The opinion
GOODMAN, J.,
concurring in result.
T1 The issue of the appellate standard of review was established by the Oklahoma Supreme Court in In re S.B.C, 2002 OK 83 , 64 P.3d 1080 (2002), wherein the court stated that "appellate review of parental-status-termination decisions must be based upon the clear-and-convineing - evidence - standard." Id., 2002 OK 83 at ¶4, 64 P.3d at 1081. The Oklahoma Supreme Court remanded S8.8.C. to this court "for that court's reconsideration by applying the standard of review standard consistent - with today's pronouncement ...."-a directive with which this court has since complied. Id., 2002 OK 83 , ¶ 8, 64 P.3d at 1082. The standard of review mandated by S.B.C. has been recognized and applied by other divisions of the Oklahoma Court of Civil Appeals. See, eg., In re C.R., 2003 OK CIV APP 14 , 63 P.3d 573 ; In re J.K., 2003 OK CIV APP 2 , - P.3d --; In re T.M., 2003 OK CIV APP 1 , -- P.3d --. Therefore, I do not see the benefit of this court engaging in a lengthy analysis of a legal principle already articulated by the Oklahoma Supreme Court and implemented by the Oklahoma Court of Civil Appeals.
1 2 In any event, because an error of law of fundamental magnitude occurred below, I do not believe that the standard of appellate review is implicated. I would follow the analysis established in In re B.T.N., No. 96,960 (OK CIV APP Div. II, May 21, 2002), wherein we stated:
In In re L.S., 1990 OK CIV APP 94 , 805 P.2d 120 , this court held that when the legislature enacted (A)(18) and its prede *1013 cessor statute, it did so to afford additional due process protections to persons who were mentally ill or impaired. We held that compliance with any treatment plan or other requirement imposed upon such a parent must be viewed in light of that parent's mental disability and that parent's ability to comprehend the requirements placed upon her. In effect, the legislature enacted additional safeguards to ensure that parental rights were not terminated solely because a parent was mentally ill, but only in those cases where a causal link between the untreated illness and harm to the child could be shown. In this case the record is replete with medical records and test results which clearly show that Mother suffers from a variety of treatable mental illnesses. While most of these seem to be controlled by medication, nevertheless we must hold that fundamental error occurred when the trial court refused to instruct the jury on the issue of Mother's mental health.
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We hold that State should have proceeded under (A)(18) because Mother's history of mental instability is well documented. Indeed, it is the unstable nature of Mother's mental condition that led to Child being placed in foster care in the first instance, and ultimately led to the determination that Child was deprived in the second instance. In many respects, under the facts of this case, the grounds for termination pled by State, ie. (A)(5) and (A)(15), would not exist but for the mental instability of Mother. Such mental instability may serve as a basis for termination, if it presents harm to Child, as addressed in (A)(13). Mother attempted to obtain an instruction to the jury to that effect, but said motion was denied. Fundamental error thus occurred.
I would limit our review to that core issue, and simply hold that the trial court committed a fundamental error of law in refusing to instruct the jury pursuant to (A)(18).