WM. C. HETHERINGTON, JR., Judge.
1 1 In this consolidated appeal, the biological parents of L.M. appeal a trial court judgment terminating their parental rights based on separate jury verdicts finding: (1) Rebecca Mireles (Mother) has a mental illness, and (2) both James Moody (Father) and Mother have failed to correct the condition which led to L.M.s deprived status. The termination order as to Mother is REVERSED and REMANDED for a new trial. Because the order is supported by clear and convincing evidence, it is AFFIRMED as to Father, but REMANDED to correct a deficiency in the termination order.
STANDARD OF REVIEW
12 In parental termination cases, the State must show by clear and convincing evidence that the childs best interest is served by the termination of parental rights. In re C.D.P.F, 2010 OK 81, ¶ 15, 243 P.3d 21, 23. This standard of proof balances the parents fundamental freedom from family disruption with the states duty to protect children within its borders. Id. Our review must find the presence of clear and convine-ing evidence to support the trial courts decision, which requires we canvass the record to determine if the evidence is such that a fact finder could reasonably form a firm belief or conviction that the grounds for termination were proven. Id.
FACTS
Pre-Deprived Adjudication
8 According to testimony at trial, Mother and Father had been in an off and on relationship for numerous years when LM. was born August 8, 2005. They continued that relationship until June 1, 2007, when the trial court granted a protective order for Mother and L.M. and ordered Father to have no contact ... either in person or by telephone with them until June 1, 2010. On July 5, 2007, the Department of Human Services (DHS) received its first referral of Mothers alleged substance abuse and slapping of L.M., who was almost two years old. After investigating, DHS recommended only preventative services for Mother because she and LM. were living with the maternal grandmother.
T4 On July 29, 2007, Mother, who had since moved with L.M. into a rental home, called the City of Durant Police Department to report a footprint inside her refrigerator. Upon arrival, the police found an unsanitary home with narrow trails between piles of trash and clothing, utilities shutoff from nonpayment, spoiled food, cockroaches, and L.M. playing in the floor. When the Police Chief told Mother the suspected footprint was just a stain which needed to be cleaned like the rest of house, she became angry and almost explosive. At that point, the Police Chief told Mother he was making a report to the DHS, and both officers left.
T5 Later that day, a DHS investigator and caseworker went to Mothers home to initiate preventative services. They confirmed the homes condition, found some canned goods but no clean food preparation surface, and reported Mother looked ill, appeared to be over-medicated, and demonstrated paranoid erratic behaviors. During the visit, Mother told the caseworker to leave, so she did. The investigator tried unsuccessfully to reason with Mother, concluded the child was not safe, and went outside to have the caseworker call authorities. Mother grabbed L.M. and tried to leave with him but her car stalled. When the police arrived, Mother handed L.M. to the caseworker and walked away. Because Father was currently in the Johnston County Jail, DHS obtained emer-geney custody of LM.
16 On August 6, 2007, the Bryan County District Attorney filed a petition on behalf of the State of Oklahoma (State) against both parents, alleging L.M. was a deprived child because he has been exposed to inadequate and dangerous shelter and has not been provided with adequate nutrition. That the mothers paranoid erratic behaviors is also placing the child is (sic) at risk of harm. One month later, DHS created an Individualized Service Plan (ISP or treatment plan), signed by both parents and filed in the deprived child proceeding October 2, 2007.
T7 The Condition(s) to be corrected identified in the ISP were [Father] and [Mother] mental stability and responsibility to maintain a safe and stable living environment. Both parents will address erratic and dangerous behaviors including domestic violence, and behavior outburst when they are frustrate[d]. The ISP list of To Dos (ISP requirements) for Mother included:
Complete mental health and substance abuse assessments, follow all recommendations for those services including individual, group and recovery counseling; Address coping skills, anger, outbursts, and L.M.s emotional difficulty directly related to his high level of anxiety; Maintain sobriety, complete random drug sereening; Seek medical attention from one service provider to verify Mothers need for numerous medications; Keep a safe home without physical or verbal fights when child is present, attend family violence counseling, parenting skills training, and provide a stable and safe home with working utilities, adequate space and food; Meet L.M.s daily and basic needs while remaining mentally stable and no exposure to anyone abusing mood altering substances.
Fathers ISP requirements were identical except for the one physician limitation and he needed to follow through with services ... in criminal court case and seek and maintain legal employment as needed to pay for fines and court cost{s]. The ISP allowed the parents bi-monthly visitation with L.M.
T8 Each parent had court-appointed counsel on October 9, 2007, when they stipulated to the allegations in the deprived child petition. An Adjudication and Disposition Order filed October 24, 2007, found LM. was deprived because he lacked proper parental care and guardianship, lived in an unfit home, was exposed to inadequate and dangerous shelter, had not been provided adequate nutrition and the mothers paranoid erratic behaviors had also placed him at risk of harm. The trial court ordered the parents to correct those conditions by following the treatment plan it expressly adopted as to each parent and warned their failure to correct the conditions may result in termination of their parental rights.
Post-adjudication
Parents First Progress Report
T9 The ISP progress report submitted January 2008 stated Mother was making reasonable efforts to address her treatment plan and maintaining frequent contact with the child welfare worker. It also reported she has numerous disabilities such as arthritis, bipolar disorder, post traumatic stress disorder and major depression, was now seeing only one physician, but had denied having another domestic violence altercation with [Father] which can be verified [she] had [him] arrested at Shekinah Counseling Agency. The report stated Father had initiated counseling services, but was arrested November 20, 2007 and currently in Bryan County Jail after being sentenced ... for Domestic Violence involving [Mother], and would be transported to Lexington in custody of Department of Corrections (DOC). It also reported Father currently is not receiving services because he was in jail, and visitation has been ceased as a result of a standing court ordered (sic) not allowing contact until 2010.
T 10 Two letters from Shekinah Counseling Ageney, both dated September 14, 2007, were part of the first ISP Progress Report. Fathers evaluation disclosed anger management and substantial drug and alcohol abuse for which out-patient group counseling and parenting skills were recommended twice weekly for a minimum of 16 weeks. Mothers evaluation yielded moderate drug and alcohol abuse and positive tests for several prescription drugs with out-patient group counseling onee weekly for sixteen weeks and random urinalysis testing recommended.
111 The parents appeared with their court-appointed counsel at the January 2008 Review Hearing. The trial court accepted DHS recommendations and report and in the Additional Orders section of its form order, wrote [Fathers counsel] moves for visitation wiith] Father and a treatment plan to work while incarcerated. Stlate] objects. Request for visitation Denied. Exception allowed. Counsel Discharged.
Parents Status March 2008-March 2009
T12 Mothers mental instability was the sole issue affecting her ability to make reasonable efforts between March 2008 to March 2009, in which report, DHS found Efforts to reunite has (sic) failed and [it] will be seeking termination. The reports for the same period noted Father is incarcerated and not receiving services and that L.M. was a happy toddler with the same foster family since October 2007, his language had improved, and Mother displayed him love and attention at the DHS-monitored weekly visitations. The status quo was maintained at each review hearing, none of which Mother missed.
Parents Status May 2009-October 2010
{13 Father was released from prison May 9, 2009 and two days later reported to DHS, where his caseworker copied the treatment plan and went through it with him step by step, explaining he needed to begin it as soon as possible because L.M. had been out of the home for a total of 22 months and DHS was looking at termination. Father reported he was residing with L.M.s maternal grandmother.
T 14 The June 2009 ISP Progress Report noted Father was Non-compliant under each plan requirement, had failed to begin any services since his release and would not be able to see the child because a protective order is in effect until June 1, 2010 for [L.M.] and [Mother]. It further noted Mother [is] still attempting to address issues on her court ordered ISP, but ker mental stability would be very detrimental to the child if we were to place [L.M.] in her home and Efforts to Reunite Failed.
15 In September 2009, DHS requested termination of rights to both parents, explaining [Mother] has several mental health issues that need to be addressed which is a major concern in her parenting abilities. As for [Father], he has not completed any services on the Court Ordered ISP plan. At a review hearing, the trial court found that reasonable efforts to reunite have failed for both parents.
{16 In November 2009, DHS reasserted its prior recommendation and requested no visitation with the parents, because (1) [nlei-ther parent has corrected the conditions which led to L.M.s removal from their care and custody; (2) Mothers several mental health issues ... is a concern in her parenting abilities; and (8) Father has not completed any services on the ISP plan. The report added [Mother] has not completed services on her ISP at this [time] due to her mental health status and Father was not living in an appropriate home for LM. and still had not attended any domestic violence, parent or substance abuse services. The trial court agreed with DHS at the review hearing and ceased visitation. He also sua sponte reappointed L.M.s former CASA (court appointed special advocate) and the former attorneys for Mother and Father and confirmed its previous failed efforts to reunite finding.
T17 The December 2009 review hearing was continued until January 2010, and one was held every sixty days thereafter through October 2010. All of the ISP progress reports indicated little change to Mothers mental status and that Father had made progress with some ISP requirements but none with others.
Termination Proceedings
{18 State filed separate Applications to Terminate the parental rights to LM. November 3, 2010. Its Application against Mother was based on 104A O.S. § 1-4-904(B)(5), 4.e., she had failed to correct the conditions that led to the finding of deprivation although given over three months to do so, and 10A 0.8. § 1-4-904(B)(18), i.e., she has a diagnosed behavioral health condition which renders her incapable of adequately and appropriately exercising her parental rights, duties and responsibilities. Finally, the Application alleged 10A O.8. § 1-4-902(A)(1), 4.¢., [the child has been in foster care for 15 of the last 22 months. Only § 1-4-904(B)(5) and § 1-4-902(A)(1) were alleged against Father.
