If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re K. D. MITCHELL, Minor. March 17, 2022
Nos. 358193; 358194
Arenac Circuit Court
Family Division
LC No. 21-014740-NA
Before: GLEICHER, C.J., and SERVITTO and LETICA, JJ.
PER CURIAM.
In these consolidated appeals,1 respondent-mother (mother) and respondent-father (father)
appeal as of right the trial court’s order removing their minor child, KM, from their custody. We
vacate the portion of the trial court’s order after the preliminary hearing that removed the child
and remand for further proceedings.
I. BASIC FACTS AND PROCEDURAL HISTORY
On July 9, 2021, petitioner, the Department of Health and Human Services (DHHS),
requested that the trial court take jurisdiction over KM (d/o/b 01/29/20), alleging that it received a
Children’s Protective Services (CPS) complaint from father’s sister raising a number of concerns
with respondents’ care of KM. On July 7, 2021, father’s sister reported that KM was found crying
in a soiled diaper with soiled clothing and wet bedding on July 4, and mother could not be
awakened. About an hour later, mother still could not be roused, and once she finally was, she
appeared to be under the influence. Asked where father was, she said he was probably buying
drugs.2 Mother told DHHS that she had taken a prescribed sleep medication, but could not provide
the prescription.
1
In re Mitchell, unpublished order of the Court of Appeals, entered September 7, 2021 (Docket
Nos. 358193; 358194).
2
When later asked, father said he was at work.
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The petition also alleged that respondents engaged in numerous incidents of domestic
violence that were not reported to the police and occurred in KM’s presence. Father’s sister stated
that KM had blood on her clothing from an incident that occurred around Christmas 2020.
Moreover, in June 2021, respondents had spent a day at the river while relatives cared for
KM. Respondents each attempted to retrieve KM, but relatives refused to let them take her because
they appeared to be under the influence. Mother was subsequently in a rollover car accident and
arrested for operating while intoxicated. Her blood alcohol level was .128.
Respondents also had lengthy CPS histories. Mother first came to CPS’s attention in 2011.
Twenty-two investigations followed with substantiations for physical neglect, threatened harm,
and maltreatment related to substance abuse and domestic violence. Father’s CPS history dated
back to 2014 and eight investigations followed.
The trial court previously terminated mother’s parental rights to four of her five other
children, including two that she shared with father, whose rights were also terminated. As to
mother’s fifth child, he was in his father’s custody. To visit him, mother was required to submit
to a drug screen; she had not visited since March 2021. In that same month, mother stopped
reporting to her probation officer. Mother’s failure to appear for a narcotic equipment possession
violation hearing also resulted in an arrest warrant being issued.
The day before the petition was filed, DHHS asked respondents to provide a drug screen.
They refused. DHHS then filed the petition, asking the court to order in-home jurisdiction over
KM, alleging that respondents’ substance abuse and domestic violence negatively impacted their
ability to properly care for KM.3
Six days later, the trial court held an initial preliminary hearing. Respondents requested
appointed counsel. DHHS acknowledged that it was not seeking KM’s removal at that time, but
it sought drug testing of respondents. Mother volunteered to submit to drug testing, which the
court ordered before adjourning the hearing to July 29, 2021.
Two days before the rescheduled hearing date, DHHS filed an amended petition, seeking
to remove KM from respondents’ custody. It alleged that mother tested positive for
tetrahydrocannabinol (THC) and father tested positive for methamphetamine and THC on July 15,
2021. Two days later, respondents again tested positive for THC. On July 27, 2021, mother
refused to complete a drug screen, informing DHHS that she would only submit to testing when
father was present later that day. These considerations were added to the reasons why it was
contrary to KM’s welfare to remain in respondents’ home.
At the continued preliminary hearing on July 29, 2021, the CPS worker reiterated many of
the allegations contained in the amended petition. She added that respondents voluntarily
3
Despite DHHS’s request for in-home care, the petition detailed reasons why it was contrary to
KM’s welfare to remain in respondents’ home and further listed ten separate services provided to
prevent KM’s removal.
