J-A26022-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF OF: A.E.J., A MINOR : PENNSYLVANIA : : APPEAL OF: A.R.J., FATHER : : : : : No. 745 WDA 2024
Appeal from the Decree Entered May 21, 2024 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 30 in Adoption 2024
BEFORE: BOWES, J., BECK, J., and BENDER, P.J.E.
MEMORANDUM BY BECK, J.: FILED: February 3, 2025
A.R.J. (“Father”) appeals from the decree entered by the Erie County
Orphans’ Court (“orphans’ court”) involuntarily terminating his parental rights
to A.E.J., born in June 2022. This case returns to us following remand after
Father’s appointed counsel, Attorney Patrick W. Kelley, failed to comply with
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), in his initial petition to withdraw as
counsel and letter advising Father of his rights under Anders/Santiago.
Attorney Kelley has now filed an amended petition to withdraw and letter
properly advising Father of his rights under Anders/Santiago. Upon review,
we grant Attorney Kelley’s petition to withdraw and affirm the decree
terminating Father’s parental right to A.E.J. J-A26022-24
On January 18, 2023, the orphans’ court removed A.E.J. from the care
of C.E.J. (“Mother”) on the basis that A.E.J. was without proper care or control
after the Erie County Office of Children and Youth (“OCY”) discovered Mother
using illegal drugs in A.E.J.’s presence and leaving drug paraphernalia within
A.E.J.’s reach. Dependency Petition, 1/23/2023, at 3-4.1 At that time, Father,
who has a long criminal history, was incarcerated with pending charges and
thus unable to care for A.E.J. Id. at 4; see also N.T., 5/21/2024, Exhibit 8.
The orphans’ court held an adjudication hearing on January 31, 2023,
at which Father was present. Order of Adjudication, 2/6/2023, at 1. Father
stipulated to the following allegations in the dependency petition:
(a) [Father] has not been in a caregiving role for the child. He is currently incarcerated at the Erie County Prison and is unable to care for the child;
(b) [Father] has a history of mental health diagnoses, including reaction to severe stress and adjustment disorder, episodic mood disorder, and cannabis related disorders/cannabis dependence. It is not known if [Father] is receiving any mental health treatment;
(c) [Father] has a history of substance abuse. It is not known if he is treating for substance abuse; and
(d) [Father] has a criminal history, including possession of small amount of marijuana for personal use, theft by unlawful taking, workers’ compensation insurance fraud, and false identification to law enforcement. [Father] has pending criminal charges for possession with intent to deliver (4 counts), possession of a controlled substance (11 counts), possession of small amount of marijuana for personal use, possession of drug paraphernalia, ____________________________________________
1 At the termination hearing, the orphans’ court admitted into evidence the dependency docket and its relevant filings as Exhibits 1 through 9. See N.T., 5/21/2024, at 4, Exhibits 1-9.
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possession of firearms prohibited, firearms not to be carried without a license, possession of instrument of crime, tampering with physical evidence, and simple assault.
Dependency Petition, 1/23/2023, at 3-4 (typographical errors corrected;
unnecessary capitalization omitted).
On February 6, 2023, the orphans’ court adjudicated A.E.J. dependent
with the permanency goal of reunification. Id. at 1-2. Father agreed to the
following treatment plan:
1. Submit to genetic testing to establish paternity;
2. While incarcerated, avail himself of any appropriate services or treatment and follow recommendations.
Once released from incarceration:
3. Refrain from the use of drugs and alcohol and participate in random urinalysis screens through the color code program at Esper Treatment Center;
4. Participate in a drug and alcohol assessment through Erie County Office of Drug and Alcohol and follow all recommendations;
5. Participate in a mental health evaluation and follow all recommendations;
6. Demonstrate the ability to maintain safe and stable housing, with working utilities, safe home conditions, and safe individuals in the home;
7. Obtain and/or maintain employment or other source of income to ensure the needs of the child can be met;
8. Participate in an agency approved parenting program and demonstrate the ability to understand the child’s medical, dental, and educational needs, while also understanding physical and emotional needs, and;
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9. Attend the child’s medical appointments and follow all recommendations. Participate in an Early Intervention evaluation and follow through with services if child qualifies.
Order of Adjudication, 2/6/2023, at 3-4.
On March 9, 2023, Father pled guilty to one count of persons not to
possess firearms and two counts of possession with the intent to deliver a
controlled substance. N.T., 5/21/2024, Exhibit 8. On April 27, 2023, he
received an aggregate sentence of six to twelve years in prison.
