Student Blog — Mom wants adoption; Agency refuses

According to an article published onOctober 22, 2008, in the Ventura County Star newspaper in California, the Ventura County Juvenile Court of California, denied mother Misty Lopez the right to choose the family for her newborn daughter. (Read it here)

Lopez signed over her newborn daughter to Luke and Jozette Jacobellis of Newbury Park in late September. However Lopez, who already has eight children, is under investigation by the County Human Service Agency, for 10 cases of reported child neglect, general neglect or child abuse, and therefore has lost her rights to make decisions about what is best for her child, according to the Court.

Lopez argues that no evidence has been found to support the claims and she doesn’t want the child anyway and is trying to do what is best for her. A hearing has been set for Nov. 19th.

The article does leave out one key issue to be addressed, and that is whether investigations or assessments have been done with regard to the foster parents selected by Lopez.

Considering that Lopez already surrendered the rights to her other eight children and is making efforts to do so with her ninth, I think the mother should have a choice on which family can provide best for her child, rather than having the child get lost in the system and rotate from house to house.

According to the California Senate research, about 77,000 children in California live apart from their families in child welfare supervised out-of-home care; and nearly half of them remain in the system for two or more years. (Source) So instead of allowing for the baby to be adopted and become attached to a foster family immediately, it is possible that the infant will instead be placed in foster care until two years of age.

However, according to Hill v. Patton, 85 P.2d 75 (N.M. 1938), “consent that one person may adopt a child does not give the court jurisdiction to aware it to another,” and “In adoption proceeding mother who has abandoned her child cannot limit court’s selection of foster parent to any particular petitioner.” Comp.St. 1929, §§ 2-105, 2-112.

The Court should find that the contract between Lopez and the Jacobellis is void. Nevertheless, it will be very interesting to see how the Court rules. We will see.

Comments:

  1. It is apparant that the mom has started making a “better” choice.

    I am aware that adopting childern is very complicated, time consuming,expensive, and extremely invasive.

    It saddens me that someone along the line, lets say Doctors have missed the fact that she is only 28 and now has 9 children? All of which are not even under her care?

    Children are not to be tossed around like a bag of potatoes. If you are going to play you also must be willing to be responsible for your actions, if not to yourself, than to the little person that you have brought into this world.

    The fact that her tox screen came back unfavorable to Misty has a lot of bearing on the case. Is she capable of making this decision? Is this baby going to be affected (medically), and if so to what extent? Seems to me that there is more here than just a fly by night, desperate adoption attempt.

    Misty seems to be going down a road of no return. The baby is better off in a foster home. It is concerning that she thought she could just “give” her baby away. Surely there are many more complicated steps that must be followed. This almost seems to fit in with child trafficaing more than an adoption. How does anyone know that the other parents are any better than the one passing off her own blood?

    In regards to the courts allowing her to see her baby. This is VERY important; as the baby must bond to another human. Seems fit that that person be Misty.

    This case is very very sad, Misty talks about this baby and her other children as if they are nothing more than disposable commodities.

    It would be hoped that the court would rule that the adoption is void. And, Misty get child preventation measures taken.
    By the way….where is the dad?

    Comment by Debbie Rickard on November 14, 2008 at 6:12 pm

  2. The commentary above makes it sound like Ms. Lopez is currently under investigation for 10 cases of reported child neglect, general neglect or child abuse. However, according to the article: “The county is arguing that Lopez is a bad mother although documents made available to The Star show that in 10 cases of reported child neglect, general neglect or child abuse against Lopez that were investigated by the Child Protective Services from 2001 to 2006, no evidence was found to substantiate the allegations”. Although Ms. Lopez was investigated, the last time was two years ago in 2006, and these investigations never panned out. While none of Ms. Lopez’s children live with her, it does not state that the children were taken away from her.

    Though private/independent adoptions happen all the time, the court takes actions of terminating one’s status as a parent very seriously and in actuality it is a very difficult process to terminate the legal rights of a parent. I do not believe the county has any where near enough evidence to state that Ms. Lopez is too unfit to have an independent adoption occur. Although I am not familiar with California’s adoption statutes, it seems like the county is really overstepping their boundaries by not allowing Ms. Lopez to terminate her own rights and have her child independently adopted by the Jacobellis’.

