Validity of a jury trial waiver; People v Lafey; MCR 6.402; Admission of the victim’s statements to a sexual assault nurse examiner (SANE); People v Shaw; MRE 803(4) hearsay exception for statements made for purposes of medical treatment or diagnosis; Whether the admission of inadmissible hearsay constituted plain error; Distinguishing People v Thorpe & People v Harbison; Ineffective assistance; Failure to object; Prejudice; Sentencing; 25-year mandatory minimum under MCL 769.12(1)(a); Presumptive proportionality of a within-guidelines sentence; Cruel or unusual punishment; People v Burkett

The court held that defendant-Banks failed to “establish plain error affecting his substantial rights from the trial court’s acceptance of” his jury trial waiver or from the admission of the victim’s statements during a SANE exam. The court also determined that any “error by defense counsel by not objecting to the victim’s statements as read by” the SANE “was harmless and did not amount to ineffective assistance of counsel.” Further, it concluded the trial court did not abuse its discretion in “imposing a mandatory minimum sentence of 25 years for each” of his CSC III convictions, and his sentence did not constitute cruel or unusual punishment. Thus, the court affirmed his CSC III and IV convictions and his sentence, as a fourth offense habitual offender, to concurrent terms of 25 to 45 years for the CSC III convictions and time served for the CSC IV conviction. He first claimed that he was denied his constitutional right to a jury trial because he did not knowingly and voluntarily waive it. But based on “the questioning by defense counsel and the trial court, it is evident Banks understood his right to a jury trial and voluntarily waived it.” The court noted that he “does not dispute he requested a bench trial, nor does he dispute that he consented to the waiver hearing itself taking place via Zoom. The trial court fully complied with the procedures mandated under MCR 6.402(B), creating a presumption that the waiver ‘was voluntary, knowing, and intelligent.’” The court held that he did not “rebut this presumption and thus, the trial court did not commit plain error by accepting the waiver.” It also held that most of the SANE’s testimony was admissible evidence but that some portions of it did not fall under the MRE 803(4) hearsay exception. Nonetheless, they were “not the same as a medical expert opining that the victim told the truth. These statements are distinguishable from those made in Thorpe and Harbison, as [the SANE] was not giving a stamp of approval to the victim’s testimony, but was repeating what the victim said. It was not plainly erroneous for the trial court to admit these portions of” the testimony. The court also rejected Banks’ sentencing challenges, finding among other things that he did not present “any information about him or his offense that would allow him to overcome the presumption” that his within-guidelines sentence was proportionate.

Due process; Testimony about lost evidence; MRE 1004; People v Amison; Failure to preserve potentially exculpatory evidence; Arizona v Youngblood; Bad faith; Negative inference instruction; People v Davis; Prosecutorial misconduct; Appeals to juror sympathy; Waiver; Curative instruction; Ineffective assistance of counsel; Expert testimony; Forensic evidence; Life without the possibility of parole (LWOP) for a 21-year-old offender; Miller v Alabama; Cruel &/or unusual punishment; People v Adamowicz; Juror misconduct; Jury instructions; Cumulative error; Unfair prejudice

Finding no errors requiring reversal, the court affirmed defendant’s convictions. She was convicted of first-degree murder, conspiracy to commit first-degree murder, and mutilation of a dead body, for a brutal murder that went unsolved for 20 years. She was sentenced to LWOP for her murder and conspiracy convictions and 23 to 120 months for mutilation of a dead body. On appeal, the court first found that because there was no evidence of bad faith or intentional suppression regarding the loss of her police interview recording, which she conceded was only potentially useful, there was no due process violation. Next, because “the trial court’s instruction cured any potential prejudicial effect of the prosecutor’s statements” defendant could not prove prosecutorial misconduct. She also failed to demonstrate the requisite prejudice to successfully make an ineffective assistance of counsel claim. In addition, she failed to show that an objection to forensic testimony would have led to a ruling against the experts’ qualifications or provide any evidence showing that a forensic report was inaccurate or would not have been admissible but for counsel’s stipulation. Further, defendant’s (who was 21 at the time of the offense) mandatory LWOP sentence was “not prohibited by the United States or Michigan Constitution; the line has been drawn at 17 for purposes of the federal constitution and 18 for purposes of the state constitution.” Moreover, because she did not present “any evidence that a juror was exposed to improper extrinsic information about her trial during the trial, the trial court did not abuse its discretion by denying [her] motion for a new trial.” And that “the judge misspoke by referring to the second-degree murder portion of the open murder instructions as ‘Count 2,’ when considered within the context of the instructions as a whole [did] not somehow make the instructions inherently misleading.” Finally, because the “lack of prejudice was not even a close question with respect to any of defendant’s” alleged errors, she was “not entitled to appellate relief based on cumulative error.”