During the March 5, 2024 permanency review hearing, OCY requested
that the orphans’ court change A.E.J.’s permanency goal to adoption. Court
Summary, 3/5/2024, at 14. OCY indicated that Mother continued to struggle
with substance use and mental health disorders and had expressed her desire
to voluntarily relinquish her parental rights. Id. OCY further asserted that
Father would remain incarcerated, at a minimum, for the next several years
and thus would be unable to achieve reunification in a timely fashion. Id. The
next day, the orphans’ court changed A.E.J.’s permanency goal to adoption.
Permanency Review Order, 3/6/2024.
On March 13, 2024, OCY filed a petition to involuntarily terminate
Father’s rights to A.E.J. On May 21, 2024, the orphans’ court held a hearing
on the termination petition for which Father was present and testified. The
same day, the orphans’ court issued a decree involuntarily terminating
Father’s parental rights to A.E.J. pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(5), and (8), and finding, pursuant to 23 Pa.C.S. § 2511(b), that termination
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best served the developmental, physical, and emotional needs and welfare of
A.E.J.2
Father timely appealed and Attorney Kelley simultaneously filed a notice
of his intention to withdraw pursuant to Anders/Santiago. See Pa.R.A.P.
1925(a)(2)(i), (c)(4). The orphans’ court subsequently filed a Pa.R.A.P.
1925(a) opinion.
When an Anders/Santiago brief is before this Court, we may not
review the merits of any possible underlying issues without first examining
counsel’s request to withdraw. In re Adoption of B.G.S., 240 A.3d 658, 661
(Pa. Super. 2020); see also In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super.
2004) (explaining that the Anders/Santiago procedure for court-appointed
counsel seeking to withdraw has been extended to appeals involving
termination of parental rights).
To withdraw pursuant to Anders, counsel must “petition the court for
leave to withdraw stating that, after making a conscientious examination of
the record, counsel has determined that the appeal would be frivolous[.]” In
re J.D.H., 171 A.3d 903, 907 (Pa. Super. 2017) (citation omitted).
Additionally, counsel must file an Anders brief that satisfies the following
criteria:
(1) provide a summary of the procedural history and facts, with citations to the record; ____________________________________________
2 By the same decree, the orphans’ court also terminated Mother’s parental rights to A.E.J.
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(2) refer to anything in the record that counsel believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
B.G.S., 240 A.3d at 661 (quoting Santiago, 978 A.2d at 361).
Finally, counsel also must provide a copy of the Anders brief to the
client, along with a letter that advises his client of the immediate right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)
raise any points that the appellant deems worthy of the court’s attention in
addition to the points raised by counsel in the Anders brief.” In re X.J., 105
A.3d 1, 4 (Pa. Super. 2014) (citation and brackets omitted).
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Id. Our independent review is not limited to the issues that
counsel discussed in the Anders brief, but extends to “additional, non-
frivolous issues” that counsel may have overlooked. J.D.H., 171 A.3d at 908
(citation omitted). An appeal is frivolous when it “lacks any basis in law or
fact.” Santiago, 978 A.2d at 356 (citation omitted).
We conclude that Attorney Kelley’s petition to withdraw and Anders
brief comply with the requirements outlined above. Counsel has filed a
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petition with this Court stating that after reviewing the record, he finds this
appeal to be wholly frivolous. See Petition for Leave to Withdraw as Counsel,
9/3/2024. In conformance with Santiago, Attorney Kelley’s brief includes
summaries of the facts and procedural history of the case and discusses the
issues he believes might arguably support Father’s appeal. See Anders Brief
at 8-20. Attorney Kelley’s brief further sets forth his conclusion that the
appeal is frivolous and includes discussion of and citation to relevant authority
in support of his conclusion. Id. at 11-20.
On December 23, 2024, Attorney Kelley filed an amended petition to
withdraw with this Court and attached to the petition the amended letter he
sent to Father that fully informed Father of his immediate right to privately
retain new counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention.3 See Amended Petition to Withdraw,
12/23/2024. Because Attorney Kelley has now complied with the procedural
____________________________________________
3 As noted above, we initially determined that Attorney Kelley’s letter to Father was defective as it failed to inform him that he had the immediate right to retain new counsel, proceed pro se, or raise any issues he deems worthy of this Court’s attention in addition to the points Attorney Kelley raised in the Anders brief. See Letter, 9/3/2024. We denied Attorney Kelley’s petition to withdraw and directed Attorney Kelley to file an amended petition to withdraw with this Court within ten days of the filing date of this decision and attach to the petition the amended letter he sent to Father that fully informed Father of his rights. We also permitted Father twenty days to raise additional issues, either through privately retained counsel or pro se, following the filing of Attorney Kelley’s amended petition to withdraw and amended letter. Father did submit any additional filings to this Court.