[ 19 At the review hearing held in November 2010, Mother and Father appeared with counsel and requested a jury trial, which was set for January 27, 2011. Three weeks before trial, Fathers counsel filed numerous motions. The motion filed January 5, 2011 sought recusal of the assigned judge after Fathers in camera request to disqualify had been declined. Father alleged the same judge presided and sentenced him to serve three years for violating the conditions of his four-year suspended sentence in CF-2006-6 (Domestic Abuse/Assault and Battery) by committing a second offense of domestic abuse, CF-2006-868, and other violations. The recusal motion further alleged the listed witnesses in [Fathers criminal] case ... {and] ... the facts in the criminal case will be a part of [State]s case in chief in the case at bar. According to the record, the judge denied Fathers motion the same day explaining he would not be the fact-finder because the case was set for jury trial.
T20 On January 11, 2011, Father filed an appeal of the denial of his recusal motion to the Chief Judge of Bryan County and a motion to strike certain allegations within States Application to Terminate. In the latter, Father argued, due to legislative amendments in 2009, § 1-4-904(B)(5) no longer required a finding that the condition which led to the adjudication of the child as deprived is caused by or contributed to by acts or omissions of the parent, and the ground to terminate based on a childs foster care placement for 15 of the most recent 22 months had been deleted from § 1-4-904(B).
1 21 Fathers recusal appeal was denied by order filed January 12, 2011. The next day Fathers counsel moved to sever the parents jury trial, arguing he and Mother had mutually antagonistic defenses and he might be double-teamed by her and State at a joint trial. At the January 25, 2011 hearing on Fathers motions to strike and to sever the trial, State agreed to make Fathers requested changes to the termination applications, counsel for both parents indicated they would not contest the amendments, and Fathers severance request was denied.
Parents Jury Trial
22 Two days before trial, State filed separate amended applications to terminate the parental rights of Mother and Father, making the agreed upon changes. The jury trial was held over two days, January 27-28, 2011, during which State presented testimony from 14 witnesses, including the police who made the July 2007 referral, DHS investigators and caseworkers, licensed professional counselors, L.M.s maternal grandmother and his foster parents. All but one of States exhibits were admitted into evidence, including the parents ISP, the October 2007 Adjudication/Disposition Order, two letters from Mothers counselor, and one letter from Fathers counselor.
1 23 The caseworkers all testified both parents had failed to correct the conditions during the separate periods they each were assigned to L.M.s deprived child case. The testimony of the first caseworker who prepared the parents treatment plan gave a very general description of Mothers condition, 16. anxiety or a breakdown, not focused on her getting better and taking numerous medications for health issues.
I 24 The second caseworker twice testified Mother initiated services on her treatment plan but never completed [any] due to her mental state and due to her mental capabilities she could not finish. She further testified based on her own observations, Mother wasnt able to care for herself so-she wouldnt be able to care for her child. Her reason for recommending termination was, It was 2009. The ISP plan was not getting done. Her mental stability, she couldnt even put a finger on her mental stability-of her problems that she needed to look at. This testimony was confirmed by the third caseworker, who testified [wlith Mother, there was a lot of mental health issues. Lots of reports of mental health concerns with her and notes of delusional thoughts.
1 25 Mothers counselor from April 2009 to mid-January 2010 testified Mother was currently suffering from back and heart problems and her significant mood disorder with active symptoms compromises her ability to care adequately for herself and her child and poses a risk of harm for herself and her child. The counselor testified Mother had disclosed she was diagnosed with bipolar disorder as a teenager and that her recent psychological evaluation presents a somewhat similar picture of bipolar I disorder with psychotic features. Fathers counselor opined Father did not show progress or commitment to change his life from before and did not complete the anger management and substance abuse requirements.
126 After State rested its case, each parent moved for directed verdict, both of which the trial court overruled. Counsel for the parents each gave a brief opening statement, and then rested. The childs attorney also rested. Following instructions to the jury and closing statements, the issues were submitted for decision by the jury.
127 By separate verdict forms, a unanimous jury found by clear and convincing evidence Mothers parental rights to LM. should be terminated (1) on the statutory ground that the parent failed to correct the conditions which led to the adjudication of the minor child even though she has been given over three months to do so and (2) on the statutory ground that the parent has a mental illness or mental deficiency. The unanimous jurys verdict against Father also found by clear and convincing evidence that his parental rights to LM. should be terminated on the statutory ground that the parent has not corrected the conditions which led to the adjudication of the minor child even though he has been given over three months to do so.
128 The trial courts Journal Entry of Judgment Terminating The Parental Rights of Respondent Parents filed March 22, 2011 states the jury returned its verdiets on January 28, 2011, and after quoting verbatim the three verdicts, ordered the parental rights of [Mother] and [Father] be terminated as to [L.M.] who is to remain in DHS custody. The parents filed separate appeals from the trial courts judgment based on the jurys verdicts. By Order filed April 26, 2011, the Supreme Court consolidated their appeals pursuant to Okla. Sup.Ct.R. 1.27(d). Assignment to this Court followed.
ANALYSIS
Mothers Appeal
129 For reversal, Mother argues the trial courts failure to properly address her motion to proceed pro se violated her constitutional right to represent herself at the parental rights termination trial and there was insufficient evidence presented to the jury to justify termination of her parental rights. Because we agree with Mothers latter argument as discussed below, we need not reach her constitutional argument. In the Matter of J.N.M., 1982 OK 153, ¶ 1, 655 P.2d 1032, 1033.
Insufficiency of the Evidence
T30 According to Mother, there is no evidence that allowing her to retain her parental rights would result in harm or threatened harm to LM. After admitting State did offer evidence showing a danger of harm to LM., she clarifies that States evidence, tracking the statutory language of 10A O.S. § 1-4-904(B)(13), only showed a danger to L.M. if he were returned to Mothers custody. (Emphasis in original.) She contends State did not prove or even allege LM. was being harmed or in danger of harm if the status quo were to remain in place or if Mother were granted visitation.
131 State argues it presented clear and convincing evidence of harm to L.M., noting also the § 1-4-904(B)(13) element is the only one with which Mother takes issue. Mother contends States response ignores Matter of Sherol A.S., 1978 OK 103, 581 P.2d 884, and other Oklahoma cases she cited for holding harm to the child must be proven to justify States interference with a parent-child relationship. She argues, given the constitutional nature of this requirement that the legislature is incapable of removing or modifying it by statutory enactment and her directed verdict motion should have been sustained because State made no effort to prove L.M. would ever be harmed by the status quo.
Preliminary Issues
132 The problem revealed by the record and not acknowledged by either party is that the jury was not instructed on the amended statute, § 1-4-904(B)(13). Instead, the instruction sets out verbatim the elements of its predecessor, 10 0.S8.2001 § 7006-1.1(A)(138), which was amended and renumbered to § 1-4-904(B)(13) as part of the Legislatures substantial amendments to Title 10 and recodification of the Oklahoma Childrens Code (OCC) under Title 10A, effective May 21, 2009.
1 33 Mothers insufficiency of the evidence argument on appeal does not directly raise any error with the jury instruction as given. Nor did she challenge States termination petition based on § 1-4-904, even after Fathers motion to strike allegations from States petition specifically addressed the amendments. At trial, Mother only challenged the sufficiency of the evidence for § 1-4-904(B)(13) and she did not object to the proposed jury instructions, as correct ed, or later to the trial courts No. 18. We find no on-the-record discussion about a sug sponte change to that instruction in the trial transcripts.
134 The trial courts duty is to state the law correctly. Sellars v. McCullough, 1989 OK 155, ¶ 9, 784 P.2d 1060, 1062. It is the parties duty to assure that the instructions given accurately reflect the issues tendered by the evidence adduced at trial, and if not, make an objection complying with 12 O.S.2001 § 578. Id. Appellate courts may, however, review a jury instruction that was neither properly preserved below nor addressed on appeal for fundamental errors of law. Sullivan v. Forty-Second West Corp., 1998 OK 48, ¶¶ 3-4, 961 P.2d 801, 802-803. Fundamental error compromises the integrity of the proceeding to such a degree that the [jury instruction] has a substantial effect on the rights of one or more of the parties (Emphasis added.) Id., 17; see also Quarles v. Panchal, 2011 OK 13, ¶ 7, 250 P.3d 320, 322.
135 Jury Instruction No. 18, on its face, correctly states the law prior to May 21, 2009, ie, § 7006-1.1(A)(18), which authorized a termination of parental rights to a child upon [a] finding that all of the following exist:
(a) the child has been adjudicated deprived; and
(b) custody of the child has been placed outside the home of a natural or adoptive parent, guardian or extended family member; and
(c) the parent whose rights are sought to be terminated has a mental illness or mental deficiency, as defined by (48A 0.8. § 6-2011, which renders the par-
ent incapable of adequately and appropriately exercising parental rights, duties and responsibilities; and
(d) the continuation of parental rights would result in harm or threatened harm to the child; and
(e) the mental illness or mental deficiency of the parent is such that it will not respond to treatment, therapy or medication and, based on competent medical opinion, the condition will not substantially improve; and
(f) termination of parental rights is in the best interests of the child.
Provided, a finding that a parent has a mental illness or mental deficiency shall not in and of itself deprive the parent of his or her parental rights.
T86 State moved to terminate Mothers parental rights based on § 1-4-904(B)(18), which, since May 21, 2009, requires [a] finding that all of the following exist:
a. the parent has a diagnosed cognitive disorder, an extreme physical incapacity, or a medical condition, including behavioral health which renders the parent incapable of adequately and appropriate ly exercising parental rights, duties, and responsibilities within a reasonable time considering the age of the child, and
b. allowing the parent to have custody would cause the child actual harm or harm in the near future.
