In the Matter of: C.M. (Minor Child), Child in Need of Services and J.M. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jul 15 2019, 6:51 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel Hageman Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: July 15, 2019
C.M. (Minor Child), Child In Need Of Court of Appeals Case No.
Services 19A-JC-132
Appeal from the Marion Superior
and Court
J.M. (Mother) The Honorable Marilyn Moores,
Appellant-Respondent, Judge
The Honorable Danielle Gaughan,
v. Magistrate
Trial Court Cause No.
Indiana Department of Child 49D09-1809-JC-2284
Services,
Appellee-Petitioner.
Robb, Judge.
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Case Summary and Issue
[1] J.M. (“Mother”) appeals the juvenile court’s finding that her son, C.M., is a
child in need of services (“CHINS”). Mother raises two issues on appeal,
which we consolidate and restate as: whether the Marion County Department
of Child Services (“DCS”) presented sufficient evidence to establish that C.M.
was seriously impaired or endangered by Mother’s actions or inactions.
Concluding that DCS failed to present sufficient evidence that C.M.’s physical
or mental condition was seriously impaired or endangered as a result of
Mother’s inability, refusal, or neglect to supply C.M. with necessary food,
clothing, shelter, medical care, treatment, or rehabilitation, we reverse the
CHINS adjudication.
Facts and Procedural History
[2] Mother is the biological mother of C.M., born January 13, 2009.1 C.M. has
been diagnosed with ADHD. Mother has been diagnosed with bipolar disorder
type I, post-traumatic stress disorder, and ADHD.
I. Previous CHINS Adjudication
[3] DCS first become involved with Mother and C.M. in July 2011, and then again
in March 2016. On April 26, 2016, DCS filed a petition alleging C.M. to be a
1
K.J., C.M.’s biological father, could not be located, was defaulted, and does not participate in this appeal.
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CHINS. An initial hearing was held, and the juvenile court ordered C.M. to be
removed from Mother’s care. The court adjudicated C.M. a CHINS on July
25, 2016, upon Mother’s admission that the “family would benefit from
continued state assistance to maintain stable housing and to ensure that the
child’s educational and therapeutic needs are met; therefore, the coercive
intervention of the Court is necessary.” Exhibit Volume I at 57-58. Mother
was ordered to participate in homebased case management, a psychological
evaluation, and ongoing mental health treatment. By December 5, 2016,
Mother was complying with the ordered services, had moved into a new home,
and the case was moving toward a temporary trial home visit. On February 22,
2017, the juvenile court terminated wardship after reunification between
Mother and C.M. had been achieved.
II. Current CHINS Adjudication
[4] DCS involvement for the instant case began on September 9, 2018. Mother and
then nine-year-old C.M. were at their home when police arrested Mother for an
outstanding warrant. While at Mother’s home, the police called DCS over their
concern that C.M. would be left without a caregiver once Mother was taken
into custody. DCS investigator Yolanda Roland-Powell arrived on scene and
spoke with Mother about a plan for C.M.’s care. Roland-Powell took Mother’s
recommendation about who could care for C.M., and C.M. was initially placed
with the caregivers who Mother recommended. However, DCS removed C.M.
after two days because those caregivers informed DCS that they would not
continue to care for C.M. C.M. was subsequently placed in foster care.
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[5] On September 13, 2018, DCS filed a verified petition alleging C.M. to be a
CHINS. The petition alleged that C.M. was a CHINS, as defined in Indiana
Code section 31-34-1-1, and read in relevant part as follows:
Inability, Refusal or Neglect, I.C. 31-34-1-1: The child’s
physical or mental condition is seriously impaired or seriously
endangered as a result of the inability, refusal, or neglect of the
child’s parent, guardian, or custodian to supply the child with
necessary food, clothing, shelter, medical care, education, or
supervision; and the child needs care, treatment, or rehabilitation
that the child is not receiving; and is unlikely to be provided or
accepted without the coercive intervention of the Court.
[Factual Allegations:]
a. [Mother] has failed to provide the child with a safe, stable,
and appropriate living environment.
b. [Mother] was recently arrested and incarcerated leaving
[C.M.] without a legal, appropriate caregiver to provide him with
basic care and necessities.
c. [Mother] struggles with mental health issues that seriously
hinder her ability to care for [C.M.], and she has been exhibiting
behaviors that suggest her mental health issues are not
adequately being treated.
d. [C.M.] disclosed he does not get enough food to eat.
e. The family has a history with [DCS] due to substance
abuse and mental health issues, and services were offered
through a prior [CHINS] action.
