Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Fourth Amendment violation claims under 42 USC § 1983; “Probable cause” to arrest based on a reasonable ground to believe that plaintiff had committed felonious assault; “Excessive force”; Qualified immunity; Whether defendants-deputies violated a “clearly established” right; Whether Michigan’s law against “strip searches” (MCL 764.25a(3)) applied; Municipal liability claim based on a failure to train; Monell v. Department of Soc Servs of City of New York; Michigan law claims for false arrest & false imprisonment; Ethnic-intimidation claim under MCL 750.147b(1); Intentional infliction of emotional distress (IIED)
[This appeal was from the ED-MI.] The court held that defendants-deputies were entitled to summary judgment on plaintiff-Farris’s Fourth Amendment and Michigan state law claims. They had probable cause to arrest her where they had a reasonable belief that she had committed felonious assault. Further, she could not show that the force used to remove her from the police vehicle or to control her when placing her in a cell violated clearly established law. Farris got into a confrontation with a friend in which she was accused of waving either a knife or scissors. The deputies discovered a pocketknife and scissors in her car. While in the police vehicle, she attempted suicide with the seatbelt. She had to be forcibly removed from the vehicle. She told police during a pat-down that she was pregnant. She was released without charges the next day, but miscarried. Farris sued several deputies for excessive force under § 1983 and sued defendant-County for failure-to-train under Monell. She also brought Michigan state law claims. The district court granted defendants summary judgment. Her Fourth Amendment claim alleged that two separate groups of deputies committed two separate seizures when arresting and jailing her. The deputies asserted qualified immunity. The court held that the police had probable cause to arrest her. The alleged victim’s oral and later written statements and the presence of the knife and scissors in Farris’s car supported the arrest. Her excessive-force claim based on her removal from the police vehicle failed where she did not have analogous case law to establish that under the circumstances, the deputies’ specific actions violated a clearly established right. The court held that “Farris’s suicidal and uncooperative conduct gave the officers legitimate reasons for the minor force they employed, and our precedent would not have clearly established its illegality.” The court also held that MCL 764.25a(3) was not violated by the presence of male deputies when she refused to remove her clothes because the incident did not constitute a “strip search” where they removed her “street clothes” under a County “change-out” policy. As to Farris’s municipal liability claim based on a failure to train, the court held that she failed to establish a “specific constitutional violation” in her own case. She also fell short of showing that the County was deliberately indifferent to the use of excessive force. Her state-law claims for false arrest and imprisonment failed given that there was probable cause for her arrest. Her claims of assault and battery and IIED failed where the deputies were protected by governmental immunity under Michigan law. Finally, the court rejected her claim of ethnic intimidation under Michigan law where there was no evidence of discrimination based on her sex or her race. Affirmed.
Municipal liability claims under 42 USC § 1983; Monell v Department of Soc Servs; “Failure to screen”; Board of Comm’rs of Bryan Cnty v Brown; Whether the police chief’s failure to adequately screen the defendant-officer’s background “was the moving force” behind the officer’s unconstitutional misconduct that resulted in plaintiff’s injury; Whether plaintiff “abandoned” the appeal where his attorney conceded that the claims were deficient
The court held that plaintiff-Kovalchuk failed to plausibly plead that defendant-City of Decherd's police chief’s failure to adequately screen the defendant-officer’s background “was the moving force” behind the officer’s unconstitutional misconduct that resulted in Kovalchuk’s injury. Thus, it affirmed the dismissal of Kovalchuk’s municipal liability claims under § 1983. An off-duty City police officer pulled over Kovalchuk’s vehicle, displayed his badge, pointed a gun at him, and made him lie on the ground. Kovalchuk subsequently sued the officer and the City. A default judgment was entered against the officer. Only the municipal liability claims against the City for failure to train, supervise, and screen remained. As to the failure to screen claim, Kovalchuk alleged that the City was liable for its failure to adequately check the officer’s references. The district court dismissed the claims. On appeal, the court first noted that at oral argument, “Kovalchuk’s lawyer conceded that the complaint was deficient on all counts[.]” Even so, the court chose to consider the failure to screen claim to highlight why it was not plausibly pled. It explained that under Brown, it is not enough for a municipality to just fail to review an applicant’s background. “‘Only where adequate scrutiny of an applicant’s background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party’s federally protected right can the official’s failure to adequately scrutinize the applicant’s background constitute’” the necessary deliberate indifference. And as to “the causation element of deliberate indifference, establishing that a hiring decision would likely result in any constitutional injury is insufficient to impose municipal liability. Instead, the plaintiff must show that ‘this officer was highly likely to inflict the particular injury suffered by the plaintiff.’” The main question was whether the police chief’s failure to adequately screen the officer’s background “was the moving force behind” the officer’s unconstitutional misconduct and thus, Kovalchuk’s injury. The “ambiguous allegations” in the complaint, which simply alluded “to negligent hiring by the City, do not establish the necessary causal link for Kovalchuk’s deliberate-indifference claim.”
