In re M.H. , 2022 Ohio 49 ( 2022 )

[Cite as In re M.H., 2022-Ohio-49.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN RE: :
M.H., et al. : CASE NOS. CA2021-08-050
CA2021-08-051
: CA2021-08-052
OPINION
1/10/2022
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. 2017 JC 04951, 2017 JC 04952, and 2017 JC 05024
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant
Prosecuting Attorney, for appellee, Clermont County Children Services
CASA for Clermont Kids, and Nathan Bell, for appellee.
Jonathan R. Sinclair, for appellant.
PIPER, P.J.
{¶1} Appellant, the biological father ("Father") of M.H., I.H., and D.H., appeals from
a decision of the Clermont County Court of Common Pleas, Juvenile Division, granting
permanent custody of his children to appellee, Clermont County Department of Job and
Family Services ("CCDJFS"). The children's biological mother ("Mother") filed a separate
appeal and is not a party to the instant action. For the reasons outlined below, we affirm
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the juvenile court's decision.
{¶2} On March 22, 2017, CCDJFS filed a neglected child complaint and requested
protective supervision of four-year-old M.H., born June 5, 2012, and three-year-old I.H.,
born July 2, 2013. The complaint alleged that CCDJFS had been working voluntarily with
the family since September 2016 due to the unsanitary and unsafe condition of their home.
CCDJFS reported that the family's trailer was infested with fleas, lice, and other bugs, and
that the children had fleas and lice in their hair along with visible bite marks on their arms
and legs. CCDJFS also stated that the family was removed from their home for a brief
period because it was soiled with dog, cat, and rabbit feces. CCDJFS further alleged that
the trailer had holes in the floor through which the ground was visible.
{¶3} CCDJFS indicated that Mother and Father were able to clean their home and
make it free from environmental hazards. However, as CCDJFS alleged, Mother and Father
soon regressed to the same issues of cleanliness. This included allegations that the trailer
was still infested with fleas. CCDJFS alleged that an agency employee who visited the
home found it cluttered and dirty, with feces on the ground. During the same visit, the
employee fell through a soft spot of the trailer's floor. During another visit, the agency
employee found smeared, dried dog feces in the children's bedroom.
{¶4} CCDJFS stated that it had obtained vouchers for the family to repair their
home and provided them with lot rent. Mother and Father, however, were slow to engage
with CCDJFS or to correct the safety problems with their home. Despite adequate income,
Mother and Father repeatedly struggled to pay bills due to their frivolous spending.
CCDJFS also alleged Mother had not engaged in mental health treatment. CCDJFS noted,
however, that the family had just recently started services with a parenting educator.
{¶5} On April 27, 2017, the magistrate adjudicated M.H. and I.H. as neglected
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children. Following this adjudication, M.H. and I.H. remained in the custody of Mother and
Father, but were subject to protective supervision by CCDJFS. The juvenile court
subsequently adopted the magistrate's recommendation on May 16, 2017.
{¶6} Throughout the pendency of this case, CCDJFS implemented multiple case
plans. These plans included requirements that Mother and Father maintain a clean and
safe living environment. In addition, Mother and Father were required to receive parenting
education, marriage counseling, mental health services for Mother, and budgeting and
household financial management. The record reveals that Mother and Father made efforts
to comply with the case plan requirements, but were ultimately unable to make the changes
necessary to keep the children in their home.
{¶7} On September 26, 2017, CCDJFS moved to change protective supervision to
emergency custody. To support its motion, CCDJFS alleged that Mother and Father had
not been able to maintain consistent compliance with the agency regarding the cleanliness
of their home, parent education, or Mother's mental health. CCDJFS stated that M.H. and
I.H. had been residing with their aunt and uncle, A.S. and M.S., since September 5, 2017,
due to safety concerns and to provide Mother and Father with time to clean the home.