    This situation is actually quite twisted. The county is trying to take Ms. Lopez’s child so that they can put the child into a foster home system solely based upon their belief that Ms. Lopez is a ‘bad mother’, because (1) prior allegations that were investigated but never substantiated and (2) she presumably failed a toxicology screening. Unfortunately, I do not think the county is right here and do not have the appropriate evidence to make the Lopez baby a ward of the state and place the poor thing in the system.

    I believe the county is looking at this quite backwards. In adoptions, the family that is to adopt the child is the party who is investigated to make sure that they are fit parents. This is what the county should be concerned about, instead of trying to say that Ms. Lopez is unfit to make the decision to give up her child to the adoptive parents of her choice.

    While I do believe that Ms. Lopez should invest in some form of birth control, I believe she is doing what she feels is best for her child. I do not believe that Ms. Lopez has abandoned her child, as suggested by the Hill v. Patton cite above. Abandoning your child consists of having no contact or not providing necessary means for the child for substantial period with no justifiable circumstances. Though Ms. Lopez is trying to give her child up for adoption, I do not think that a court would find this as abandonment.

    There may be things about this case that we are not privy to, but just going on the information provided in the article, and as sad as it is, I agree with the ‘bad mother’. While I do not sympathize with people who are justifiably and reasonably investigated for allegations of child abuse and those that continue to have children and continue to give them up for others to take care of, this matter needs to be viewed from a legal standpoint, emotions aside. How is the county acting within the best interest of the child here? That should be the county’s main objective and it is clearly not.

    Comment by Jenn Spencer on November 16, 2008 at 3:24 pm

  3. It is sad that there are so many children in the California system waiting for permanent placement. I believe that is a a fact in most states. While the courts have a fiduciary responsibility to protect children from neglect, abuse, or abandoment by removing them from their parents and families, they do not have the power to manage the state budget to increase the funding required to hire the much needed personnel to manage those it is protecting. Obviously Ms. Lopez does not know how or want to care for her children. But rather than place the child in a foster home, why not spend those dollars and investigate the Jacobellis family? They obviously want the child. I would assume it will be less expensive to do so rather than placing her with a foster parent for two years. I would hope that an investigation would take less than two years. And ultimately, the choice is still the courts based upon the investigation results.

    Comment by Sherry Conca on November 17, 2008 at 4:15 pm

  4. Regardless of how one feels personally about Ms. Lopez’s choices, the two main questions are: does Ms. Lopez have the right to determine where her child is placed under an adoption and have her parental rights been violated?

    Let’s face facts…Misty Lopez is a bad mother. She has consistently been a bad mother based on the treatment of her other 7 children. It seems apparent from her actions that Misty knows she is a bad mother and may doing something to ensure that her latest child does not live a life in which Misty is involved. Perhaps, permanent birth control would be a logical option. It is also apparent that social services in Oxnard, Ca. is quite familiar with Ms. Lopez and was monitoring her situation.

    So, to give her credit, she arranged for an independent adoption of her child. Under the definition of independent adoption in California, this means that the “adoption is one in which neither the Department of Social Services nor an agency licensed by the department is party to, or joins in the proceeding”, as cited in 32 Cal.Jur. 3d Family Law § 158 (2008). As further stated in this reference, the birth parent or parents “select the prospective adoptive parents and place the child directly with them by executing an adoption placement agreement.” So far, Ms. Lopez is complying with the rules defined by the State of California. She elected to have an independent adoption, she “personally” selected the adoptive parents and she made an agreement with them by signing the child over to them. The part of the agreement we are not privy to is the extent to which Ms. Lopez knew the Jacobellis’s. California requires that the birth parent have personal knowledge of the adoptive parents including full legal names, race, religion, ethnicity, any convictions for crimes, any removal of children from their home due to child abuse or neglect, any health conditions, and the list goes on (32 Cal.Jur. 3d Family Law 188 (2008)).

    The big question here is: why did the Humans Services Department step into an adoption that on a cursory look seems to meet the requirements established by the state that are there to protect the birth parent, the adoptive parents and most of all the adopted child? It appears that the grounds that are being used to suspend the adoption are that Ms. Lopez is not a suitable mother. This seems somewhat evident by her actions. None of her children are in her care, she specifically stated that she does not want the baby and as part of her interaction with the Human Services Department, she is required to take a drug test. Not exactly mother of the year material. The welfare code of California outlines many grounds for the termination of parental rights. Rather than identify them all, let’s look at a few that should be considered:
    • abandonment or extreme parental disinterest,
    • alcohol- or drug- induced incapacity,
    • failure of reasonable efforts,
    • abuse/ neglect or loss of rights of another child,
    • child’s best interest and
    • voluntary relinquishment.