A parents refusal or pattern of noncompliance of treatment, therapy, medication or assistance from outside the home can be used as evidence that the parent is incapable of adequately and appropriately exercising parental rights, duties, and responsibilities.
A finding that a parent has a diagnosed cognitive disorder, an extreme physical incapacity, or a medical condition, including behavioral health or substance dependency shall not in and of itself deprive the parent of parental rights.
In addition, two § 7006-1.1(A)(13) elements, i.e., the child has been adjudicated deprived either prior to or concurrently with a proceeding to terminate parental rights, and termination is in the best interest of the child, apply to § 1-4-904(B)(13) and all other termination grounds under § 1-4-904(B). See 10A 0.8.2011 § 1-4-904(A)(1)-(2).
137 Although § 7006-1.1(A)(18) was in ef-feet when State commenced its deprived child proceeding against Mother in 2007, it had been superceded by § 1-4-904(B)(18) well over a year before the Application to terminate was filed November 3, 2010. Statutory amendments to other termination grounds, prior to and after the State had moved to terminate parental rights, have been addressed by five Oklahoma Court of Civil Appeals cases with varying results.
T38 By published opinion, the Court in Matter of J.C., 2010 OK CIV APP 1838, n. 2, 244 P.3d 793, 794, disagreed with the mothers argument her pre-May 21, 2009 stipulation to the deprived child petition required application of the former failure to correct ground, 10 0.8.2001 § 7006-1.1(A)(5), finding the second amended petition to terminate her parental rights was filed June 10, 2009, which is subsequent to the effective date of Title 10A [May 21, 2009]. The Oklahoma Court of Civil Appeals in the Matter of T.M., A.M. & A.M., 2000 OK CIV APP 65, 6 P.3d 1087, and Matter of A.G. & E.G., 2000 OK CIV APP 12, 996 P.2d 494, affirmed or found no fundamental error with the trial courts application of 10 O.S. Supp.1998 § 7006-1.1(A)(15), which newly enacted ground went into effect after the deprived child adjudications and before the motions to terminate were filed in each case.
139 The basis for Matter of T.M. and Matter of A.G., id., was the Legislatures express provision for retroactive application of that ground, the same interpretation reached by the Oklahoma Court of Civil Appeals in the Matter of M.C. and N.C., 1999 OK CIV APP 128, 993 P.2d 137. Notwithstanding this interpretation, the latter Court reversed the termination order, finding § 7006-1.1(A)(15), as applied to its facts, had a type of ex post facto effect forbidden by the Oklahoma Constitution [Art. 2, § 15], ie., a punitive consequence that did not exist cither at the time State initiated the deprived proceedings, or when State began its quest to terminate and had changed the fathers obligations and liabilities. Id., ¶ 7-8.
{[ 40 Recently, another division of the Oklahoma Court of Civil Appeals in a published opinion, Matter of P.W.W., L.M.W., N.W. & S.W., 2012 OK CIV APP 18, 273 P.3d 83, (2012), addressed the Legislatures repeal of § 7006-1.1(A)(15), which became effective May 21, 2009, i.e., after the 2007 adjudication order and prior to the November 2009 motion to terminate which had alleged two grounds, § 7006-1.1(A)(15) and § 7006-1.1(A)(5). The trial court instructed the jury solely on § 7006-1.1(A)(15), with no objection by Mother, so the Court in P. W.W. reviewed the instruction for fundamental error. Interpreting Art. 5, § 54, Okl. Const., which provides the repeal of a statute shall not ... affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute, the Court in Matter of P.W.W. found the termination proceeding was the proceedings begun by virtue of the repealed statute. Because States motion to terminate was filed after § 7006-1.1(A)(15)s repeal, the Court found fundamental error based on the trial courts lack of authority to terminate parental rights on the repealed ground. The Court reversed the termination order for failure to give an instruction for the orders remaining basis, § 7006-1.1(A)(5).
{41 The trial court here did not instruct on either a new or amended termination ground, but instead on the former version. Whether such action constitutes fundamental error is dependent on the same issue addressed in all five cases-which version governed States termination proceeding. This question of law is reviewed de novo, without deference to the trial courts conclusion. In re Adoption of Baby A., 2006 OK CIV APP 24, ¶ 7, 131 P.3d 153, 155.
% 42 The general rule in Oklahoma is that statutes and amendments are to be construed to operate only prospectively unless the Legislature clearly expresses a contrary intent. Welch v. Armer, 1989 OK 117, ¶ 27, 776 P.2d 847, 850. Remedial or procedural statutes which do not create, enlarge, diminish, or destroy acerued or contractual rights-are generally held to operate retroactively and apply to pending proceedings (unless their operation would affect substantive rights ) Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 8, 78 P.3d 542, 546. (Emphasis added.)
" 43 Unlike the termination ground considered in Matter of T.M., Matter of A.G., and Matter of M.C., supra, we find no legislative intent, express or necessarily implied, for retroactive application of § 1-4-904(B)(18). Under the general rule, operation of the amended statute would be prospective only, unless one of its exceptions applies. This determination requires a comparison of both versions to identify any changes to existing law, and if so, whether the changes are purely remedial or procedural, in which case the amended statute would operate retroactively. American Airlines Inc. v. Crabb, 2009 OK 68, ¶ 14-16, 221 P.3d 1289, 1292-93; Welch, 1989 OK 117, ¶¶ 21-26, 776 P.2d 847. If the changes are substantive, its operation is prospective only. Id.
1 44 Comparing § 7006-1.1(A)(18) to § 1-4-904(B)(13), we conclude there are significant changes in the amended version other tham the broadening of its seope, i.e., cognitive disorders, extreme physical incapacities and medical conditions, including behavioral health (collectively, conditions). Relating to Mothers insufficiency of the evidence argument is the change in the element addressing the potential for harm to the child. Section 1-4-904(B)(18)(b) now provides allowing the parent to have custody would ecause the child actual harm or harm in the near future, but before May 21, 2009, § 7006-1.1(A)(18)(d) required "the continuation of parental rights would result in harm or threatened harm to the child. (Emphasis added.)
1 45 Another significant change is the Legislatures deletion of § 7006-1.1(A)(18)(e), which required testimony or evidence from a physician, psychiatrist/psychologist, counsel- or or other qualified person that the parents mental illness or deficiency is such that it will not respond to treatment, therapy or medication and, based upon competent medical opinion, the condition will not substantially improve. This latter section was merged with § 7006-1.1(A)(183)(c), from which the statutory definition of mental illness or mental deficiency was deleted, into a single element, § 1-4-904(B)(18)(a). That section now requires a diagnosis for the listed conditions, without regard to the parents prognosis, short-term or long-term. Like § 7006-1.1(A)(18)(c), the conditions listed in § 1-4-904(B)(13)(a) must still render the parent incapable of adequately and appropriately exercising parental rights, duties and responsibilities. However, while this finding has an added qualification, within a reasonable time considering the age of the child, it can now be proven with evidence of a parents refusal or pattern of non-compliance of treatment, therapy, medication or assistance from outside the home. As a result, § 1-4-904(B)(13) provides a lesser evidentiary burden that is more subjective than its predecessor.
1 46 The history of § 7006-1.1(A)(183) demonstrates the significance of the changes to its elements, which are identical to those in 10 O.S. Supp.1988 § 1180(8)-the first termination ground specific to parents with mental illness or deficiency. The Legislature enacted § 11308) in response to Matter of J.N.M., 1982 OK 153, 655 P.2d 1032, in which the Supreme Court reversed a termination order finding the 1981 version of § 1130 did not expressly provide for parental rights termination of mentally ill parents and proof of mental illness alone was inadequate to terminate parental rights. As enacted, § 11830(8) addressed all of the Courts concerns, e.g., no evidence on whether the parents mental illness posed harm to the children or whether the mental iliness was not treatable and long-term which would justify termination.
947 Termination of parental rights is purely a creature of statute. Matter of Christopher H., 1978 OK 50, 17, 577 P.2d 1292, 1293. A statute of creation is one creating a right previously unknown to both common law as well as statutory law. Trinity Broadcasting Corp. v. Leeco Oil Co., 1984 OK 80, ¶ 9, n. 8, 692 P.2d 1864, 1367. Section 1180(8), later renumbered to § 7006-1.1(A)(13) without any modifications to the six elements or the proviso, clearly meets that definition. While this new ground gave State the right or authority to terminate the parental rights of parents with a mental illness or deficiency upon the requisite proof of all of its elements, it also provided statutory protection for the parental rights of the same parents. A statute of creation affects substantive rights and any amendment to such only operates prospectively. Trinity, 1984 OK 80, ¶ 9, 692 P.2d 1364.
¶ 48 We find no Oklahoma parental termination cases deciding whether substantive rights are affected by an amended grounds changes to the prior versions elements. However, we find two workers compensation court cases instructive on this issue. In American Airlines Inc. v. Crabb, 2009 OK 68, ¶ 14-16, 221 P.3d 1289, 1292-93, the Court found the addition of the phrase major cause of the injury in the amended statutory definition of compensable injury added a new element to the claim, intruded on substantive rights, and could not be applied retroactively. After-enacted legislation that alters the elements of a claim or defense by imposition of new conditions affects the parties substantive rights and liabilities. King Manufacturing v. Meadows, 2005 OK 78, ¶ 19, 127 P.3d 584, 590; Welch, 1989 OK 117, ¶¶ 27-28, 776 P.2d 847.