CCDJFS reported that most of the floors in Mother and Father's trailer had been reinforced,
but that the trailer remained extremely cluttered and infested with bed bugs. CCDJFS also
stated that the current status of the trailer was unacceptable for an exterminator to complete
an effective extermination. Finally, CCDJFS stated that Mother was currently pregnant and
due to have her third child, D.H., in nine weeks. The juvenile court granted CCDJFS's
request for temporary custody and set the case for a dispositional hearing.
{¶8} Following the dispositional hearing, the magistrate continued the temporary
custody order. The juvenile court then adopted the magistrate's disposition decision of
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temporary custody on November 6, 2017. D.H. was adjudicated dependent on December
21, 2017, shortly after his birth. Following a dispositional hearing, D.H. was also placed in
the temporary custody of CCDJFS.
{¶9} While in the temporary custody of CCDJFS, the children resided with their
aunt and uncle, A.S. and M.S., from September 26, 2017, until July 6, 2018, when the family
was required to move to Kansas due to M.S.'s military assignment.1 The children were then
placed in a foster home from July 6, 2018, through August 13, 2018. The children's paternal
grandmother ("Paternal Grandmother") then had her home study approved and the children
were placed in her care from August 13, 2018, until May 28, 2019.
{¶10} On May 28, 2019, Mother and Father regained custody of the children under
protective supervision. In August of 2019, Mother and Father were evicted from their trailer.
Mother and Father ended their relationship at that point. Father then took the children to
live with him and Paternal Grandmother while Mother lived with a friend. On February 25,
2020, Paternal Grandmother stated that Father and the children could no longer stay with
her. That same day, Mother and Father agreed to place the children in the temporary
custody of CCDJFS. Following their placement with CCDJFS, the children were then
placed with a foster family.
{¶11} After being asked to leave Paternal Grandmother's house, Father, now back
in a relationship with Mother, was able to pay off the back rent for the lot and moved back
into the trailer. Mother and Father continued to reside in the trailer for the remainder of the
proceedings. Then, in early 2021, the children's aunt and uncle, A.S. and M.S., returned to
Ohio following M.S.'s medical discharge from the military. The children were then placed
1. D.H. was placed with A.S. and M.S. on December 4, 2017, following his birth.
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back with A.S. and M.S. on January 8, 2021, where they have remained.
{¶12} On January 28, 2021, CCDJFS moved for permanent custody of the children
and the matter proceeded to a final hearing on March 5, 2021. At the permanent custody
hearing, the state presented evidence that, despite exhaustive efforts by CCDJFS, Mother
and Father were unable to provide the children with a clean and safe living environment.
{¶13} The state presented evidence from CCDJFS caseworker, Carla Perla
Severini, who documented the procedural history of the case and discussed Mother's and
Father's case plans. Severini testified that Mother and Father "checked the box" for many
of their case plan services, but failed to improve the conditions that led to the removal of
the children. This includes, as Severini testified, the fact that Mother and Father's trailer
continues to be unsuitable and unsafe for children; the floors and surfaces were covered in
clutter and the hallways were barely passable; dishes were piled up in the sink and on the
counter while food and feces littered the floor; and multiple animals lived in the trailer and
litter boxes were not routinely changed. Severini testified that fleas and bedbugs were also
found in the home on multiple occasions. Throughout the case, Severini stated that she
informed Mother and Father about the need to maintain a clean and safe home, but that
they would blame one another for the state of the residence. Severini testified that Mother
and Father also blamed their inaction as simply being lazy and not wanting to clean.
{¶14} Severini testified that Mother and Father had completed more than 145
parenting classes, but still made no progress in their ability to parent. By comparison,
Severini testified that parents are normally scheduled for 15 classes, but that parents could
be referred for another 15 classes. More than 30 classes requires a meeting with the
agency. Severini also explained that Mother and Father attended 25 sessions of marriage
counseling, but that she had observed no change in Mother's and Father's behavior.
