NORMA RAMAGE; JAMES RAMAGE v. SHELLY HUMPHREY (N/K/A WELCH); BRIAN K. SMITHAnnotate this Case
RENDERED: MAY 25, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM LIVINGSTON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 05-CI-00198
SHELLY HUMPHREY (N/K/A
WELCH); BRIAN K. SMITH
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; KELLER, JUDGE; BUCKINGHAM, SENIOR
BUCKINGHAM, SENIOR JUDGE: Norma Ramage and James Ramage, aunt and uncle
and de facto custodians of S.H., appeal from an order of the Livingston Circuit Court
David C. Buckingham, sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
awarding sole custody of the child to his father, Brian K. Smith. For the reasons stated
hereinafter, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brian is the father and Shelly Humphrey is the mother of S.H., born August
10, 2004. S.H. was conceived in November or December 2003. Brian and Shelly were
married and residing in Livingston County at the time. In late December 2003, Brian and
Shelly separated, and Brian relocated to Madison, Indiana. He did not know that Shelly
was pregnant at the time of the separation.
Brian had no contact with Shelly until March 2004, at which time she told
Brian that she was pregnant. Shelly, however, misrepresented to Brian that Troy
Humphrey, not Brian, was the father of the child. Troy had been a source of dissension
between Brian and Shelly at the time of their separation, with Brian suspecting that
Shelly was having a relationship with him.
S.H. was born on August 10, 2004, with Brian still unaware that he was the
father of the child. Because of Shelly's ongoing personal problems, including substance
abuse, S.H. was placed with appellants James and Norma Ramage. Norma, who is
married to James, is Shelly's sister.
It was not until December of 2005, sixteen months after the birth of the
child, that Brian learned that he was the father of S.H. Immediately thereafter, Brian
contacted counsel and began establishing a relationship with his son. Brian informed the
Ramages that while he intended to maintain a good relationship with them, he also
intended to seek custody of his child.
With the awareness that Brian intended to seek custody of S.H., on
December 19, 2005, the Ramages filed a Petition for Custody in the Livingston Circuit
Court. The petition alleged that the Ramages were the de facto custodians of S.H. and
that it was in the child's best interest that they be awarded his sole custody. In his
response, Brian denied that the Ramages were the de facto custodians of S.H. or that it
was in S.H.'s best interest to be placed in their custody. Brian further contended that he
should be awarded sole custody of the child. Shelly has supported the Ramages' petition
throughout the litigation, including in this appeal, except that she has sought to be
awarded joint custody along with the Ramages.
Following a hearing, on July 20, 2006, the trial court entered an Order and
Judgment determining that the Ramages were the de facto custodians of S.H., but that it
was in the best interest of the child that Brian be awarded sole custody. The Ramages
and Shelly filed motions to alter, amend, or vacate, which were denied. This appeal
The appellants contend that the circuit court incorrectly applied the law
concerning de facto custodians, that the circuit court erred by allowing a social worker to
give an opinion as to permanent custody placement, that the circuit court's findings of
fact were not supported by substantial evidence, and that the circuit court abused its
discretion when it determined that Brian was entitled to sole custody of S.H.
CIRCUIT COURT CUSTODY ORDER
We begin by setting forth the relevant sections of the circuit court's July
20, 2006, order. Because of the Ramages' broad challenge to the order, we set forth the
order at length:
The chronology of the conception, birth and early days of this
infant are critical to this case. When S.H.2 was conceived in
November or December of 2003, the biological mother and
father were married to one another. In late December, 2003,
the mother and father separated. The father, hereinafter
known as Brian, moved to Madison, Indiana where he now
lives. At the time he did not know that the
Respondent/mother, hereinafter known as Shelly, was
pregnant. Brian did not hear from Shelly until March of
In that telephone conversation, Shelly advised Brian that she
was pregnant but that the baby she was carrying was not his.
Shelly stated the putative father to be Troy Humphrey.