    Ms. Lopez certainly meets all of the criteria to have her parental rights terminated. Looking her case, it would seem that she is doing the court a favor by surrendering her parental rights before they take them and the child away from her.

    It appears that the goal of the Department is to ultimately terminate her parental rights. It would seem that Ms. Lopez’s decision to voluntarily relinquish her child should be a laudable action. One that the Human Services Department would support as it would remove a child from entering the “system”.

    So, again I ask, why is the Human Services Department stepping in to suspend this adoption? There is just something wrong here. Is there a concern on the part of the Department that she is using her children as a source of income? Are there questions regarding the Jacobellis’s that have not come to light? Is there concern on the part of the Department that Ms. Lopez is not capable of making an informed decision and may be putting her infant child in harm’s way? Why was Ms. Lopez required to take a tox screen? Is the Human Services Department trying to “put the brakes on a runaway train”?

    It is interesting that the Department of Human Services would choose to place the child into a foster care environment rather than leave her in the care of the adoptive parents. Also, both the county and the court refused to give the adoption any standing or allow the adoptive parents and the attorney for the adoption into the proceedings.

    Back to the original questions:

    Does Ms. Lopez have the right to determine where her child is placed under an adoption?
    Yes, if in fact, she followed the independent adoption rules established by the state.

    Have her parental rights been violated? I am not sure they have been violated as much as suspended pending further investigation of the process in which the baby was adopted.

    Perhaps, to a degree, the Department of Human Services has made this more a moral issue than simply a legal issue. The sad part here is there is an infant who is now thrust into the foster care system when she should be beginning her life in an environment where she is loved and care for. She is truly the victim of all of this.

    As a parting thought, I find it interesting that Ms. Lopez “wishes she could afford to pay for her own attorney to represent her and argue her case”—a cause celebre?

    Comment by cjmac on November 19, 2008 at 8:53 am

  5. It’s hard to believe that a person would keep “playing” around when they are putting so many lives in the gutter. Nine kids by the age of 28? And none of them are in her care? Someone (Child Protective Services) should pay to have her tubes tide. I am a strong believer that every child deserves a good home. In this case foster care seems to be the easiest option. Considering the child was born the 24th of September and the agreement was only signed a few days prior Child Protective Services should conduct discovery re: the adoptee parents before shipping the 4 week old to foster care. The mother may have not been capable, let alone care, when deciding if Luke and Jozette Jacobellis were suitable parents but everyone deserves the benefit of the doubt. Everyone is presumed to be innocent before proven guilty right?

    Comment by Bridget on November 19, 2008 at 6:33 pm

  6. We always have to remember that we can’t believe everything we read. There is always something to the story that is missing.

    In the article it states, “However, after the county Child Protective Services became involved and Lopez failed a toxicology screening, the girl was placed with foster parents and became the subject of a Juvenile Dependency Case with the County Human Services Agency refusing to recognize the independent adoption or any claim to the child by the Jacobellises”.

    Did Misty fail a toxicology screening when she had the baby? Was it determined that she wasn’t of right mind to give up her baby? No matter what the reason, Social Services doesn’t just get involved in a case because it wants to. They are busy enough receiving reports of abuse and neglect that they aren’t just looking to keep children from good adoptive families. Something here is being left out.

    It seems that Social Services got involved because of a failed toxicology screening, it doesn’t say when that screening was done. It also doesn’t say what toxins were in Misty’s system. If it was something that she was doing while she was pregnant and the baby tested positive for it as well, does Misty deserve to get off and just give her baby up with no consequences of possibly harming her child with the drugs she has been taking?

    I am all for legal adoptions. I am not, however, for people who abuse their unborn children and get away with it. I think it is great that there were wonderful people to adopt this little girl, but I also think that Misty needs to be held accountable for possibly exposing her baby to illegal toxins as well.