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relinquished their parental rights to the two children they shared and updated the court, reporting
that mother had addressed her outstanding arrest warrant.
Although father attempted to explain his initial drug screen was partially a false positive
owing to a prescription medication, the testing facility rejected this hypothesis. And, as to mother’s
refusal to drug screen on July 27, she asked if she could wait until father was present. Because
DHHS had other clients scheduled, it could not accommodate her request.
The worker recognized that recreational marijuana use is legal in this state,
MCL 333.27951 et seq.,4 and explained that it was “difficult to determine when individuals are
under the influence of THC.” Mother reported using marijuana to deal with her medical issues,
but she did not have a MMMA card. Notably, mother also reported she was struggling to maintain
her recovery and was under a lot of stress.
Regarding the domestic violence allegations, the CPS worker did not know how often
father’s sister, who lived in Pinconning, was in contact with respondents. To follow up on this
allegation, the worker contacted father’s aunt to inquire. Father’s aunt, who was respondents’
landlord and lived around the corner from them, reported no domestic violence. The CPS worker
further recognized that no police reports or physical evidence supported the domestic-violence
allegation.
After filing the petition, the worker visited respondents’ home three times. She saw
evidence of properly-secured marijuana and paraphernalia, but no evidence of methamphetamine.
She observed nothing that presented a risk of harm to KM. And she opined that weekly court-
ordered drug testing would be a service that could adequately safeguard KM in the home as long
as respondents refrained from drug use and their screens “remained negative for substances.”
The Families First worker also testified. After the petition was filed, she worked with
respondents in their home for three weeks, visiting approximately ten hours spread over four days.
She did not observe any conduct that presented a substantial risk of harm to KM and did not witness
any concerning arguments between respondents. The worker was addressing respondents’
substance-abuse issues, healthy relationships, and basic parenting skills. She opined that
respondents were participating in and benefitting from the services she provided. The worker’s
services were scheduled to end in a week, but could be extended for two additional weeks.
4
The statute specifically provides that “[a] person shall not be denied custody of or visitation with
a minor for conduct that is permitted by this act, unless the person’s behavior is such that it creates
an unreasonable danger to the minor that can be clearly articulated and substantiated.”
MCL 333.27955(3). The Michigan Medical Marijuana Act (MMMA) contains a similarly-worded
provision. See MCL 333.26424(d) (“A person shall not be denied custody or visitation of a minor
for acting in accordance with this act, unless the person’s behavior is such that it creates an
unreasonable danger to the minor that can be clearly articulated and substantiated.”). This Court
has analyzed the like MMMA provision in In re Richardson, 329 Mich App 232; 961 NW2d 499
(2019). See also OAG, 2013, No. 7271, p 1 (May 10, 2013).
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Father’s initial drug screen, provided on July 15, and after Families First was involved, was
positive for methamphetamine, amphetamines, and marijuana. The CPS worker described father
earlier that day as being “a little more high strung,” but then said his behavior was “not too
concerning.” The worker also testified that while respondents were in court, KM was not present
and under the care of another person.
Despite the positive testimony from the CPS and the Families First workers, DHHS
requested removal because it was concerned about respondents’ substance-abuse history and their
unreported domestic violence due to their fear of KM being removed. In DHHS’s view, it appeared
that respondents were relapsing. DHHS was concerned about methamphetamine, amphetamines,
and marijuana. Especially worrying was the July incident, where mother slept through KM’s cries,
leaving KM so hungry that she ate for an hour before she was satisfied.
After the testimony ended, respondents’ attorneys opposed authorization of the petition as
well as removal. They contended that without the allegations of father’s sister, there was “nothing
there,” because KM was not with respondents during the drunk-driving incident. They further
argued that there was a lack of physical injuries to support the domestic-violence allegations and
that consideration of the prior terminations did not recognize that “people have a right to change.”
Mother’s attorney apologized for her refusal to drug screening, explaining that there had been
issues previously and she wanted to have a witness.
KM’s guardian ad litem advocated for authorization, but was less certain that removal was
required given the Family First worker’s testimony. Even so, father’s positive drug screen for
methamphetamine was concerning.