T 49 The Court in Cole v. Silverado Foods Inc., 2008 OK 81, ¶ 13, 78 P.3d 542, 548, similarly held the retroactive application of an amended statute of limitations affected the substantive rights of both parties in two ways. First, it made the employers defense much more extensive than it stood at the time the claim was brought. Second it affected the merits or grounds or elements of the employees claim, since she would have to confront a different defense. Id., 114, n. 27. Because the amended statute operated on rights in existence, the Court in Cole held its terms are subject solely to prospective application. Id. Similar conclusions were reached about an amended adoption without consent statute in Adoption of W.C., 189 Ohio App.3d 386, 988 N.E.2d 1052 (Ohio Ct.App. 12 Dst.2010) and VanBremen v. Geer, 187 Ohio App.3d 221, 931 N.E.2d 650 (Ohio Ct. App. 5 Dst.2010).
150 As in Crabb, § 1-4-904(B)(13) adds new elements and its application to Mothers termination proceeding would have had the same effect as discussed in Cole, i.e., it would have placed a lesser evidentiary burden on State to terminate Mothers parental rights and a higher burden on Mother in opposing termination, thereby affecting the parties substantive rights. A substantive change which alters the rights or obligations of a party cannot be viewed as solely a remedial or procedural change and cannot be retrospectively applied. Sudbury v. Deterding, 2001 OK 10, ¶ 19, 19 P.3d 856, 860. Therefore, as applied to this case, § 1-4-904(B)(13)s operation is prospective only.
{51 We also agree with the Courts decision in Matter of P.W.W. that Art. 5, § 54, is controlling here on the issue before us. Proceedings begun under the meaning of Art. 5, § 54 refers to essential steps or measures to invoke, establish or vindicate a right. Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 8, 78 P.3d 542, 546. This constitutional provision applies to repealed or amended statutes. Cole, ¶ 14; Matter of A.W. & M.W., 2011 OK CIV APP 27, 19, n. 5, 250 P.3d 348, 347. Proceedings begun in Art. 5, § 54 embraces all of the statutory steps required by law for the establishment and foreclosure of a statutory lien claim and the timely filing of a lien statement is a condition precedent to a foreclosure. First National Bank of Pauls Valley v. Crudup, 1982 OK 132, ¶ 6, 656 P.2d 914, 916. Relying on Crudup, the Court in Cole held the timely filing of a workers compensation claim establishes an initial step with the meaning of proceedings begun in Art. 5, § 54, [and] the terms of the statute in effect at the time the claim was filed are constitutionally shielded from invasion by after-enacted legislation. 2003 OK 81, 1 14, 78 P.8d 542.
152 The point at which we depart from Matter of P.W.W. is its assumption the Legislature intended the repeal of the statutory ground to be applied retroactively to the pending deprived child action and that for purposes of Art. 5, § 54, proceedings begun is States filing of a motion or petition to terminate. Even if we were to agree the Legislature so intended (either expressly or impliedly), we conclude the filing of a petition to adjudicate a child as deprived is the initial and critical step within the meaning of proceedings begun in Art. 5, § 54. Like the filing of a workers compensation claim in Cole, a petition for adjudication commences States right to intervene in a family unit to protect a child from harm and seek relief, eg., adjudication of the child as deprived, termination of parental rights, as permitted by 10A 0.8.2011 $ 1-4-8301(A)(2)(g), [formerly 10 0.8.2001 $ 7003-8.1(A)(2)(g) 1.
$53 A deprived child petition filed by State is also a condition precedent (together with proof of harm to the child or a stipulation by the parents) to an order adjudicating the child as deprived. Thereafter, if reunification of the family is successful, State may dismiss the deprived action. However, if reunification of the family fails or is not an option, States decision to pursue its remedy of terminating parental rights is dependent, under either § 7006-1L.1(A)(18) or § 1-4-904(B)(13), on a prior deprived child adjudication. In that event, States petition or motion to terminate parental rights is given the same case number as the deprived action, hence its description as ancillary to the deprived action, see In re C.L.M., 2001 OK CIV APP 3, ¶ 12, 19 P.3d 888, 891, or one of its three stages, see In re G.., 2004 OK CIV APP 71, ¶ 15, 97 P.3d 1155, 1156. The [elntire proceeding from the filing of a petition to adjudicate deprived until the matter has been completed, either by termination of parental rights or by dismissal of the action constitutes a deprived action. Matter of T.M., A.M. & A.M., 2000 OK CIV APP 65, ¶ 11, 6 P.3d 1087, 1092. Applying Cole and Crudup, we conclude proceedings begun under the facts of this case refers to the initial filing of States petition to adjudicate LM. as deprived. All of the subsequent statutory steps in a deprived child proceeding, including the petition or motion to terminate, are part of and ancillary to the deprived child proceeding. Under our interpretation, because § 7006-1.1(A)(18) was in effect at the time the petition to adjudicate was filed based on Mothers mental illness, its terms at that time are applicable to the subsequent termination proceeding and are unaffected by the intervening legislative amendment.
154 A parents right to his child and family integrity is a fundamental constitutionally protected liberty interest that must be accorded the full panoply of procedural protections, as well as substantive protection under the due process clauses. In re A.M. & R.W., 2000 OK 82, ¶ 8, 13 P.3d 484, 487; Matter of J.N.M., 1982 OK 153, ¶ 9, 655 P.2d 1032, 1036; and In re M.C. and N.C., 1999 OK CIV APP 128, ¶ 9, 993 P.2d 137, 140. We are also aware that Oklahoma courts have long held in deprived child proceedings that parental rights are not absolute, but are qualified by considerations affecting the welfare of children. In re Harris, 1966 OK 253, ¶ 0, 434 P.2d 477, 478; In re Pulliam, 1962 OK 56, ¶ 0, 369 P.2d 646, 647; McNatt v. State, 1958 OK 235, ¶ 0, 330 P.2d 600; In re J.C., 2007 OK CIV APP 77, 5, 168 P.3d 784, 785. Therefore, the parents rights must be balanced against the States right to protect the rights of children who have an equally important right to a wholesome and safe environment. In re J.C., 2007 OK CIV APP 77, 168 P.3d 784. However, the paramount consideration in all proceedings within the [OCC] is the best interests of the child. 10 ©.98.2001 § 7001-1.2(B), now 10A O0.8.2011 § 1-1-102. This goal is best served by full compliance with the law. A.E. v. State, 1987 OK 76, ¶ 22, 748 P.2d 1041, 1048.
155 Keeping these principles in mind, § 7006-1.1(A)(18)s statutory protection for a special class of parents with mental illness or mental deficiency applies here. This protected condition triggered L.M.s removal from Mothers custody and his adjudication as a deprived child. Mothers mental illness remained the sole basis for the pending deprived action and was relied upon in States application to terminate her parental rights. Because this statutory protection existed when the deprived action proceedings were begun, § 7006-1.1(A)(13)s application is protected from extinguishment by the Legislatures 2009 amendments under Art. 5, § 54 of the Oklahoma Constitution. Accordingly, we find no fundamental error with the trial courts instruction based on § 7006-1.1(A)(18).
Sufficiency of the Evidence Termination Under $ 7006-1.1(A)(13)
156 Having found § 7006-1.1(A)(18) governs Mothers termination proceedings, we next address her insufficiency of the evidence argument as it relates to harm to the child. Under this version, the question is whether there is clear and convincing evidence the continuation of [Mothers] parental rights would result in harm or threatened harm to the child. We agree with Mother all of the evidence State presented demonstrated harm or threatened harm to LM. if he were returned to her physical custody, and there is no dispute the evidence presented to the jury showed Mothers mental illness met the statutory definition as required by § 7006-1.1(A)(18)(c). However, whether there is clear and convincing evidence that continuance of her parental rights would result in harm or threatened harm to LM., under the specific facts of this case, cannot properly be evaluated or understood without first determining whether State carried its requisite burden to show Mothers condition was long-term and not treatable, as essentially required under § 7006-1.1(A)(13)(e).
157 While performing our appellate duty to canvass the record to determine whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction that the grounds for termination were proven, we find clear and convincing evidence of Mothers history of severe mental illness and of her disclosure she had been diagnosed with bi-polar disorder as a teenager. There is also testimony Mother agreed to and signed the treatment plan that lists her diagnosis as schizophrenia, has current symptoms of depression and anxiety, infer alia, and she had yet to resolve any of the originally identified risk factors through counseling with three counselors since 2007.
T58 However, review of the entire record reveals there is no testimony or evidence Mothers mental illness will not respond to medication or other treatment or therapy. More importantly, the record lacks competent medical opinion that Mothers mental illness will not substantially improve. Without clear and convincing evidence for all six of § 7006-1.1(A)(18)s findings, the judgment terminating Mothers parental rights based on this statutory ground must be reversed.
Sufficiency of the Evidence for Termination Under § 7006-1.1(A)(5)
159 Because the jury also found Mothers parental rights should be terminated based on her failure to correct the conditions which led to L.M.s deprived child status, our remaining duty is to decide whether there is clear and convincing evidence to support the trial courts judgment based on this ground. Like the mental illness instruction, the jury was not instructed on the amended ground, 10A 0.8. Supp.2009 § 1-4-904(B)(5), but instead its predecessor, 10 0.8. 2001 $ 7006-1.1(A)(5) which, prior to May 21, 2009, allowed a trial court to terminate the rights of a parent to a child based on [a] finding that:
(a) the child has been adjudicated to be deprived, and
(b) such condition is caused by or contributed to by acts or omissions of the parent, and
(c) termination of parental rights is in the best interests of the child, and
(d) the parent has failed to show that the condition which led to the adjudication of a child deprived has been corrected although the parent has been given not less than the time specified by [§ 17008-5.5 of this title to correct the condition.
