Foote v. Foote

HUNTER, Presiding Judge,

dissenting.

I disagree with the majority’s pronouncement that it was fundamental error for the trial court not to appoint independent counsel to represent the child in this private proceeding to establish eligibility of the child for a consentless adoption, especially in the absence of any request therefor. My colleagues mistakenly jump to the conclusion that the Supreme Court’s holding in Matter of Guardianship of S.A.W., 856 P.2d 286 (Okl.1993), which established that a child is constitutionally entitled to representation by independent counsel in a private proceeding to terminate parental rights, mandates appointment of such counsel for the child in a proceeding to determine eligibility of the child for consentless adoption. The S.A.W. case, dealing with termination of parental rights, has no applicability to the instant action wherein the only issue presented for determination was the eligibility of the child for consentless adoption. A declaration that a child is eligible for adoption without the consent of the natural parents does not effect a termination of parental rights. Merrell v. Merrell, 712 P.2d 35 (Okl.1985). This holding is still good law in this state and is not affected by the Supreme Court’s ruling in Matter of Guardianship of S.A.W.

Furthermore, this issue was not raised by either party at the trial level or on appeal. The fact that the trial court did not appoint independent counsel to represent the child in this eligibility for consentless adoption hearing does not constitute fundamental error requiring reversal. The term “fundamental error” is not subject to precise definition but generally, is error which renders a judgment void. Meadows v. Meadows, 619 P.2d 598, 601 (Okl.1980). It is that which denies a person a constitutional or statutory right, and which goes to the very foundation of the case. Miller v. State, 827 P.2d 875, 878 (Okl.Cr.1992). My colleagues cite no applicable authority which makes it fundamental error to not appoint counsel to represent the child in an eligibility hearing. For these reasons, I respectfully dissent.