Humphrey had been the subject of [a] volatile argument
which had taken place just prior to the separation of the
parties back in December 2003. Brian had accused Shelly of
attempting, or perhaps even consummating an affair with
Humphrey which she denied at the time.
It was not until December of 2005 that Brian was startled to
learn that he was the biological father of sixteen month old
S.H.. Immediately upon learning this news, he contacted
counsel and began trying to establish a relationship with his
child. He traveled to Livingston County, Kentucky and
advised the Petitioners who then had custody of S.H. that he
intended to maintain a good relationship with them, but that
he also intended to try and get custody of his child.
Apparently faced with this possibility, the Petitioners filed
this action on December 19, 2005.
The circuit court's order uses the actual name of the child. In order to protect the privacy of the
child, we have substituted his initials in lieu of his actual name.
Shelly, the mother of S.H. and three other children, has had a
very tumultuous and unstable life. Her seven-year old
daughter, Ashley, is also in the custody of the Petitioners.
Two other children are in the custody of their natural father,
Jim Curnel. Because of Shelly's long history of drug use and
her turbulent lifestyle with various mates, including five
marriages, S.H. was placed with the Petitioners, James and
Norma Ramage, at birth. They have had custody of S.H.
since that time and Shelly has had a sporadic relationship
with the child.
Since learning of the paternity of S.H., Brian has
demonstrated a full commitment to the responsibilities of
parenthood. He had visitations with his child every other
weekend and has had to travel to Kentucky from Madison,
Indiana - a four hour drive - to enjoy this privilege. With the
exception of a couple of missed visits, he has been faithful in
this endeavor and has also maintained child support
Pursuant to KRS 403.270, a de facto custodian must show by
clear and convincing evidence to have been both the primary
caregiver and the financial supporter of a child for an
extended period of time. If the child is under three years of
age this period of time is six months, such as is the case in
S.H.'s situation. If the child is three or older or has been
placed by the Department for Community Based Services,
then the time is one year or more.
First, the Court finds by clear and convincing evidence that
the Petitioners are de facto custodians pursuant to KRS
403.270(1)(a). They have satisfied all requirements as to the
time S.H. has been in their custody as well as the degree of
financial support they have provided.
Kentucky's de facto custodian statute is not triggered unless
the natural parent abdicates his or her role of primary
caregiver by allowing another person to fulfill that function
for a significant period of time. Any period of time after a
legal proceeding has been commenced by a parent seeking to
The Ramages state that S.H. was placed with the Ramages Easter weekend of 2005.
regain custody of the child shall not be included in
determining whether the child has resided with the person for
the required minimum period. Clearly, Shelly abdicated her
role as primary caregiver of S.H..
Nevertheless, the law recognizes the preference for a
biological parent. See Boatwright v. Waler, 715 S.W.2d 237
(Ky.App. 1986) quoting KRS 405.020.4 [Footnote in
original] Certainly, parents who have maintained
relationships with their children, have not shown themselves
to be unfit, and have not knowingly encouraged or acquiesced
in quasi-parental relationships with third parties should enjoy
a preference in custody determinations. Since 1998, however,
if a non-parent can prove by clear and convincing evidence
that he or she is a de facto custodian, the non-parent will have
the same standing as a natural parent and the court will
proceed directly to a “best interests” determination as
between non-parent and parent. Significantly, courts must
give “equal” consideration to a parent and any de facto
custodian. In determining custody cases, the trial court must
consider all relevant factors [contained in KRS 403.270].
Prior to the passage of KRS 403.270, parents could not lose
custody of their children absent a showing of unfitness by
clear and convincing evidence. It is unclear whether the
underlying purpose of this statute is geared to the best interest
of the child or the inherent right of the parent.5 [Footnote in
original]. But certainly it is intended to protect children from
arbitrary separation from those with whom they have been
allowed, by action of their natural parents, to look upon as
parental figures. In other words, it provides some protection
See also Elizabeth Ashley Bruce, A Parent's Right Under the Fourteenth Amendment: Does
Kentucky's De Facto Custodian Statute Violate Due Process? 92 Ky LJ 529 (2003-2004).