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f. Despite prior services offered, [Mother] continues to
demonstrate an inability to provide [C.M.] with a safe, stable
home, and [C.M.] and family are in need of services they are not
receiving and are unlikely to receive without the DCS’ and the
Court’s involvement.
*****
i. Due to the foregoing reasons, the coercive intervention of
the Court is required to ensure [C.M.’s] safety and well[-]being.
Appellant’s Appendix, Volume II at 33-34. The petition also noted that C.M.
had been removed from Mother’s care.
[6] That same day, the juvenile court conducted an initial hearing. Mother was out
of custody and appeared for the hearing. The court ordered (among other
things) the continued removal of C.M. from Mother’s care and ordered DCS to
provide Mother with any services in which she was willing to participate.
[7] The juvenile court held a factfinding hearing on two separate days, October 29,
2018 and November 19, 2018.2 On November 19, 2018, at the conclusion of
the hearing, the court adjudicated C.M. a CHINS. On November 28, 2018, the
court entered a written order that contained the following findings regarding its
CHINS determination:
2
Mother’s attorney requested, and the juvenile court granted, an additional day for the factfinding hearing so
that Mother could present witnesses that were not available on the first day of the hearing.
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1. [C.M.] is a minor child whose date of birth is January 13,
2009.
2. The mother of [C.M.] is [J.M.] (Mother).
3. The father of [C.M.] is [K.J.] (Father).
4. The whereabouts of Father are unknown and he is set for a
default hearing on January 7, 2019 at 1:30 PM.
5. A child in need of services petition was filed on September
13, 2018, because Mother was arrested on or about September
9[,] 2018 leaving [C.M.] without a caregiver. The DCS
[investigator], Yolanda Rowland-Powell was called to Mother’s
home and Mother was being arrested. Mother was very rude and
was speaking over Ms. Rowland-Powell and the police officer.
Ms. Rowland-Powell was trying to obtain information from
Mother regarding possible placements for [C.M.] but the person
Mother suggested could not keep [C.M.]. [C.M.] was therefore
removed and placed in foster care.
6. An initial hearing was held on September 13, 2018 and the
Court ordered the continued removal of [C.M.] from Mother’s
care. By the time of the initial hearing Mother had been released
from jail and appeared at the initial hearing. After the initial
hearing Mother was loud and disruptive in the hallway yelling
“When can I see my kid; when can I see my f***ing kid?” The
assigned [family] case manager [“FCM”], Brandi Whitaker, was
concerned for her own safety after the initial hearing and an
officer walked her to her car. Mother was yelling at Ms.
Whitaker in the parking lot as she went to her car. Mother has
since left belligerent, rude and vulgar voicemails for FCM
Whitaker.
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7. On September 16, 2018, Mother was at the hospital and
was being loud and disruptive. Mother was reporting that her
boyfriend had hit her in the head with a pipe. Mother called one
of the nurses a “millennial c***.” Hospital staff was working to
subdue and medicate Mother and she kicked a charge nurse and
also kicked a police officer in the ribs. Mother required arm and
leg restraints because of her violent demeanor. As a result of this
incident, Mother was charged with Battery on an Officer and
Disorderly Conduct.
8. Mother does not have stable housing. After Mother was
released from jail, a team meeting was held and Mother
requested visits with [C.M.] in her home. The team had no
objection to visits in Mother’s home so long as a home check
found the home to be appropriate. When DCS went to check the
home, the home did not have a working furnace and Mother had
to be out of the home in five hours.
9. Mother has been aggressive and threatening toward people
in the community. Mother was attending City View Christian
Center until she threatened a previous head pastor and he
dismissed her. A new pastor, Chad Fulkerson, allowed Mother
back into the church, at the request of Mother’s husband, but
Mother began threatening the new pastor as well. The church
has an 18[-]month in[-]house drug treatment program called
SWAT (servant with a testimony) that Mother’s husband,
[R.W.], participated in. Mother threatened to shoot up the
SWAT house. Mother told the new pastor that people in the
neighborhood would lynch him and that his family and
congregation were in danger. Mother has also threatened to kill
herself and has told the pastor that she would frame him for her
murder.
10. Mother has disclosed that she has been diagnosed bipolar
but that she does not believe that. Mother thinks that she is
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possessed by a demon. Mother has stated that she self-medicates
with THC and will not take “man’s medicine.”
11. Mother has also threatened a member of the City View
Christian Church. Mother has left him voicemails that are
rambling, threatening and vulgar stating, in part, “Tell your
f***ing c*** leader you guys are a cult; you are f***ing child
molesters. You are cool aid drinking, d*** sucking child
molesters. You can suck my fat a** and the horse it rode in on . .
