Full Text of SB2512 99th General Assembly
SB2512enr 99TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning courts.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Juvenile Court Act of 1987 is amended by | 5 | | changing Section 2-10 as follows:
| 6 | | (705 ILCS 405/2-10) (from Ch. 37, par. 802-10)
| 7 | | Sec. 2-10. Temporary custody hearing. At the appearance of | 8 | | the
minor before the court at the temporary custody hearing, | 9 | | all
witnesses present shall be examined before the court in | 10 | | relation to any
matter connected with the allegations made in | 11 | | the petition.
| 12 | | (1) If the court finds that there is not probable cause to | 13 | | believe
that the minor is abused, neglected or dependent it | 14 | | shall release
the minor and dismiss the petition.
| 15 | | (2) If the court finds that there is probable cause to | 16 | | believe that
the minor is abused, neglected or dependent, the | 17 | | court shall state in writing
the factual basis supporting its | 18 | | finding and the minor, his or her parent,
guardian, custodian | 19 | | and other persons able to give relevant testimony
shall be | 20 | | examined before the court. The Department of Children and
| 21 | | Family Services shall give testimony concerning indicated | 22 | | reports of abuse
and neglect, of which they are aware of | 23 | | through the central registry,
involving the minor's parent, |
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| 1 | | guardian or custodian. After such
testimony, the court may, | 2 | | consistent with
the health,
safety and best interests of the | 3 | | minor,
enter an order that the minor shall be released
upon the | 4 | | request of parent, guardian or custodian if the parent, | 5 | | guardian
or custodian appears to take custody. If it is | 6 | | determined that a parent's, guardian's, or custodian's | 7 | | compliance with critical services mitigates the necessity for | 8 | | removal of the minor from his or her home, the court may enter | 9 | | an Order of Protection setting forth reasonable conditions of | 10 | | behavior that a parent, guardian, or custodian must observe for | 11 | | a specified period of time, not to exceed 12 months, without a | 12 | | violation; provided, however, that the 12-month period shall | 13 | | begin anew after any violation. Custodian shall include any | 14 | | agency of
the State which has been given custody or wardship of | 15 | | the child. If it is
consistent with the health, safety and best | 16 | | interests of the
minor, the
court may also prescribe shelter | 17 | | care and
order that the minor be kept in a suitable place | 18 | | designated by the court or in
a shelter care facility | 19 | | designated by the Department of Children and Family
Services or | 20 | | a licensed child welfare
agency; however, on and after January | 21 | | 1, 2015 ( the effective date of Public Act 98-803) this | 22 | | amendatory Act of the 98th General Assembly and before January | 23 | | 1, 2017, a minor charged with a
criminal offense under the | 24 | | Criminal Code of 1961 or the Criminal Code of 2012 or | 25 | | adjudicated delinquent
shall not be placed in the custody of or | 26 | | committed to the Department of
Children and Family Services by |
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| 1 | | any court, except a minor less than 16
years of age and | 2 | | committed to the Department of Children and Family Services
| 3 | | under Section 5-710 of this Act or a minor for whom an | 4 | | independent
basis of
abuse, neglect, or dependency exists; and | 5 | | on and after January 1, 2017, a minor charged with a
criminal | 6 | | offense under the Criminal Code of 1961 or the Criminal Code of | 7 | | 2012 or adjudicated delinquent
shall not be placed in the | 8 | | custody of or committed to the Department of
Children and | 9 | | Family Services by any court, except a minor less than 15 years | 10 | | of age and committed to the Department of Children and Family | 11 | | Services
under Section 5-710 of this Act or a minor for whom an | 12 | | independent
basis of
abuse, neglect, or dependency exists.
An | 13 | | independent basis exists when the allegations or adjudication | 14 | | of abuse, neglect, or dependency do not arise from the same | 15 | | facts, incident, or circumstances which give rise to a charge | 16 | | or adjudication of delinquency.
| 17 | | In placing the minor, the Department or other
agency shall, | 18 | | to the extent
compatible with the court's order, comply with | 19 | | Section 7 of the Children and
Family Services Act.