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Severini further testified that Mother was assessed for mental health issues and attended
some therapy, but that Mother ultimately discontinued treatment believing she no longer
needed it.
{¶15} As to budgeting, Severini stated that Mother and Father appeared to have
enough money, but that they nevertheless always fell behind on bills. This led to the August
2019 eviction. Severini acknowledged that Mother and Father had been consistent with
their visitations and that there was a clear bond between them and the children. However,
she expressed concern that the ordeal has been confusing and traumatic for the children.
{¶16} As to the children's current placement, Severini testified that the children
initially regressed upon being moved back with their aunt and uncle, A.S. and M.S., but that
they were now beginning to settle into their routine. By the time of the permanent custody
hearing, Severini stated that the children were doing well in their placement and were
happy. Severini noted that the children's medical and dental needs were being met by A.S.
and M.S. Severini testified that this included M.H. receiving counseling and I.H. receiving
medication for her ADHD diagnosis. Severini testified that M.H. and I.H. were also doing
well in school and are making friends. Severini further stated that A.S. and M.S. have
expressed an interest in adopting the children and will soon complete their training in order
to be licensed to adopt.
{¶17} The state then called Sharon Gillespie, a parent educator with Child Focus.
Gillespie testified that she worked with Mother and Father for three years, from March 2017
through March 2020. Gillespie confirmed that she completed 145 parenting sessions with
Mother and Father, but stated that they made little to no progress. Gillespie testified that
despite efforts to educate and assist Mother and Father, their trailer remained filthy and
unsuitable. Gillespie testified that she helped Mother and Father create daily checklists of
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chores and tried to help the family set up a budget. Gillespie also testified that she was
able to locate a local church to help with the trailer's electrical issues. Gillespie testified that
she even attempted to help the family relocate since the trailer had so many problems.
However, according to Gillespie, Mother and Father never followed through with anything.
Gillespie testified that she routinely talked to Mother and Father about the trauma they were
inflicting on their children by refusing to clean. Gillespie testified Mother and Father still
refused to clean and provide the children with a safe and sanitary residence.
{¶18} Next, the children's aunt, A.S., testified that she intended to adopt the children
should that opportunity become available. A.S. testified that she loves the children as her
own and that the children refer to her biological children as their brother and sister. A.S.
also acknowledged that the children still love Mother and Father, but stated that the children
need stability in their lives. A.S. testified that she and her husband, M.S., have sufficient
resources to support the children. A.S. further testified that they are currently residing with
family, but this arrangement was only temporary, as the family had just returned from
Kansas and were in the process of looking to purchase a suitable home.
{¶19} The children's Guardian ad Litem ("GAL") testified and recommended that
CCDJFS be granted permanent custody of the children. The GAL testified that Mother and
Father never made any improvements on the state of their home. The GAL also noted that
Mother and Father's trailer was always filled with clutter and garbage. The GAL testified
that the condition of Mother and Father's trailer was so bad that a path needed to be cleared
for her to enter, a condition that also prevented an exterminator from dealing with
infestations.
{¶20} After taking the matter under advisement, the magistrate granted CCDJFS's
motion for permanent custody in an entry dated June 16, 2021. Neither Mother nor Father
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filed timely objections to the magistrate's decision. Then, on July 7, 2021, Mother filed a
motion for leave to file untimely objections to the magistrate's decision. On July 13, 2021,
Father also filed a motion for leave to file untimely objections. Following a hearing, the
juvenile court denied both motions. On August 6, 2021, the juvenile court entered its final
judgment entry awarding permanent custody of the children to CCDJFS. Father now
appeals from the juvenile court's decision granting permanent custody of the children to
CCDJFS, raising two assignments of error for review.
{¶21} Assignment of Error No. 1:
{¶22} THE TRIAL COURT ERRED BY FAILING TO GRANT COUNSEL LEAVE TO
FILE OBJECTIONS OUT OF TIME, TO THE PREJUDICE OF FATHER.