Sentencing; Reasonableness & proportionality; People v Posey; Departure sentence; People v Dixon-Bey; Principle that “the more egregious the offense, and the more recidivist the criminal, the greater the punishment”; People v Babcock; Accuracy of the PSIR; MCR 6.425(E)(2); People v Grant; Waiver; Scoring of OV 8; MCL 777.38(1); Scoring of OV 14; MCL 777.44(1)(a); “Multiple-offender situation”; People v Dickinson; Ministerial correction of the PSIR; Constitutionality of MCL 769.1k(1)(b)(iii)

The court held that defendant’s sentence was proportional and that the trial court did not err in relying on the PSIR in scoring the OVs. However, it remanded for the ministerial task of correcting his score as to OV 13. He was convicted of a variety of charges arising out of his sexual abuse of the young victim and his Internet searches related to young girls. The trial court sentenced him accordingly. On appeal, the court rejected his argument that the trial court imposed a grossly disproportionate sentence that exceeded the minimum guidelines by 100 months. “Ultimately, the trial court’s reasons form a mix of factors not considered, or not adequately considered, by the sentencing guidelines, as well as a balance of society’s need for protection against defendant’s potential for rehabilitation.” The court also rejected his claim that because certain facts in the PSIR were incorrect, the trial court imposed a sentence greater than it otherwise would have. “Contrary to defendant’s argument at his resentencing . . . the police report demonstrate[d] that there were two instances of sexual assault—once in the bathroom and again on the bed. Defendant did not support his challenge; therefore, the challenge was not effective, and the trial court’s determination to rely instead on the PSIR was not an outcome that was outside the range of reasonable and principled outcomes.” In addition, a “preponderance of the evidence supported that defendant was a leader in a multiple-offender situation and that the trial court correctly assessed 10 points for OV 14.” Also, the trial court’s scoring error as to OV 13 “did not affect defendant’s minimum sentencing guidelines range” and resentencing was not required. Nevertheless, it remanded “for the limited ministerial task of correcting the score for OV 13 in the sentencing information report.” Finally, the court rejected his contention that MCL 769.1k(1)(b)(iii) is “facially unconstitutional on the basis that it incentivizes judges to convict defendants and assess costs to fund their courts.” It noted that it “has already considered this issue and determined that the statute is not unconstitutional.” Affirmed.

Sufficiency of the evidence for a FIP conviction; People v Burgenmeyer; Appearing in court wearing leg shackles; Double jeopardy; Convictions of FIP & felony-firearm; People v Mitchell; People v Calloway; People v Dillard; Sentencing; Proportionality

The court held that the jury “reasonably concluded that defendant possessed the seized handgun based on legally sufficient evidence.” He also failed to show “any level of prejudice that would justify a finding of plain error with respect to the exposure of his shackles.” Further, the Supreme Court in Mitchell and Calloway and the court in Dillard decided (and rejected) defendant’s issue as to double jeopardy and his convictions for both FIP and felony-firearm. Finally, the court could not conclude that he “demonstrated that his sentence is unreasonable or disproportionate in relation to the circumstances surrounding both the offense and the offender.” He contended “that the evidence presented raises reasonable doubt regarding his possession of a firearm based on his testimony that the gun featured in the music video in question was, in fact, a nonfunctional prop.” He further pointed “out that he provided a receipt for the rental of an imitation gun. However, he also acknowledged that the invoice was dated after the creation of the video and that the receipt was issued following police contact. A police officer testified to discovering a closed business under a different name at the address indicated on the invoice, and the purported owner of the prop company declined to participate in an interview, thus raising a question of fact whether the gun was real or a prop.” But the jury rejected defendant’s claim “that the gun was a prop. The question then arises as to whether there was sufficient evidence presented in the record from which the jury could reasonably conclude that the firearm in the video was an actual gun rather than a nonfunctional prop.” In his appeal, defendant asserted “there was no direct testimony linking him to the firearm found at the home and presented at trial as evidence of the gun [he] used in the video. However, law enforcement obtained defendant’s address from the Secretary of State and subsequently searched the residence, during which a handgun was discovered concealed beneath a mattress in the bedroom, alongside a sweatshirt identical to the one worn by defendant in the video. An officer compared the firearm in the video with the one retrieved during the search and noted that they matched in size, shape, and color, and shared identical features such as an accessory rail and visible wear marks, in addition to an activated loaded-chamber indicator. At trial, defendant acknowledged these similarities. Based on the evidence of [his] appearance in a music video while brandishing a handgun, which closely resembled the weapon found at [his] residence, along with the matching clothing,” the court determined “it was reasonable for the jury to infer that defendant possessed the handgun. Moreover, the” gun was discovered in what appeared to be his bedroom. “A defendant has constructive possession of a firearm if the location of the weapon is known and it is reasonably accessible to the defendant,” as articulated in Burgenmeyer. Affirmed.