    Someone stated in a response, “I do not believe the county has any where near enough evidence to state that Ms. Lopez is too unfit to have an independent adoption occur”. Well what is considered enough evidence? How many toxins have to be found in a pregnant woman’s body for it to be enough? If mom had toxins in her system at delivery then the county absolutely has enough evidence for at least an investigation of the mother and whether or not she was of right mind to authorize an adoption. The question is not only was she legally sound to offer the baby, but is she criminally liable for any harm she caused her baby?

    Misty states, “They’re trying to say I’m not a suitable mother, but first of all, I did not want the baby and I’m not asking to be investigated so that the baby can come home with me. I don’t want that. I did this adoption plan so she could go with parents who love her and have the life a kid deserves.”

    Of course she isn’t asking to be investigated…she doesn’t want to be criminally charged. The last time I checked a mother who does drugs while pregnant isn’t suitable…hey but maybe that is just me. Maybe I am wrong…maybe she was just a pregnant girl for the 8th time. Ok..once is a mistake…but 8 times? Seriously the girl has got to get a clue about birth control at some point.

    Someone stated in their response, “Though private/independent adoptions happen all the time, the court takes actions of terminating one’s status as a parent very seriously and in actuality it is a very difficult process to terminate the legal rights of a parent.”

    If a parent voluntarily gives up their parental rights, as in this situation, it is not very difficult to process an adoption at all. It is just a matter of paperwork and time. The parent that gives consent to adopt their child typically gets a grace period with the court to change their mind about adoption. Once that time frame has passed, they have as much right to the child they gave up for adoption as any stranger off the street. The only time adoptions are difficult is if the biological parent opposes the adoption and doesn’t want to give up their child. Terminating parental rights is a very long process, however in this case the Court wasn’t trying to terminate the mother’s rights. She was trying to terminate her own parental rights. There is a huge difference.

    Maybe if Ms. Lopez quit doing drugs long enough to realize what birth control was and then used it she wouldn’t keep getting pregnant and giving all her kids away. Then this problem wouldn’t exist in the first place. Oh but she is probably just innocently trying to give her child a good family to live with…please…

    Comment by M. Parker on November 19, 2008 at 10:15 pm

  7. I found this article, which gives a little more light as to what is going on with this case:

    http://www.venturacountystar.com/news/2008/oct/18/custody-of-local-baby-in-dispute/

    Apparently the would-be adoptive family already has a three year old adopted son. Also according to this article the adoption paperwork was already complete at the time the county filed a dependency/neglect action and took the baby out of the hospital.

    In response to Mary’s post in regard to my post – I was not saying that it is hard to adopt if a person voluntarily gives up their rights. This is obvious. I was more implying that it is difficult for a county or any other person who is trying to do it, to terminate a parent’s rights involuntarily. Misty was voluntarily giving up her rights so that her child could be adopted…not giving up her rights so that the child could be put into foster care. Regardless, yes, she is giving up her legal right to that child. I was looking at it from the perspective that if the state stepped in to terminate Misty’s rights, instead of her voluntarily giving up her rights to the adoptive family, it would not be voluntary on her part, versus her doing it on her terms.

    Comment by Jenn Spencer on November 20, 2008 at 8:42 pm

  8. I think it would be difficult to find someone who did not feel this case pulls on their heart strings. No one wants to see a newborn child be dragged through the court system, let alone become a ward of the state.

    It is easy to read these articles posted and be angry with Misty Lopez. She is a young, unwed mother who finds herself in a vicious cycle of substance abuse and pregnancy and unlike other women in her situation, she fails to change her ways. This is evident from her statement made after the court hearing, “They’re trying to say I’m not a suitable mother, but first of all, I did not want the baby and I’m not asking to be investigated so that the baby can come home with me. I don’t want that.”

    The county claims Misty Lopez is a bad mother based on 10 cases of reported child neglect, general neglect or child abuse. Although no evidence has been found to substantiate these allegations against Misty Lopez, I think it is clear that Misty will not be winning an award for Mother of the year. With this said, I think the courts do have to take into consideration the statement made by Michelle Erich, the adoption attorney, “This mother did not delay in acting to find a good home for her child.” So, although many may not be a fan of Misty Lopez, the question to investigate further is whether or not she had the best interest of her child in mind, when choosing the Jacobellises to adopt her child.