Specific unanimity jury instruction; People v Cooks; People v Gadomski; Distinguishing People v Yarger; Ineffective assistance of counsel; Failure to make a futile motion or objection; Sentencing; Scoring of OV 10; MCL 777.40(1)(a); “Predatory conduct” (MCL 777.40(3)(a)); People v Cannon; Upward departure from the guidelines; Proportionality; People v Dixon-Bey; Whether references to an acquitted charge should have been removed from the presentence investigation report; Morales v Michigan Parole Bd
The court held that defendant was not entitled to a specific unanimity jury instruction. Further, the trial court did not err in scoring 15 points for OV 10 and the upward departure sentence it imposed did not violate the principle of proportionality. And the court rejected his ineffective assistance of counsel claims. He was convicted of four counts of CSC II involving three victims, and sentenced to 86 months to 15 years. The court concluded that while “each act was proved distinctly from the others with different instances of sexual assault, the acts were not conceptually distinct; all the acts were part of the same theory that defendant committed” CSC against the victims. It noted that “the elements listed in MCL 750.520c constitute alternative means of proving a single” CSC II offense. In Gadomski, it determined a defendant is properly convicted of this crime “‘even if some of jurors believed that he committed the offense solely based on one aggravating circumstance, while the rest of the jurors believed that he committed the offense based on another one of the aggravating circumstances.’ In this case, the trial court did not plainly err by giving the general unanimity instruction.” The court found defendant’s reliance on Yarger was misplaced because this case was distinguishable where he was charged with four counts of CSC II and one count of CSC I, and convicted of the CSC II counts “based on testimony regarding at least five separate acts; defendant was not charged with only a single count of CSC and convicted based on testimony alleging multiple acts.” As to his sentencing, the court held that a “preponderance of the evidence established that defendant’s conduct falls squarely within the statutory definition of predatory conduct. [He] argues that hugging and kissing the victims, taking them to the zoo, and watching movies together is normal, nonpredatory behavior. Under ordinary circumstance, such behavior would be normal, but the evidence in this case established that [he] used such to lure his victims into a sense of security and trust, and then he abused that trust by sexually assaulting each one of them.” In addition, the “trial court imposed its departure sentence because the guidelines did not adequately factor in several aspects of defendant’s conduct and offenses in this case. Under the circumstances presented in this case, [it] crafted appropriate sentences.” Affirmed.
Piercing the veil of judicial impartiality; People v Stevens; Wheeler v Wallace; Offer of mental health services to the jury after the victim’s testimony; Denial of defendant’s motion for a mistrial; People v Haywood
The court agreed with defendant “that the trial court abused its discretion and pierced the veil of judicial impartiality by offering mental health services to the jury after the victim’s testimony and by subsequently declining to grant a mistrial.” Defendant was convicted of CSC I and II. Of primary concern to the court was the “nature of the [trial] court’s comments and the judge’s demeanor.” The record indicated it “advised the jury that ‘these cases are—are challenging for me and everyone else in the courtroom, and I know they are for you as well.’ This came directly on the heels of the victim’s testimony. There is no evidence in the record that anyone in the jury appeared distressed by the victim’s testimony at the time, although the trial judge was clearly distressed by the contents of said testimony. Thus, it would appear that the comments largely reflected the trial court’s opinion of, and feelings about, the victim’s testimony—namely that it was ‘challenging’ for the court to hear it.” Defendant contended the nature of the “comments evidenced its belief in the credibility of the witness’s testimony.” The court was “inclined to agree.” It concluded the trial court’s “decision to reference the need for mental health services could have tainted the jury’s view of the evidence, no matter how well-intentioned the act might have been.” The court also found that the timing of the trial “court’s curative instruction matters. Had [it] immediately walked its statement back and gave a curative instruction explaining the purpose of its comments, the impact on the jury could certainly have been lessened. Instead, court was adjourned for the day and a curative instruction was not given until court reconvened the following day, thus giving the jury a full 24-hour period to contemplate the nature of the [trial] court’s statements in relation to the victim’s testimony. For a limiting instruction to truly cure an error such as this, it must be clearly and immediately delivered to the jury.” The court held that given “the totality of the circumstances, the trial court pierced the veil of judicial impartiality by indicating that it was disturbed by the victim’s testimony, thus creating the appearance of sympathy for, or partiality toward, the victim. Combined with the length of time between the comments and [its] eventual delivery of a curative” jury instruction, its actions prejudiced defendant. Thus, the court concluded he was entitled to a new trial. Reversed and remanded.
