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STATE OF MICHIGAN
COURT OF APPEALS

In the Matter of HUNTER THOMAS FERGUSON, Minor.

DENA FERGUSON KALLGREN, Petitioner-Appellant, and PETER FINLEY KALLGREN, Petitioner, v THOMAS SCOTT FERGUSON, Respondent-Appellee.

UNPUBLISHED June 12, 2007

No. 273915 Oakland Circuit Court Family Division LC No. 2006-717052-AY

Before: Davis, P.J., and Hoekstra and Donofrio, JJ. PER CURIAM. Petitioner Dena Kallgren appeals as of right from a circuit court order denying her petition to terminate respondent's parental rights pursuant to MCL 710.51(6). We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E). "A petitioner in an adoption proceeding must prove by clear and convincing evidence that termination of parental rights is warranted." In re Hill, 221 Mich App 683, 691; 562 NW2d 254 (1997). The trial court's findings of fact are reviewed for clear error. Id. at 691-692. "A finding is clearly erroneous if, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake was made." Id. at 692. MCL 710.51(6) provides: If the parents of a child are divorced . . . and if the parent having legal custody of the child subsequently marries and that parent's spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:

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(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition. (b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition. Because support orders were in place, respondent's ability to pay support is irrelevant. The only issue to be determined with respect to

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