    Neither article posted explains to the full extent why Child Protective Services became involved in this case. I don’t think it is our place to knock this agency and their reasoning for getting involved. I do think it is unfortunate that the child was placed in a home and now has been removed and placed in a foster home, but on the flip side, I would like to believe this agency would not have done this unless it was absolutely necessary.

    I feel for the Jacobellises, and the situation they are facing. Again one would like to believe they are a suitable family to adopt a child, but the track record attached to Misty Lopez, may make it difficult for a court to determine, her decision to place her child in the Jacobellises care, is a suitable one and in the best interest of the child. The fact that the Jacobellises have adopted prior to this occasion may benefit them in the final outcome of this case.

    This case brings rise to many issues. For women out there who are unable to have their own children, this case is frustrating because Misty Lopez continues to have “unwanted” children. For couples who are trying to adopt, they see a case like this and become discouraged with the system in place. For others they realize, adoption and child services is a pertinent area of the law, where there is not enough assistance to make it work efficiently. The bottom line, this newborn child and other children like her, are the ones who suffer from the inefficiencies and errors of our ways.

    As stated in the article by Doug Donnelly, the past president of the Academy of California Adoption Lawyers, “The purpose of the dependency system is to protect a child who needs protecting, not to punish a mother who had made an adoption plan and yet still has a drug problem.” We can only hope that this is the case when it comes time to make a ruling and, however the court may rule it is in the best interest of the child.

    Comment by NZ on November 29, 2008 at 10:39 pm

  9. This issue is very sad for not only the new born child but for all 9 of the children this woman brought into the world. She obviously has no concern for her children! I feel that Lopez should not have any say in who the child should go to. She doesnt care either way and how can there be any guarentee that she is even trying to pick a family she thinks would be best for the little girl. For all we know she is just going for the first family who wants her. If she cared at all she would not have brought 9 children into this world and continued to treat them as if they dont matter. All foster families/care have rules and regulations they have to follow in order to keep children in their care therefore I believe that any foster care is better for the little girl then Lopez’s care.

    It’s so sad to hear that these children are going through this. I hope that Lopez is done having babies. Hopefully all the kids will be placed into better custody!

    Comment by Evelyn Gaytan on December 1, 2008 at 3:27 pm

  10. After reading the various comments on this case it seems like “big Brother” got involved and botched everything up. “Since the Juvenile Dependency Case takes legal precedent over an adoption, the Jacobellises are now left without the baby who they and their lawyer say was legally adopted.” The adoption paperwork was already complete, just without the delivery of the actual baby. Why should the state get involved at the point the birth takes place? California at its best.

    Now the state has spent lots of money and deprived a child of a true, lasting family from its birth. A waste of time and money in the legal system. So many children are overlooked or abused and their resources could have been better spent.

    Comment by Dawn on December 2, 2008 at 1:47 pm

  11. It amazes me when social services decides to get involved and when they don’t. Misty Lopez is an enigma. One has to wonder if she really claims to be acting in the best interest of her children, why does she continue to have them. But social services trumps even Misty in their ability to create an absurd dilemma. I assume they could argue that Misty did not have the mental capacity to form any sort of contract because she was taking an unknown substance. I think that would be a stretch though, because it is highly unlikely that she was intoxicated to such an extent throughout the course of her pregnancy that she was entirely “unable to understand the nature and extent of each party’s rights and responsibilities under the” adoption contract. Even then that defense, based on public policy and societal controls, would mean that the contract would be voidable at the choice of the incapacitated person. So even if she lacked the capacity to make that decision it would still be valid unless Misty chose to void it, which she obviously has no intention of doing. From a contracts perspective I don’t see how the child welfare agency could do that, but I am sure there is a lot of administrative law that I am unfamiliar with that would support their position even though from a common sense point of view their actions are clearly wrong. Why they would want another child in their system when that child has a decent family willing to adopt is fairly incomprehensible. Furthermore according to the National Coalition for Child Protection Reform, it would seem that Misty’s baby is more likely to be safer in an adopted family vs. in the foster care system. http://www.nccpr.org/newissues/1.html I know the article is foster vs. family preservation, but I think and hope that it is safe to assume that the Jacobelli’s constitute a family for the child in question. It seems to me based on those statistics the child welfare system should be spending more time and effort in making certain that the homes and, or facilities that they place children in are SAFE. In regards to this case I am of the opinion that the state of California is doing the child an ungodly disservice, for no apparent rhyme or reason. Another interesting lens into the child welfare system can be watched online, it is Frontline’s Failure to Protect. Attached is the link to their site for the episode (click the watch online tab to the side and type in the title if you are interested in watching) http://www.pbs.org/wgbh/pages/frontline/shows/fostercare/inside/stats.html