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requirements for withdrawing from representation, we turn our attention to
the issues he raised in the Anders brief:
1. Did the orphans’ court commit an abuse of discretion or error of law when it concluded that [OCY] established sufficient grounds for termination under 23 Pa.C.S.[] § 2511[(a)]?
2. Did the orphans’ court commit an abuse of discretion or error of law when it concluded that termination of [Father]’s parental rights was in [A.E.J.]’s best interests under section 2511(b)?
Anders Brief at 7 (unnecessary capitalization omitted).
Father challenges the termination of his parental rights. In reviewing
an appeal from an order terminating parental rights, we adhere to the
following standard:
In cases concerning the involuntary termination of parental rights, appellate review is limited to a determination of whether the decree of the termination court is supported by competent evidence. This standard of review corresponds to the standard employed in dependency cases, and requires appellate courts to accept the findings of fact and credibility determinations of the [orphans’] court if they are supported by the record, but it does not require the appellate court to accept the [orphans’] court’s inferences or conclusions of law. That is, if the factual findings are supported, we must determine whether the [orphans’] court made an error of law or abused its discretion. An abuse of discretion does not result merely because the reviewing court might have reached a different conclusion; we reverse for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill will. Thus, absent an abuse of discretion, an error of law, or insufficient evidentiary support for the [orphans’] court’s decision, the decree must stand. We have previously emphasized our deference to [orphans’] courts that often have first-hand observations of the parties spanning multiple hearings. However, we must employ a broad, comprehensive review of the record in order to determine whether the [orphans’] court’s decision is supported by competent evidence.
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In re Adoption of C.M., 255 A.3d 343, 358-59 (Pa. 2021) (quotation marks,
brackets, and citations omitted).
Termination of parental rights is governed by 23 Pa.C.S. § 2511, which
requires a bifurcated analysis. See id. at 359. “Initially, the focus is on the
conduct of the parent. The party seeking termination must prove by clear and
convincing evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in section 2511(a).” In re C.M.K., 203 A.3d 258,
261-62 (Pa. Super. 2019) (citation omitted). If the orphans’ court determines
the petitioner established grounds for termination under section 2511(a) by
clear and convincing evidence, the court then must assess the petition under
subsection 2511(b), which focuses on the child’s needs and welfare. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). Clear and convincing evidence is
evidence that is so “clear, direct, weighty and convincing as to enable the trier
of fact to come to a clear conviction, without hesitance, of the truth of the
precise facts in issue.” In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000)
(en banc) (quotation marks and citations omitted).
As stated above, the orphans’ court terminated Father’s rights to A.E.J.
pursuant to subsections (1), (2), (5), and (8) of section 2511(a). Orphans’
Court Opinion, 7/17/2024, at 1. “This Court may affirm the [orphans’] court’s
decision regarding the termination of parental rights with regard to any one
subsection of [s]ection 2511(a).” In re J.F.M., 71 A.3d 989, 992 (Pa. Super.
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2013). We focus our analysis on subsection (a)(2), which provides as grounds
for termination of a parent’s rights:
The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
23 Pa.C.S. § 2511(a)(2).
Father argues that the orphans’ court abused its discretion by
terminating his parental rights pursuant to section 2511(a)(2). Father’s Brief
at 14-15. He asserts that OCY failed to prove that his repeated incapacity or
neglect caused A.E.J. to be without essential parental care and that he has
not and cannot remedy the conditions that caused A.E.J. to be without
essential parental care. Id.
As this Court has explained, termination of a parent’s rights pursuant to
section 2511(a)(2) requires that the petitioner show, by clear and convincing
evidence, that the parent is presently unable to care for the child and will not
be able to care for him for the foreseeable future. Int. of A.R., 311 A.3d
1105, 1112 (Pa. Super. 2023).
A child has a right to a stable, safe, and healthy environment in which to grow, and the child’s life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting. When a parent has demonstrated a continued inability to conduct her life in a manner conducive to providing a safe environment for a child, and the behavior is irremediable as supported by clear and competent evidence, the termination of parental rights is justified.
