Tex. 2007) (concluding that conservatorship
and termination of parental rights are distinct issues and that each must be separately challenged
3
The associate judge found that termination of Mother’s parental rights was also
warranted under subsections (D) and (O). See Tex. Fam. Code § 161.001(b)(1)(D), (O). At the
conclusion of the de novo hearing, however, the attorney for the Department affirmatively stated
on the record that the Department was abandoning those alternative statutory grounds and that it
was proceeding solely based on subsection (E). Accordingly, the district court did not adopt the
associate judge’s findings with respect to subsections (D) and (O).
3
on appeal). Instead, in one issue on appeal, Mother challenges the sufficiency of the evidence
supporting the district court’s determination that she engaged in acts or omissions warranting
termination under the Family Code, Section 161.001(b)(1), subsection (E).
STANDARD OF REVIEW
“While parental rights are of constitutional magnitude, they are not absolute.”
In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). To terminate a parent-child relationship, the
Department must prove by clear and convincing evidence that (1) the parent’s acts or omissions
constitute at least one of the enumerated statutory grounds for termination and (2) it is in the
child’s best interest to terminate the parent’s rights. Tex. Fam. Code § 161.001(b)(1), (2). Clear
and convincing evidence is “the measure or degree of proof that 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; In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). “Due process compels this
heightened standard because terminating the parent-child relationship imposes permanent,
irrevocable consequences.” In re J.A.J., 243 S.W.3d at 616. On appeal, we apply a standard
of review that reflects this heightened standard of proof. See In re J.F.C., 96 S.W.3d 256,
264 (Tex. 2002). We are also mindful, however, that we must “provide due deference to the
decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand,
is the sole arbiter when assessing the credibility and demeanor of the witnesses.” In re A.B.,
437 S.W.3d 498, 503 (Tex. 2014).
When evaluating the legal sufficiency of the evidence, we cannot “ignore
undisputed evidence contrary to the finding,” but must otherwise look at the evidence in the light
most favorable to the judgment, which means we must “assume the factfinder resolved disputed
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facts in favor of the finding,” In re A.C., 560 S.W.3d at 630-31, and “disregard all evidence that
a reasonable factfinder could have disbelieved or found to have been incredible,” In re J.F.C.,
96 S.W.3d at 266. “Evidence is legally sufficient if, viewing all the evidence in the light
most favorable to the fact-finding and considering undisputed contrary evidence, a reasonable
factfinder could have formed a firm belief or conviction that the finding was true.” In re A.C.,
560 S.W.3d at 631; In re J.F.C., 96 S.W.3d at 266.
A factual-sufficiency review, in contrast, requires “weighing disputed evidence
contrary to the finding against all the evidence favoring the finding.” In re A.C., 560 S.W.3d
at 631. The reviewing court must consider “whether disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the finding.” Id. “Evidence is factually
insufficient if, in light of the entire record, the disputed evidence a factfinder could not have
credited in favor of a finding is so significant that the factfinder could not have formed a firm
belief or conviction that the finding was true.” Id.
STATUTORY GROUNDS
A trial court may order termination of the parent-child relationship under
subsection (E) if clear and convincing evidence establishes that the parent “engaged in conduct
or knowingly placed the child with persons who engaged in conduct which endangers the
physical or emotional well-being of the child.” Tex. Fam. Code § 161.001(b)(1)(E). The focus
under subsection (E) is on the parent’s conduct—including acts, omissions, or failures to act—
and, more specifically, whether evidence exists that the child’s physical or emotional well-being
was endangered as a direct result of the parent’s conduct. A.S. v. Texas Dep’t of Fam. &
Protective Servs., 394 S.W.3d 703, 711 (Tex. App.—El Paso 2012, no pet.). Termination
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under subsection (E) requires more than a single act or omission; instead, the evidence
must demonstrate a “voluntary, deliberate, and conscious course of conduct” by the parent.