Motion to withdraw guilty plea; People v Spencer; Knowingly, voluntarily, or intelligently; People v Carmichael

The court affirmed the trial court’s denial of defendant’s motion to withdraw his plea. He pled guilty to possession of meth within 1,000 feet of school property, second or subsequent offense. Prior to sentencing, he “moved to withdraw his plea to this offense on the ground that it was not knowingly, voluntarily, and intelligently entered.” The trial court denied his motion. Defendant argued “that his plea was involuntary because he could not adequately consider it without his medication.” He claimed “that at the time of his plea, he experienced symptoms of shaking and confusion due to withdrawal from medications. However, unlike the defendant in Carmichael, the trial court found defendant exhibited no signs of withdrawal during the plea process—the transcript and video recording of the plea hearing support [its] findings.” In addition to his “claims concerning his experiences with withdrawals during his plea hearing, he assert[ed] that at the time of entering his plea, he had not received the police report or the factual allegations related to the charge of possession of [meth] within 1,000 feet of a school.” This claim suggested “that his plea was not made knowingly. Again, the record belie[d] defendant’s assertions. [He] was present during the execution of the search warrant at his residence and during his plea hearing acknowledged his possession of” meth. The record did “not support defendant’s statements in his appeal to the contrary. Therefore, the trial court’s conclusion that the plea was made knowingly did not constitute an abuse of discretion.” Further, he argued “that the prosecution failed to fulfill its obligation to demonstrate that substantial prejudice would result from the withdrawal of his plea. The prosecution contended that other cases had either been resolved or were ongoing with the understanding that the defendant’s plea was valid. Although this was articulated with limited coherence, the prosecution maintained that more than mere inconvenience was at stake, asserting that the plea withdrawal would impede the prosecution of other defendants, as noted in Spencer[.]” Thus, the court held that “the trial court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea.” He additionally argued “that the plea was unsupported by a sufficient factual basis because the record did not establish that he knew he was within 1,000 feet of a school when he possessed the” meth. The court held that the “trial court correctly observed that when inquired if he was within 1,000 feet of a school at the time of possessing [meth], the defendant responded affirmatively. Even assuming, for the sake of argument, that the trial court erred in this assertion, it is essential to note that the prosecution was not obligated to demonstrate that the defendant possessed knowledge of his proximity to a school within 1,000 feet.” The video and transcript of his “plea serve as compelling evidence that undermines all of defendant’s assertions that his pleas were not made knowingly, voluntarily, or intelligently.”

Denial of benefits claim under the Employee Retirement Income Security Act (ERISA); 29 USC § 1132(a)(1)(B); Termination of employment “for cause”; Discovery; Applicability of the attorney-client privilege; Whether the “fiduciary exception” applied; United States v Jicarilla Apache Nation; Whether the Executive Severance Plan was an executive deferred-compensation plan (a “top hat” plan); Whether plaintiff was entitled to a jury trial; Whether CIGNA Corp v Amara & Montanile v. Board of Trs of Nat’l Elevator Indus Health Benefit Plan implicated the right to a jury trial; Whether the denial of benefits was arbitrary & capricious; American Electric Power Service Corporation (AEP)