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Id. at 1111.
The orphans’ court provided the following explanation for its decision to
terminate Father’s parental rights:
In the instant case, the record demonstrates by clear and convincing evidence that the termination of [Father]’s parental rights was proper, as [Father], through his own actions and the consequences of those actions, has made it impossible for him to alleviate the conditions that led A.E.J.’s removal in the fourteen (14) months leading up to [OCY’s petition]. In fact, at the time of A.E.J.’s removal from [Mother]’s care at six (6) months old, [Father] had never even met her due to his incarceration prior to her birth. Further, [Father] testified it will be another three (3) years and ten (10) months before he is even up for parole, at which time A.E.J. would be almost six (6) years old. Such a delay to A.E.J.’s permanency, on the chance [Father] were to be paroled at his minimum sentence, would be unconscionable and certainly not in her best interest.
Orphans’ Court Opinion, 7/17/2024, at 7.
The record reflects that A.E.J. was removed from Mother’s care because
Mother was using controlled substances, Mother kept drug paraphernalia
within A.E.J.’s reach, and medical neglect. N.T., 5/21/2024, at 7. Father,
however, was incarcerated and has been in prison since before A.E.J.’s birth.
Id. Consequently, Father’s goals when A.E.J. was adjudicated dependent
were, while incarcerated, to participate in drug and alcohol and mental health
evaluations, and follow any treatment recommendations. Id.; see also Order
of Adjudication, 2/6/2023, at 3-4. Following his release from prison, Father
was to continue following his drug and alcohol and mental health treatment
recommendations, demonstrate the ability to maintain safe and stable
housing, obtain and maintain employment, participate in an OCY-approved
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parenting program, and attend A.E.J.’s medical appointments. See Order of
Adjudication, 2/6/2023, at 3-4.
The record further reflects, however, Father has made no progress
towards achieving any of his goals. See N.T., 5/21/2024, at 9-25. Mary
Pristello (“Pristello”), A.E.J.’s OCY caseworker, testified that OCY had not
received any evidence that Father has made even minimal progress towards
his goals throughout the entirety of the dependency proceedings. Id. at 9-
10, 13-14, 16-17, 21. Pristello further testified that OCY had not received any
documentation that Father has participated in any drug and alcohol or mental
health treatment while in prison. See id. Despite evidence that a large
portion of his criminal history involved drug convictions, Father testified that
he does not need any drug and alcohol treatment because he is a seller and
not user. Id. at 14, 36. While Father did testify that he owned his own home
and was a member of the cement finishers union, and thus would likely be
able to provide stable housing and obtain employment after his release, Father
also pled guilty to additional crimes after A.E.J. was adjudicated dependent
and indicated that he has nearly four years remaining on the minimum portion
of his sentence. Id. at 34-37. Consequently, Father will not be able to work
towards any of his post-release goals for the next several years. See id.
Based on the foregoing, the evidence of record unquestionably shows
that Father is not able to presently parent A.E.J. and will be unable to do so
for the foreseeable future. See A.R., 311 A.3d at 1112. Therefore, there
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could be no finding that the orphans’ court abused its discretion in finding that
OCY presented clear and convincing evidence in support of termination
pursuant to section 2511(a)(2). See In re Adoption of S.P., 47 A.3d 817,
831 (Pa. 2012) (concluding that trial court did not abuse its discretion in
terminating incarcerated father’s parental rights under section 2511(a)(2), as
his repeated incapacity caused child to be without essential parental care,
control or subsistence, and father could not remedy the causes of the
incapacity). As such, we agree with Attorney Kelley that this claim is frivolous.
We next consider whether Father’s claim that the orphans’ court abused
its discretion by finding clear and convincing evidence to terminate Father’s
rights pursuant to section 2511(b). Section 2511(b) provides:
The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.
23 Pa.C.S. § 2511(b).
Father argues that the orphans’ court erred in this regard because
termination would not serve the best interests of A.E.J. Father’s Brief at 18-
20. Father indicated at the termination hearing that he has nine other children
and has been a constant part of all their lives. N.T., 5/21/2024, at 41.
Our analysis focuses on whether termination of parental rights would
best serve the developmental, physical, and emotional needs and welfare of
the child. T.S.M., 71 A.3d at 267. “[T]he determination of the child’s needs
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and welfare requires consideration of the emotional bonds between the parent
and child. The utmost attention should be paid to discerning the effect on the
child of permanently severing the parental bond.” Id. (quotation marks
omitted). It is not enough that there exists a bond between parent and child
to avoid termination. See Interest of K.T., 296 A.3d 1085, 1109 (Pa. 2023).