In re M.L.L., 573 S.W.3d 353, 364 (Tex. App.—El Paso 2019, no pet.); In re M.E.-M.N.,
342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet. denied). Further, in evaluating whether
the evidence supports a finding of endangerment under subsection (E), the factfinder may
consider conduct that occurred both before and after the child was born, including conduct that
occurred after the child was removed from her parent’s custody. M.D. v. Texas Dep’t of Fam. &
Protective Servs., No. 03-20-00531-CV, 2021 Tex. App. LEXIS 3310, at *16 (Tex. App.—
Austin Apr. 30, 2021, no pet.) (mem. op.) (citing In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009);
In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)).
In this context, a child is “endangered” if the child is exposed to loss or injury
or if her emotional or physical health is jeopardized. A.S., 394 S.W.3d at 711. Although
endangerment means “more than a threat of metaphysical injury or the possible ill effects of a
less-than-ideal family environment,” Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987), it is not necessary to show that the conduct was directed at the child or that the child
actually suffered injury, In re S.R., 452 S.W.3d at 360. Moreover, the specific danger to the
child’s well-being may be inferred from parental misconduct alone. Boyd, 727 S.W.2d at 533;
A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 699 (Tex. App.—Austin
2019, pet. denied). As a general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the physical and emotional well-being of a child. In re J.O.A., 283 S.W.3d
at 336. The failure to provide or obtain appropriate medical care for a child can constitute
endangering conduct under subsection (E). In re J.D.G., 570 S.W.3d 839, 852 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied). In addition, a parent’s drug use may support termination
6
under subsection (E) because it exposes the child to the possibility that the parent may be
impaired or imprisoned. In re J.O.A., 283 S.W.3d at 345; M.D., 2021 Tex. App. LEXIS 3310,
at *25; Walker v. Texas Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied).
DISCUSSION
On appeal, Mother asserts that the district court’s finding of endangering conduct
must be reversed because subsection (E) requires proof of endangerment and that the Department
failed to present any evidence that the children were endangered as a direct result of her conduct.
See A.S., 394 S.W.3d at 711. Mother points out that the Department’s evidence primarily
concerned conduct that occurred after the children were removed from her custody and care in
August 2017. Consequently, in Mother’s view, the evidence is legally and factually insufficient
to support the trial court’s finding because “the Department did not even attempt to show any
causal connection” between her conduct and any “actual harm to the children.”
In support of her argument, Mother relies on an opinion from the Fourteenth
Court of Appeals, In re L.C.L., 599 S.W.3d 79 (Tex. App.—Houston [14th Dist.] 2020, pet.
denied) (en banc). In that case, one of the issues before our sister court was whether it could
uphold the trial court’s endangerment findings under subsections (D) and (E) based solely on
evidence that the parent had “tested positive for drugs both initially and throughout the
proceedings,” despite the absence of any evidence “connecting [the parent’s] positive drug test
to any activity that endangered her children.” Id. at 84. In concluding that it could not, the court
of appeals noted its earlier cases holding that a parent’s endangering conduct need not be
directed at the child or cause actual injury or threat of injury and that subsection (E) “does not
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require a causal connection between the parent’s misconduct and actual harm to the child
resulting from that misconduct.” Id. at 85. However, the court of appeals went on to state, “a
plain reading of the statute itself does not support this interpretation,” and the “Family Code
expressly contemplates use of a controlled substance by a parent ‘in a manner that endangered
the health and safety of the child.’” Id. (quoting Tex. Fam. Code § 161.001(b)(1)(P)). The court
of appeals then rejected what it characterized as the dissent’s “absurd conclusion”—that “a
parent’s drug use alone, without proof of any causal connection to endangering their children’s
welfare, is enough to justify terminating a parent-child relationship.” Id. at 86. The court of
appeals determined that, instead, a “plain language reading of the statute requires a causal
connection between [a parent’s] drug use and the alleged endangerment.”4 Id. at 84. Because
the Department had failed to “prove a causal link between Mother’s drug use and the alleged
endangerment,” our sister court held that the evidence was legally insufficient to support
termination of the mother’s parental rights under subsections (D) and (E). Id. at 86.