{¶23} Assignment of Error No. 2:
{¶24} THE TRIAL COURT ERRED BY GRANTING THE MOTION FOR
PERMANENT CUSTODY.
{¶25} Because we find these issues are related, we will address both of Father's
assignments of error together. In his first assignment of error, Father argues the juvenile
court erred by denying his motion for leave to file untimely objections to the magistrate's
decision. In his second assignment of error, Father alleges the juvenile court erred by
granting CCDJFS's motion for permanent custody. We find no merit to Father's
assignments of error.
{¶26} Pursuant to Juv. R. 40(D)(3)(b)(i), "[a] party may file written objections to a
magistrate's decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Juv.R.
40(D)(4)(e)(i)." If no timely objections are filed, the court may adopt a magistrate's decision,
unless it determines that there is an error of law or other defect evident on the face of the
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magistrate's decision. Juv.R. 40(D)(4)(c); In re K.P.R., 12th Dist. Warren No. CA2011-03-
023, 2011-Ohio-6114, ¶ 7. However, Juv.R. 40(D)(5) permits a reasonable extension of
time "[f]or good cause shown." "'Good cause' includes, but is not limited to, a failure by the
clerk to timely serve the party seeking the extension with the magistrate's order or decision."
Id. This court reviews the juvenile court's decision denying a motion for leave to file untimely
objections to a magistrate's decision under the abuse of discretion standard. In re E.B.,
11th Dist. Lake No. 2013-L-077, 2014-Ohio-5764, ¶ 27.
{¶27} On appeal, Father alleges that a miscommunication issue prevented him from
filing objections to the magistrate's decision. In short, Father maintains that he believed
Mother's counsel was going to file timely objections to the magistrate's decision and
therefore believed that he did not need to file timely objections. Father does not explain his
rationale behind this belief. Notwithstanding, the record reflects that Mother did not file
timely objections. Both Mother and Father later filed motions for leave to file untimely
objections. After taking the matter under advisement, the juvenile court denied their motions
and adopted the magistrate's decision awarding CCDJFS permanent custody.
{¶28} Following review, we find the juvenile court did not abuse its discretion in
denying Father's motion for leave to file untimely objections. In the present case, the
magistrate's decision plainly states that objections must be filed within 14 days of the filing
of the magistrate's decision. In bold letters, the decision states the consequences of not
filing timely objections:
A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE
COURT'S ADOPTION OF ANY FACTUAL FINDING OR
LEGAL CONCLUSION, WHETHER OR NOT SPECIFICALLY
DESIGNATED AS A FINDING OF FACT OR CONCLUSION OF
LAW UNDER JUV. R. 40(D)(3)(A)(ii), UNLESS THE PARTY
TIMELY AND SPECIFICALLY OBJECTS TO THAT FACTUAL
FINDING OR LEGAL CONCLUSION AS REQUIRED BY JUV.
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R. 40(D)(3)(b).
{¶29} Despite the clear language, Father chose not to file timely objections. His
argument on appeal – that there was an alleged miscommunication as to who should file
objections – does not rise to the level of "good cause" as required by Juv. R. 40. See In re
D.F., 10th Dist. Franklin Nos. 18AP-811 and 18AP-813, 2019-Ohio-3710, ¶ 12. There is
nothing in the record to support a finding that Father was unfairly prevented from timely
filing objections. Moreover, it is unclear why Father chose to rely on Mother's
representations that she intended to object instead of preserving his rights by filing timely
objections. As a result, we find the juvenile court did not err by denying Father's motion to
file untimely objections. However, even if we had found otherwise, we would still conclude
that any error was harmless due to the lack of prejudice. This is because, we find the
juvenile court's decision granting permanent custody is supported by clear and convincing
evidence and is not against the manifest weight of the evidence.