The uncorrected condition to which § T7006-1.1(A)(5)(d) refers necessarily means a condition the nature of which is subject to correction by the parents efforts, see In re C.R.T., 2003 OK CIV APP 29, ¶ 16, 66 P.3d 1004, 1009, and without any change to this element in § 1-4-904(B)(5), that interpretation is unaffected. Consequently, we need not address which version governs here, because neither are applicable.
T 60 The Court of Civil Appeals in CRT. reversed an order terminating parental rights, finding the jury should not have been instructed under both § 7006-1.1(A)(5) and § 7006-1.1(A)(13), because the latter termination ground applies to a specific condition and controls over the more general ground. Id., 118. The Court found § 7006-1.1(A)(18) deals with a different form of condition, one requiring medical, psychiatric and psychological intervention, or a combination thereof, because the condition is essentially outside the control of the parent. (Emphasis added.) Id., 118. Under its interpretation, the Court further found § 7006-1.1(A)(13) contemplates a persons inability to correct the condition because its language deals with contingencies where the condition does mot respond to treatment through no foult of the person and medical opinion concludes that the condition will not substantially improve. (Emphasis added.) Id.
T61 As in CRT., there is no dispute in this case: (a) Mother suffers from a mental condition of the nature contemplated by § 7006-1.1(A)(18); (b) the condition to be corrected is mental illness, which was the basis for the deprived child adjudication and remained Mothers problem to the time of trial; (c) the record as a whole and the evidence at trial shows the alleged failure to correct the mental condition follows and flows directly from the condition itself; and (d) the deprived child case began and was handled as a mental health problem and remained so through trial. More importantly, this record has no evidence or testimony from which a jury could find Mother failed to correct a condition which was in her ability to control.
1 62 Like the Court in CR.T., we conclude § 7006-1.1(A)(18) applied to the specific facts of this case and the trial court erred in allowing the State to also proceed to terminate Mothers parental rights under § 7006-1.1(A)(5) and to instruct the jury on that same ground. The trial courts order terminating Mothers parental rights is REVERSED and REMANDED for a new trial.
Fathers Appeal
163 For reversal, Father alleges three errors with trial courts pretrial rulings, i.e., denying his request for court-appointed counsel, refusing to recuse, and denying severance of the parents jury trials. The errors he claims were made during the trial include admitting prejudicial evidence, rejecting his proposed jury instructions, and failing to direct a verdict in his favor because there was insufficient evidence presented to the jury to support termination of his parental rights. Lastly, Father argues he had ineffective assistance of counsel. -
Pretrifil Rulings
Fathers Requests for Court Appointed Counsel
164 Father contends the trial court did not afford him his constitutional right to assistance of counsel by denying his three separate applications for re-appointment of court-appointed counsel and despite knowing Father was having issues completing the ISP and receiving services while incarcerated. He also argues the trial courts refusal to reappoint counsel is particularly troubling in light of Fathers inability to effectively read, write or communicate with others.
T65 Father submitted his first Application for Appointed Counsel and Affidavit of Inability to Employ. Counsel (Application of Counsel) dated January 10, 2008. During his incarceration, he submitted a second Application for Counsel dated May 19, 2008. A month after his release at the June 9, 2009 Review Hearing, Father submitted his third Application for Counsel. The trial court apparently denied all three of his Applications for Counsel.
T66 The first part of Fathers argument fails to consider all three denials occurred after the deprived child adjudication in response to Applications filed one week before, during and one month after his incarceration. Despite earlier DHS findings and termination requests, that was not a possible remedy until the trial court finally ordered that Reasonable efforts to reunite have failed in September 2009. See 10 O.S. Supp.2007 § 70083-3.7(A). Two months later, the trial court sug sponte appointed Father and Mother counsel. As a result, he was represented a full year prior to the filing of States application to terminate Fathers parental rights in November 2010.
T67 The record confirms the trial court denied Fathers request for a treatment plan he could work while incarcerated, but he cites no authority holding such is required. Further, Father gives no record cite to support his allegations of the trial courts knowledge of his alleged issues with receiving services or communicating with DHS. Our review of the entire record reveals the trial courts first notice of Fathers inability to read or write and his limited capacity to communicate was the ISP Progress Report filed by DHS October 8, 2010, at which time Father had been represented by counsel for 11 months. Moreover, there is no indication any person, other than Father, completed and signed each Application for Appointed Counsel and Affidavit of Inability to Employ Counsel. We conclude Father has not demonstrated any constitutional or statutory infirmities in this regard. See Matter of D.D.F., 1990 OK 89, 801 P.2d 703.
Courts Refusal to Recuse
168 Father argues the trial judge was required to recuse under Rule 211(A)(6)(d) of the Code of Judicial Conduct, claiming he could not be impartial because he had previously acted as the trial judge in two criminal cases with Father involving a number of the same facts and witnesses which State indicated might be called at the termination hearing. He claims the trial courts inability to separate the cases appropriately in his own mind is established by the trial courts entry of an order limiting the voir dire time of the parties at the termination trial which referred to Father as the Defendant three different times.
T69 However, according to the order of the District Judge of the 19th Judicial District, the trial courts involvement with Fathers criminal cases included accepting his waiver of preliminary hearing, his stipulation to the States application to revoke, and sentencing Father pursuant to a negotiated plea agreement. We agree with the District Judges opinion no reasonable person would question the trial judges impartiality based on those actions. Considering this, the timing of Fathers motion to recuse, and that the jury would be the fact-finder at the termination hearing, we find Fathers argument without merit.
Trial Courts Denial of Fathers motion to sever the trial
$70 Father argues on appeal that he and Mother should have been granted separate trials, claiming they had opposing and inherently antagonistic defenses because he was sentenced to prison due to Mothers domestic abuse charges and the protective orders she was awarded against him. He further claims States termination case against him went far beyond the allegations in the application to terminate his parental rights to LM.
T71 At the hearing, the trial court clarified with Fathers counsel the basis of the severance motion as the factual basis for criminal charges against your client ... is, also, alleged as a basis for States motion to terminate Fathers parental rights. Thereafter, Fathers counsel repeated his position that Mother may decide to assist the District Attorney and double up against his client. The trial court concluded the latter could occur whether the trials were separate or together, and because the jury would receive instructions and verdict forms, separate as to each parent and as to each ground alleged, he denied Fathers motion, finding nothing prejudicial about a single trial for the parents.
172 According to the cases Father cites as authority, a defendant is double teamed or placed in a two against one situation to his detriment when court appointed counsel for a child victim actively participates in the trial beyond limits provided by statute, ie, taking an adversarial role against the defendant. Cooper v. State, 1996 OK CR 38, 922 P.2d 1217; In re J.D.D., 2010 OK CIV APP 102, 241 P.3d 691. Mutually antagonistic defenses occur when each defendant attempts to exculpate himself and inculpate the co-defendant. Spunaugle v. State, 1997 OK CR 47, ¶ 23, 946 P.2d 246, 251(overruled on other grounds). Defenses are antagonistic when to believe one is to disbelieve the other. Id. Severance is also required when the State introduces the confession of a non-testifying co-defendant which inculpates another co-defendant. Id., 25. The decision to sever a trial between co-defendants or a trial between parties in a civil action is left to the sound discretion of the trial court. Id; Herbert v. Wagg, 1910 OK 334, ¶ 4, 117 P. 209, 212.
73 Fathers arguments fails for two reasons. First, his double teaming argument in favor of severance addresses Mothers court appointed attorney in this proceeding, not L.M.s attorney. Second, Fathers alleged failure to correct the condition which led to L.M.s adjudication is the sole ground for termination of his parental rights. Father has failed to demonstrate not only the potential for a two against one situation but also how Mothers potential testimony at a termination trial, joint or severed, about the domestic violence criminal charges she filed against him could inculpate Father on that termination ground, the successful completion for which he is solely responsible. Equally important, Father has failed to show any prejudice or injustice resulting from the joinder of the parents trial. See 12 0.8. Supp.2004 § 2020(D);, All American Bus Lines v. Saxon, 1946 OK 199, ¶ 23, 172 P.2d 424, 428; Spunaugle, 122. We find no abuse of discretion with the denial of Fathers motion to sever.
Rulings During Trial
Preliminary Issue
174 State moved for termination of Fathers parental rights to LM. based solely on his failure to correct the conditions which led to L.M.s deprived status adjudication, relying on 10A O.S8. Supp.2009 § 1-4-904(B)(5). However, the trial courts jury instruction listed the elements of its predecessor, 10 0.S8.2001 § 7006-1.1(A)(b). To avoid repetition, we find applicable here our analysis under Mothers appeal concerning fundamental error and retroactive application of amended statutory grounds in deprived child proceedings. Based on our review of § 1-4-904(B)(5) we conclude it also affects the parties substantive rights.
175 Prior to May 21, 2009, § 7006-1.1(A)(5) required [a] finding that: (a) the child has been adjudicated to be deprived, (b) such condition is caused by or contributed to by acts or omissions of the parent, (c) termination of parental rights is in the best interests of the child, and (d) the parent has failed to show that the condition which led to the adjudication of a child deprived has been corrected although the parent has been given not less than three months. This clear and unambiguous ground for termination has been interpreted by Oklahoma courts for decades.