In | 20 | | determining
the health, safety and best interests of the minor | 21 | | to prescribe shelter
care, the court must
find that it is a | 22 | | matter of immediate and urgent necessity for the safety
and | 23 | | protection
of the minor or of the person or property of another | 24 | | that the minor be placed
in a shelter care facility or that he | 25 | | or she is likely to flee the jurisdiction
of the court, and | 26 | | must further find that reasonable efforts have been made or
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| 1 | | that, consistent with the health, safety and best interests of
| 2 | | the minor, no efforts reasonably can be made to
prevent or | 3 | | eliminate the necessity of removal of the minor from his or her
| 4 | | home. The court shall require documentation from the Department | 5 | | of Children and
Family Services as to the reasonable efforts | 6 | | that were made to prevent or
eliminate the necessity of removal | 7 | | of the minor from his or her home or the
reasons why no efforts | 8 | | reasonably could be made to prevent or eliminate the
necessity | 9 | | of removal. When a minor is placed in the home of a relative, | 10 | | the
Department of Children and Family Services shall complete a | 11 | | preliminary
background review of the members of the minor's | 12 | | custodian's household in
accordance with Section 4.3 of the | 13 | | Child Care Act of 1969 within 90 days of
that placement. If the | 14 | | minor is ordered placed in a shelter care facility of
the | 15 | | Department of Children and
Family Services or a licensed child | 16 | | welfare agency, the court shall, upon
request of the | 17 | | appropriate Department or other agency, appoint the
Department | 18 | | of Children and Family Services Guardianship Administrator or
| 19 | | other appropriate agency executive temporary custodian of the | 20 | | minor and the
court may enter such other orders related to the | 21 | | temporary custody as it
deems fit and proper, including the | 22 | | provision of services to the minor or
his family to ameliorate | 23 | | the causes contributing to the finding of probable
cause or to | 24 | | the finding of the existence of immediate and urgent necessity.
| 25 | | Where the Department of Children and Family Services | 26 | | Guardianship Administrator is appointed as the executive |
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| 1 | | temporary custodian, the Department of Children and Family | 2 | | Services shall file with the court and serve on the parties a | 3 | | parent-child visiting plan, within 10 days, excluding weekends | 4 | | and holidays, after the appointment. The parent-child visiting | 5 | | plan shall set out the time and place of visits, the frequency | 6 | | of visits, the length of visits, who shall be present at the | 7 | | visits, and where appropriate, the minor's opportunities to | 8 | | have telephone and mail communication with the parents. | 9 | | Where the Department of Children and Family Services | 10 | | Guardianship Administrator is
appointed as the executive | 11 | | temporary custodian, and when the child has siblings in care,
| 12 | | the Department of Children and Family Services shall file with | 13 | | the court and serve on the
parties a sibling placement and | 14 | | contact plan within 10 days, excluding weekends and
holidays, | 15 | | after the appointment. The sibling placement and contact plan | 16 | | shall set forth
whether the siblings are placed together, and | 17 | | if they are not placed together, what, if any,
efforts are | 18 | | being made to place them together. If the Department has | 19 | | determined that it is
not in a child's best interest to be | 20 | | placed with a sibling, the Department shall document in
the | 21 | | sibling placement and contact plan the basis for its | 22 | | determination. For siblings placed
separately, the sibling | 23 | | placement and contact plan shall set the time and place for | 24 | | visits,
the frequency of the visits, the length of visits, who | 25 | | shall be present for the visits, and
where appropriate, the | 26 | | child's opportunities to have contact with their siblings in |
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| 1 | | addition to
in person contact. If the Department determines it | 2 | | is not in the best interest of a sibling to
have contact with a | 3 | | sibling, the Department shall document in the sibling placement | 4 | | and
contact plan the basis for its determination. The sibling | 5 | | placement and contact plan shall
