Opinion
Nos. 351636
05-21-2020
In re Z. A. J. JONES, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED St. Joseph Circuit Court Family Division
LC No. 18-000367-NA Before: TUKEL, P.J., and MARKEY and GADOLA, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor child under MCL 712A.19b(3)(g) (failure to provide proper care and custody) and (j) (reasonable likelihood of harm). On appeal, mother argues that the trial court violated her constitutional rights under the Establishment Clause of the United States Constitution by ordering her participation in Narcotics Anonymous (NA). We find no merit in this contention and affirm.
Because mother did not raise this argument before the trial court, it is unpreserved. This Court reviews unpreserved claims of error arising out of child protecting proceedings for plain error. See In re Pederson, ___ Mich App ___, ___; ___ (2020) (Docket No. 349881); slip op at 8.
There are four steps to determining whether an unpreserved claim of error warrants reversal under plain-error review. First, there must have been an error. Deviation from a legal rule is 'error' unless the rule has been waived. Second, the error must be plain, meaning clear or obvious. Third, the error must have affected substantial rights. This generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. The [respondent] bears the burden of establishing prejudice. Fourth, if the first three requirements are met, reversal is only warranted if the error . . . seriously affected the fairness, integrity or public reputation of judicial proceedings. [People v Shafier, 483 Mich 205, 219-220; 768 NW2d 305 (2009) (quotation marks and citations omitted).]
Initially, we reject the basic premise of mother's argument. At no point during the trial court proceedings did the trial court order mother to participate exclusively in NA. Rather, the trial court's orders required only that mother participate in substance abuse evaluations as requested by the Department of Health and Human Services (DHHS) and follow the recommendations of any such evaluations.
Rather, the trial court merely ordered mother to participate in a psychological evaluation and to follow its recommendations. The foster care worker testified at the termination hearing that one of the recommendations from the psychological evaluation was that mother participate in NA. Even though the trial court never directly ordered mother to participate exclusively in NA, for purposes of this discussion we will assume without deciding that the drug-treatment programming offered by NA espoused a faith-based philosophy that amounted to religious proselytization. See, e.g., Turner v Hickman, 342 F Supp 2d 887, 896 (ED Cal, 2004) (concluding that NA program was "fundamentally religious, based as it is on the concept of a higher power to which participants must submit"); Kerr v Farrey, 95 F 3d 472, 480 (CA 7, 1996) ("A straightforward reading of the twelve steps shows clearly that the steps are based on the monotheistic idea of a single God or Supreme Being."); O'Connor v California, 855 F Supp 303, 307 (CD Cal, 1994) (discussing "religious overtones" and "monotheistic principles" associated with Alcoholics Anonymous).
Again, because this issue is unpreserved, there is a dearth of evidence in the record concerning NA or other available drug-treatment programming. --------
Even on the merits, we would hold that the termination of mother's parental rights did not violate her constitutional rights under the Establishment Clause. The First Amendment of the United States Constitution provides in pertinent part that "Congress shall make no law respecting an establishment of religion . . . ." US Const, Am I. "The Establishment Clause guarantees governmental neutrality with respect to religion and guards against excessive governmental entanglement with religion." Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 156; 756 NW2d 483 (2008). However, "pinning down the meaning of a 'law respecting an establishment of religion' has proven to be a vexing problem." American Legion v American Humanist Ass'n, ___ US ___, ___; 139 S Ct 2067, 2080; 204 L Ed 2d 452 (2019) (discussing flaws in existing Establishment Clause precedent and partially abrogating the application of the "Lemon test" set forth in Lemon v Kurtzman, 403 US 602; 91 S Ct 2105; 29 L Ed 2d (1971)). Although the Supreme Court's recent decision in American Legion challenged the continuing supremacy of the Lemon test in some applications, it did not expressly overrule that test. The primary inquiry remains "whether a 'reasonable observer' would conclude that the action constituted an 'endorsement' of religion." American Legion, 139 S Ct at 2080, quoting Allegheny Co v American Civil Liberties Union, Greater Pittsburgh Chapter, 492 US 573, 592; 109 S Ct 3086; 106 L Ed 2d 472 (1989); see Scalise v Boy Scouts of America, 265 Mich App 1, 11-12; 692 NW2d 858 (2005).
Accordingly, applying the Lemon test, we must decide whether the challenged government action (1) had a secular purpose; (2) had a principal or primary effect " 'that neither advances nor inhibits religion' "; and (3) did not foster " 'an excessive government entanglement with religion.' " Scalise, 265 Mich App at 11-12, quoting Lemon, 403 US at 612-613. "If state action violates any prong of Lemon, that action contravenes the clause." Scalise, 265 Mich App at 12. We remain mindful, however, that "[t]he Lemon test does not require, nor did the framers of the Constitution intend, to impose a constitutional straightjacket preventing any sentiment of religious belief," and the Establishment Clause does not amount to a "blanket prohibition" of any government association with social-welfare organizations that happen to espouse faith-based philosophies. Scalise, 265 Mich App at 14.
To the extent that the trial court allegedly ordered that mother participate exclusively in NA for treatment of her substance abuse problem—although there does not appear to be any evidence in our record supporting that supposition—there was no suggestion that any of the following was true: mother's parental rights were conditioned on such participation, the DHHS or the trial court had something other than a secular purpose in recommending such participation, the primary effect of participation in NA was the advancement of religion rather than the overcoming of mother's substance abuse problem, or the recommendation was akin to an endorsement of religion. Moreover, even assuming that the trial court or the DHHS compelled mother's participation in NA rather than some other drug treatment program, mother still cannot demonstrate the prejudice necessary to prevail under the plain-error standard of review because she openly admits that "it [is] speculative if another program would have helped her sufficiently overcome substance abuse." In light of this admission, mother cannot establish that the results of the child protective proceedings would have differed as required to obtain relief under the plain-error standard. See In re Pederson, ___ Mich App at ___; slip op at 8. Additionally, mother's failure to remain engaged in court-ordered services during the life of this case, along with her continued substance abuse, further demonstrates that she has not shown prejudice resulting from an alleged order that she participate in NA.
Affirmed.
/s/ Jonathan Tukel
/s/ Jane E. Markey
/s/ Michael F. Gadola