176 On and after May 21, 2009, § 1-4-904(B)(5) requires [a] finding that: (a) the parent has failed to correct the condition which led to the deprived adjudication of the child, and (b) the parent has been given at least three (8) months to correct the condition. Absent from § 1-4-904(B)(5) is the element, such condition is caused by or contributed to by acts or omissions of the parent, which was added by the Legislature in 1977 and authorized termination of parental rights only if a parent has failed to correct the particular condition(s) for which that parents acts or omissions was either the sole cause or a contributing cause. (Emphasis added.) In re L.G., 1993 OK CIV APP 162, ¶ 7, 864 P.2d 1301, 1303.
T 77 Deleting this element removed a statutory protection afforded to Father which existed when the deprived child proceeding was initiated against him. Had amended § 1-4-904(B)(5) been applied, States eviden-tiary burden would have been decreased and Fathers defense in opposing termination would have been increased, thereby affecting the parties substantive rights. As a result, § 7006-1.1(A)(5)s application is protected by Art. 5, § 54, the jury was so instructed, and we conclude the trial court correctly applied this version of the termination ground to the facts of this case.
Sufficiency of the Evidence Supporting Termination Under 10 0.8.2001 § 7006-1.1(A)(5)
178 Father cites to three Oklahoma cases for the proposition that without proof of actual or imminent harm to the child, there is no justification for permanent severance of the parents rights based on: (1) a parents inability to have physical custody of a child, Matter of Baby Girl Williams, 1979 OK 150, ¶ 10, 602 P.2d 1036; (2) poor, uneducated parents with a dirty house and dirty children, Matter of Sherol A.S., 1978 OK 103, 581 P.2d 884, and (8) incarceration of a parent, Matter of A.K., 2008 OK CIV APP 104, 198 P.3d 415.
T79 According to Father, there was insufficient evidence to justify termination of his parental rights, because there was no testimony or evidence of any harm to LL.M. at the time he was removed from Mothers custody. He contends States evidence only established Mothers house was dirty and there was no obvious food, while the only other witness who saw the child testified the child appeared dirty but not malnourished.
T80 The record confirms Fathers argument the seant testimony about L.M.s lethargy and medical issues did not arise until several months after the child had been removed from the parents care. However, this does not mean there was no evidence of harm or threatened harm, especially considering the undisputed evidence that LM. was developmentally behind for his age.
[ 81 Father also contends States witnesses all confirmed Father was an inmate in the Johnston County Jail when LM. was removed from Mothers home and there is no testimony Father knew about the conditions of her home or failed to act on the conditions leading to the deprived finding. Taken as a whole, Fathers argument questions whether State carried its burden to prove by clear and convincing evidence that Fathers acts or omissions caused or contributed to the conditions leading to L.M.s adjudication.
T82 Our research yields only one Oklahoma case applying this element to similar facts. The Court in In re L.G., 1993 OK CIV APP 162, 864 P.2d 1301, held termination of Mr. Garrions parental rights was not justified under the circumstances or authorized by 10 O.S.1991 § 1130 (§ 7006-1.1(A)(5)s predecessor). The Court observed it was undisputed that the child had been removed from the home and custody of the mother due to her neglect and abuse and that Mr. Garrion did not reside there. As pertinent here, the Court found [the only detrimental condition caused by or contributed to by Mr. Garrion that formed the basis of the deprived adjudication was domestic violence against the natural mother in the presence of the child. (Emphasis in original.) Id., 17. Because it was undisputed no further violence between the parents had occurred in the childs presence after the States intervention, the Court concluded [T/he correction of this sole detrimental condition was achieved. By the express provisions of 10 O.S.1991 § 1130(A)(3), termination was authorized only in the event Mr. Garrion failed to correct this particular condition and contributing cause of W.G.s deprived status. (Emphasis added.)
T83 It is undisputed in this record that prior to the first DHS referral, Mother had obtained the 2007 Protective Order against Father and that he was incarcerated for unknown reasons when L.M. was removed from Mothers home. State presented no evidence Father had been living in Mothers home or had visited there any time prior to the adjudication, or that he knew about Mothers past or current mental health issues and the effect of the numerous prescriptions she was taking for physical and mental conditions. Similar to L.G., Father here was not residing with Mother and LM. at the time he was removed from the home due to Fathers domestic violence against Mother. Domestic violence was clearly identified as one of the conditions to be corrected on the treatment plan he signed in October 2007. Unlike in LG. where the correction of the condition had been achieved, there was another incident of domestic violence in November 2007 between Father and Mother at counseling they were both attending, which was a partial cause for his subsequent three-year incarceration. The jury also heard several caseworkers and Fathers counselor testify he had not corrected his anger and domestic abuse issues since his release from jail.
84 This same evidence defeats Fathers remaining argument that the testimony established, even though he did not complete the plan, he made sincere and exhaustive efforts to do so, relying on Matter of J.L., 1978 OK 37, 578 P.2d 349. The Supreme Court in J.L. reversed the termination order where the evidence as a whole showed sincere and extensive efforts to change the conditions leading to the childs adjudication. Id. at T 16. The evidence in this case clearly does not make the same showing.
185 There is clear and convincing evidence to support the judgment that Father failed to correct the conditions which led to the deprived adjudication. However, the judgment fails to make the required finding under § 7006-1.1(A)(5) that termination of parental rights is in the best interests of the child. Because the jury was clearly instructed on that element, we presume the jury properly followed the instructions as a whole and its verdict terminating Fathers parental rights necessarily embodied that finding. Matter of T.R.W., 1985 OK 99, 722 P.2d 1197, 1203. However, given this fundamental deficiency, the judgment must be remanded to the trial court, not for a new trial, but with instructions to enter a proper final order correcting the error. Matter of Children M.B., 2010 OK CIV APP 41, ¶ 11, 232 P.3d 927, 931 and Matter of E.G., 2010 OK CIV APP 34, ¶ 11, 231 P.3d 785, 789.
Evidentiary and Other Rulings
1 86 Father alleges the trial court erred by admitting States Exhibit No. 7, a copy of the 2007 Protective Order against him and allowing discussion of the permanent protective order entered in Case No. PO-2010-106 (2010 Protective Order). We find no error with either of the rulings.
187 Error may not be predicated upon a ruling which admits evidence unless a substantial right of a party is affected and a timely objection appears of record, stating the specific ground of objection if such ground was not apparent from the context. 12 O.8.2011 § 2104(A)(1). When the trial court asked if there were any objections to admissions of States Exhibits No. 6 or 7, Father responded, [nlo objection to 6. On 7, subject to our previous arguments.
4 88 The trial transcript reveals the previous arguments involved the 2010 Protective Order, which is not part of Exhibit No. 7. Only the 2007 Protective Order is marked Exhibit No. 7, to which there was no specific objection. Without such, Father has failed to preserve for our review any error with the admission of States Exhibit No. 7. Matter of A.W. and M.W., 2011 OK CIV APP 27, 250 P.3d 343.
189 The previous arguments occurred on the second day of trial, beginning with Fathers objection to States proposed admission of a certified copy of the 2010 Protective Order, which Father explained to the trial court had been granted by another trial judge under the Protection From Domestic Abuse Act, 22 0.8. § 60 et seq. After arguing that judge lacked jurisdiction over the child due to the pending termination action and the protective order lacked an expiration date as required by statute, Father stated his objection would go to the enforceability of the order.
190 A lengthy discussion of his objections followed, revealing Father had filed a motion to recall or dismiss the 2010 Protective Order as to the child which motion was still pending with the other judge. The trial court agreed with State that the protective order was still in effect and refused to rule on whether [that protective order] was void or not, explaining Father could either accept States proffered stipulation or the 2010 Protective Order would be admitted. In liew of the admission of the certified copy, Father stipulated to States announcement the 2010 Protective Order was filed by {Mother] on behalf of herself and [L.M.] on July 12, 2010, and on July 30, 2010 a final order of protection [was] entered and remains in place at this point in time. After presenting additional witnesses, State moved to admit Exhibit No. 7 and announced the parties stipulation regarding the 2010 Protective Order. Father responded as described above, Mothers counsel approved, and the trial court admitted the exhibit and also accepted the parties stipulation.
191 On appeal, Father does not contend States discussion of the 2010 Protective Order went beyond the parties stipulation. Instead, he argues (1) the same objections regarding enforceability he raised below and (2) the discussion about the 2010 Protective Order was not relevant to States application to terminate his rights and its usefulness ... clearly did not outweigh the prejudicial impact on [his] case.
192 The trial transcript discloses Father did not object to that order based on irrele-vaney or, even if relevant, that its probative value would be outweighed by the danger of unfair prejudice. Consequently, he failed to preserve this argument concerning the 2010 Protective Order. Interest of A.W. and M.W., id.
198 Father did, however, preserve his enforceability argument which the trial court declined to decide. He argues the 2010 Protective Order should not have been admitted because (1) the trial judge lacked jurisdiction since the juvenile court already had custody of the child and (2) the order is contrary to several statutes.
194 The statutes he relied upon at trial are part of the Protection from Domestic Abuse Act (the Act), specifically 22 O.S. Supp.2009 § 60.4(D(1) and § 60.4(G)(1). Section 604(D(1) of the Act unambiguously precludes a protective order issued under the Act from affecting title to real property or purport to grant the parties a divorce or otherwise purport to determine numerous issues, including visitation and child eustody or any other like relief obtainable under Title 43. Title 48 has no application to the proceedings brought under the OCC.
195 Father also argues the 2010 Protec tive Order was filed without an expiration date contrary to § 60.4(G). This section mandates that a protective order issued under the Act shall be for a fixed period not to exceed a period of three (8) years unless extended, modified, vacated or rescinded upon motion by either party. Nothing in the record establishes this deficiency, since Father agreed to the specific oral stipulation, which provides only the date the protective order was issued. He did not make an offer of proof regarding the expiration date, and absent a record showing otherwise, this court presumes the trial court did not err. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496.