The trial court then determined that there was probable cause to authorize the petition
against respondents. The court also found that KM remaining in respondents’ home presented a
serious risk of harm to her and that reasonable efforts had been made to avoid removal. In reaching
its decision, the trial court stated:
I do find there’s probable cause to authorize the petition; I think there’s an
abundance of evidence. This Court is familiar with this family, this family has a
history, a long and substantial history of serious drug abuse, of domestic violence,
of child neglect. In fact, so serious . . . that cases were commenced with efforts
made to correct the issues with prior children, that were abundantly unsuccessful,
so unsuccessful that there were releases of parental rights. Those concerns, I agree
with [mother’s counsel’s] comment that sometimes people change, I disagree that
they’ve changed in this case, or they appear to have changed.
There is good reason for [DHHS] to have checked on this latest child, [KM],
who apparently was dirty, unkempt, with soiled diaper, which doesn’t sound like
that’s uncommon.
Both of the parents have, well, first of all are admitting to using some drugs,
and have tested positive for marijuana, both have tested positive for marijuana,
which is a controlled substance whether or not it’s legal in Michigan or not, it’s
unhealthy for substance abusers to be using marijuana, and it creates an issue with
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any children, or anyone who’s under their care. Moreover, there’s evidence of
positive tests for [methamphetamines] as well as amphetamines with respect to
[father].
There is evidence, I mean this is a probable cause hearing, and I heard
evidence of incidents, continued incidents regarding domestic violence and the
child being neglected.
This isn’t even remotely a close call from today’s hearing. It’s a very, very
serious problem that needs to be addressed seriously. My largest concern, quite
frankly, is I don’t think that either, and it’s not inconsistent with my observations
of the respondents at [the] last hearing. I don’t think either parent has any sense of
ownership, or maybe it’s not even a realization as to how serious these problems
are and continue to be, they don’t take any ownership. When I have someone who
takes ownership at least, at least there’s the belief that we can go forward and
correct the barriers that are in front of us. In fact with most cases we have successful
results. When we don’t have parents who even recognize, or acknowledge, the
issues that are clearly and conspicuously, in this case so obviously in front of them,
it leaves the Court with a very serious concern that it will ever be corrected,
particularly when we have such an example of habituality, as we do in this case.
So not only do I, am I going to authorize the petition, I am going to, I do
find that there is a serious risk of harm to the children [sic] and best interest of, it’s
in the best interest of the children [sic] to remove, to be removed from their [sic]
parent’s [sic] care.
I do find that reasonable efforts have been made. There’s been a number of
efforts with respect to this family over the history that I’m familiar with. I’ll adopt
those efforts that have been referenced by [the CPS worker], both on the petition
and supplemental petition,[5] as well as on the record,[6] and I’m going to incorporate
those by reference.
[] I’m placing the children [sic] with the Department. I’m going to authorize
parenting time subject to each of the parents passing two consecutive drug screens
5
The services listed were: CPS case management, foster care case management, public health
nurse services, random drug screens, state medical and food assistance, Ten16 substance abuse
services, Bay Area Women’s Center domestic violence services, Families First, Sterling Area
Health Center, and Women, Infants and Children. Given the court’s prefatory remarks, it appears
that “a number of” these efforts may have been related to respondents’ prior matter.
6
The caseworker testified the services provided in this case were Families First and drug screens.
DHHS also encouraged mother to participate in counseling. Moreover, the caseworker understood
that respondents benefitted from financial or food assistance as well. Again, with the trial court’s
prefatory remarks, it is unclear whether some of the services listed by the DHHS and the court
were actually provided to respondents in their prior matter.
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that are clean of controlled substances. Then the parenting time will be supervised
at the discretion of the [DHHS].
DHHS’s attorney asked whether the requirement that respondents remain free from controlled
substances included THC. The court responded, “It does.”
