DocketNumber： No. 06CA1868
Citation Numbers： 169 P.3d 240
Judges： Roman, Taubman, Webb
Filed Date： 7/12/2007
Status： Precedential
Modified Date： 1/2/2022
Opinion by
In this dependency and neglect proceeding, C.C. (mother) appeals from the denial, of her motion to set aside the adjudicatory order and the subsequent judgment terminating the parent-child legal relationship with her child, J.C.S. She contends only that the statute authorizing service by a single publication- § 19-3-508(8)(b), C.R.8.2006-is unconstitutional on its face and as applied, because it did not provide her with actual notice of her legal rights before the child was adjudicated.
The trial court rejected these contentions, finding that mother "deliberately concealed herself" from law enforcement and the court. Based on this finding, which encompasses the four months between service by publication and the adjudication that she asks us to consider in assessing lack of actual notice, we conclude that she lacks standing to challenge the statute's constitutionality because her claimed injury was self-inflicted. Therefore, we dismiss the appeal.
L. Facts
On March 29, 2004, the Huerfano County Department of Social Services (department) received a referral indicating mother was using drugs and alcohol, leaving J.C.S. with various people, and failing to take him to speech therapy. Two days later, mother was arrested for auto theft and was taken to the Las Animas County Jail in Trinidad. After
A caseworker in the department located mother in the Trinidad jail and together they developed a safety plan, which provided that (1) J.C.S. would be placed in foster care if an appropriate kinship home could not be found; (2) upon release from incarceration, mother would obtain stable housing and income and participate in a substance abuse evaluation, follow its recommendations, and remain substance free; and (8) a dependency and neglect proceeding would be filed if mother failed to establish a safe and stable home within ninety days.
Four days after mother was released from jail on June 10, she telephoned the caseworker, indicated her interest in starting drug and alcohol treatment, and asked to see her son. The caseworker advised mother that her signature was needed to authorize medical evaluations of J.C.S. Mother gave the caseworker a temporary phone number, explained that she did not have a place to live, and said that she would contact the caseworker as soon as her situation became more stable.
Because the caseworker was unable to contact mother at the temporary number, the department scheduled a shelter hearing for June 80, 2004. On June 28, 2004, mother called the caseworker and left a message. On the day of the shelter hearing, mother again called the caseworker, who advised her that the department was seeking temporary legal custody at a shelter hearing to take place that day. When mother replied that she could not find transportation to the hearing, the caseworker encouraged her to attend by telephone. The caseworker also set up an appointment with mother for July 7 to sign papers authorizing medical evaluations.
Mother failed to appear at or call in to the hearing. She did not meet the caseworker on July 7.
A petition in dependency and neglect was filed on July 8, 2004. The court authorized serving mother by publication, finding that her "whereabouts are currently unknown." On August 5, a summons was published in a Huerfano County newspaper with a return of service of August 25.
When mother did not appear in court on the return date, the court found her in default. She later testified at the termination hearing that after her release from the Pueblo County Jail, she had secreted herself from authorities for fear of further incarceration on an outstanding probation violation. On November 2, 2004, the court adjudicated J.C.S. dependent or neglected based on mother's default.
During 2005, mother was in and out of the Pueblo County Jail. In April 2005, mother wrote to the caseworker stating that she was in jail but would be released soon and expressing an interest in regaining custody of J.C.S. In response, the department sent her a letter notifying her of an upcoming review of J.C.S.'s foster placement and asking that she complete a questionnaire. Mother did not appear in person or by telephone at that review, but she did return the questionnaire.
On January 10, 2006, the department filed a motion for termination of the parent-child legal relationship, and, on February 27, 2006, the court authorized notice by publication of the termination hearing pursuant to § 19-3-602(2), C.R.8.2006.
Mother was again arrested on March 10, 2006, and remained in the Pueblo County Jail until July 25, 2006. However, on April 20, 2006, the county attorney filed a motion to transport mother from the jail to the May 3 termination hearing, which was her first appearance in these proceedings. Mother was then advised of her legal rights, she requested an attorney, and one was appointed for her. The court rescheduled the hearing for August 1, to allow mother to confer with her counsel.