11 96 Concerning the trial courts refusal to decide if the protective order was void, § 60.4(G)(8) of the Act provides [ujpon the filing of a motion by either party to modify, extend, or vacate a protective order, a hearing shall be scheduled and notice given to the parties. At the hearing, the issuing court may take such action as is necessary under the cireumstances. (Emphasis added.) Clearly, only the judge who issued the 2010 Protective Order had authority to decide its validity. We find no error with the trial courts acceptance of the parties stipulation that the 2010 Protective Order remains in place.
Jury Instructions
197 It is the trial courts duty to instruct upon the decisive issues of the case as supported by the pleadings and evidence introduced. Matter of S.C., 1992 OK CIV APP 40, ¶ 5, 830 P.2d 200, 202. The tests on review of instructions given or refused are whether there is a probability that the jurors were misled and reached a different conclusion than they would have reached but for the questioned instruction, or whether there was exeluded from consideration a proper issue of the case. Id.
198 Father alleges the trial court erred by rejecting three of his proposed jury instructions, the first two of which are addressed together. Fathers proposed instruction No. 16 would have informed the jury that parents should not be held to the same standard of proof as that carried by State. His proposed instruction No. 17 would have informed the jury they were not required to terminate his parental rights if they found he had made sincere and extensive efforts and had shown substantial changes concerning the conditions creating L.M.s deprived status.
199 Fathers argument fails to consider after State rested and the trial court denied the parents demurrers, he also rested. By doing so, he voluntarily chose to allow the jury to hear only States evidence, thereby taking a risk as to whether the jury believed State met its burden of proof by clear and convincing evidence. Had Father testified or presented witnesses and/or evidence about his alleged sincere efforts and substantial changes toward correcting the condition, we would agree both proposed instructions should have been given. However, having previously concluded State proved by clear and convincing evidence that he failed to correct the condition, we find no error with the rejection of Fathers proposed instructions. See Matter of M.A., 1992 OK CIV APP 61, ¶ 24, 832 P.2d 437.
1100 Fathers proposed instruction No. 4 would have informed the jury they should not terminate the parental rights of a parent unless there were specific standards clearly prescribed for the parent and the parent was given a reasonable opportunity to comply with the prescribed standards. This argument fails to consider the jury was given States Exhibit No. 2, a copy of the treatment plan detailing the conditions to be corrected and his requirements DHS believed would help him to correct the conditions, which he signed in October 2007. One of the caseworkers testified treatment plans are written at a first grade level while another testified he had explained it to him again when he was released from prison in May 2009. We find no error with the trial courts refusal to give Fathers proposed instruction No. 4.
Ineffective Assistance of Counsel
1101 To prove ineffective assistance of counsel in termination proceedings, a parent must show the attorneys performance was deficient and prejudiced the parents defense. Matter of S.S., 2004 OK CIV APP 33, ¶ 11, 90 P.3d 571, 575. The reviewing court must look at the proceedings as a whole, and there is a strong presumption that counsels performance falls within the wide range of professional assistance. Id. (quoting In re R.S., 2002 OK CIV APP 90, ¶ 16, 56 P.3d 381, 384).
1102 Fathers first argument is premised on his court-appointed counsels failure to file a discovery request, resulting in States surprise introduction of the 2007 Protective Order and the discussion of the 2010 Protective Order. He claims such failure prevented an opportunity (1) to pursue a motion in limine or other motion to block the original, wrongfully-entered order from being presented or discussed at the jury trial, and/or (2) to have the wrongfully-entered order vacated.
1103 We first note Fathers wrongfully-entered order argument, both below and on appeal, was limited to the 2010 Protective Order, about which the record establishes only that his counsels motion to vacate had been pending with the issuing judge for some unknown time before the termination hearing. Thus, at least to the 2010 Protective Order, the record does not establish any surprise of its existence. However, even if Fathers counsel had made a discovery request, learned State intended to admit it, and thereafter filed a pre-trial in limine or other motion to block its admission, there is no guarantee the trial court would have sustained the motion, considering its potential relevancy to Fathers failure to correct the condition of domestic violence against Mother. Moreover, even if the trial court had denied the pre-trial motion, such ruling is preliminary only. Father has not demonstrated his trial attorneys alleged failure to discover prejudiced his defense.
T104 Fathers second argument is premised on his court-appointed counsels failure to object at the trial to the admission of the 2007 Protective Order for lack of relevance. A trial court has discretion in deciding whether proffered evidence is relevant and, if so, whether it should be admitted. Myers v. Missouri Pacific R. Co., 2002 OK. 60, ¶ 36, 52 P.3d 1014, 1033. We assume the trial courts acceptance of the parties stipulation implies it had decided even the limited discussion of the 2010 Protective Order was relevant to the issue on continued domestic abuse. Therefore, it seems evident the 2007 Protective Order would have been admitted even if Fathers trial counsel had made a timely relevancy objection. While it may have been better practice for [Fathers] trial counsel to have raised the objection in controversy, we do not find that failure affected the outcome of the proceedings. In re R.S., 2002 OK CIV APP 90, ¶ 20, 56 P.3d 381, 384. The finding in R.S. clearly applies here.
CONCLUSION
1105 The order terminating Mothers pa rental rights is REVERSED AND REMANDED FOR A NEW TRIAL. This opinion does not affect DHS foster care placement, which is its sole purview and responsibility. As to Father, the order of termination is AFFIRMED, but REMANDED to correct a deficiency in the termination order.
BELL, P.J., and MITCHELL, J., concur.
. We did not review Petitioners Exhibit No. 1, included in the exhibit envelope from the January 27-28, 2011 jury trial, because its admission was rejected.
. After LM. was removed from Mothers custody in July, his first foster family kept him for two months. The record includes a two-page letter filed October 9, 2007, which Mother, Father and L.M.s paternal and maternal grandmothers had signed on September 14, 2007, complaining that during their August visit, LM. had a burn on his wrist, a bruise on his cheek, did not appear to be eating, and had been placed on a nerve depressant. LM. was subsequently transferred to a second foster family with whom he resided throughout these proceedings. At trial his foster mother testified LM. was a little bit withdrawn upon his arrival, a month later they weaned him off of the medication and he came alive.
. In each report, DHS requested longer periods between reviews to allow her to gain mental stability, described as confused thinking and depression ... verbally and emotionally overwhelmed ... at times she demonstrates delusional situations.
. The report stated Mother continues delusional thinking, was still on medication for several different disabilities and her mental health, she truly loves her child but is unable to meet his needs due to her mental health issues, and a new psychological evaluation had identified sixteen risk factors, e.g., due to severity of [Mothers] mental health she continues to pose a risk of harm to herself and her child. The report noted Father and several others still lived together, he had only two mental health appointments since his release, he canceled his follow-up appointment due to not having a ride, and had not worked any domestic violence, parenting or substance abuse services.
. States Exhibits included two letters from Mothers counselor. The May 29, 2009 letter explained she had been working with Mother since April 24, 2009 and from five sessions reported Mother was not addressing the risks outlined in her psychological evaluation, not developing coping skills, and her moods vacillated between depressed and manic states with no awareness of the change. In her opinion [Mother] has a history of severe mental illness with sustained paranoid ideation, flight of ideas, poor emotional regulation, depression, anxiety, unpredictable behavior, lack of ability to establish appropriate boundaries, and feelings of insecurity. She continues to pose a risk of harm to herself and her child if he should be returned to the home. The September 9, 2009 letter was identical except for her report that Mother has shown an increased pattern of instability.
. State admitted a letter from Fathers counselor dated June 7, 2010, reporting he had a low level of drug abuse, signs of definite alcoholism, anger issues and high hostility level, limited capacity to communicate and an impaired reasoning ability. The counselor opined Father is not capable of maintaining any kind safe environment or care for a child, is not self-sufficient, and has not been able to abstain from alcohol.
. Fathers appellate court-appointed attorney did not represent him below.
. When, as here, legal relief clearly is affordable upon alternative grounds, consideration of constitutional challenges is inappropriate in light of [this Courts] self-erected prudential bar of restraint. Constitutional questions should not be reached in advance of strict necessity. Reimers v. State ex rel. Department of Corrections, 2011 OK CIV APP 83, 1 29, 257 P.3d 416, 421 (quoting Russell v. Board of County Commissioners of Carter County, Oklahoma, 1997 OK 80, ¶ 32, 952 P.2d 492, 504).
. As relevant here, the Legislature deleted one of § 7006-1.1(A)s fifteen grounds for termination and moved the amended fourteen legal grounds to a newly added section B. Section 1-4-904(A) now provides [a] court shall not terminate the rights of a parent to a child unless: (1) the child has been adjudicated to be deprived either prior to or concurrently with a proceeding to terminate parental rights; and (2) termination of parental rights is in the best interest of the child. (Emphasis added.)
. When moving for directed verdict at the close of States case in chief, Mothers counsel referred to the statute which appears in the amended complaint and 10A, [§ 11-4-904 when arguing there was no evidence Mother had been diagnosed with a cognitive disorder and that actual harm or harm would occur in the near future if her parental rights were not terminated.