The trial court subsequently entered an order that concluded one or more the allegations in
the petition were true and that it was necessary to remove KM from respondents’ custody. In
pertinent part, the court’s form order read:
Custody of the child[] with the parent[] . . . presents a substantial risk of
harm to the child[]’s life, physical health, or mental well-being . . . . No provision
of service or other arrangement except removal of the child[] is reasonably
available to adequately safeguard the child[] from the risk of harm to the child[]’s
life, physical health, or mental well-being . . . . Conditions of custody at the
placement away from the home and with the individual with whom the child[] is
placed []are adequate to safeguard the child[]’s health and welfare.7
The court’s order also summarized the reasons why KM remaining in respondents’ home was
contrary to her welfare:
[Respondents] have a significant history of domestic violence, substance
abuse, criminal history, prior removal and termination of parental rights to their
other children. On July 15, 2021, [father] tested positive for methamphetamines.
On July 27, 2021, [mother] refused to drug screen for the [DHHS], after agreeing
to drug testing at the prior hearing. There have been numerous reports of domestic
violence in the last 6 months and evidence of physical neglect of [KM] has been
presented.
Respondents appeal, challenging only the portion of the court’s order removing KM from
their custody.
II. THE REMOVAL DECISION
Respondents contend that the trial court failed to make all of the required factual findings
necessary to order removal and that its decision to remove KM was clearly erroneous. We agree.
After conducting a preliminary investigation, DHHS may petition the family division of
the circuit court to take jurisdiction over a child. In re Ferranti, 504 Mich 1, 15; 934 NW2d 610
(2019). The petition must contain “[t]he essential facts that, if proven, would allow the trial court
7
The form order further provided: “the child[] is[] at substantial risk of harm or is[] in surroundings
that present an imminent risk of harm and the child[]’s immediate removal from those
surroundings is necessary to protect the child[]’s health and safety, . . . the circumstances warrant
issuing this order[,] and . . . no remedy other than protective custody is reasonably available to
protect the child[].”
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to assume jurisdiction over the child.” Id. (quotation marks and citation omitted); see also
MCR 3.961(B)(3) and MCR 712A.2(b). After a trial court receives the petition and holds a
preliminary hearing, it “may authorize the filing of the petition upon a finding of probable cause
that one or more of the allegations are true and could support the trial court’s exercise of
jurisdiction under MCL 712A.2(b).” Ferranti, 504 Mich at 15.
If the petition is authorized, the trial court must decide “whether the child should remain
in the home, be returned home, or be placed in foster care pending trial.” In re Benavides, 334
Mich App 162, 167; 964 NW2d 108 (2020) (quotation marks and citation omitted).
MCL 712A.13a(9) governs the court’s removal decision, providing:
The court may order placement of the child in foster care if the court finds
all of the following conditions:
(a) Custody of the child with the parent presents a substantial risk of harm
to the child’s life, physical health, or mental well-being.
(b) No provision of service or other arrangement except removal of the child
is reasonably available to adequately safeguard the child from the risk as described
in subdivision (a).
(c) Continuing the child’s residence in the home is contrary to the child’s
welfare.[8]
(d) Consistent with the circumstances, reasonable efforts were made to
prevent or eliminate the need for removal of the child.[9]
(e) Conditions of child custody away from the parent are adequate to
safeguard the child’s health and welfare.
MCR 3.965(C)(2) is identical in substance to MCL 712A.13a(9).
8
“[T]he court must make a statement of findings, in writing or on the record, explicitly including
the finding that it is contrary to the welfare of the child to remain at home and the reasons
supporting that finding. If the ‘contrary to the welfare of the child’ finding is placed on the record
and not in a written statement of findings, it must be capable of being transcribed.”
MCR 3.965(C)(3).
9
“Reasonable efforts findings must be made. In making the reasonable efforts determination under
this subrule, the child’s health and safety must be of paramount concern to the court. When the
court has placed a child with someone other than the custodial parent . . . , the court must determine
whether reasonable efforts to prevent the removal of the child have been made or that reasonable
efforts to prevent removal are not required. The court must make this determination at the earliest
possible time, but no later than 60 days from the date of removal, and must state the factual basis
for the determination in the court order.” MCR 3.965(C)(4).
