dissenting.
I dissent to the majority’s pronouncement today that it was fundamental error for the trial court not to appoint independent counsel to represent the child in this private proceeding to determine eligibility of the child for a consentless adoption. My colleagues mistakenly rely upon 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. That case is not applicable to the case at bar where 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.
Furthermore, Appellant failed to raise this issue in her petition in error. Appellant’s failure to raise this issue in her petition in error is fatal to its consideration in this appeal. Kirschstein v. Haynes, 788 P.2d 941 (Okl.1990). At the trial court level, Appellees made a motion that independent counsel be appointed for the child. At the subsequent hearing, the opposing parties argued the motion, at which time the trial court denied it. From these facts, it appears that Appellant actually opposed Appellees’ motion for appointment of independent counsel for the child. A party is not permitted to secure reversal of a judgment upon error which they have invited and acquiesced in, or to assume a contrary position to that taken in the trial court. Union Texas Petroleum v. Corporation Commission of State of Okl., 651 P.2d 652 (Okl.1981). A party who has tried his case upon one theory cannot, when the judgment goes against her, try her ease on a *437different theory on appeal. Wickham v. Belveal, 386 P.2d 315 (Okl.1963). Even an alleged fundamental error based upon a constitutional argument which is raised for the first time on appeal will not be considered. Pelican Production Corp. v. Mize, 573 P.2d 703, 704 (Okl.1977); Grace Drilling Co. v. Novotny, 811 P.2d 907, 909 (Okl.App.1991).
Finally, I do not agree with the majority that denial of appointment of independent counsel for the child in this private eligibility for consentless adoption proceeding can be considered as “fundamental error”. 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). As explained above, the child did not have a constitutional or statutory right to representation by independent counsel in this private eligibility for eonsentless adoption proceeding, and any alleged error cannot be considered “fundamental”. For all of the above reasons, I respectfully dissent.