. The transcripts reveal each parents counsel and State acknowledged receipt of copies of the trial courts proposed instructions and after agreeing to some minor changes, no further objections were made. In the presence of the parties, the trial court numbered the instructions, announcing each corresponding Oklahoma Uniform Jury Instruction (OUJI) number, and relevant here, he stated Number 18 is [OUJI] 3.18. Our research shows OUJI No. 3.18 is from the Oklahoma Jury Instructions-Juvenile approved March 28, 2005, which lists the elements of § 7006-1.1(A)(13). See In re Oklahoma Uniform Jury Instructions for Juvenile Cases, 2005 OK 12, 116 P.3d 119, 153 (Mental Illness or Mental Deficiency). New jury instructions based on the 2009 amendments to § 1-4-904 were approved by the OUJI-Juvenile committee March 19, 2010, modified several times with final modification January 21, 2011, and adopted by the Supreme Court April 18, 2011. See http:// www.oscn.net/forms/lawlibrary/Juvenile-2011/ adobe/Chapter03.pdf. Therefore, when the jury trial in this case was held January 27-28, 2011, the available OUJI-juvenile for termination proceedings still had the § 7006-1.1(A) termination grounds. We assume 12 0.S.2011 § 577.2s requirement to use OUJI when applicable in civil cases giving due consideration to the facts and the prevailing law" would also apply to the special statutory proceeding involved here.
. 43A O.S. Supp.2005 § 6-201(f) and (g) provides:
Mental illness" shall mean mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community.
"Mental deficiency shall mean mental deficiency as defined by appropriate clinical authorities to such extent that a person so afflicted is incapable of managing himself and his affairs, but shall not include mental illness as defined herein.
We note for the record the jury was also given an instruction with these definitions.
. The same elements were previously found under § 7006-1.1(A)(35), failure to correct the conditions, and § 7006-1.1(A)(12), incarceration of a parent.
. The current OUJ-Juvenile, Chapter 3, Grounds for Termination-Introductory Note, explains these two elements have been added to all grounds § 1-4-904(B).
. Section 7006-1.1(A)(15) authorized termination when the child has been in foster care for 15 out of the most recent 22 months. When the Legislature amended § 7006-1.1, effective May 21, 2009, § 7006-1.1(A)(15)s text was deleted and replaced with the new text now found in § 1-4-904(B)(14). ®
. The Court in T.M. found the facts in Matter of M.C. and N.C. distinguishable. First, § 7006-1.1(A)(15) became effective after the filing of the first termination petition for failure to correct, the trial of which ended in a mistrial, and the father had only two weeks notice before the retrial that the new ground had been added. Second, when the father asserted his right to a jury trial, his children had only been in foster care 12 months and the only reason the requisite 15 months under the new ground was satisfied was due to the courts delay in scheduling his trial. The Court in T.M. found the mother was given reasonable notice and that her children had been in foster care 15 months prior to the motion to terminate so her asserted right to a jury trial did not contribute to satisfaction of the statutory period in foster care.
. We find no express repeal of § 7006-1.1(A)(15). However, the Legislatures amendment of § 7006-1.1(A) and renumbering it as § 1-4-904(B), as part of its recodification of the OCC, without § 7006-1.1(A)(15) included as a legal ground, may be viewed as an implied repeal by an amendatory act. Hendrick v. Walters, 1993 OK 162, 113, 865 P.2d 1232, 1240; Lankford v. Menefee, 1914 OK 651, 13-4, 145 P. 375, 376-377.
. Only the term behavioral health is defined by 10A O.S. Supp.2009 § 1-1-105(6). When used in OCC, the term means mental health, substance abuse or co-occurring mental health and substance abuse diagnoses, and the continuum of mental health, substance abuse or co-occurring mental health and substance abuse treatment.
. Custody is not specifically defined under the OCC, but 10A 0.$.2011 § 1-4-906(A) and its predecessors have long identified the right to custody as just one of several, specific parental rights in an existing parent-child relationship. See also Matter of Catlett, 1975 OK 161, ¶ 4, 543 P.2d 552, 554.
. It is clear from the newly-added paragraph and the statutory definition of behavioral health that § 1-4-904(B)(13) resulted from the Legislatures merger of § 7006-1.1(A)(13) with § 7006-1.1(A)(14), which allowed termination based on a parents resisted treatment for their abusive and chronic use of drugs or alcohol.
. Matter of L.S., 1990 OK CIV APP 94, 805 P.2d 120; see also Matter of C.R.T., 2003 OK CIV APP 29, ¶ 30, 66 P.3d 1004, 1010 (holding the Legislature singled out the mental health condition for special treatment in [§ 7006-1.1(A)(13)] and has thereby created a special provision controlling over the more general provision of [10 O.S. Supp.2000 § 7006-1.1(A)(5) ], te., failure to correct conditions leading to a deprived adjudication).
. The Legislatures authority to protect parents with mental illnesses or deficiencies evolves from the same doctrine most generally applied to Oklahoma children, ie., the doctrine of parens patrige. This doctrine is defined as the inherent power and authority of a Legislature of a state to provide protection of the person and property of persons non sut juris such as minors, insane and incompetent persons. Matter of Baby Girl L., 2002 OK 9, n. 8, 51 P.3d 544, 562.
. When a statutory requirement reflects an important state policy ... the express recognition of that policy cannot be considered procedural rather than substantive. In re Eden F., 741 A.2d 873, 887 (Conn.1999) (the Court held the amended statute affected substantive rights of the parties by providing additional statutory protection for any parent contesting a parental rights termination action and placing the burden on the state to take appropriate measures designed to secure reunification of parent and child.)
. The Court in Adoption of W.C. adopted the analysis of the Court in VanBremen which relied on Ohios constitutional retroactivity clause and held the revised adoption without consent statute was substantive and did not operate retroactively, because the states legislative body did not expressly provide for such and it places a lesser burden on the petitioner who seeks to adopt the child without the consent of the natural parent and conversely places a higher burden on the natural parent who opposes the petition.
. The Court in Matter of A.W. explained in fn. 5 that § 1-4-904 had gone into effect after the jury trial began but nevertheless considered Art. 5, § 54 and found the changes in the law did not affect the pending proceeding, the failure to correct ground upon which the jury based its verdict was available under the superceded and the amended version, and there was no fundamental error in the district courts instruction of the jury based on the law in effect at the time the trial proceedings began (§ 7006-1.1(A)).
. Section 7003-5.5(D(1) provided, If reasonable efforts are required for the return of the child to the childs home, the court shall allow the parent of the child not less than three (3) months to correct conditions which led to the adjudication of the child as a deprived child prior to terminating the parental rights of the parent." This provision is now found at 10A 0.S.2011 § 1-4-707(C)(2).
. We say apparently because Fathers 1/10/08 Application has on top of the first page a handwritten note, D. Mike Haggerty, I already appointed and underneath it, Discharged 1/8/08 and Jail 1/16/08. Similarly, the 5/19/08 Application has only a handwritter note, Jail 5/20/08 and Not eligible at this time, case set for review only 5/20/08, and the handwritten note at the top of the 6/09/09 Application says, Nothing pending 7-9-09. The notes on these Applications are neither signed nor initialed, and the record reflects no minute or order denying the requests. Because State does not dispute Fathers claims in his Brief in Chief that the trial court denied the Applications, we treat their admissions as curing a deficient appellate record. House of Realty, Inc. v. City of Midwest City, 2004 OK 97, 16, 109 P.3d 314, 317. We note for the record all three Applications are listed in the Amended Index as Not Filed. Father did not file a designation of record, and neither Mother nor State designated the Applications for inclusion, so it is unclear why they are part of the appellate record certified by the Bryan County Court Clerk. However, we may review facts appearing of record which are certified by the clerk of the tribunal below. Id.
. Rule 2.11(A)(6)(d) provides a trial judge should disqualify if he or she previously presided as a judge over the matter in another court or in any adjudicatory capacity.
. The District Judge opined even assuming the facts of either of [Fathers] cases are partly the basis for the termination proceeding in the instant case ... no reasonable person can suggest that [Judge Powers] impartiality might reasonably be questioned based on his acceptance of a stipulation to the States application to revoke suspended sentence and based on his imposition of a sentence pursuant to a negotiated plea agreement.
. The language limiting the participation of court appointed counsel for a child victim in a criminal case, 21 O.S. Supp.1992 § 846(G)(1), was discussed in Cooper. As noted by the Court in J.D.D., the identical statutory language was later adopted under the OCC as 10 O.S. Supp. 1998 § 7003-3.7 and is now found at 10A O.S. 2011 § 1-4-306(A)(2)(c).
. Because Father chose not to present any of his own evidence or testimony after State rested, we need not decide here whether the Legislatures 2009 amendment to § 1-4-904(B)(5), now requiring a finding the parent has failed to correct the condition changes the long-standing shifting of the burden of evidence or persuasion that originated with pre-1975 versions of 10 0.8. § 1130(c). Section 1130(c), which applied to a parent who is entitled to custody ... [and] has failed to show that the condition ... has been corrected, was unchanged until the Legislatures amendment to § 7006-1.1(A)(5). (Emphasis added.)
. See fn 9 for the two § 1-4-904(A) elements.
. Father also refers to the 2010 Protective Order as the permanent protective order.
. Even if Fathers specific objections regarding the 2010 Protective Order could somehow be construed to also apply to the 2007 Protective Order, this court would find no error with its admission. The jury heard considerable testimony about the 2007 Protective Order the first day of trial, without objection by Father, and some of the testimony was elicited by Fathers counsel during cross-examination. A party may not complain about admission of evidence over his objection, where other evidence of the same tenor was admitted without objection. In re F.B., 1999 OK CIV APP 96, 990 P.2d 309.
. The other statutes Father raises for the first time do not support his argument. Title 10A 0.S.2011 § 1-4-706(A)(3) simply allows a juvenile court during the pendency of a deprived action to modify any order regarding child support, visitation or legal custody in any other administrative or district court proceeding.