    Comment by alias5 on December 3, 2008 at 1:09 pm

  12. Food for thought: Misty has given me permission to discuss this. 1) Misty has not in prior pregnancies tested positive nor have any of her previously born children tested positive for any substance during pregnancy or at birth. 2) This baby girl was released from the hospital to the foster family at about 36 hours old on Saturday morning – obviously did not test positive or have withdrawals or would not have been released. 3) Misty legally chose Adoptive Parents not foster parents. 4) The adoptive parents she chose had adopted previously AND had a current valid home study by a licensed California adoption agency but the court refused to hear this evidence or any evidence regarding the adoption plan. 5) The counties get federal funds for infants adopted via the “system” (Question: who is selling the babies?) 6) Social Services does get involved whenever it wants to do so – social workers are people and people make mistakes and … 7) The adoption attorneys made sure that all of the legal steps were taken and the “extra” steps that the judge sitting in that court wanted based upon their prior experience with that judge — that judge took the waiver which made the adoption plan irrevocable — that judge then removed herself and the case was heard by a judge that does not handle that type of case and has very limited experience in dependency law. 8) County Counsel was overheard saying “these women should not be allowed to make these decisions!” Need I say more? Ok one more point: Misty loves all of her children and she has a relationship with all of her children but this baby girl which the county successfully blocked. Misty’s only hope now is that this baby girl, Lindsey Coco Jacobellis, is not moved around in foster care, but that the foster parents that have had her since day two of her life are able to adopt her since Luke and Jozette Jacobellis were robbed of her. And if only I could tell the rest of the story! I only wish I would have found this blog sooner.

    Comment by FirstHandKnowledge on July 30, 2009 at 1:23 am

  13. I am the attorney for the Jacobellis family. It is a pleasure to me to see so many comments showing that many of you really “got” what was going on. Misty made an appropriate and legal adoption plan through me with a pre-approved family. She was perfectly competent to do so. The trouble began when another family showed up wanting the baby … I cannot get into the details, but information provided to social services at that point had the proverbial spin and was incomplete; no one seemed interested in the facts.
    The fact, as so many here noted, is that Misty’s baby had a permanent adoptive, not foster, home waiting, when the county took jurisdiction and then conducted a series of hearings slamming Misty as a “bad” mother, and totally, completely, and absolutely ignoring her plan for adoption. We were quite literally told that the county did not consider the adoption plan to “exist”, despite a filed case and case number that preceded any filing by social services!
    Many minds here seem more clear than those working for the county, especially some of those wearing the black robes!
    Why, you ask? Follow the money. The government pays the county far more per child than the foster family receives (try 5X), and the county gets a huge bonus (thousands$$$) when they terminate parental rights for an infant. (This is info available on the web, though hard to find any specifics on this county.)
    The Jacobellis family is still hoping to adopt …

    Comment by Michelle Erich on July 15, 2009 at 7:23 pm

  14. i know misty personally and she is not a bad mom…just made wrong choices at one point in her life..always provided one way or another for all the kids…she hasn’t lost her rights to the other kids..u nit-wits who think u know it all…she temporarily has them with family whom she still helps etc., until she can provide for the kids herself…she was and is making the best choice for her baby and cps is just full of shit. there are so many sex offenders and child abusers who have htere kids after many. many reports…wheres the logic…it’s just easier to terminate rights once u have been in the system and have a drug problem and don’t have there other kids…some of the damn social workers are on drugs them damn selves…breanna reeves for example is on meth…how does that make them any better than misty??? i’ve seen where they gave a parolee and his methadone addicted wife custody of there grandkids…when they both have records of drug use and many other felonies since the 70’s til now….wheres the logic? it’s all about who u know and if u got money and what kind of worker u got…my prayers are with u misty…give the kids a kiss for me too!!!!luv ure comadre

    Comment by in similar shoes on October 6, 2009 at 11:50 pm

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