Evidence of sexual orientation & pornography preferences; Relevance; MRE 402; MRE 404(a); Improper character evidence; Ineffective assistance of counsel
The court held that the “prosecutor plainly erred by questioning defendant regarding his sexual identity and his preference for pornography involving transgender and gay men. Defendant was unfairly prejudiced as a result, and” was thus entitled to a new trial. In all other respects, he failed to show error warranting relief. He was convicted of CSC I and accosting a child for immoral purposes. Defendant first argued “that evidence of his sexual orientation and pornography preferences was irrelevant, impermissible character evidence, and that it was admitted at trial in violation of MRE 402 and MRE 404(a).” The court agreed in part. “In the context of the charges against defendant, the prosecutor’s questions were largely relevant to establish that defendant showed the victim pornography on his cell phone and to tie defendant’s crime against the victim with his predilection for pornography involving stepfathers and stepsons. MRE 402. Thus, the line of questioning pertaining to defendant’s use of pornography and some of his search terms related to ‘boy,’ ‘stepdad,’ and the like, were relevant and admissible. Additionally, such testimony was directly related to the crimes of which defendant was accused, and thus, its probative value substantially outweighed any potential prejudice.” However, the court held that the same could not “be said about the evidence pertaining to whether defendant watched ‘transsexual’ pornography, as well questions regarding whether he identified as a gay man.” It concluded that the “line of questioning was irrelevant to the matter at hand.” Thus, it agreed with defendant that plain error occurred. It further agreed with him that the error was unfairly prejudicial. He also argued that his attorney was ineffective for failing to object to the prosecutor’s questioning on cross-examination. Defendant faulted his counsel “on the grounds that the testimony elicited was irrelevant or prejudicial.” However, the fact remained “that defense counsel did object to the prosecutor’s line of questioning—once successfully, once unsuccessfully.” And the record reflected “that defense counsel later utilized the prosecutor’s cross-examination regarding defendant’s sexual orientation and pornography preferences to argue that the prosecutor was attempting to distract the jury from the issues at hand.” Reversed and remanded.