Although we agree that “a finding of endangerment based on drug use alone is not
automatic,” see In re C.V.L, 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet. denied), to the
extent the court in L.C.L. held, as Mother contends, that direct evidence is required to show a
causal link between drug use and endangerment, we disagree. See M.D., 2021 WL 1704258,
at *8 (holding that drug use and drug-related criminal activity may support termination under
4
Several other courts of appeals have since cited L.C.L. for the proposition that a finding
of endangerment requires evidence of a causal connection between the parent’s drug use and
some other endangering conduct. In re C.L.E.E.G., No. 13-20-00387-CV, 2021 Tex. App. LEXIS
917, at *20 (Tex. App.—Corpus Christi-Edinburg Feb. 4, 2021, no pet.) (mem. op.) (concluding
that evidence was legally insufficient “when there is no evidence of a causal connection between
the parent’s drug use and endangering conduct”); see also In re C.R., Nos. 07-20-00314-CV, 07-
20-00316-CV, 2021 Tex. App. LEXIS 1286, at *7-8 (Tex. App.—Amarillo Feb. 23, 2021, pet.
denied) (mem. op.) (“Evidence of drug use on its own is not sufficient to show endangerment
unless it is causally connected to conduct endangering a child.”).
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subsection (E) “because it exposes the child to the possibility that the parent may be impaired or
imprisoned,” and citing L.C.L. under “but see” signal); see also S.B. v. Texas Dep’t of Fam. &
Protective Servs., No. 03-21-00191-CV, 2021 Tex. App. LEXIS 7002, at *19 (Tex. App.—
Austin Aug. 25, 2021, no pet.) (mem. op.) (noting that M.D. had cited L.C.L. under “but see”
signal and had not followed it); S.R. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-
00142-CV, 2021 Tex. App. LEXIS 6392, at *12 n.3 (Tex. App.—Austin Aug. 6, 2021, no pet.)
(mem. op.) (same).
Endangerment does not have to be established as an independent proposition
but may instead be inferred from parental misconduct. Boyd, 727 S.W.2d 531, 533; A.C.,
577 S.W.3d at 699. As a result, a court’s consideration of allegations of endangerment is a fact-
intensive process and depends on the specific circumstances of the case. In some circumstances,
a parent’s drug use might be so pervasive or serious that the factfinder could reasonably infer
that the drug use is endangering, despite a lack of evidence showing that the drug use caused
some other endangering activity or even that the drug use occurred while the children were in the
parent’s direct care. See, e.g., S.G. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-
00085-CV, 2021 Tex. App. LEXIS 6384, at *38 (Tex. App.—Austin Aug. 6, 2021, no pet.)
(mem. op.) (noting that “Father’s continuing to test positive for illegal drugs during the first year
of the case supported a finding by the district court that Father’s illegal drug use had been an
ongoing habit that created an endangering environment for the children even before Child 3
had been injured”); In re M.A.J., 612 S.W.3d 398, 407-408 (Tex. App.—Houston [1st Dist.]
2020, pet. denied) (concluding that evidence of positive drugs tests after Department received
referral that parent used narcotics was sufficient to support finding of endangerment under
subsection (E)). In addition, this and numerous other courts of appeals have recognized that a
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parent’s decision to use illegal drugs while the termination suit is pending, and the parent is at
risk of losing her child, may support a finding of endangering conduct under subsection (E).5
See, e.g., S.R., 2021 Tex. App. LEXIS 6392, at *3-4; In re C.V.L, 591 S.W.3d at 751; In re J.S.,
584 S.W.3d 622, 636 (Tex. App.—Houston [1st Dist.] 2019, no pet.); In re S.R., 452 S.W.3d
at 361-62; In re M.E.-M.N., 342 S.W.3d at 263; see also In re L.C.L., 599 S.W.3d at 96-97
(Wise, J., dissenting) (collecting authorities and noting that majority had “overrule[d] almost a
decade of authority from [that] court” and created conflict with other courts of appeals). This is
because a parent’s ongoing drug use jeopardizes the parent-child relationship and subjects the
child to a life of uncertainty and instability. See In re M.T., Nos. 05-20-00450-CV, 05-20-
00451-CV, 2020 Tex. App. LEXIS 7956, at *16 (Tex. App.—Dallas Oct. 5, 2020, no pet.)