This “inherent right” is addressed in the grandparents versus parent decision of Troxel v.
Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel the U.S. Supreme
Court ruled that a Washington grandparent visitation statute impermissibly infringed on the
natural parent's right to the care, custody and control of his or her children without requiring a
showing of unfitness.
from a child being torn apart from a bonding relationship
unless it is in the child's best interest.
But for the de facto custodian status of the Petitioners in this
case, this would be a no-brainier for the Court. While both
the Petitioners are fine and upstanding people, there has been
no showing that the natural father, Brain K. Smith, is unfit,
and but for the de facto status of the Petitioners he would be
entitled to custody of his child. Accordingly, the Court must
determine what is in the best interest of S.H. regarding his
Unfortunately, Kentucky courts have used the best interest
standard without defining its explicit content. In Greathouse
v. Shreve, 891 S.W.2d 387 (Ky. 1995), the Kentucky
Supreme Court held the best interest standard did not apply
absent clear and convincing proof that the father had waived
his superior right to custody. A trilogy of cases from the
Kentucky Supreme Court recognize a parent's superior right
to obtain custody of a child stating that the best interests of
the child may only be considered once the natural parent is
shown to be unfit. McNames v. Corum, 683 S.W.2df 246
(Ky. 1985); Davis v. Collingsworth, 771 S.W.2d 329 (Ky.
1989); and Fitch v. Burns, 782 S.W.2d 618 (Ky. 1989).
In Poe v. Poe, 711 S.W.2d 849 (Ky.App. 1986) the Kentucky
Court of Appeals upheld a trial court's determination giving
the father custody of his nine-year old son. The trial court
relied on testimony from expert witnesses that the father
would provide the best psychological role model for the child.
Other Kentucky appellate cases have rejected the need for
psychological testimony to support a best interest
determination. In Krug v. Krug, 647 S.W.2d 790 (Ky. 1983),
the Kentucky Supreme Court permitted the trial curt to avoid
discussion of the children's psychological needs and to base
its decision entirely on a judgment regarding a custodian's
The emphasis on the impact of changed custody on a child is
not a novel concept. Justice Joseph Story recognized long
ago that the only question is whether returning the child to the
parent will be for the real, permanent interests of the infant.
United States v. Green, 26 F.Cas. 30 (C.C.D.R.I. 1824)(No.
15,256). More recently, in Sherfey v. Sherfey, 74 S.W.3d 777
(Ky.App. 2002), the appellate court noted the importance of
the parents' liberty interest in raising their own children but
ruled that the de facto custodian statute was not
Undoubtedly, the Petitioners are good and stable people who
provided critical nurturing and care for this young child at a
time when he most needed it. Although there has not been a
bonding with Shelly because of her unfitness, S.H. no doubt
has bonded with the Petitioners, especially Norma. In
addition, there is one half-sister, Ashley, who resides in the
Petitioners' home with S.H.. S.H. also has two other halfsisters who he knows and sees on a regular basis. In other
words, since birth S.H. has been in a family setting where he
has bonded with his aunt and uncle as well as his siblings.
And while the relationship with his mother Shelly has been
sporadic at best, she nevertheless has always been close by.
On the other hand, there is much to be said for the father,
Brian. There are only two negatives that deserve comment.
One involves the incident in December of 2003 where Brian
allegedly pulled a shotgun and threatened to shoot Troy
Humphrey if he showed up at the parties' home. Brian and
Shelly gave contradictory versions of what happened. The
Court accepts Brian's version. The third party witness who
was present was Shelly's young daughter, Jennifer. Jennifer
had to reflect and was hesitant before testifying that she
actually saw the gun in Brian's hands. Also, the credibility of
Shelly is undermined in many ways. One such way is that
she denied the relationship with Troy Humphrey, yet at the
same time made in excess of seventy calls to him.
Undoubtedly, this confirmed any suspicions Brian may have
had when Shelly related to him back in March of 2004 that
she was pregnant by Humphrey.