specify a date for development | 6 | | of the Sibling Contact Support Plan, under subsection (f) of | 7 | | Section 7.4 of the Children and Family Services Act, and shall | 8 | | remain in effect until the Sibling Contact Support Plan is | 9 | | developed. | 10 | | For good cause, the court may waive the requirement to | 11 | | file the parent-child visiting plan or the sibling placement | 12 | | and contact plan, or extend the time for filing either plan. | 13 | | Any party may, by motion, request the court to review the | 14 | | parent-child visiting plan to determine whether it is | 15 | | reasonably calculated to expeditiously facilitate the | 16 | | achievement of the permanency goal. A party may, by motion, | 17 | | request the court to review the parent-child visiting plan or | 18 | | the sibling placement and contact plan to determine whether it | 19 | | is consistent with the minor's best interest. The court may | 20 | | refer the parties to mediation where available. The frequency, | 21 | | duration, and locations of visitation shall be measured by the | 22 | | needs of the child and family, and not by the convenience of | 23 | | Department personnel. Child development principles shall be | 24 | | considered by the court in its analysis of how frequent | 25 | | visitation should be, how long it should last, where it should | 26 | | take place, and who should be present. If upon motion of the |
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| 1 | | party to review either plan and after receiving evidence, the | 2 | | court determines that the parent-child visiting plan is not | 3 | | reasonably calculated to expeditiously facilitate the | 4 | | achievement of the permanency goal or that the restrictions | 5 | | placed on parent-child contact or sibling placement or contact | 6 | | are contrary to the child's best interests, the court shall put | 7 | | in writing the factual basis supporting the determination and | 8 | | enter specific findings based on the evidence. The court shall | 9 | | enter an order for the Department to implement changes to the | 10 | | parent-child visiting plan or sibling placement or contact | 11 | | plan, consistent with the court's findings. At any stage of | 12 | | proceeding, any party may by motion request the court to enter | 13 | | any orders necessary to implement the parent-child visiting | 14 | | plan, sibling placement or contact plan or subsequently | 15 | | developed Sibling Contact Support Plan. Nothing under this | 16 | | subsection (2) shall restrict the court from granting | 17 | | discretionary authority to the Department to increase | 18 | | opportunities for additional parent-child contacts or sibling | 19 | | contacts, without further court orders. Nothing in this | 20 | | subsection (2) shall restrict the Department from immediately | 21 | | restricting or terminating parent-child contact or sibling | 22 | | contacts, without either amending the parent-child visiting | 23 | | plan or the sibling contact plan or obtaining a court order, | 24 | | where the Department or its assigns reasonably believe that | 25 | | continuation of the contact, as set out in the plan, would be | 26 | | contrary to the child's health, safety, and welfare. The |
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| 1 | | Department shall file with the court and serve on the parties | 2 | | any amendments to the plan within 10 days, excluding weekends | 3 | | and holidays, of the change of the visitation.
| 4 | | Acceptance of services shall not be considered an admission | 5 | | of any
allegation in a petition made pursuant to this Act, nor | 6 | | may a referral of
services be considered as evidence in any | 7 | | proceeding pursuant to this Act,
except where the issue is | 8 | | whether the Department has made reasonable
efforts to reunite | 9 | | the family. In making its findings that it is
consistent with | 10 | | the health, safety and best
interests of the minor to prescribe | 11 | | shelter care, the court shall state in
writing (i) the factual | 12 | | basis supporting its findings concerning the
immediate and | 13 | | urgent necessity for the protection of the minor or of the | 14 | | person
or property of another and (ii) the factual basis | 15 | | supporting its findings that
reasonable efforts were made to | 16 | | prevent or eliminate the removal of the minor
from his or her | 17 | | home or that no efforts reasonably could be made to prevent or
| 18 | | eliminate the removal of the minor from his or her home. The
| 19 | | parents, guardian, custodian, temporary custodian and minor | 20 | | shall each be
furnished a copy of such written findings. The | 21 | | temporary custodian shall
maintain a copy of the court order | 22 | | and written findings in the case record
for the child. The | 23 | | order together with the court's findings of fact in
support | 24 | | thereof shall be entered of record in the court.
