State Ex Rel. State Office for Services to Children & Families v. Mellor , 181 Or. App. 468 ( 2002 )

EDMONDS, J.,

dissenting.

In this termination of parental rights case, the majority holds, on de novo review, that the State Office for Services to Children and Families (SCF) has presented clear and convincing evidence that father’s and mother’s parental rights should be terminated. The trial court held to the contrary in, as the majority aptly describes it, “a very thoughtful and detailed opinion.” 181 Or App at 480. The trial court had the benefit of viewing the witnesses in court and hearing live testimony. Moreover, my own review of the record does not persuade me that SCF has carried its burden of proof. For those reasons, I dissent.

The majority and the trial court do not disagree significantly about the facts that led to the juvenile court taking jurisdiction over the child involved in this case. The child, D, was born on September 24,1997, is mother’s third child, and is mother’s first child with father. Mother’s oldest child, A, is in foster care in Washington. Her second child, K, lives with his father, and mother has no contact with him.¹ For the first 14 months of her life, D lived with parents. Although Washington State child protective service workers were involved with the family for that period of time, they found no cause to remove D from the home during that time.² Reports about the family from that time period characterize the home as minimally adequate and D as being well cared for.

In November 1998, mother and father had a disagreement. Mother left the family home with D, presumably to return some belongings to her brother, who lived in an apartment with his wife and another man, Flannery. While at her brother’s apartment, which mother had planned to take a few hours, she became involved with Flannery, whom she had just met. She called father and told him that she intended to keep D with her and would not be returning home. She then moved in with her brother, his wife, and Flannery. Mother’s brother is a convicted sex offender, and mother knew that fact. Mother and father thereafter engaged in a series of phone calls and contacts over the next two and a half weeks. D was with father part of that time. Mother testified at trial that, during that time, she was very careful about any unmonitored contact between D and her brother. The trial court found that testimony not credible, and I would defer to its finding because of its opportunity to view the witnesses and because of inherent contradictions in mother’s testimony about that subject.

On November 4, 1998, while parents were separated, father obtained a court order restraining mother from having contact with him and granting him temporary custody of D. After father obtained the restraining order, parents had a conversation in which mother encouraged father to have the order vacated. Father agreed, and the order was vacated by the court. Mother had physical custody of D at that point. However, in an effort to get D back a few days later, father called the police, relying on the provisions of the vacated order. When the officer arrived, mother, with D, met the officer outside of the brother’s apartment. As they conversed, the officer became concerned about D’s condition. Even though it was a cold evening, D was dressed in a thin sleeper. Although the officer asked mother several times to take D inside, mother declined to follow the officer’s suggestion. D also was very dirty and smelly, and it appeared that she had not been bathed in a long time. Her only bottle had mildew in it. Mother explained that she had not taken very many of child’s possessions (among them, only six diapers) when she last left the family home. The officer contacted SCF, and it directed her to take D into protective custody. Father was then arrested for misusing the restraining order. Thereafter, the juvenile court assumed jurisdiction over D, and parents became involved in a series of programs designed to enable them to regain custody.

The return of custody to parents never occurred. Although they fully participated in the programs required by SCF and in other forms of therapy on their own initiative, SCF came to believe that parents were unfit and were unable to apply what they had learned from the various programs. It sought termination of their parental rights on April 28, 2000. Trial on the matter began on July 14, 2000,19 months after D was taken into custody. After hearing the evidence, the trial court ruled that SCF had not carried its burden of proof by clear and convincing evidence.

Because the trial court’s reasoning and resulting conclusion is so starkly juxtaposed to that of the majority, I set it out in its entirety. The trial court wrote:

“There is no question that both Mother and Father have deficiencies as parents. The episodic failings of both parents, as observed by various monitors of their visits with [D], make this clear. The dysfunctional families they came from, the lack of nurture they received as children, the absence of any positive parenting models in their lives and their intellectual and cognitive limitations make this also understandable.

“This case originated with a single documented incident of neglect of this child, by Mother. This occurred in November of 1998 coincident with the parents briefly separating under conditions showing poor judgment on Mother’s part. The child was very dirty, her bottle was unsanitary and she had a diaper rash. There was no indication of abuse, as distinct from neglect, of the child and there was absolutely no evidence presented of any abuse even occurring. The child has been in foster care for the ensuing 21 months.