The most troublesome negative as far as Brian is concerned is
the fact that he is now living with a woman to whom he is not
married. The Court takes a negative view of such
arrangements. Sadly, however, and to the Court's chagrin,
this type of living arrangement is becoming more the norm in
our society. Were every child removed from a mother or
father who was living with someone to whom they were not
married, there would be a cataclysmic and unsettling
movement of children from their present homes.
The Court acknowledges that Brian's girlfriend, Dawn Fox,
appears to be a bright, caring person who has custody of her
own two children. Dawn and her children, as well as her
parents and sister, all wish to become part of S.H.'s family.
Also, Brian's two children from a previous marriage visit with
their father on a regular basis. And Brian's extended family
consisting of his parents, grandmother, two sisters and a
brother are very eager to embrace S.H. into the family.
Although a de facto custodian must be given equal
consideration, the statute does not make de facto custody a
dispositive factor. Court's must still consider a number of
statutory factors designed to help determine the child's best
interests. One of the main statutory factors that this Court
must consider is the circumstances under which the child
was placed or allowed to remain in the custody of a de
facto custodian. See KRS 403.270(2)(i). [Emphasis in
original]. The statute cautions a court to consider whether the
parent has been prevented from seeking custody as a result of
domestic violence. Surely, this Court should also consider
the fact that Brian was unaware that S.H. was his biological
child at the time the child was placed in the custody of the
Parental motives and attitudes have affected courts in
grandparent visitation cases, and the same possibility exists in
the area of de facto custody. This Court agrees with the long
held understanding of child development professionals that
young children often form important attachments to
caregivers within one to two years. The Petitioners are to be
highly commended for their role as S.H.'s psychological
parents.6 [Footnote in original]. But the Court cannot ignore
This term is often defined as the individual the child perceives, on a psychological and
emotional level, to be his or her parent.
the circumstances under which S.H. was placed in the custody
of the Petitioners. The father, Brian, was denied custody
through no fault of his own and is now basically relegated to
a visitor's role. If this arrangement continues he will surely
lose the right to make significant decisions regarding S.H.'s
Not only does Brian have a right to raise his own child, but
S.H. also has a right to be reared by his own father if that
father is a fit and proper person. It is in S.H.'s best interests.
Neither Brian or his girlfriend have a criminal background or
a history of past or current drug abuse. Brian is employed
full-time and earns a modest salary sufficient to meet his
family's needs. More importantly, Brian wishes to provide
for S.H.'s physical, mental, emotional, spiritual and financial
well-being.7 [Footnote in original]. . . .
PROPER LEGAL STANDARD
We first consider the Ramages' argument that the circuit court applied the
incorrect legal standard in its custody determination. In summary, the Ramages contend
that the court failed to properly recognize their statutory right to equal custody
consideration after they had been qualified as de facto custodians. We disagree.
The court's recognition of the proper legal standard is illustrated by the
following section of its decision:
Since 1998, however, if a non-parent can prove by clear and
convincing evidence that he or she is a de facto custodian, the
non-parent will have the same standing as a natural parent
and the court will proceed directly to a “best interests”
determination as between non-parent and parent.
The relative assessment summary of the Department of Child Services identified no concerns
that would preclude Brian Smith from being named as S.H.'s custodial parent, and therefore
recommended that consideration be given for S.H.'s placement with his father. In fact, the
Department recommended custody be awarded to his father.
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Significantly, courts must give “equal” consideration to a
parent and any de facto custodian.
Based upon the plain language of its order, the circuit court applied the statutory
requirement contained in KRS 403.270(1) that a de facto custodian is to be given, as a
beginning point, equal consideration with the parent in a custody dispute.
Nevertheless, the Ramages argue that various case citations contained in
the order predating the passage of the 1998 de facto custodian amendments to KRS
403.270, the trial court's statement to the effect that the law recognizes a preference for a
biological parent, and its reference to Brian not being an “unfit” parent, all evidence the
application of an improper standard.