| 25 | | Once the court finds that it is a matter of immediate and | 26 | | urgent necessity
for the protection of the minor that the minor |
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| 1 | | be placed in a shelter care
facility, the minor shall not be | 2 | | returned to the parent, custodian or guardian
until the court | 3 | | finds that such placement is no longer necessary for the
| 4 | | protection of the minor.
| 5 | | If the child is placed in the temporary custody of the | 6 | | Department of
Children
and Family
Services for his or her | 7 | | protection, the court shall admonish the parents,
guardian,
| 8 | | custodian or responsible relative that the parents must | 9 | | cooperate with the
Department of Children and Family Services, | 10 | | comply
with the terms of the service plans, and correct the | 11 | | conditions which require
the child to be in care, or risk | 12 | | termination of their parental
rights. The court shall ensure, | 13 | | by inquiring in open court of each parent, guardian, custodian | 14 | | or responsible relative, that the parent, guardian, custodian | 15 | | or responsible relative has had the opportunity to provide the | 16 | | Department with all known names, addresses, and telephone | 17 | | numbers of each of the minor's living maternal and paternal | 18 | | adult relatives, including, but not limited to, grandparents, | 19 | | aunts, uncles, and siblings. The court shall advise the | 20 | | parents, guardian, custodian or responsible relative to inform | 21 | | the Department if additional information regarding the minor's | 22 | | adult relatives becomes available.
| 23 | | (3) If prior to the shelter care hearing for a minor | 24 | | described in Sections
2-3, 2-4, 3-3 and 4-3 the moving party is | 25 | | unable to serve notice on the
party respondent, the shelter | 26 | | care hearing may proceed ex parte ex-parte . A shelter
care |
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| 1 | | order from an ex parte ex-parte hearing shall be endorsed with | 2 | | the date and
hour of issuance and shall be filed with the | 3 | | clerk's office and entered of
record. The order shall expire | 4 | | after 10 days from the time it is issued
unless before its | 5 | | expiration it is renewed, at a hearing upon appearance
of the | 6 | | party respondent, or upon an affidavit of the moving party as | 7 | | to all
diligent efforts to notify the party respondent by | 8 | | notice as herein
prescribed. The notice prescribed shall be in | 9 | | writing and shall be
personally delivered to the minor or the | 10 | | minor's attorney and to the last
known address of the other | 11 | | person or persons entitled to notice. The
notice shall also | 12 | | state the nature of the allegations, the nature of the
order | 13 | | sought by the State, including whether temporary custody is | 14 | | sought,
and the consequences of failure to appear and shall | 15 | | contain a notice
that the parties will not be entitled to | 16 | | further written notices or publication
notices of proceedings | 17 | | in this case, including the filing of an amended
petition or a | 18 | | motion to terminate parental rights, except as required by
| 19 | | Supreme Court Rule 11; and shall explain the
right of
the | 20 | | parties and the procedures to vacate or modify a shelter care | 21 | | order as
provided in this Section. The notice for a shelter | 22 | | care hearing shall be
substantially as follows:
| 23 | | NOTICE TO PARENTS AND CHILDREN
| 24 | | OF SHELTER CARE HEARING
| 25 | | On ................ at ........., before the Honorable | 26 | | ................,
(address:) ................., the State |
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| 1 | | of Illinois will present evidence
(1) that (name of child | 2 | | or children) ....................... are abused,
neglected | 3 | | or dependent for the following reasons:
| 4 | | ..............................................
and (2) | 5 | | whether there is "immediate and urgent necessity" to remove | 6 | | the child
or children from the responsible relative.
| 7 | | YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN | 8 | | PLACEMENT of the
child or children in foster care until a | 9 | | trial can be held. A trial may
not be held for up to 90 | 10 | | days. You will not be entitled to further notices
of | 11 | | proceedings in this case, including the filing of an | 12 | | amended petition or a
motion to terminate parental rights.