Sentencing; Whether the introductory sentence of MCL 769.34(10) is unconstitutional; People v Posey (On Remand); Due process; MCL 777.21(3); Reasonable & proportionate; People v Lampe; Cruel &/or unusual punishment; Operating a motor vehicle with a revoked license causing death (OWRLCD)
The court held that the trial court did not abuse its discretion in “enhancing defendant’s maximum sentence and by increasing the upper limit of the minimum guidelines range to 19 years” under MCL 769.12(1)(b) and 777.21(3)(c), based on his status as a fourth-offense habitual offender. Also, he did not meet “his burden of overcoming the nonbinding presumption that the within-guidelines minimum sentence of 19 years was proportional.” Finally, the court rejected his cruel and/or unusual punishment argument. He pled guilty to OWRLCD and was sentenced as a fourth-offense habitual offender to 19 to 40 years. The court first addressed his claim that the introductory sentence of MCL 769.34(10) is unconstitutional. It began with his arguments based on MCL 777.21(3). He was assessed 75 points for PRV 1 for “3 or more prior high severity felony convictions.” The court concluded that considering “that assessment and the scoring of the remaining PRVs, along with the scoring of the OVs, defendant’s guidelines range, without yet contemplating his prior felony convictions for purposes of MCL 777.21(3), would be 58 to 114 months in prison given that OWLRCD is a Class C offense.” Because he “was a fourth-offense habitual offender, the trial court increased the top end or upper limit of the guidelines range from 114 months to 228 months under MCL 777.21(3)[.]” The court found that assuming “for the sake of argument that the analytical structure or reasoning of defendant’s argument is legally sound, we conclude that there was no abuse of discretion in enhancing [his] sentence.” As reflected by his “extensive criminal history and as recognized by the trial court, the record clearly demonstrates that defendant has an inability to conform his conduct to the laws of society.” The court was “not unsympathetic to [his] horrific childhood, but, as emphasized by the trial court, it cannot repeatedly be used as an excuse for continuing criminal behavior.” Further, while OWRLCD is “a strict liability offense, it is nonetheless a very serious crime—[J] lost her life. It is inescapable that defendant caused [J’s] death because he chose to engage in legally-prohibited conduct—driving a motor vehicle with a revoked license.” There was no indication that J “did anything improper that contributed to her death.” The court next addressed defendant’s claim “that it was fundamentally unfair and thus a violation of due process to weigh [his] three prior felony convictions when scoring the PRVs and calculating the guidelines range, and to then again consider them in relation to the habitual offender-enhancement provision in MCL 777.21(3).” First, he failed to cite adequate supporting authority for his argument. And the argument failed on a substantive level. The court also held that “the 19-year minimum sentence was proportionate to the circumstances surrounding the offense and the offender.” Affirmed.
Whether defendant’s conviction for FIP of a firearm under 18 USC § 922(g)(1) violated the Second Amendment; New York State Rifle & Pistol Ass’n v Bruen; Sentencing; Application of a four-level enhancement for “reckless endangerment” under USSG § 2K2.1(b); Sufficiency of the evidence to support the enhancement; Harmless error
The court affirmed defendant-Alvarado’s FIP conviction, holding that because the law as to whether the conviction violates the Second Amendment is “unsettled,” it would not reverse under “plain error” review. But it concluded the district court erred in applying a reckless endangerment sentencing enhancement. Alvarado was convicted of FIP of a firearm and sentenced to 104 months. He first challenged his conviction, arguing that it violated the Second Amendment as applied to his prior state convictions, an argument he raised for the first time on appeal. This required application of the plain error standard of review. The court considered the seminal Supreme Court cases, the most recent of which is Bruen, which held that “when ‘the Second Amendment’s plain text covers an individual’s conduct, the Constitution’ protects that conduct unless the government can ‘justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.’” The court noted that the circuits are split over the issue. Because “the extent of § 922(g)(1)’s constitutionality under Bruen is for now ‘unsettled[,]’” the court would “not disturb Alvarado’s conviction on plain error review.” He also challenged the validity of his sentence, arguing that the district court erred by applying a four-level enhancement for reckless endangerment under USSG § 2K2.1(b) based on conduct it found “amounted to reckless endangerment under" a Tennessee statute. The court vacated Alvarado’s sentence, holding that the government could not “satisfy Tennessee’s zone of danger requirement.”
Petition for initial mental-health treatment; “Person requiring treatment”; MCL 330.1401(1)(c)
The court concluded that the probate court did not err by holding that respondent was “impaired by a mental illness and requires mental-health treatment and properly ordered her hospitalization and treatment.” Thus, it affirmed the probate court’s order granting the petition for initial mental-health treatment. Respondent argued that “insufficient evidence failed to establish that respondent did not understand her need for treatment or that respondent was not a voluntary participant in her treatment.” The court found that the “probate court properly determined that the evidence established that respondent’s noncompliance with treatment caused her condition to worsen because she refused proper medication.” The record demonstrated “that the probate court understood respondent’s history of mental-health treatment and that respondent had gone back and forth between agreeing and disagreeing with her recent treatment plan. Despite her diagnosis and numerous reported delusions, respondent denied delusional thinking. She also refused to alter her medications despite the evidence that her condition had worsened, impacting respondent’s ability to live her daily life.” The court held that the record supported “the probate court’s conclusion that, without proper treatment, respondent risked harm to herself.” The court concluded that the “probate court correctly determined that clear and convincing evidence established respondent’s noncompliance and the present and future consequences of her noncompliance which made her a ‘person requiring treatment’ as defined under MCL 330.1401(1)(c).”