. b****. Tell him [pastor] that I will f*** him up if [R.W.] [her
husband] relapses. I’m going to f*** him up.”
12. Mother’s testimony at trial was rambling, often
non-responsive, and very difficult to follow. Mother stated that
she is not a member of the City View Christian Church but her
husband has been for the last twelve years. Mother stated that
the recent change of pastors has been bad for the church and she
does not get along with him. Mother stated that [P]astor
Fulkerson hid her husband in the church and that her husband
was brainwashed through the church. Mother stated that the
church helped her husband get clean through their drug
treatment program but that the church “is in cahoots”. Mother
stated that it was one of Pastor Fulkerson’s “cronies” that hit her
in the back of the head and sent her to the hospital and denies
telling the nurse at the hospital that her husband hit her.
13. Mother has a history with DCS because of her mental
health issues that seriously hinder her ability to care for [C.M.].
Mother’s recent behaviors demonstrate that her mental health
issues are not being adequately treated.
14. The child’s physical or mental condition is seriously
impaired or seriously endangered as a result of the inability,
refusal or neglect of the child’s parent to supply the child with
necessary food, clothing, shelter, medical care, education or
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supervision. By her own admission[,] Mother has mental health
issues but does not want to take medication. Mother has
repeatedly exhibited threatening and volatile behaviors. She has
acted aggressively toward a church pastor, community members,
hospital staff, law enforcement and her DCS case manager.
15. The child needs care, treatment or rehabilitation the child is
not receiving and is unlikely to be provided or accepted without
the coercive intervention of the court. Mother is volatile and
uncooperative and is unlikely to receive the services she requires
without the coercive intervention of the Court.
Appellant’s App., Vol. II at 89-92.
[8] On December 17, 2018, the court held a dispositional hearing and issued an
order that same day. The order provided in relevant part as follows:
[P]ursuant to this dispositional decree . . . it is in the best interests
of [C.M.] to be continued removed [sic] from the home
environment and remaining in the home would be contrary to
the welfare of the child because:
• the allegations [are] admitted or found to be true.
• the child has special needs that require services for care
and treatment that cannot be provided in the home[.]
Id. at 95. The order also provided the following regarding Mother:
The Court finds a rational basis for Mother to participate in [a
homebased counseling program (“HBCM”)], screens, a
psychological evaluation, and a substance abuse assessment in
the event Mother screens positive or misses screens and in
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support. Additionally, the Court orders Mother to sign the
necessary release of information so that DCS can obtain
Mother[’s] mental health records from the Hamilton Center. In
support of the foregoing, the Court finds the following:
1. Mother has agreed there is a rational basis for the HBCM.
Additionally, Mother would benefit from the assistance of
HBCM to obtain and maintain stable housing.
2. Mother has prior DCS involvement because of mental health
issues and her recent volatile and aggressive behaviors are
evidence of ongoing untreated mental health issues and therefore
Mother would benefit from a psychological evaluation.
3. There have been concerns that Mother is abusing alcohol and
uses marijuana to [self-medicate] and therefore the random drug
screens will monitor Mother’s sobriety.
Id. at 97. Mother now appeals. Additional facts will be provided as necessary.
Discussion and Decision
I. Standard of Review
[9] Mother challenges the sufficiency of the evidence to support the CHINS
determination. She contends that DCS failed to establish that C.M. was
seriously impaired or endangered by her actions or inactions. We agree.
[10] When reviewing the sufficiency of evidence, we give due regard to the trial
court’s ability to assess the credibility of witnesses. In re Des.B., 2 N.E.3d 828,
836 (Ind. Ct. App. 2014). We neither reweigh evidence nor judge witness
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credibility; rather, we consider only the evidence and reasonable inferences
most favorable to the trial court’s decision. Id. Where the trial court issues
findings of fact and conclusions thereon, we apply a two-tiered standard of
review. In re R.P., 949 N.E.2d 395, 400 (Ind. Ct. App. 2011). We consider first
whether the evidence supports the findings and then whether the findings
support the judgment. Id. We will set aside the trial court’s findings and
conclusions only if they are clearly erroneous and a review of the record leaves
us firmly convinced that a mistake has been made. Id. “Findings are clearly
erroneous only when the record contains no facts to support them either
directly or by inference.” K.B. v. Ind. Dep’t of Child Servs., 24 N.E.3d 997, 1001-
02 (Ind. Ct. App. 2015) (citation omitted). “A judgment is clearly erroneous if
it relies on an incorrect legal standard.” Id. at 1002.
