concurring:
¶ 1 I concur with the majority opinion that the trial court’s failure to appoint independent counsel for this child during the adoption proceedings brought under 10 O.S.1991, § 60.6, was fundamental error. Even in the absence of a request of the trial court, the failure requires reversing this matter and remanding it to the trial court. Matter of Guardianship of S.A.W., 856 P.2d 286 (Okl. 1993), and Matter of Adoption of B.R.B., 905 P.2d 807 (Okl.1995).
¶2 I write separately to point out that today’s decision leaves no room to argue that Merrell v. Merrell, 712 P.2d 35 (Okl.1985), is still viable authority. In Merrell this Court held that in an action initiated under § 60.6, the adjudication and declaration of a child’s eligibility for adoption without parental consent does not reach the full panoply of rights and obligations existing between parent and child and therefore does not effect a termination of parental rights. There is a view, with which I agree, that Merrell has already been impliedly overruled by Matter of Guardianship of S.AW., supra, and Matter of Adoption of B.R.B., supra. See In re Adoption of F.R.F., 870 P.2d 799 (Okl.App.1994), and Matter of Adoption ofD.R.W., 875 P.2d 433 (Okl.App.1994). Certainly if any argument to the contrary remained, it is resolved by the decision in the instant case.
¶3 In S.AW., the Court reviewed Oklahoma law on the issue of the constitutional and statutory right to the appointment of counsel in termination eases: Matter of Chad S., 580 P.2d 983 (Okl.1978) (counsel must be appointed for indigent parents unless know*220ingly and intelligently waived); Matter of Christopher W., 626 P.2d 1320 (Old.1980) (child’s appointed attorney must be paid at public expense); Davis v. Davis, 708 P.2d 1102 (Okl.1985) (protections of 10 O.S.1991, § 1130 were available only for actions initiated by the state, not in a suit by a private litigant. That statute, however, was amended in 1986 to allow a private right of litigation.)
¶4 The Court in S.AW. recognized that when an action is brought to terminate parental rights and declare a child eligible for adoption without parental consent, profound interests of the child as well as the parent are placed in jeopardy and that jeopardy exists whether the action is initiated by the state or a private party. The Court, therefore, held that a child who is the subject of an action under § 1130 to terminate the rights of his parent and declare him eligible for adoption without his parent’s consent, has a fundamental and constitutional right to be represented by independent counsel. We concluded this right to counsel is not dependent upon request to the trial court and that a child in a privately initiated termination proceeding is equally in need of independent representation of his interests. The Court determined that there is no rational reason to hold that in a termination action initiated by the state the child is entitled to an attorney, while in a privately initiated case under the same statute, § 1130, the child is not entitled to an attorney.
¶ 5 In Matter of B.R.B., supra, the Court extended the rationale and holding of S.A.W. to privately initiated proceedings under 10 O.S.1991 § 60.6. There we recognized that a determination that a child is eligible for adoption without consent of his or her parent does effect a termination of parental rights and we held that independent counsel must therefore be appointed to represent the child at public expense by the county out of the court fund.