{¶30} Pursuant to R.C. 2151.414(B)(1), the juvenile court may terminate parental
rights and award permanent custody of a child to a children services agency if the court
makes findings pursuant to a two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-
248, 2014-Ohio-2580, ¶ 9. First, the juvenile court must find that the grant of permanent
custody to the agency is in the best interest of the child, utilizing, in part, the factors of R.C.
2151.414(D). In re D.K.W., 12th Dist. Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 21.
Second, pursuant to R.C. 2151.414(B)(1)(a) to (e), the juvenile court must find that any of
the following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has
been in the temporary custody of the agency for at least 12 months of a consecutive 22-
month period; (4) where the preceding three factors do not apply, the child cannot be placed
with either parent within a reasonable time or should not be placed with either parent; or (5)
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the child or another child in the custody of the parent from whose custody the child has
been removed, has been adjudicated an abused, neglected, or dependent child on three
separate occasions. In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-3709,
¶ 10.
{¶31} In this case, M.H., I.H., and D.H. have been in the temporary custody of
CCDJFS for more than 12 months of a consecutive 22-month period at the time CCDJFS
filed its motion for permanent custody. Therefore, we move to consideration of the best
interest factors. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 12
("Only one of [the R.C.2151.414(B)] findings must be met to satisfy the second prong of the
two-part permanent custody test").
{¶32} When considering the best interest of a child in a permanent custody hearing,
the juvenile court is required under R.C. 2151.414(D)(1) to consider all relevant factors.
This includes, but is not limited to, (1) the interaction and interrelationship of the child with
the child's parents, siblings, relatives, foster caregivers and out-of-town providers, and any
other person who may significantly affect the child; (2) the wishes of the child, as expressed
directly by the child or through the child's guardian ad litem; (3) the custodial history of the
child; (4) the child's need for a legally secure permanent placement and whether that type
of placement can be achieved without a grant of permanent custody to the agency; and (5)
whether any of the factors listed in R.C. 2151.414(E)(7) to (11) apply in relation to the
parents and child.
{¶33} Initially, with respect to the children's relevant interactions and relationships
with those who may significantly impact their young lives, the record reflects that the
children have regularly visited their parents and are bonded with them. The children are
also bonded with Paternal Grandmother. However, the children are also well bonded with
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their foster family, their aunt and uncle, A.S. and M.S. The children resided with A.S. and
M.S. from September 2017 until July 2018 when the couple had to relocate due to M.S.'s
military assignment. When M.S. was medically discharged, the family returned to Ohio and
regained temporary custody of the children in January 2021. The children have remained
in A.S. and M.S.'s care ever since.
{¶34} During the hearing, A.S. testified that she has had a relationship with the
children since they were very young and loves them as her own. A.S. stated that she and
M.S. picked D.H. up from the hospital following his birth. The children also get along well
with A.S. and M.S.'s two biological children and refer to each other as brothers and sisters.
Throughout the pendency of these proceedings, A.S. and M.S. have committed to raising
the children as their own via adoption and are in the process of becoming a licensed to
adopt foster home.
{¶35} In considering R.C. 2152.414(D)(1)(c), D.H. is only four years old and was
unable to express his wishes in any meaningful way. The GAL reported that the nine-year-
old M.H. and the seven-year-old I.H. want to return home with their parents, Mother and
Father. The magistrate gave some weight to the wishes of M.H. and I.H. but stated that
their wishes may not be an accurate reflection of their best interest in the long term
considering the home, which the magistrate described as "barely habitable, and at best,
cluttered, bug ridden and unsanitary."
{¶36} With respect to R.C. 2151.414(D)(1)(c), the children have been in the
temporary custody of the agency for 12 or more months of a consecutive 22-month period.
More troubling, however, is the repeated uncertainty that the children have faced since
September 2016.