[11] In a CHINS proceeding, DCS bears the burden of proving by a preponderance
of the evidence that a child meets the statutory definition of a CHINS. In re
N.E., 919 N.E.2d 102, 105 (Ind. 2010). In the instant case, to meet its burden of
establishing CHINS status, the State must prove that the child is under age
eighteen,
(1) the child’s physical or mental condition is seriously impaired
or seriously endangered as a result of the inability, refusal, or
neglect of the child’s parent, guardian, or custodian to supply the
child with necessary food, clothing, shelter, medical care,
education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that:
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(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
Ind. Code § 31-34-1-1. Our supreme court has interpreted the statute to require
“three basic elements: that the parent’s actions or inactions have seriously
endangered the child, that the child’s needs are unmet, and (perhaps most
critically) that those needs are unlikely to be met without State coercion.” In re
S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).
[12] Although the acts or omissions of one or both parents can cause a condition
that creates the need for court intervention, the CHINS designation focuses on
the condition of the child rather than on an act or omission of the parent(s). In
re N.E., 919 N.E.2d at 105. In other words, despite a “certain implication of
parental fault in many CHINS adjudications, the truth of the matter is that
a CHINS adjudication is simply that—a determination that a child is in need of
services.” Id. When determining whether a child is a CHINS under Indiana
Code section 31-34-1-1, the juvenile court “should consider the family’s
condition not just when the case was filed, but also when it is heard.” In re
S.D., 2 N.E.3d at 1290.
II. Sufficiency of the Evidence
[13] Mother argues that DCS presented insufficient evidence to establish that her
“mental health and perceived lack of housing . . . seriously endanger[ed] or
impair[ed] C.M.” Brief of Appellant at 16. She also challenges four of the
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juvenile court’s factual findings as being “misleading or not supported by the
evidence[,]” namely that, (1) she did not have stable housing; (2) she yelled at
or made threatening gestures toward FCM Whitaker; (3) she does not believe
she suffers from bipolar disorder and she self-medicates with marijuana; and (4)
C.M. has needs that are unlikely to be addressed without coercive intervention
of the court. Id. at 14. DCS maintains that the record supports the factual
findings that Mother challenges and that her arguments to the contrary are
requests to this court to reweigh the evidence, which we cannot do. According
to DCS, the juvenile court did not err in adjudicating C.M. a CHINS because
“Mother had unresolved mental health issues[; h]er actions both before and
during the CHINS case showed that she was not getting treatment, and even if
she was, it was not effective[; and] . . . Mother battered a nurse and a police
officer, kicking them violently when they were trying to treat her.” Brief of
Appellee at 17. We conclude that the evidence in this case of Mother’s mental
health issues, allegations of self-medication with marijuana, her one-time move
from a home with a faulty furnace to a motel, and her abrasive and (at times)
combative behavior, without more, does not establish a sufficient nexus
between Mother’s actions or inactions and any actual endangerment to C.M. to
demonstrate that C.M. has been seriously endangered for purposes of Indiana
Code section 31-34-1-1.
[14] Jeanette Strong, a care manager at Hamilton Center in Plainfield, testified that
at the time of the factfinding hearing, Mother was voluntarily engaged in a
treatment program for her diagnoses for bipolar disorder type I, post-traumatic
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stress disorder, and ADHD; and, she was taking prescribed medication. Strong
further testified that she works with Mother on parenting skills, emotional
regulation, and social skills, and that she also helps ensure that Mother takes
her prescribed medication by requiring her to submit to tests administered
during doctor appointments. FCM Whitaker testified that Mother’s behavior
gave her concern about whether Mother’s mental health issues are being treated
properly. However, no evidence was presented that C.M. was seriously
impaired or endangered by Mother’s mental health issues. See, e.g., L.N. v. Ind.
Dep’t of Child Servs. (In re L.N.), 118 N.E.3d 43, 49 (Ind. Ct. App. 2019) (“We
understand that Mother’s mental illness . . . may be a cause for concern for
DCS. But a cause for concern is not the touchstone of a CHINS determination,
and an unspecified concern about what might happen in the future is
insufficient in itself to carry the State’s burden of proof.”).
[15] FCM Whitaker also testified that she questioned whether Mother had stable
housing. She noted that Mother left her previous home because it did not have
a furnace and that she was living in a motel while transitioning to a new home.
However, no evidence was presented that FCM Whitaker had visited either
dwelling, and she did not present testimony regarding how the one-time move
from the home to the motel seriously impaired or endangered C.M. Mother
testified that she moved out of her previous home because the landlord did not
properly maintain the furnace, and that she was living at the motel while she
looked for an apartment. Mother also testified that the motel room included,
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among other things, heat, two rooms with separate beds, one of which could be
C.M.’s, a refrigerator, hotplate, microwave, and crockpot.