We construe the purpose of the circuit court's citations to pre-1998 cases as
being to give context and background to its decision, not as authority applied inconsistent
with the de facto custodian amendments. Likewise, the court's statement to the effect
that the law recognizes a preference for a biological parent was, as we construe it, for the
purpose of background and context. Finally, we construe the court's statement to the
effect that Brian is not an unfit parent as simply a finding relevant to its decision and not
an application of the pre-de facto custody standard that a biological parent must be
determined to be unfit in order to be deprived of custody.
In summary, we conclude that the circuit court applied the proper legal
standard in this case, and we do not find reversible error in the court's statements
identified by the Ramages.
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REVIEW OF CUSTODY DECISION
Next, we consider the Ramages' argument that the court's findings of fact
were not supported by substantial evidence and that the court abused its discretion when
it found that Brian was entitled to sole custody of S.H.
Concerning our standard of review, in custody matters tried by a court
without a jury, the court's “[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” Kentucky Rule of Civil Procedure (CR) 52.01; Sherfey v.
Sherfey, 74 S.W.3d 777, 782 (Ky.App. 2002). “A factual finding is not clearly erroneous
if it is supported by substantial evidence.” Sherfey, 74 S.W.3d at 782. “Substantial
evidence” is “evidence of substance and relevant consequence sufficient to induce
conviction in the minds of reasonable people.” Id. As stated in R.C.R. v.
Commonwealth, Cabinet for Human Resources, 988 S.W.2d 36 (Ky.App. 1998), “when
the testimony is conflicting we may not substitute our decision for the judgment of the
trial court.” Id. at 39.
After a trial court makes the required findings of fact, it must then apply the
law to those facts. The resulting custody award as determined by the trial court will not
be disturbed unless it constitutes an abuse of discretion. Sherfey, 74 S.W.3d at 782-83.
Broad discretion is vested in trial courts in matters concerning custody and visitation.
See Futrell v. Futrell, 346 S.W.2d 39 (Ky.1961); Drury v. Drury, 32 S.W.3d 521, 525
(Ky.App. 2000). “Abuse of discretion in relation to the exercise of judicial power
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implies arbitrary action or capricious disposition under the circumstances, at least an
unreasonable and unfair decision.” Sherfey, 74 S.W.3d at 783. Essentially, while “[t]he
exercise of discretion must be legally sound,” id., in reviewing the decision of the circuit
court, the test is not whether the appellate court would have decided it differently, but
whether the findings of the trial court were clearly erroneous or an abuse of discretion.
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). Mere doubt as to the correctness of
the trial court's decision is not enough to merit a reversal. Wells v. Wells, 412 S.W.2d
568, 571 (Ky. 1967).
The findings of fact contained in the circuit court's custody decision are
supported by substantial evidence - the testimony presented at the evidentiary hearing and
upon the record as a whole - and, accordingly, are not clearly erroneous. In fact, the
Ramages specifically challenge only one “finding” - the finding that it is in the best
interest of S.H. to be placed in the sole custody and care of his father. We, however,
consider that determination to be an application of the circuit court's discretion based
upon its findings of fact, not a finding in and of itself, and consider that issue below.
We next consider whether the circuit court abused its discretion by
determining that it was in the best interest of S.H. that Brian be awarded sole custody.
The following factors in KRS 403.270(2) are to be used by the court in
determining the best interests of the child:
(a) The wishes of the child's parent or parents, and any de
facto custodian, as to his custody;
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(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his
parent or parents, his siblings, and any other person who may
significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as
defined in KRS 403.720;
(g) The extent to which the child has been cared for, nurtured,
and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child
with a de facto custodian; and
(i) The circumstances under which the child was placed or
allowed to remain in the custody of a de facto custodian,
including whether the parent now seeking custody was
previously prevented from doing so as a result of domestic
violence as defined in KRS 403.720 and whether the child
was placed with a de facto custodian to allow the parent now
seeking custody to seek employment, work, or attend school.