{¶37} The children were originally placed in protective supervision while Mother and
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Father were given time to clean their trailer and provide a safe and sanitary home for their
children. After that failed, the agency obtained temporary custody of the children and placed
them with their aunt and uncle, A.S. and M.S., until the family was forced to relocate due to
M.S.'s military assignment. The children were then placed with their Paternal Grandmother
following a brief period with another foster family until they were returned to Mother and
Father's care in May 2019. In August 2019, the family was evicted from their trailer and
Father and the children went to live with Paternal Grandmother. The children were later
returned to CCDJFS' custody on February 25, 2020, and sent to a foster home. A.S. and
M.S. then returned to Ohio and have been able to provide a suitable and safe environment
for the children ever since.
{¶38} In considering R.C. 2151.414(D)(1)(d), the record reflects that the children
need a legally secure placement, that the agency can provide the necessary legally secure
placement, and that such placement is the only way the children's needs can be achieved.
Despite assistance from the agency and having been given ample opportunities, Mother
and Father have demonstrated that they are unable to maintain a safe and appropriate
residence for their children. The agency has been involved since September 2016, yet
Mother and Father have been unable to provide the children with a safe, stable, consistent
environment. Mother and Father have a history of eviction and not being able to pay their
bills even with agency assistance. Their trailer was consistently unsanitary and unsafe with
multiple infestations of fleas, lice, and bed bugs. The home was so thoroughly cluttered
and covered in debris that an exterminator could not treat the residence. Mother and Father
were given more than four years to remedy the very serious conditions of their home.
Instead of rectifying the problems, Mother and Father blamed each other and relied on
excuses that they were just lazy. Despite being repeatedly told that they needed to get their
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home in order to get their children back, they simply did not take the necessary corrective
actions.
{¶39} Based upon its consideration of the R.C. 2151.414(D)(1) factors, the
magistrate found by clear and convincing evidence that an award of permanent custody to
CCDJFS was in the children's best interest. The juvenile court adopted the magistrate's
decision finding no error on the face of the decision. Now, on appeal, Father argues that
the decision awarding permanent custody was not supported by clear and convincing
evidence. Father maintains that there is no evidence that the children were harmed by the
condition of the home. Father also argues that he and the children are well bonded, and
that the children's placement with their aunt and uncle, A.S. and M.S., is not in their best
interest.
{¶40} However, after carefully and thoroughly reviewing the record in this case, we
find the state presented clear and convincing evidence that the best interest of the children
is served by granting permanent custody to CCDJFS. Though Father completed some
case plan requirements, it is well established that the completion of certain case plan
requirements does not preclude a grant of permanent custody. In re Mraz, 12th Dist. Brown
Nos. CA2002-05-011 and CA2002-07-014, 2002-Ohio-7278, ¶ 13; In re S.U., 12th Dist.
Clermont No. CA2014-07-047, 2014-Ohio-5166, ¶ 35 ("case plan is merely a means to a
goal and not a goal in itself").
{¶41} In the present case, Father cannot provide the children with a clean and safe
environment or provide for their basic needs. As this court has previously stated, parents
are "afforded a reasonable, not an indefinite, period of time to remedy the conditions
causing the children's removal." In re C.M., 12th Dist. Clermont No. CA2016-07-051, 2017-
Ohio-57, ¶ 26. Father has been given ample opportunities to rectify the situation but has
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been unable or unwilling to correct the deplorable, unsanitary, and dangerous condition of
their home. See, e.g., In re B.S., 12th Dist. Fayette Nos. CA2018-06-011 and CA2018-06-
012, 2018-Ohio-4385, ¶ 23 (permanent custody awarded because of failure to provide a
clean and safe environment). The record reflects that the children need a legally secure
placement and Father has demonstrated that he cannot maintain a safe and appropriate
residence for them. To the contrary, the children have received appropriate care and are
bonded with their aunt and uncle, A.S. and M.S.
{¶42} In light of the foregoing, we find the juvenile court's decision was supported
by the evidence and find no error in the juvenile court's decision to grant permanent custody
to CCDJFS. Father's two assignments of error are without merit and are overruled.
{¶43} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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