[16] DCS alleged in its CHINS petition that C.M. was “not get[ting] enough food to
eat[,]”3 and FCM Whitaker testified at the factfinding hearing that “it’s
alarming to me that [C.M.] states he does not want to see [Mother].”
Appellant’s App., Vol. II at 33; Transcript of Evidence, Volume II at 53. While
testimony was presented at the factfinding hearing regarding whether Mother
could provide C.M. with healthy meals, no evidence was presented that
indicated C.M. was insufficiently nourished. Also, there was no evidence
presented to explain why C.M. did not want to see Mother.
[17] Regarding Mother’s profane behavior, there is scant evidence in the record
regarding how the behavior endangered C.M. The only evidence presented on
this matter was Pastor Fulkerson’s recollection that “[C.M. has] been at the
church before – when [Mother has] gotten loud and crazy with people.” Tr.,
Vol. II at 39-40.
[18] With respect to Mother’s marijuana use and alcohol consumption, evidence
was presented at the factfinding hearing that Mother might have used
3
The allegations that C.M. was not receiving a sufficient amount of food stem from DCS’s preliminary
investigation that included an interview that DCS investigator Rowland-Powell conducted with C.M. in
September 2018. During the interview, C.M. told the investigator that he “does not receive enough food to
eat.” Appellant’s App., Vol. II at 15. However, C.M. also told the investigator that he “feels safe at
home[.]” Id. There was no follow-up investigation, in as much as C.M. did not seem to exhibit physical
markers of malnutrition.
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marijuana to self-medicate and perhaps consumed alcohol in excess. FCM
Whitaker testified that “[i]n all of the allegations that have been called in, there
are references to either alcohol abuse or drug abuse and based on [Mother’s]
behavior – her erratic behavior, it would leave me to believe that [Mother is]
possibly using substances.” Id. at 57 (emphasis added). Evidence was presented
that Mother might have been intoxicated when she arrived at the hospital due
to the alleged head injury, and FCM Whitaker noted at the dispositional
hearing that Pastor Fulkerson testified, and C.M. “has stated[, that]
occasionally . . . [Mother drinks] excessively.” Id. at 105. However, no
evidence was presented regarding when, where, or how many times C.M. had
seen Mother use marijuana or consume alcohol in excess. And, there is
nothing in the record to show that Mother ever used marijuana in C.M.’s
presence. See, e.g., Ad.M. v. Ind. Dep’t of Child Servs., 103 N.E.3d 709, 714 (Ind.
Ct. App. 2018) (children were not CHINS despite Mother’s history of sporadic
marijuana use because there was no evidence that, at any point and time, any of
the children were endangered, that the parents had ever used drugs in the
presence of the children, or that there was ever an occasion in which the parents
were impaired by substance abuse while the children were in their care).
[19] The only evidence that C.M. might have needed treatment was regarding his
diagnosis of ADHD. While conflicting evidence was presented as to whether
C.M. had consistently taken medication in the past for his ADHD, FCM
Whitaker testified at the factfinding hearing that there was no current
recommendation for C.M. to take any medication for his ADHD. Also, no
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evidence was presented that Mother failed to administer prescribed medication
to C.M. for his ADHD.
[20] Here, while the facts established that Mother was undergoing treatment for
mental health issues, exhibited rude, aggressive, and at times combative
behavior, used profanity, had problems with her living arrangements, may have
self-medicated with marijuana, and displayed an attitude toward DCS staff and
services that was less than obsequious and was at times hostile, this did not
relieve the State of its burden to prove by a preponderance of evidence that
C.M. was endangered by Mother’s actions or inactions. DCS did not present
sufficient evidence to support a reasonable inference that Mother’s actions or
inactions harmed C.M. in any way or prevented her from providing for C.M.’s
needs, or that C.M.’s needs would go unmet without coercive court
intervention. Mother may have acted and/or reacted badly towards other people
but no evidence was presented that she behaved poorly toward C.M. Without
evidence in the record of the impact of Mother’s problems on C.M., the
determination that C.M. was seriously endangered by Mother’s actions or
inactions is speculation. We therefore conclude that the juvenile court’s
determination that C.M. is a CHINS was clearly erroneous.
Conclusion
[21] Based on the foregoing, we find that DCS presented insufficient evidence to
establish by a preponderance of the evidence that C.M. was a CHINS.
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Accordingly, we reverse the juvenile court’s adjudication that C.M. is in need of
services.
[22] Reversed.
Baker, J., and Najam, J., concur.
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