Application for asylum, withholding of removal, & relief under the Convention Against Torture (CAT); Threat of violence & persecution; Membership in “particular social group”; Whether the Board of Immigration Appeals (BIA) engaged in “improper factfinding” when it reviewed an issue the immigration judge (IJ) never reached; “Nexus”; 8 CFR § 1003.1(d)(3)(i); Standard to be applied to nexus determinations; Guzman-Vazquez v Barr
In this appeal from the denial of an application for asylum, withholding of removal, and protection under the CAT, the court upheld the BIA’s conclusion that petitioner-Vasquez-Rivera failed to show that three of her proffered “protected groups” were cognizable, defined groups subject to violence in El-Salvador. But as to the fourth group, her family, it held that the BIA engaged in “de novo factfinding” when it conducted a “nexus” analysis where the IJ never addressed this issue. Vasquez-Rivera was illegally brought into the U.S. when she was 9 years old. She was 13 when her asylum hearing was held. She and her mother testified that she would be under the threat of gang violence, including rape, if she was returned to El Salvador. The IJ concluded she did not meet her burden for asylum and denied her petition for asylum as well as for withholding of removal and CAT protection. The BIA affirmed. She proposed four groups as subjecting her to the risk of violence – “(1) Salvadoran women and girls whose parents live outside the country; (2) her family; (3) family members of persons targeted for gang recruitment whose family is threatened when they refuse to join the gangs; and (4) young Salvadoran women considered to be property of the gangs.” The court agreed with “the BIA and the IJ’s conclusion that Vasquez-Rivera failed to identify sufficient evidence in the record establishing that three of these groups (all proposed groups except her family) are perceived as distinct social groups in El Salvador.” As to the family group, the BIA assumed this was a cognizable group but determined that there was no nexus between that group and any perceived or experienced harm. The court held that because the IJ never reached the nexus issue and just found that all four groups were not cognizable, “the BIA’s conclusions as to the nexus required to prove asylum for this social group lack support in the record and constitute improper de novo factfinding.” As to what nexus standards should be applied, in Guzman-Vazquez, the court recently “held that applicants for withholding of removal ‘must demonstrate that a protected ground was at least one reason for their persecution.’” While the court noted the conflicts among the circuits in this regard, the BIA is to “apply circuit nexus precedent to Vasquez-Rivera’s asylum claim and claim for withholding of removal based on her membership in her family.” As for the CAT claim, the proffered “general evidence fails to demonstrate that Vasquez-Rivera herself ‘faces a particularized and likely threat of torture at the hands of a public official, or with the consent or acquiescence of a public official,’ in El Salvador.” It granted in part and denied in part the petition for review, vacated the BIA’s decision as to the asylum and withholding of removal claims based on family membership, and remanded.