The court held that plaintiff-Kramer was not entitled to benefits under defendant-American Electric Power Executive Severance Plan where the Plan’s conclusion that he was terminated for “cause” was not arbitrary and capricious. Kramer was previously employed by defendant-AEP. He sought to recover benefits under AEP's Executive Severance Plan, which provides a severance payment based on an employee’s base salary and performance for “‘an Involuntary Termination or a Good Reason Resignation.’” AEP terminated his employment after investigating him for allegedly approving an employee’s improper personal expenses and for “wiping” his company cell phone during the investigation. His claim for benefits under the Plan was denied on the basis his termination was for “cause.” The Plan’s appeal committee upheld that decision. He sued AEP and the Plan under ERISA for a denial of benefits. His jury demand was stricken. He then moved to conduct discovery, arguing that the Supreme Court had abrogated the Sixth Circuit’s precedent providing that discovery in ERISA denial-of-benefits actions is limited to procedural clams. Although the magistrate judge granted some discovery, plaintiff unsuccessfully requested additional discovery. Applying the arbitrary-and-capricious standard of review, the district court concluded the record supported a finding that he was terminated for cause and granted defendants judgment. On appeal, plaintiff relied on the fiduciary exception in challenging defendants’ assertion of the attorney-client privilege as to documents he sought in discovery. The court noted that the fiduciary exception did “not apply to the Plan if the Plan is an executive deferred-compensation plan, commonly referred to as a top-hat plan.” Further, the Plan was “a top-hat plan if AEP maintained it to pay compensation to participants, like Kramer, in the future. The plain language of the Plan shows that AEP maintained it to provide deferred compensation.” Because the Plan qualified “as a top-hat plan, the fiduciary exception to the attorney-client privilege does not apply. As a result, the district court did not abuse its discretion in denying Kramer’s motion to compel AEP and the Plan to produce privileged documents.” The court also held that the district court correctly ruled that plaintiff was not entitled to a jury trial under the Seventh Amendment, finding the cases he cited, CIGNA and Montanile, were inapplicable. Lastly, the court held that the district court properly granted defendants judgment on the merits because the denial of benefits was not arbitrary or capricious. Affirmed.

Medical malpractice; Timeliness; Principle that a plaintiff may not create an issue of fact by contradicting a complaint with an affidavit; Dykes v William Beaumont Hosp; Leave to amend the complaint

The court held that while the trial court should not have granted defendants in this medical malpractice action summary disposition under MCR 2.116(C)(8), it should have done so “under MCR 2.116(C)(7) because plaintiff could not contradict his prior” untimely complaint with an affidavit. Thus, it found that the trial court reached the correct result, although for the wrong reason. Plaintiff did “not contest that, as pleaded, his complaint was untimely.” Rather, he asserted “the trial court should have granted him leave to amend his complaint.” But the court noted that he failed to “offer a proposed amendment to his complaint in writing.” Thus, the trial court did not abuse its discretion in denying his request to amend his complaint. Defendants contended the trial court erred in determining “there was a genuine issue of fact under MCR 2.116(C)(7) as to the date plaintiff discovered the retained fragment because a plaintiff may not create an issue of fact by contradicting a complaint with an affidavit.” The court agreed. The complaint stated that plaintiff “discovered complications arising from the 2018 surgery on [1/31/22], when he received a CT scan that showed a foreign body in his right external iliac vein.” After defendants filed their summary disposition motion, “plaintiff filed an affidavit averring that he did not learn of the catheter fragment until [2/4/22] or later and included a report of a CT scan performed on [1/31/22], but printed on [2/4/22].” He asserted that “this evidence created a genuine issue of material fact” as to the discovery date. The court noted “it is well-established that ‘a party may not create issues of fact through contradiction of that party’s prior sworn statements.’” It further noted that this “rule has typically been applied to contradictions between affidavits and deposition testimony.” But plaintiff did not cite any “authority permitting the party who drafted the complaint to disavow [its] contents to create a factual issue.” The court concluded “that for purposes of summary disposition, a plaintiff cannot disavow clear, intelligent, and unequivocal facts pleaded in his complaint in the absence of any explanation or modification, or of a showing of mistake or improvidence.” Thus, the court held that plaintiff “could not create an issue of fact by contradicting unequivocal facts in his complaint with his later affidavit, and the trial court erred by determining otherwise.” Affirmed.

