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03/31/81 MATTER TERMINATION PARENTAL RIGHTS TO

March 31, 1981

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO T.R.M.: CORNELL MINGUEY, APPELLANT-PETITIONER,
v.
CINDY L. BROOKENS, RESPONDENT. CINDY L. BROOKENS, CROSS-APPELLANT, V. RICHARD WERNER, AS GUARDIAN AD LITEM FOR T.R.M., AND CORNELL MINGUEY, CROSS-RESPONDENTS



Review of a decision of the Court of Appeals. Reversing and remanding Beilfuss, C.j.

The opinion of the court was delivered by: Beilfuss

This is a review of a decision of the court of appeals which affirmed an order terminating the parental rights to T. R. M., entered by the Circuit Court for Rock County, SVERRE ROANG, Circuit Judge.

On July 11, 1977, Cindy Lou Brookens, the natural mother of T. R. M., filed a petition seeking the termination of parental rights of T. R. M.'s natural father, Cornell Minguey. The petition was filed in accord with the provisions of sec. 48.40 et seq., Stats. 1975, *fn1 and specifically sought an order for termination based on the provisions of subs. (a), (b) and (c) of sec. 48.40(2). *fn2 Cindy Lou Brookens, in her petition, alleged that T. R. M. was born on March 16, 1967, during her marriage to Cornell Minguey. The marriage ended in a divorce. She has had the custody of T. R. M. pursuant to a court order. It was further alleged that Cornell Minguey had abandoned T. R. M.; that he had substantially and continuously refused to provide the parental care necessary for the child's well-being; and that he had substantially and continuously neglected to pay for necessary subsistence, education, and other care when legal custody was lodged with the petitioner Cindy Lou Brookens.

Several hearings on the petition were conducted during late 1977 and early 1978. Both parents appeared at the hearings and a court-appointed guardian ad litem was present to represent the interests of T. R. M. The trial Judge issued a lengthy memorandum decision at the close of the proceedings. In this decision the court indicated that it was of the opinion that the petitioner had established grounds for termination under sec. 48.40(2) (b) and (c), Stats. 1975, but had not established abandonment under sec. 48.40(2) (a). The trial court also indicated that it was in the best interests of the child to order termination of Cornell Minguey's parental rights. Counsel for the petitioner was directed to prepare a termination order and was further directed to include in the order appropriate findings of fact and Conclusions of law in accord with the court's memorandum decision.

An order terminating the parental rights of Cornell Minguey was entered by the trial court. It contained certain findings. With respect to the grounds for termination, the order provided:

"5. That grounds exist for termination of parental rights to said child in that the parent Cornell F. Minguey has substantially or continuously or repeatedly refused or neglected or was unable for a prolonged indeterminate period to give the minor the parental care and protection necessary for his health, morals or well-being; that, while said parent was financially able, he substantially and continuously neglected to provide the minor with necessary subsistence, education or other care necessary for his health or well-being or has neglected to pay for such subsistence, education or other care when legal custody is lodged with others."

There was no specific finding that the termination was in the best interests of T. R. M. set forth in the order.

In a separate order the court directed the petitioner to pay the fees of the guardian ad litem.

Cornell Minguey appealed from the order terminating his parental rights, and Cindy Lou Brookens prosecuted a cross-appeal contesting the order directing her to pay the fees of the guardian ad litem. In reliance upon the trial court's memorandum decision, the court of appeals found that the court's determination was not against the great weight and clear preponderance of the evidence. The court of appeals also concluded that the imposition of the guardian ad litem fees is a matter within the discretion of the trial court, and finding no abuse of discretion the order assessing fees against Cindy Lou Brookens was affirmed.

This review involves two issues: *fn3

1. Whether the trial court made adequate findings of fact and, if no such findings were made, what effect does this failure have on this Disposition of this case.

2. Whether the fees of the guardian ad litem were properly assessable against the mother of T. R. M. as ordered by the trial court.

Cornell Minguey maintains that the findings made by the trial court were insufficient to support the order of termination entered against him. We agree, and for the reasons set forth below, we conclude that this cause must be remanded to the trial court for ...


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