| 13 | | At the shelter care hearing, parents have the following | 14 | | rights:
| 15 | | 1. To ask the court to appoint a lawyer if they | 16 | | cannot afford one.
| 17 | | 2. To ask the court to continue the hearing to | 18 | | allow them time to
prepare.
| 19 | | 3. To present evidence concerning:
| 20 | | a. Whether or not the child or children were | 21 | | abused, neglected
or dependent.
| 22 | | b. Whether or not there is "immediate and | 23 | | urgent necessity" to remove
the child from home | 24 | | (including: their ability to care for the child,
| 25 | | conditions in the home, alternative means of | 26 | | protecting the child other
than removal).
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| 1 | | c. The best interests of the child.
| 2 | | 4. To cross examine the State's witnesses.
| 3 | | The Notice for rehearings shall be substantially as | 4 | | follows:
| 5 | | NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
| 6 | | TO REHEARING ON TEMPORARY CUSTODY
| 7 | | If you were not present at and did not have adequate | 8 | | notice of the
Shelter Care Hearing at which temporary | 9 | | custody of ............... was
awarded to | 10 | | ................, you have the right to request a full | 11 | | rehearing
on whether the State should have temporary | 12 | | custody of ................. To
request this rehearing, | 13 | | you must file with the Clerk of the Juvenile Court
| 14 | | (address): ........................, in person or by | 15 | | mailing a statement
(affidavit) setting forth the | 16 | | following:
| 17 | | 1. That you were not present at the shelter care | 18 | | hearing.
| 19 | | 2. That you did not get adequate notice (explaining | 20 | | how the notice
was inadequate).
| 21 | | 3. Your signature.
| 22 | | 4. Signature must be notarized.
| 23 | | The rehearing should be scheduled within 48 hours of | 24 | | your filing this
affidavit.
| 25 | | At the rehearing, your rights are the same as at the |
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| 1 | | initial shelter care
hearing. The enclosed notice explains | 2 | | those rights.
| 3 | | At the Shelter Care Hearing, children have the | 4 | | following rights:
| 5 | | 1. To have a guardian ad litem appointed.
| 6 | | 2. To be declared competent as a witness and to | 7 | | present testimony
concerning:
| 8 | | a. Whether they are abused, neglected or | 9 | | dependent.
| 10 | | b. Whether there is "immediate and urgent | 11 | | necessity" to be
removed from home.
| 12 | | c. Their best interests.
| 13 | | 3. To cross examine witnesses for other parties.
| 14 | | 4. To obtain an explanation of any proceedings and | 15 | | orders of the
court.
| 16 | | (4) If the parent, guardian, legal custodian, responsible | 17 | | relative,
minor age 8 or over, or counsel of the minor did not | 18 | | have actual notice of
or was not present at the shelter care | 19 | | hearing, he or she may file an
affidavit setting forth these | 20 | | facts, and the clerk shall set the matter for
rehearing not | 21 | | later than 48 hours, excluding Sundays and legal holidays,
| 22 | | after the filing of the affidavit. At the rehearing, the court | 23 | | shall
proceed in the same manner as upon the original hearing.
| 24 | | (5) Only when there is reasonable cause to believe that the | 25 | | minor
taken into custody is a person described in subsection | 26 | | (3) of Section
5-105 may the minor be
kept or detained in a |
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| 1 | | detention home or county or municipal jail. This
Section shall | 2 | | in no way be construed to limit subsection (6).
| 3 | | (6) No minor under 16 years of age may be confined in a | 4 | | jail or place
ordinarily used for the confinement of prisoners | 5 | | in a police station. Minors
under 18 years of age must be kept | 6 | | separate from confined adults and may
not at any time be kept | 7 | | in the same cell, room, or yard with adults confined
pursuant | 8 | | to the criminal law.
| 9 | | (7) If the minor is not brought before a judicial officer | 10 | | within the
time period as specified in Section 2-9, the minor | 11 | | must immediately be
released from custody.