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“MCR 3.965(C)(2) and MCL 712A.13a(9) explicitly require that the trial court find all the
factors prior to removing a child from a parent’s care.” In re Williams, 333 Mich App 172, 184;
958 NW2d 629 (2020) (emphasis in original). The trial court is not required to articulate extensive
findings addressing every conceivable detail. Id. at 183. Rather, when examining the factual
findings in support of factors, they must be sufficient for the appellate court to conduct a
meaningful review. Id.; see also Woodington v Shokoohi, 288 Mich App 352, 357; 792 NW2d 63
(2010).
The trial court’s factual findings addressing the removal decision are reviewed for clear
error. In re Benavides, 334 Mich App at 167. A finding is clearly erroneous if the reviewing court
“is left with a definite and firm conviction that a mistake has been made.” Id. (quotation marks
and citation omitted). The preponderance of the evidence standard applies, In re Williams, 333
Mich App at 183, meaning that “the evidence must persuade the fact-finder that it is more likely
than not that the proposition is true.” Miller-Davis Co v Ahrens Constr, Inc (On Remand), 296
Mich App 56, 71; 817 NW2d 609 (2012), rev’d in part on other grounds 495 Mich 161 (2014),
citing M Civ JI 8.01. The rules of evidence do not apply, except those regarding privileges.
MCR 3.965(C)(12). Finally, any error in the trial court’s removal order is not grounds for reversal
unless it would be inconsistent with substantial justice to permit it to stand. In re Williams, 333
Mich App at 185; In re TC, 251 Mich App 358, 371; 650 NW2d 698 (2002); see also
MCR 3.902(A); MCR 2.613(A).
Here, the trial court made specific findings that: (1) custody with respondents presented a
substantial risk of harm to KM’s life, physical health, or mental well-being, (2) continuing KM’s
residence in respondents’ home was contrary to KM’s welfare, and (3) consistent with the
circumstances, reasonable efforts were made to prevent or eliminate the need for KM’s removal.
See MCL 712A.13a(9)(a), (c), and (d). However, the trial court failed to make specific findings
that “[n]o provision of service or other arrangement except removal of the child is reasonably
available to adequately safeguard the child from risk,” MCL 712A.13a(9)(b), or that “[c]onditions
of child custody away from the parent are adequate to safeguard the child’s health and welfare,”
MCL 712A.13a(9)(e).10
As to MCL 712A.13a(9)(b), the trial court did not consider whether anything short of
removal could have kept KM safe. The trial court made no mention of alternative arrangements
that could have protected KM from the risk presented by respondents’ alleged substance abuse,
domestic violence, and physical neglect. The trial court stated its belief that respondents lacked a
“sense of ownership” over their habitual behavior, but it did not explain what factual basis
supported this finding, nor did it articulate how removal was the only option reasonably available
10
We recognize that the trial court checked these boxes in its removal order. See In re KMN, 309
Mich App 274, 287; 870 NW2d 75 (2015) (quotation marks and citation omitted) (“a court speaks
through its written orders and judgments, not through its oral pronouncements”). However, this
did not suffice to satisfy the trial court’s obligation under MCL 712A.13a(9). While the court was
“not obligated to articulate extensive findings regarding every conceivable detail,” it had to “make
a record of its findings as to each and every factor sufficient for this Court to conduct a meaningful
review.” See Williams, 333 Mich App at 183.
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to keep KM safe. To the contrary, the CPS worker testified that if the respondents refrained from
using controlled substances, complied with offered services, and maintained negative drug screens,
KM could safely remain in their home.
As to MCL 712A.13a(9)(e), the trial court made no findings that the conditions of KM’s
placement would adequately safeguard her health and welfare. The trial court’s only reference to
the effect of removal on KM was a conclusory statement that removal was in her “best interest.”
Although the CPS worker testified that father’s sister and other relatives were interested in
placement, the trial court made no findings about a potential placement, beyond stating that KM
would be placed with DHHS. Moreover, the court did not consider whether 18-month-old KM’s
removal “might be more emotionally traumatic to her than keeping her in respondent[s’] care.”
Williams, 333 Mich App at 184. Accordingly, the trial court failed to make required findings under
MCL 712A.13a(9)(e).