(mem. op.) (“Mother’s continued drug use during the pendency of this case endangered the
children’s well-being by prolonging and exacerbating the children’s instability.”).
At the de novo hearing, the Department offered and the district court admitted
into evidence the removal affidavit from Blanks, photos of D.A.H.’s infected foot, Mother’s
family-service plan, the results of drug tests submitted by Mother during the pendency of the
suit, and the results from a home study conducted on Mother’s mother. In addition, the court
heard testimony from Department caseworker Jocelyn Holdburg and from Mother.
5
In an opinion concurring with the Texas Supreme Court’s decision to deny the
Department’s petition for review in L.C.L., Justice Lehrmann noted that there is “an apparent
conflict among the courts of appeals regarding the connection between drug use and
endangerment.” In re L.C.L., __ S.W. 3d __, No. 20-0432, 2021 WL 2603699, at *2 (Tex. June
25, 2021) (Lehrmann, J., concurring). She also noted that the Fourteenth Court of Appeals’s
position that “mere drug use” cannot support an endangerment finding was akin to a position
recently taken by a parent who argued that his parental rights had been impermissibly terminated
due to “mere imprisonment.” Id. (citing In re J.F.-G., 627 S.W.3d 304, 316 (Tex. 2021)). As
Justice Lehrmann explained, the Texas Supreme Court rejected the parent’s appellate argument
in that case, and “just as imprisonment cannot be viewed in a vacuum, neither can a parent’s
drug use.” Id. at *5.
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Holdburg testified that at the time the Department sought removal, it was
concerned about Mother’s “ongoing drug use and mental health” based on the fact that “drug use
[was] something that had caused the children to not be reunified during the 2017 Coryell case.”
According to Holdburg’s testimony, Mother’s family-service plan required her to submit to drug
tests; the Department informed Mother that a missed test would be considered a positive test;
Mother failed to submit to approximately fifty drug tests; and Mother tested positive for
methamphetamine on five tests, the only drug tests that she submitted to during the eighteen-
month case. In addition, shortly before the final hearing, Mother requested that she be allowed
to take a hair-follicle test to demonstrate that she had not being using drugs. Although the
request was approved, Mother failed to appear for the hair-follicle test. Holdburg also testified
that Mother was required under her family-service plan to attend therapy but was
“unsuccessfully” discharged from therapy after six months, due to a reported lack of progress,
and that Mother failed to receive outpatient treatment services for her drug use, as recommended
by her Outreach Screening Assessment Referral (OSAR).
In addition, caseworker Holdburg testified that the Department was concerned
that Mother had failed to seek medical care for D.A.H. Holdburg testified that when the
Department received the hospital’s report of suspected medical neglect, Mother had been visiting
the children on weekends and that she would have seen the severity and worsening of D.A.H.’s
foot during those visits but did not take D.A.H. to the hospital. Holdburg admitted that she was
not sure of the specific dates that Mother had visited with D.A.H. but explained that D.A.H. was
initially seen by the hospital for the infection in May 2019 and that the infection had gotten much
worse by that September. Holdburg testified that the Department investigator questioned Mother
about her failure to seek medical care for D.A.H. and that Mother’s response was that the people
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who were caring for D.A.H. “were doing what they needed to do to care for her” and that “they
had given her instructions on how to care for the foot, and she felt like she was doing what she
needed to do.”