Denial of benefits claim under the Employee Retirement Income Security Act (ERISA); 29 USC § 1132(a)(1)(B); Termination of employment “for cause”; Discovery; Applicability of the attorney-client privilege; Whether the “fiduciary exception” applied; United States v Jicarilla Apache Nation; Whether the Executive Severance Plan was an executive deferred-compensation plan (a “top hat” plan); Whether plaintiff was entitled to a jury trial; Whether CIGNA Corp v Amara & Montanile v. Board of Trs of Nat’l Elevator Indus Health Benefit Plan implicated the right to a jury trial; Whether the denial of benefits was arbitrary & capricious; American Electric Power Service Corporation (AEP)

The court held that plaintiff-Kramer was not entitled to benefits under defendant-American Electric Power Executive Severance Plan where the Plan’s conclusion that he was terminated for “cause” was not arbitrary and capricious. Kramer was previously employed by defendant-AEP. He sought to recover benefits under AEP's Executive Severance Plan, which provides a severance payment based on an employee’s base salary and performance for “‘an Involuntary Termination or a Good Reason Resignation.’” AEP terminated his employment after investigating him for allegedly approving an employee’s improper personal expenses and for “wiping” his company cell phone during the investigation. His claim for benefits under the Plan was denied on the basis his termination was for “cause.” The Plan’s appeal committee upheld that decision. He sued AEP and the Plan under ERISA for a denial of benefits. His jury demand was stricken. He then moved to conduct discovery, arguing that the Supreme Court had abrogated the Sixth Circuit’s precedent providing that discovery in ERISA denial-of-benefits actions is limited to procedural clams. Although the magistrate judge granted some discovery, plaintiff unsuccessfully requested additional discovery. Applying the arbitrary-and-capricious standard of review, the district court concluded the record supported a finding that he was terminated for cause and granted defendants judgment. On appeal, plaintiff relied on the fiduciary exception in challenging defendants’ assertion of the attorney-client privilege as to documents he sought in discovery. The court noted that the fiduciary exception did “not apply to the Plan if the Plan is an executive deferred-compensation plan, commonly referred to as a top-hat plan.” Further, the Plan was “a top-hat plan if AEP maintained it to pay compensation to participants, like Kramer, in the future. The plain language of the Plan shows that AEP maintained it to provide deferred compensation.” Because the Plan qualified “as a top-hat plan, the fiduciary exception to the attorney-client privilege does not apply. As a result, the district court did not abuse its discretion in denying Kramer’s motion to compel AEP and the Plan to produce privileged documents.” The court also held that the district court correctly ruled that plaintiff was not entitled to a jury trial under the Seventh Amendment, finding the cases he cited, CIGNA and Montanile, were inapplicable. Lastly, the court held that the district court properly granted defendants judgment on the merits because the denial of benefits was not arbitrary or capricious. Affirmed.

Medical malpractice; Timeliness; Principle that a plaintiff may not create an issue of fact by contradicting a complaint with an affidavit; Dykes v William Beaumont Hosp; Leave to amend the complaint

The court held that while the trial court should not have granted defendants in this medical malpractice action summary disposition under MCR 2.116(C)(8), it should have done so “under MCR 2.116(C)(7) because plaintiff could not contradict his prior” untimely complaint with an affidavit. Thus, it found that the trial court reached the correct result, although for the wrong reason. Plaintiff did “not contest that, as pleaded, his complaint was untimely.” Rather, he asserted “the trial court should have granted him leave to amend his complaint.” But the court noted that he failed to “offer a proposed amendment to his complaint in writing.” Thus, the trial court did not abuse its discretion in denying his request to amend his complaint. Defendants contended the trial court erred in determining “there was a genuine issue of fact under MCR 2.116(C)(7) as to the date plaintiff discovered the retained fragment because a plaintiff may not create an issue of fact by contradicting a complaint with an affidavit.” The court agreed. The complaint stated that plaintiff “discovered complications arising from the 2018 surgery on [1/31/22], when he received a CT scan that showed a foreign body in his right external iliac vein.” After defendants filed their summary disposition motion, “plaintiff filed an affidavit averring that he did not learn of the catheter fragment until [2/4/22] or later and included a report of a CT scan performed on [1/31/22], but printed on [2/4/22].” He asserted that “this evidence created a genuine issue of material fact” as to the discovery date. The court noted “it is well-established that ‘a party may not create issues of fact through contradiction of that party’s prior sworn statements.’” It further noted that this “rule has typically been applied to contradictions between affidavits and deposition testimony.” But plaintiff did not cite any “authority permitting the party who drafted the complaint to disavow [its] contents to create a factual issue.” The court concluded “that for purposes of summary disposition, a plaintiff cannot disavow clear, intelligent, and unequivocal facts pleaded in his complaint in the absence of any explanation or modification, or of a showing of mistake or improvidence.” Thus, the court held that plaintiff “could not create an issue of fact by contradicting unequivocal facts in his complaint with his later affidavit, and the trial court erred by determining otherwise.” Affirmed.