We also have some doubts regarding the trial court’s conclusion that continued custody of
KM with respondents presented a substantial risk of harm to her. We recognize that the trial court
placed great weight on the prior voluntary termination arising from what was described as long-
term substance abuse, domestic violence, and neglect. But without additional information, we
cannot evaluate the probative value of the “inference that a parent’s treatment of one child is
probative of how that parent may treat other children.” See In re Kellogg, 331 Mich App 249,
259-261; 952 NW2d 544 (2020). Even assuming that the situations were comparable, the petition
suggests the prior proceeding took place sometime after 2014. KM was born in early 2020, and
respondents had been caring for her for over seventeen months before father’s sister raised any
concern. The incident that brought respondents to DHHS’s attention again was certainly
disturbing, but there was no evidence supporting the trial court’s suggestion that this was a
common event. And the CPS worker testified she was satisfied that KM was safe in respondents’
home so long as they complied with offered services, abstained from drug use, and maintained
negative drug screens.11
Nor is there evidence that the level of substances detected through respondents’ screens
impaired their ability to care for KM. The CPS worker testified that on the day of father’s initial
positive screen, father only appeared slightly “more high strung;” otherwise, his behavior was “not
too concerning.” And, despite the CPS worker’s difficulty in discerning whether someone was
under the influence of marijuana, she testified that respondents did not appear under the influence
during her repeated visits. In fact, DHHS did not even request removal upon receipt of
respondents’ positive results.12 Instead, it was apparently mother’s refusal to screen that prompted
11
Mother contends that her agreement to undergo drug testing at the July 15, 2021 preliminary
hearing was involuntary, and therefore her subsequent refusal to test should not be used against
her. However, the court had the authority to enter a temporary order for KM’s protection pending
the appearance of mother’s attorney or the completion of the preliminary hearing. See
MCR 3.965(B)(3).
12
The Child Protective Services manual recognizes:
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DHHS to request KM’s removal from both respondents. Again, both workers testified that there
was no risk of harm to KM in respondents’ home. The CPS worker opined that there were
alternatives to adequately safeguard KM and the Families First worker testified that respondents
were receptive to and benefitting from services put in place to address their substance abuse,
relationship, and parenting skills. Accordingly, the record before us does not support the trial
court’s conclusion by a preponderance of the evidence that respondents’ marijuana use put KM at
substantial risk, let alone that their “behavior [was] such that it create[d] an unreasonable danger
to [KM] that can be clearly articulated and substantiated.” MCL 333.27955(3).
This leaves the allegation pertaining to domestic violence. Father’s sister reported multiple
instances over six months, but only described one event that occurred in December 2020. Father’s
aunt, who lived nearby, reported there was no domestic violence. The CPS worker recognized that
there were no police reports or physical injuries supporting this allegation. Even so, DHHS put
Families First services in place to address healthy relationships. The Families First worker
witnessed no concerning arguments between respondents and testified that respondents were
accepting and receiving benefit from the services provided.
Finally, we question whether the trial court appropriately credited DHHS with reasonable
efforts that were offered in the prior voluntary termination matter in this case. The statute
authorizes the trial court to order placement of the child in foster care if it finds, “[c]onsistent with
the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of
the child.” MCL 712A.13a(9)(d). The plain statutory language requires DHHS’s efforts to be
made as to the particular child at risk of abuse and neglect.
For these reasons, the trial court clearly erred in removing KM from respondents’ home
and its order was inconsistent with substantial justice.
Vacated in part and remanded for further proceedings. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Deborah A. Servitto
/s/ Anica Letica
A complaint involving only substance use is insufficient for investigation or
confirmation of child abuse or neglect. Parents may use legally or illegally obtained
substances and prescribed medications to varying degrees and remain able to safely
care for their children.
Substance abuse by a parent/caregiver may be a risk factor for child maltreatment.
For cases involving known substance abuse caseworkers must evaluate its impact
on child safety. Substance abuse is a mental health disorder and caseworkers
should assist the parent/caregiver in accessing relevant supports and services.
[PSM 716-7, Children’s Protective Services Manual, September 1, 2020, p 1.]
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