Our reading of the circuit court's custody decision and the record as a whole
discloses that the circuit court did not abuse its discretion in awarding sole custody to the
child's biological father in preference to his aunt and uncle.
The court carefully noted the fitness of Norma and James to be the
permanent custodians of S.H. and the bonds that had been formed by S.H. with them and
S.H.'s half-siblings in Livingston County. However, the court also determined that the
father was a fit custodian in all respects. The court then made the difficult decision that it
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was in the best interest of S.H. to be raised by his biological father. Because that decision
was not an abuse of the circuit court's discretion, it will not be disturbed by this court.
In addition, an overarching consideration in this case is the circumstances
under which S.H. was placed with the Ramages and which led to their de facto custodian
status and corresponding equal footing with Brian in the custody dispute. Central to
those circumstances was the deception of Shelly in misleading Brian concerning his
parenthood of S.H. Based upon his conduct subsequent to learning of his parenthood,
Brian undoubtedly would have pursued custody of S.H. from the outset but for Shelly's
fraudulent misrepresentations that Troy Humphrey was the father. It follows that the
Ramages would not have obtained their de facto custody status but for Shelly's deception,
and Brian would not have been deprived of his superior right to custody by the Ramages
qualifying as de facto custodians.
We believe the legislature incorporated KRS 403.270(2)(i) into the de facto
custodian scheme for application in situations such as this. KRS 403.270(2)(i), requires
the court to consider in its best interest analysis “[t]he circumstances under which the
child was placed or allowed to remain in the custody of a de facto custodian[.]” The
circuit court obviously applied great weight to this section in its decision, and it was
within its discretion to do so. We, too, are disturbed by Shelly's inexcusable disrespect
for the parental rights of Brian. We believe that the circuit court appropriately applied
KRS 403.270(2)(i) as a factor of significant weight in its custody determination.
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Similarly, we find no abuse of discretion in the circuit court's decision to
award sole custody to Brian rather than joint custody along side the Ramages. Upon the
record as a whole, this was a sound exercise of the circuit court's discretion.
In short, we will not disturb the court's custody decision in this matter.
SOCIAL WORKER TESTIMONY
We next consider the Ramages' argument that the circuit court erred by
allowing a social worker to give an opinion concerning custody in this case. At the
evidentiary hearing the court permitted Debbie Richey, a social worker for the Cabinet
for Families and Children,8 to testify and to give her opinion in favor of Brian being
awarded custody of S.H.
The qualifications of an expert witness are governed by Kentucky Rules of
Evidence (KRE) 702 and 703, which vest the trial court with broad discretion in
determining whether a witness is qualified to express an opinion in a matter that requires
expert knowledge, skill, experience, training, or education. These rules require the trial
court to determine if such expert testimony will assist the trier of fact to understand the
evidence or to determine a fact in issue. Goodyear Tire and Rubber Co. v. Thompson, 11
S.W.3d 575, 577-79 (Ky. 2000).
The record discloses that Richey is a long-term social services clinician for
the Cabinet and that she has experience in conducting home evaluations for courts
regarding the placement of children and making recommendations to courts regarding
Now the Cabinet for Health and Family Services
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custody of children. Richey had been involved with Shelly and her family for seven
years, had been involved with S.H. since his birth, and had an open case regarding Shelly.
In fact, Richey was the social worker who placed S.H. with the Ramages.
Based upon the foregoing, we are not persuaded that the circuit court
abused its discretion in permitting Richie to testify, particularly since the testimony was
presented to an experienced trial judge rather than a jury. In short, the Ramages concerns
go to the weight and credibility of the evidence, not its admissibility.
The judgment of the Livingston Circuit Court is affirmed.
BRIEF FOR APPELLANTS:
Sarah Perry McGee
BRIEF FOR APPELLEE BRIAN K.
Jill L. Giordano
BRIEF FOR APPELLEE SHELLY
HUMPHREY (N/K/A WELSH):
Tiffany Gabehart Poindexter
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