Her attorney filed a motion to set aside the order of adjudication and dismiss the petition for termination of parental rights on the basis that § 19-8-508(8)(b) was unconstitutional, on its face and as applied. The as applied argument asserted that "the department knew that mother was in the Pueblo area [because] she had been incarcerated in Pueblo, [and] she told the department that she sought shelter upon release." The court
Mother failed to appear on August 1, and the court continued the hearing to August 28. At that time, the court heard testimony from mother and the caseworker, as well as argument from counsel on mother's due process claim. Mother described the adjudicatory hearing as "the watershed in parents, child and family rights," and presented a chronology of events during 2004 in her written motion. However, the chronology does not identify any location where she could have been found and served between her release from Pueblo County Jail in June and the adjudication in November. She did not assert in the motion or at the hearing that the department should have provided her notice after the adjudication, although it knew of her reinearceration in the Pueblo County Jail during 2005.
The court held the statute constitutional on its face and as applied, and made findings from the bench, including:
I find the department exercised due dili-genee trying to locate her whereabouts by contacting last known address, family members, even going so far as to contact the jail, trying to arrange for calls, asking for follow ups, and her failure to appear for those. [sic]
In a later written order, the court found that after mother's release from incarceration on June 10, 2004, she "deliberately hid from law enforcement and made no contact with the Department of Social Services or with this Court for the next several months due to her fear that she would be rearrested," and that she "deliberately concealed herself from law enforcement, this Court and the Department of Social Services for several months following the filing of this action." The court noted that it had "specifically found and hereby finds that the Department of Social Services exercised due diligence in attempting to locate [mother] prior to the Court's authorization of publication." The court also found that mother had received adequate and appropriate notice of these proceedings through communications with the caseworker.
The department did not raise mother's standing to challenge the single publication statute either below or on appeal, but we requested supplemental briefs on this issue. In her supplemental brief, mother asserted:
Regarding this inquiry, the only relevant time period is between the time the People filed the Petition in Dependency and Neglect [July 8, 2004] and the time the court adjudicated J.C.S. [November 2, 2004]. The adjudication of the child as dependent and neglected is the watershed. ___
(Emphasis added.) She did not challenge the trial court's finding that she was in hiding during the only time which she asserts is relevant to our standing inquiry.
Neither the department's motion for service by publication nor a transcript of the hearing at which the court authorized such service is part of the record. Mother's supplemental brief states, "In all court documents and reports during the relevant period between June 28, 2004 and the final adjudication on October 26, 2004[sic], the People assert that the whereabouts of C.C. are unknown." On appeal, mother does not raise the absence of a written motion for service by publication from the record. See C.R.C.P. 4(g) (requiring verified motion for service by publication).
II. Law
A. Seope of Review
Standing is a questidn of law that we review de novo. See, e.g., Deutsch v. Kalcevic, 140 P.3d 340, 341 (Colo.App.2006).
Even where constitutional issues are treated as mixed questions of -law and fact, we defer to a trial court's factual findings. Sanger v. Dennis, 148 P.3d 404, 410 (Colo.App.2006). If the record supports a factual finding, we are bound by it under the clear error test. Citizens Progressive Alliance v. Sw. Water Conservation Dist., 97 P.3d 308, 314 (Colo.App.2004). A trial court's findings concerning due diligence before service by publication in a parental rights proceeding are reviewed for abuse of discretion. C.M. v. R.D.H., 947 So.2d 1023, 1029 (Miss.Ct.App.2007).
- B. Threshold Standing Inquiry
Standing is an exception to the rule that we do not entertain arguments for the first time on appeal. HealthONE v. Rodriguez, 50 P.3d 879, 891 n. 5 (Colo.2002)("Although this issue was not presented to the court of appeals, standing is a jurisdictional prerequisite to every case and may be raised at any stage of the proceedings, including on appeal."). The overwhelming weight of authority supports this principle. See, e.g., Director v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 125, 115 S.Ct. 1278, 1282, 131 L.Ed.2d 160 (1995).