Trespass; Dalley v Dykema Gossett PLLC; Intent; Wolfenbarger v Wright; Materiality; Reasonableness of mistake; Negligence; Kandil-Elsayed v F & E Oil, Inc; Duty; Breach; Noneconomic damages for property damage; Price v High Pointe Oil Co

The court held that the trial court did not err by granting plaintiff summary disposition of her trespass and negligence claims against defendants-lawn care service and technician (Poellnitz), but did err by awarding her noneconomic damages. Plaintiff sued defendants after Poellnitz mistakenly went to her address and sprayed chemicals on her organic clover lawn, garden, and plants, damaging them. The trial court granted her summary disposition as to liability and scheduled a trial on damages. The jury awarded her $22,400 in economic damages and $66,150 in noneconomic damages. The trial court then denied defendants’ motion for JNOV and remittitur. On appeal, the court rejected their argument that the trial court erred when it granted plaintiff’s motion as to liability. “Although Poellnitz may have been mistaken about which property he needed to service, there is no dispute [he] intended to enter onto plaintiff’s property.” As such, “the trial court did not err in ruling that there was no genuine issue of material fact as to defendants’ liability on plaintiff’s trespass claim.” The court also found that the trial court did not err when it awarded plaintiff partial summary disposition as to liability on her negligence claim. “In arguing that the trial court erred by resolving the question of reasonableness, defendants do not cite any evidence that gives rise to a genuine issue of material fact as to the reasonableness of Poellnitz’s conduct.” And given the “relatively simple act it would have taken for [him] to confirm the address and avoid the improper application of chemicals, defendants’ conduct was not reasonable, so [they] breached the duty of care owed to plaintiff.” But the court agreed with defendants that the trial court erred by allowing the jury to award plaintiff noneconomic damages. It “abused its discretion by ruling that plaintiff would be permitted ‘to present testimony relating to her non-economic damages, e.g., mental anguish, etc.’ That ruling enabled [her] to present evidence of mental anguish for property destruction, which is improper under” Price. She could not “recover noneconomic damages for harm to her property” despite the fact “she successfully asserted a trespass claim in addition to a negligence claim.” The reasons given by the “Supreme Court for prohibiting noneconomic damages in Price apply with equal force here.” In so ruling, the court recognized the “logical inconsistency” in the law, noting it “makes little sense to permit noneconomic damages in cases involving trespass-nuisance claims based on the mental anguish associated with deprivation of the use and enjoyment of property, but to bar [them] in cases where the property is negligently damaged or destroyed.” But the Supreme Court was clear on this issue. Affirmed in part, reversed in part, and remanded.

Best-interest finding; Voluntariness of release

The court affirmed the trial court’s order terminating respondent-mother’s parental rights to her children pursuant to her release of parental rights. Her best-interest argument was without merit. She raised arguments pursuant to the Adoption Code, but this case was brought pursuant to the Juvenile Code. “Respondent’s decision to consent to the termination of [her] parental rights does not transfer the proceeding from the juvenile code to the adoption code.” The court held that the “trial court does not need to announce a statutory basis for termination when a party consents to termination pursuant to the juvenile code,” and it agreed “with a previous panel’s conclusion that there is ‘no reason why a trial court would be required to articulate a best-interest finding under the same circumstances.’” Also, the court had “no basis upon which to conclude that the release was not knowing or voluntary.” The court held that “the record offer[ed] no support for the conclusion that the release was not knowing and voluntary.” It found that the “trial court fully explained what parental rights are, what the release meant, and the permanent nature of the release. Nothing in the record suggest[ed] that respondent was in a state of emotional turmoil while releasing her rights. [She] stated she was not under the influence of any drugs that would impair her ability to decide. She stated she had reviewed the release forms with her attorney and had no questions.” She cited “a snippet of her psychological evaluation opining that she was prone to emotional decision making in support of her contention that the release was not knowing.” Respondent also argued “that her ‘symptoms of depression, paranoia, and cognitive anxiety’ render[ed] her unable to understand the ‘substantive facts’ of releasing her parental rights.” However, she offered “no explanation for how these psychological symptoms barred her from executing a voluntary release, and she has failed to overcome the evidence to the contrary.” She also suggested “that she was pressured by her trial counsel into releasing her parental rights. However, respondent affirmed multiple times that she had voluntarily released her parental rights, and there is nothing in the record that indicates any pressure from [her] attorney.”