In her testimony, Mother acknowledged that she missed a “whole bunch” of drug
tests but explained that she did not have transportation and that if she had to walk to the testing
site, it would take longer than an hour round trip. Mother also admitted that she tested positive
several times during the pendency of the case, including on her last drug test in June 2020, when
she tested positive at a level 350 times the threshold necessary for a positive methamphetamine
result. Nevertheless, according to Mother’s testimony, she had stopped using drugs four months
before the hearing and believed she could remain sober and care for her children despite not
having received any in-patient or out-patient rehabilitation treatment. When asked why she did
not complete outpatient rehabilitation services, Mother explained that Holdburg had suggested
that she complete inpatient rehabilitation services instead and that she was currently on a waiting
list for inpatient rehabilitation and was still willing to go. When asked why she did not show up
for the recent hair-follicle test that she had requested, Mother explained that she did not know
that she only had a three-day timeframe to take the test.
Finally, when questioned about D.A.H.’s infection, Mother acknowledged that
she had seen D.A.H.’s injuries a few weeks before she was hospitalized but did not report the
injuries because she “didn’t know that [she] had to, because they were getting care for it.”
Mother explained that she found out about the injuries when Father gave D.A.H.’s medication to
her with directions on “how to apply the medication and wrap the wound.” According to
Mother, she was under the impression that D.A.H. was being taken to her appointments and that
“she was getting the proper medication that she needed.”
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Based on this record, we conclude that the undisputed evidence in this case
establishes that (1) during the pendency of this case, Mother tested positive for methamphetamine
five times and failed to submit to approximately fifty drug tests; (2) one drug test revealed a level
of methamphetamine that the Department considered “very concerning”; (3) the children were
initially removed from Mother’s care in 2016, after she threatened suicide; (4) she ultimately lost
conservatorship of and access to her children in 2017; and (5) she had seen the infection on
D.A.H.’s foot just a few weeks before the Department received the report from hospital staff. In
addition, assuming that the district court resolved disputed facts in favor of the finding of
endangerment and that it disregarded all evidence that a reasonable factfinder could have
disbelieved, we conclude that evidence also shows that (1) the children were removed from
Mother’s care in 2016 due, in part, to suspected drug use; (2) during the pendency of this case,
Mother failed to show for drug tests because those results would have been positive; (3) she
failed, without sufficient justification, to complete outpatient rehabilitation treatment; (4) she
was unsuccessfully discharged from therapy due to lack of progress; and (5) she failed, without
sufficient justification, to obtain medical treatment for D.A.H.’s injuries. From this, the district
court could have reasonably inferred that Mother has a serious and on-going problem with
methamphetamine, which began before the children were removed from her custody and
continued afterwards, and that this drug use jeopardized her children’s emotional or physical
well-being. In addition, the district court could have reasonably determined that Mother
neglected D.A.H.’s medical needs.
After considering all the evidence in the light most favorable to the district court’s
finding, along with any undisputed evidence contrary to the finding under subsection (E), we
conclude that a reasonable factfinder could have formed a firm belief or conviction that Mother
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engaged in a course of conduct that endangered her children’s physical or emotional well-being.
See Tex. Fam. Code § 161.001(b)(1)(E); In re A.C., 560 S.W.3d at 631. In addition, in view
of the entire record, we conclude that the disputed evidence is not so significant that the
district court, as factfinder, could not have formed a firm belief or conviction that Mother
engaged in conduct endangering to her children. See In re A.C., 560 S.W.3d at 631.
Consequently, the evidence is legally and factually sufficient to support the district court’s
finding that termination of Mother’s parental rights was warranted under subsection (E). We
overrule Mother’s issue on appeal.
CONCLUSION
We affirm the district court’s de novo decree terminating Mother’s parental rights.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Triana and Kelly
Concurring Opinion by Justice Triana
Affirmed
Filed: November 3, 2021
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