| 12 | | (8) If neither the parent, guardian or custodian appears | 13 | | within 24
hours to take custody of a minor released upon | 14 | | request pursuant to
subsection (2) of this Section, then the | 15 | | clerk of the court shall set the
matter for rehearing not later | 16 | | than 7 days after the original order and
shall issue a summons | 17 | | directed to the parent, guardian or custodian to
appear. At the | 18 | | same time the probation department shall prepare a report
on | 19 | | the minor. If a parent, guardian or custodian does not appear | 20 | | at such
rehearing, the judge may enter an order prescribing | 21 | | that the minor be kept
in a suitable place designated by the | 22 | | Department of Children and Family
Services or a licensed child | 23 | | welfare agency.
| 24 | | (9) Notwithstanding any other provision of this
Section any | 25 | | interested party, including the State, the temporary
| 26 | | custodian, an agency providing services to the minor or family |
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| 1 | | under a
service plan pursuant to Section 8.2 of the Abused and | 2 | | Neglected Child
Reporting Act, foster parent, or any of their | 3 | | representatives, on notice
to all parties entitled to notice, | 4 | | may file a motion that it is in the best
interests of the minor | 5 | | to modify or vacate a
temporary custody order on any of the | 6 | | following grounds:
| 7 | | (a) It is no longer a matter of immediate and urgent | 8 | | necessity that the
minor remain in shelter care; or
| 9 | | (b) There is a material change in the circumstances of | 10 | | the natural
family from which the minor was removed and the | 11 | | child can be cared for at
home without endangering the | 12 | | child's health or safety; or
| 13 | | (c) A person not a party to the alleged abuse, neglect | 14 | | or dependency,
including a parent, relative or legal | 15 | | guardian, is capable of assuming
temporary custody of the | 16 | | minor; or
| 17 | | (d) Services provided by the Department of Children and | 18 | | Family Services
or a child welfare agency or other service | 19 | | provider have been successful in
eliminating the need for | 20 | | temporary custody and the child can be cared for at
home | 21 | | without endangering the child's health or safety.
| 22 | | In ruling on the motion, the court shall determine whether | 23 | | it is consistent
with the health, safety and best interests of | 24 | | the minor to modify
or vacate a temporary custody order.
| 25 | | The clerk shall set the matter for hearing not later than | 26 | | 14 days after
such motion is filed. In the event that the court |
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| 1 | | modifies or vacates a
temporary custody order but does not | 2 | | vacate its finding of probable cause,
the court may order that | 3 | | appropriate services be continued or initiated in
behalf of the | 4 | | minor and his or her family.
| 5 | | (10) When the court finds or has found that there is | 6 | | probable cause to
believe a minor is an abused minor as | 7 | | described in subsection (2) of Section
2-3
and that there is an | 8 | | immediate and urgent necessity for the abused minor to be
| 9 | | placed in shelter care, immediate and urgent necessity shall be | 10 | | presumed for
any other minor residing in the same household as | 11 | | the abused minor provided:
| 12 | | (a) Such other minor is the subject of an abuse or | 13 | | neglect petition
pending before the court; and
| 14 | | (b) A party to the petition is seeking shelter care for | 15 | | such other minor.
| 16 | | Once the presumption of immediate and urgent necessity has | 17 | | been raised, the
burden of demonstrating the lack of immediate | 18 | | and urgent necessity shall be on
any party that is opposing | 19 | | shelter care for the other minor.
| 20 | | (11) The changes made to this Section by Public Act 98-61 | 21 | | apply to a minor who has been
arrested or taken into custody on | 22 | | or after January 1, 2014 (the effective date
of Public Act | 23 | | 98-61). | 24 | | (Source: P.A. 97-1076, eff. 8-24-12; 97-1150, eff. 1-25-13; | 25 | | 98-61, eff. 1-1-14; 98-756, eff. 7-16-14; 98-803, eff. 1-1-15; | 26 | | revised 10-16-15.)
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