When the appellant lacks standing, the appeal should be dismissed for lack of jurisdiction. Seq, e.g., People in Interest of J.W.W., 936 P.2d 599, 600 (Colo.App.1997); City of Aspen v. Artes-Roy, 855 P.2d 22, 23 (Colo.App.1993). Where a constitutional claim has been asserted, the inability to show the element of resulting prejudice usually means "there is no 'clear and inescapable necessity' to decide whether the challenged process" passes constitutional muster. People in Interest of N.A.T., 134 P.3d 535, 539 (Colo.App.2006); see also Flakes v. People, 153 P.3d 427, 437 (Colo.2007); People v. Kibel, 701 P.2d 37, 44 (Colo.1985).
The jurisdictional nature of standing requires a sua sponte inquiry where standing was not raised by the parties. Romer v. Bd. of County Comm'rs, 956 P.2d 566, 586 (Colo.1998) ("Because standing is a jurisdictional prerequisite, a court may raise the issue sua sponte at any stage of the proceedings.").
A sua sponte inquiry is no less appropriate when parental rights are at issue, because of the state's "significant interest" in finalizing a dependency and neglect proceeding "in an expeditious manner." People in Interest of A.J., 143 P.3d 1143, 1146 (Colo.App.2006) (quoting People in Interest of T.D., 140 P.3d 205, 213 (Colo.App.2006)); see also People in Interest of N.A.T., supra, 134 P.3d at 539; People in Interest of R.J.A., 994 P.2d 470, 473 (Colo.App.1999).
Moody v. People, 159 P.3d 611 (Colo.2007), was decided after the parties had submitted their supplemental briefs on standing. We do not read Moody as restricting our standing inquiry in expedited civil appeals such as that before us, where lack of standing defeats jurisdiction and leads to resolution "on grounds other than those relied upon by the trial court." Moody v. People, supra, 159 P.3d at 615.
Moody dealt with a narrow question: sua sponte appellate inquiry into a criminal defendant's standing to seek suppression in a case over which the court otherwise had jurisdiction, and where an appellate court's use of the defendant's trial testimony to reverse a favorable suppression ruling could chill the defendant's right to testify in a criminal case. In resolving this question, the Moody court cited only criminal cases, most of which address suppression issues. The chilling effect concern does not apply in civil cases.
Unlike the dissent, we also do not read Mortgage Investments Corp. v. Battle Mountain Corp., 70 P.3d 1176, 1182 (Colo.2003) (Iwle have held that traditional standing principles do not apply to defendants," who may "assert an affirmative defense in response to a complaint"), as eliminating the requirement that a defendant challenging a statute on constitutional grounds must show prejudice to establish standing. This interpretation would mean that a constitutional statutory challenge by a. plaintiff could be rejected for lack of standing, but the identical challenge by a defendant could not. Cf. FSDW, LLC v. First Nat'l Bank, 94 P.3d 1260, 1264 (Colo.App.2004)(noting anomaly of result that would permit a plaintiff, but not a defendant, to challenge a ruling).
Such an interpretation would also undercut the principle that a constitutional issue should be decided only if "the necessity for such decision is clear and inescapable." People v. Lybarger, 700 P.2d 910, 915 (Colo.1985). As a corollary of this principle, "prudential" standing concerns "recognize that unnecessary or premature decisions of constitutional questions should be avoided." City of Greenwood Village v. Petitioners for
We doubt that the Battle Mountain court intended such a sea change without mentioning any of its prior cases that preclude defendants who can not show injury from challenging a statute on constitutional grounds. See, e.g., Butler v. Farner, 704 P.2d 853, 857 n. 8 (Colo.1985) ("We do not address their argument because there is no evidence in the record showing that the defendants were required to post any appeal bond or undertaking under the F.E.D. statute. The defendants therefore lack standing to challenge the constitutionality of the provisions in the FEED. statute requiring litigants to post a bond or undertaking on appeal."); Williams v. City & County of Denver, 622 P.2d 542, 545 (Colo.1981)("[Wle conclude that Williams cannot attack the constitutionality of those provisions of the Code which do not apply to the acts or omissions which were the basis for the charges in this case."); cf. Denver Ass'n for Retarded Children, Inc. v. Sch. Dist. No. 1, 188 Colo. 310, 315, 535 P.2d 200, 204 (1975) (defendant political subdivision of the state lacked standing to challenge constitutionality of state statute). .
