IN RE JESSICA TAYLOR PERRIEN MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JTP, Minor.
TAMMY DUELL,
UNPUBLISHED
August 12, 2004
Petitioner-Appellee,
v
No. 254627
Ionia Circuit Court
Family Division
LC No. 03-000026-AY
CHRISTOPHER PERRIEN,
Respondent-Appellant.
Before: Hoekstra, P.J., and Cooper and Kelly, JJ.
MEMORANDUM.
Respondent appeals as of right from an order terminating his parental rights to his
daughter pursuant to a petition filed by the child’s mother under MCL 710.51(6), a provision of
the Adoption Code. The court found that respondent had not substantially complied with a
support order or had contact with his daughter for two or more years before the filing of the
petition. We affirm. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
It was undisputed that a support order had been in effect since 1994, that respondent had
only made thirty-one documented payments between 1994 and the filing of the petition on July
17, 2003; that respondent had arrearages totaling $12,228.59; that respondent’s last documented
payment was in October 2000; and that respondent had been in jail or prison since October 2001.
Although not documented, petitioner stipulated that respondent made three or four payments
between May 2001 and October 2001. MCL 710.51(6)(a) is satisfied if the petitioner shows that
“a support order has been entered, [and the respondent] has failed to substantially comply with
the order, for a period of 2 years or more before the filing of the petition.” The three to four
payments in 2001, if made, would not constitute substantial compliance with the order for the
two years preceding the filing of the petition and the sporadic payments before that time belie
substantial compliance with the order.
Respondent asserts that a showing of ability should be required, and that he was unable to
pay due to his incarceration. He maintains that In re Colon, 144 Mich App 805; 377 NW2d 321
(1985), was wrongly decided to the extent it interpreted subsection (6)(a) to mean that if a
support order has been entered, ability to pay need not be established since ability has already
been determined in conjunction with the support order. However, this Court reached the same
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conclusion in In re Caldwell, 228 Mich App 116, 122; 576 NW2d 724 (1998), and In re Newton,
238 Mich App 486, 491; 606 NW2d 34 (1999). These decisions create binding precedent unless
reversed or modified by the Supreme Court or a special panel of this Court. MCR 7.215(J);
Straman v Lewis, 220 Mich App 448, 451; 559 NW2d 405 (1996).
Respondent, relying on Caldwell, also asserts that the court erred in looking beyond the
two years immediately before the filing of the petition in determining that there was a failure to
substantially comply with the support order. However, the Court in Caldwell held that the
“statutory period begins on the filing date and extends backward from that date for a period of
two years or more.” Caldwell, supra at 119. It requires that the court look at the two years
immediately before the filing, as opposed to looking at the two years immediately preceding
incarceration, but in no way precludes the court from also looking at additional years in
determining whether there was substantial compliance.
Respondent does not dispute that he had no contact with his daughter for more than two
years before the filing of the petition. However, he argues that the court erred in finding that he
had the ability to contact his daughter, a finding required by MCL 710.51(6)(b). Defendant
asserts that Tammy Duell’s personal protection order against him had the effect of precluding
him from contacting his daughter. He also maintains that he did not have an address or
telephone number for his daughter. However, the record supported the trial court’s conclusion
that respondent had the ability to take steps to initiate reinstatement of visitation privileges,
which had been suspended in 1999, but failed to do so. Thus, we find no reason to disturb the
trial court’s finding that respondent had the ability to contact but did not for two or more years
before the filing of the petition.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Jessica R. Cooper
/s/ Kirsten Frank Kelly
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