Personal protection insurance benefits; MCL 500.3112; Utilization review; True Care Physical Therapy, PLLC v Auto Club Group Ins Co
The court concluded defendant-insurer’s claim that the trial court erred by allowing plaintiff’s case “pursuant to MCL 500.3112 when plaintiff had not administratively appealed defendant’s utilization review [was] without merit because it has been heard and rejected by a published opinion of” the court. Defendant conducted a utilization review of the physical-therapy services plaintiff had been providing to defendant’s insured. Defendant, citing MCL 500.3157a(5), argued “that plaintiff’s lawsuit was not ripe because it had not exhausted its administrative remedy.” Plaintiff, however, claimed “that the utilization review was a nonexclusive, optional remedy and that it was free to file suit in the circuit court without first seeking administrative relief.” In True Care Physical Therapy, “this Court was presented with a materially indistinguishable fact pattern and an identical argument. This Court held ‘that the administrative appeal provided by MCL 500.3157a(5) . . . was permissive, not mandatory.’” Thus, plaintiff “could file suit under MCL 500.3112 without exhausting the permissive, nonexclusive administrative appeal.” The court noted that “True Care Physical Therapy is a published opinion of this Court issued after [11/1/90], and is therefore binding.” Thus, it was bound to affirm the trial court's denial of defendant's summary disposition motion
Termination under § 19b(3)(j); Child’s best interests
The court concluded § (j) existed and found there was a reasonable likelihood that the child (KAB) would be harmed if returned to respondent-father. Also, the trial court did not clearly err by finding termination of his parental rights was in the best interests of KAB. The evidence showed that he “consistently permitted KAB to be in contact with [KAB’s mother, DR] ‘despite DR’s parental rights being terminated and despite being directed not to allow this contact. Respondent knew that DR’s rights were terminated to KAB because DR engaged in domestic violence against respondent, that DR was violent, and that he and DR had a violent and hostile relationship. Despite this, he still got together with DR and exposed KAB to DR.’” Thus, he “exposed KAB to potentially dangerous and harmful situations. Further, respondent previously completed a case service plan that included domestic violence and anger management counseling after KAB was removed from his care in 2021.” KAB was released to the father on 6/8/22. Only weeks later, CPS received a complaint as to his “domestic violence that led to the petition being filed in this case. Respondent clearly did not benefit from his previous case service plan, yet he still refused additional services intended to rectify his domestic violence issues before KAB was again removed from his care.” Finally, he “continued to put himself in volatile relationships with women.” While there was “no indication that he was ever violent with KAB, his ability to be violent while she was present in the home places her at risk of harm.” Affirmed.
Children’s best interests
Concluding the trial court’s finding that termination of respondent-mother’s parental rights was in the children’s (MF and ND) best interests, the court affirmed. Toxicology tests indicated that another child (AF) “died from an overdose of fentanyl.” Respondent argued that the trial court considered just one factor, AF’s death, which respondent contended was insufficient to support the trial court’s best-interest decision. There was no record support for her “representation that the trial court only considered AF’s death when evaluating the children’s best interests.” Considering the “record, the trial court did not clearly err when it found that a preponderance of the evidence demonstrated that respondent lacked the judgment and parenting ability to properly supervise a child or keep that child safe.” Their future safety was just one factor the trial court considered when contemplating MF’s best interests. A preponderance of the evidence supported “a finding that the paternal aunt’s home was preferable to respondent’s home because it would provide MF with the care and safety he required to facilitate his continued growth and development. The trial court also considered the presence of a parent-child bond and it seemed to assume that such a bond existed between respondent and MF. However, it gave little weight to this factor.” The court found no error in the trial court’s analysis. As to ND, the trial “court similarly considered the potential risk of harm in respondent’s care, but it also found compelling the child’s need for permanence and finality.” The evidence supported a finding that terminating her “parental rights to ND would allow her to achieve the permanency and finality she required to better be able to address her trauma.” In sum, the court held that “the trial court did not clearly err when it found that termination of respondent’s parental rights was in the children’s best interests. The [trial] court properly weighed appropriate factors when considering each child’s needs. On balance, a preponderance of the evidence supports the trial court’s finding that the evidence weighed in favor of terminating” her parental rights.
Termination under § 19b(3)(b)(i); Child’s best interest; Ineffective assistance of counsel; Failure to have respondent appear at the adjudication trial remotely; Failure to exclude a video from being admitted; Failure to seek a mistrial
The court concluded that evidence showed respondent-mother “egregiously abused the child, and her unwillingness to take serious responsibility for her actions demonstrated that the termination of her parental rights was in the child’s best interest.” Further, she did not show “that her counsel was ineffective because her counsel did request her remote participation at the trial, the father’s testimony provided proper foundation for the admission of the video, and any discussion of [her] alleged nonparticipation in petitioner’s recommendations did not prejudice respondent given the overwhelming evidence of abuse.” The court noted that the “child was removed from her care after petitioner received a video that showed respondent holding the child’s head underwater in a bathtub.” As to § (b)(i), the “video depicted respondent holding the child’s head underwater on more than one occasion, and this constituted direct evidence of respondent abusing the child.” Further, the evidence showed “that respondent would often text the father and admit that she was abusing the child.” The trial court noted that she “failed to acknowledge the severity of her conduct, which indicates that the child would likely be harmed if returned to her care, and respondent did not engage in any recommendation to help her understand and rectify the danger she posed to the child’s well-being.” Affirmed.