Nor did the court in Battle Mountain address or disapprove of cases from this court applying traditional standing analysis to preclude defendants from raising constitutional statutory challenges. See, e.g., People in Interest of R.J.A., supra; People in Interest of E.I.C., 958 P.2d 511 (Colo.App.1998).
The affirmative defense at issue in Battle Mountain also did not raise the constitutionality of a statute. The same is true of the defense in People ex rel. Simpson v. Highland Irrigation Co., 893 P2d 122, 127 (Colo.1995)(cited with approval in Battle Mountain
In contrast, mother's constitutional challenge raised more than an affirmative defense, as was raised in Battle Mountain, supra (statute of limitations), and was not "defensive claim only," as was the claim in Highland Irrigation Co., supra, 893 P.2d at 127. Her motion was not limited to resolution of the department's petition in this action, but if successful would have voided § 19-3-508(8)(b) and precluded proceedings on the basis of service by publication in all future dependency and neglect proceedings. Hence, we treat it more like "an independent cause of action." Highland Irrigation Co., supra, 893 P.2d at 127, than a purely defensive assertion.
Accordingly, we are guided by traditional standing principles that require us to consider whether mother has standing to challenge the constitutionality of § 19-8-508(8)(b).
C. Elements of Standing
A claimant has standing to challenge the constitutionality of a statute if (1) the claimant suffered an actual injury (2) to a legally protected interest. Ainscough v. Owens, 90 P.3d 851, 855 (Colo.2004). Parental rights constitute a legally protected interest. L.L. v. People, 10 P.3d 1271, 1275-76 (Colo.2000)("the interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized by this Court" (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000))).
"A plaintiff satisfies the injury in fact requirement by demonstrating that the activity complained of has caused or has threatened to cause injury to the plaintiff:..." Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286, 1289 (Colo.1992). We consider whether the claimant is "personally adversely affected by the particular constitutional defect asserted." People v. Lee, 717 P.2d 493, 495 (Colo.1986); accord DiLeo v. Bd. of Regents, 196 Colo. 216, 221, 590 P.2d 486, 489 (1978); People v. Stage, 195 Colo. 110, 113, 575 P.2d 423, 425 (1978).
But the injury in fact requirement cannot be satisfied by self-inflicted harm. Nova Health Sys. v. Gandy, 416 F.3d. 1149, 1157 n. 8 (10th Cir.2005) (collecting cases); see also Petro-Chem Processing, Inc. v. Envtl. Prot. Agency, 866 F.2d 433, 438 (D.C.Cir.1989) ("to the extent that this injury is self-inflicted, it is 'so completely due to the [complainant's] own fault as to break the causal chain'" (quoting 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3581.5, at 458 (2d ed.1984))); cf. Koolvent Metal Awning Corp.
The selfinflicted injury limitation on standing has not been addressed in Colorado. In Wimberly v. Ettenberg, 194 Colo. 163, 169, 570 P.2d 535, 539 (1977), the court distinguished the plaintiff's alleged injury in fact to a protected legal right, which "can be decided by the court as a matter of law in the preliminary inquiry on standing," from action of the defendant that caused the alleged injury, which is "properly reserved for the trier of fact and is the primary question to be resolved on the merits." The court emphasized the importance of a merits determination by the fact finder "pursuant to due process that the injury in fact to plaintiffs legally protected right resulted from the alleged action of the defendant." Wimberly v. Ettenberg, supra, 194 Colo. at 169, 570 P.2d at 539.
The dissent correctly points out that the federal self-inflicted injury cases intertwine standing and causation. Nevertheless, we do not perceive Wimberly as foreclosing this limitation on standing, particularly on the record before us.
Standing cases since Wimberly have cast the injury in fact requirement in terms of causation. See Romer v. Colo. Gen. Assembly, 810 P.2d 215, 218 (Colo.1991)(injury in fact can be proved by showing that "the action complained of has caused or has threatened to cause injury" (quoting Wimberly, supra, 194 Colo. at 168, 570 P.2d at 539)); accord Dunlap v. Colo. Springs Cablevision, Inc., supra, 829 P.2d at 1289.