Rather, the trial court must determine whether the bond is “necessary and
beneficial” to the child, such that “maintaining the bond serves the child’s
developmental, physical, and emotional needs and welfare.” Id. at 1105-06.
Focusing upon the “child’s development, and mental and emotional health,”
the trial court should assess whether severing the bond “is the kind of loss
that would predictably cause extreme emotional consequences or significant,
irreparable harm” to the child. Id. at 1110-11.
Additionally, our Supreme Court has explained that “the parental bond
is but one part of the overall subsection (b) analysis[.]” Id. at 1113. The
needs and welfare analysis must also include the consideration of factors such
as: “the child’s need for permanency and length of time in foster care …;
whether the child is in a preadoptive home and bonded with foster parents;
and whether the foster home meets the child’s developmental, physical, and
emotional needs, including intangible needs of love, comfort, security, safety,
and stability.” Id. (citations omitted). “These factors and others properly
guide the court’s analysis of the child’s welfare and all [their] developmental,
physical, and emotional needs.” Id. Importantly, “[orphans’] courts have the
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discretion to place appropriate weight on each factor present in the record
before making a decision regarding termination that best serves the child’s
specific needs.” Id.
Thus, a court must examine the matter from the child’s perspective,
placing his “developmental, physical, and emotional needs and welfare above
concerns for the parent.” Id. at 1105. Our Supreme Court has cautioned that
“the law regarding termination of parental rights should not be applied
mechanically but instead always with an eye to the best interests and the
needs and welfare of the particular children involved.” T.S.M., 71 A.3d at
268-69. The party seeking termination bears the burden of proving, by clear
and convincing evidence, that termination of parental rights serves a child’s
needs and welfare. K.T., 296 A.3d at 1105.
With respect to its needs and welfare analysis, the orphans’ court
explained its decision at the conclusion of the termination hearing:
[OCY] has met its burden with regard to the termination of the parental rights to both parents. [Father], I understand your interest in your child’s life and that you love your child, but the law does not allow for us to wait for a child’s permanency. It would not be fair … to [A.E.J.] for me to do that. And, in fact, I would be putting your interest ahead of hers and that would be against what I’m supposed to do here.
Unfortunately, your circumstances are self-created and the consequences of your own actions and they have led you to this point. But you’re in a position where it’s going to be, as you said, at least three years and [ten] months before you can get out of jail. That puts [A.E.J.] at … closer to six years old by the time you get out of jail, and that just wouldn’t be fair for her to wait and not have that permanency and not have that family … that she certainly deserves as a child that young.
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N.T., 5/21/2024, at 44-45.
Pristello testified that A.E.J. has developed a bond with her foster
parents, and that she has also established sibling relationships with her foster
parents’ biological children. Id. at 22-23. In contrast, Pristello stated that
A.E.J. shares no bond with Father and has only ever walked past him in court.
Id. at 24. Indeed, Father admitted that he has only ever seen A.E.J. three
times, and each instance was in court. Id. at 33. Pristello further testified
that A.E.J.’s foster parents meet her developmental, physical and emotional
needs and welfare. Id. at 23. She explained that A.E.J. therefore would not
suffer any detriment if the orphans’ court terminated Father’s parental rights,
as his previous and continued inability to parent A.E.J. requires a finding that
the termination of his parental rights and freeing her for adoption best serve
A.E.J.’s needs and welfare. Id. at 23.
Based on the record before us and the standard of review we must
employ, there again can be no finding that the orphans’ court abused its
discretion. There was no evidence of any bond shared between A.E.J. and
Father, and the record amply supports the finding that she is bonded with her
foster parents and thriving in their care. See K.T., 296 A.3d at 1113.
Accordingly, we conclude that the orphans’ court did not err in determining
that A.E.J.’s developmental, emotional, and physical needs and welfare are
best met by terminating Father’s parental rights, and agree with Attorney
Kelley that any contrary claim is frivolous.
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Finally, our independent review of the record reveals no other non-
frivolous issues that Father could raise on appeal. See X.J., 105 A.3d at 4.
We therefore grant Attorney Kelley’s petition to withdraw and affirm the
decree terminating Father’s parental rights to A.E.J.
Petition to withdraw granted. Decree affirmed.
Date: 2/3/2025
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