Further, even if Wimberly requires causation to be determined on the merits, here the findings that establish mother's self-inflicted injury-she "hid" and "concealed herself"were made by the court on the merits after a hearing at which mother was represented by counsel. Hence, our reliance on the trial court's findings to resolve standing does not deprive mother of "a judgment on the merits ... pursuant to due process." Wimberly v. Ettenberg, supra, 194 Colo. at 168, 570 P.2d at 539.
And for the latter reason, the department's failure to raise standing below does not diminish the significance of these findings. See Dunlap v. Colo. Springs Cablevision, Inc., supra, 829 P.2d at 1289 (the standing inquiry is "inextricably tied to the merits of the case").
Finally, service by publication has been held constitutional under appropriate cireamstances, Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), and cannot be presumed to be prejudicial. Thus, a party subject to a court's jurisdiction based on service by publication must show prejudice to establish standing for a due process claim. Cf. Deck v. Missouri, 544 U.S. 622, 635, 125 S.Ct. 2007, 2016, 161 L.Ed.2d 953 (2005) (due process violation found because defendant's appearance before jury in shackles inherently prejudicial).
Therefore, we turn to applying these elements, and conclude that mother lacks standing.
III. Application
Initially, we must distinguish between two injuries. First, the court proceeded on the basis of service by publication, which mother testified that she never saw, and therefore, she did not know of her legal rights before the child was adjudicated. Second, mother lost custody of her child through the adjudication before she appeared, and eventually lost her parental rights. Both of these injuries involve legally protected interests. See Ainscough v. Owens, supra.
The trial court's proceeding on the basis of service by publication is "the particular constitutional defect asserted." People v. Lee, supra, 717 P.2d at 495; see People in Interest of R.J.A., supra, 994 P.2d at 473 (where mother brought an equal protection challenge to a statute providing a limited time to comply with a treatment plan, legal interest was in the amount of time to determine compliance and not mother's ultimate loss of parental rights). Its direct result is lack of notice to mother of her legal rights. Cf. Walker v. City of Hutchinson, Kan., 352 U.S. 112, 116, 77 S.Ct. 200, 200, 1 L.Ed.2d 178
In contrast, lack of actual notice to mother of her legal rights before the adjudication caused her to lose custody of the child only if she had a meritorious defense to the adjudication, which she would have asserted. However, mother did not testify to any such defenses or that if notified of her legal rights, she would have come out of hiding to appear in court and assert them.
Hence, in our view she must prove injury in terms of lack of actual notice of her legal rights, not on speculation as to the indirect consequences of lack of notice-loss of custody through the adjudication. We conclude that such lack of notice resulted from her actions in concealing herself from law enforcement, the court, and the department.
To prove that the statute was unconstitutional as applied, mother had to show that the department did not exercise due diligence in trying to find her, at least before the trial court adjudicated the child, if not earlier before it defaulted her based on service by publication. In attempting to make this showing at the hearing, she testified at length about her periods of incarceration, her limited communications with the department, her understanding of court proceedings involving the child, and her ongoing efforts to avoid the authorities following her release from the Pueblo County Jail in 2004.
Mother's motion to set aside the adjudication argued that the department did not exercise due diligence because it allegedly knew "that mother was in the Pueblo area," yet it published the notice in Huerfano County. At the conclusion of the hearing, mother made a lengthy oral argument concerning events before the adjudication, focusing on" the department's failure to give her notice at least by "publication for four weeks."
Thus, in litigating the alleged due process violation, mother had ample opportunity to show what additional efforts the department could have made to contact her, despite her concealment; the department's knowledge of her whereabouts; and how she would have responded, such as by participating in the treatment plan, had she received actual notice. Because mother had a hearing on the merits of her due process claim, the procedural defect at issue-proceeding on the basis of service by publication-does not itself deprive her of the opportunity to show prejudice-lack of actual notice of her legal rights. See Town of Somerset v. Montgomery County Bd. of Appeals, 245 Md. 52, 66, 225 A.2d 204, 302 (1966) (denial of cross-examination prevents showing of prejudice based on what cross-examination could have established).
The department filed the petition on July 8, 2004, and the trial court entered default against mother based on the August 25 return date. The trial court found that during this seven-week period mother was in hiding.
Mother's own' testimony supports the court's findings. She admitted she knew "that there was going to be court involvement" with the child on June 30, 2004, but did not attend that proceeding in person or even by telephone, as the caseworker had suggested. And although she had promised to meet the caseworker on July 7, 2004, and sign documents authorizing medical procedures for the child, she did not do so.
She explained that because of an outstanding probation violation, she had been "pretty much on the run from the law, for 4[sic] years," which ended with her 2008 incarceration in Huerfano County. After her release, from the Pueblo County Jail in June 2004, she was "on the run ... because [of] the probation again." She never contacted the court.
In her supplemental brief on standing, mother urges us to focus on the time between July 8, 2004, when the petition was filed, and November 2, 2004, when the child was adjudicated, as "the only relevant period." ' But mother initiated no contact with the department or the court during this time, and according to the trial court's findings she remained in hiding. _
Due diligence to ascertain the identity of interested parties before service by publication satisfies due process. Lobato v. Taylor, 70 P.3d 1152, 1161 (Colo.2003)(property ownership case). The same standard applies to termination of parental rights.
Based on the testimony of mother and the caseworker at the termination hearing, the trial court reaffirmed its finding that the department had acted with due diligence in attempting to locate her. However, even assuming the department could have made greater efforts to locate mother before the adjudication, we would still conclude that her lack of actual notice would be self-inflicted because: of her willful concealment from the court.
Her avowed intent to avoid the authorities strongly indicates that even if found and personally served, she would not have appeared in court to assert her rights. Indeed, mother's first contact with the court was on the county attorney's motion to have her transported from jail, some eighteen months after the child had been adjudicated. Cf. People in Interest of R.J.A., supra, 994 P.2d at 473 ("the record fails to establish that, even if mother had been given 18 months to comply, there is any reasonable possibility that she would have complied with the treatment plan"). Thus, the trial court's findings that mother concealed herself during the adJudicatory phase and that the department sought her with due diligence remove any question of comparative fault in applying the self-inflicted injury rule. See St. Pierre v. Dyer, 208 F.3d 394, 402 (2d Cir.2000) (the injury "is so completely due to the plaintiff's own fault as to break the causal chain.").
Because mother does not ask us to consider what notice the department might have provided her in 2005, we decline to address comparative fault in the context of that year, when the department knew of her reinearcer-ation. Such a broader inquiry is irreconcilable with the "self-restraint" that the Moody court "derived from the contours of our adversarial system, in which 'appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.'" Moody, supra, 159 P.3d at 614 (quoting Rose v. United States, 629 A.2d 526, 536-37 (D.C.1993)).
Applying the self-inflicted injury limitation is particularly appropriate here because concealment would be improperly rewarded if a person who hides from the authorities to avoid an outstanding probation violation nevertheless would have standing to raise lack of actual notice. See Marks v. Comm'r, 947 F.2d 983, 986 (D.C.Cir 1991) ("It is quite apparent that the reasons the [taxpayers] kept the Commissioner-and the government-unapprised of their whereabouts was because they were fugitives from criminal prosecution. [They cannot] turn around and blame the Commissioner for not finding them -..."); see also In re Smith, 989 P.2d 165, 173 (Colo.1999) (procedural due process claim rejected because delay in disciplinary proceedings primarily fault of party being disciplined); Donahue v. Pub. Utils. Comm'n, 145 Colo. 499, 507, 359 P.2d 1024, 1028 (1961)(a person may not profit from his own wrong); cf. McGee v. Hardina, 140 P.3d 165, 168 (Colo.App.2005)(statute of limitations tolled by defendant's concealment).
Accordingly, we conclude that mother lacks standing to raise a due process challenge to the statute allowing service by publication. Because standing is jurisdictional, our conclusion forecloses inquiry into the merits of her due process arguments.
Having so concluded, we need not address the trial court's alternative determination that mother had actual notice of the proceedings from her communications with the caseworker before the shelter hearing or the significance of lack of a formal advisement of her legal rights under § 19-38-5038.
The appeal is dismissed.
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