“The State has offered no evidence that this single incident of neglectful conduct, by Mother alone, was representative of how these parents had cared for this child during the previous fourteen months. The evidence is in fact persuasively to the contrary.

“During the fourteen months these parents had custody of this child the family had regular contact with Parrot Creek people and child protective workers from Oregon and Washington. The evidence was that the family home was clean and the child was clean and adequately cared for. The parents testified that they took the child to regular pediatrician appointments and everyone agrees the child was healthy and developing appropriately. The State offered no evidence from the child’s pediatrician, nurses, neighbors, or anyone, that these parents were in any way neglectful of the child, or engaged in any conduct or created any condition that was seriously detrimental to the child.

“The State’s response to the photographs [of child, parents and their home during the first 14 months of child’s life] admitted as Respondents Exhibit 102 is that ‘they don’t show anything.’ The State’s response to its failure to show any significant deficiency in the parents’ care of this child during these fourteen months is ‘We don’t know what kind of care was being provided’ and We don’t need to wait for the child to be damaged’ before stepping in. The poignancy of the latter statement cannot make up for the emptiness of the preceding statement given the State’s burden of proof.

“The State’s case for termination seems to be primarily based on the parents’ psychological evaluations and the concerns of visitation monitors about the parents’ ability to parent this child. Further ancillary support for termination is seen by the State in the parents’ unstable living situation and their failure to ‘adequately benefit’ from the services SCF has provided.

“Starting with the implication of the psychological testimony; simply put the evidence does not establish the presence of an ‘Emotional illness, mental illness or mental deficiency of the parent(s) of such nature and duration as to render the parent(s) incapable of providing proper care for the child for extended periods of time.’ The predictive value of these assessments, in addition to their inherent limitations, is inadequate to support the State’s position. State ex rel Juvenile Department v. Johnson, 165 Or App 147, 158-59[, 997 P2d 231] (2000). The prognosis of poor parenting and the State’s argument that ‘we all know that as children get older they become more challenging’ does not provide the necessary immediacy of the claimed incapacity. State ex rel Juvenile Department v. Wyatt, 34 Or App 793, 797 [, 579 P2d 889] (1978). The magnitude of this evidence is also significantly tempered by the seemingly adequate parenting performed by these parents for the first fourteen months of their child’s life.

“The next broad category of evidence is that related to particular observed parenting deficiencies demonstrated during visits and the failure to sufficiently ‘learn’ skills through the services provided. Addressing first the issue of whether the parents benefitted from the services provided, the evidence is conflicting. Some witnesses felt there was improvement over time, particularly with Mother, though concerns continued to exist. Others felt there was no ‘real’ progress made. The parents believe they benefitted from these programs and my review of the evidence convinces me that they made efforts to benefit from the programs they participated in and that they were at least modestly successful.

“Given the functional limitations these parents have, perfection in parenting is not attainable, but neither is it required. To be allowed to retain their relationship with their child the parents must only be minimally adequate. All of us would be desirous of a society where every child received parenting and nurture at a level to which every parent should aspire, but the superimposition of such an utopian vision on a populace as diverse as ours would come at a price none of us should be willing to pay. SCF certainly should do all they are able to help parents, and thus help their children, to become the best parents they can be. SCF cannot, however, despite the most laudable motives, impose standards on parents that are not contemplated by constitutional, statutory and public policy considerations, see State v. McMaster, 259 Or 291 [, 486 P2d 567] (1971).

“The use of service agreements is a helpful means of directing a parent’s effort and gauging their commitment to their child. These agreements should create standards that are reasonably objective so that compliance or noncompliance is reasonably determinable. The service agreements signed by the parents in December of 1998 * * * are generally in that form and similar to the program established in Washington in connection with Mother’s older son.

“Despite the seeming uniformity of expectations of these parents, as early as May of 1999 the Juvenile Court Judge in this County noted that Washington authorities felt the parents were in compliance, but SCF felt they were not. In looking at the agreement, the only areas the parents had not previously complied with, is the requirement of stable housing and, arguably, the requirement of a verifiable source of income, although it is clear Father worked at least part time throughout the pendency of this matter. I fear that the conflict in the agencies’ assessments of compliance is a product of SCF’s expectations that these parents would be unable to comply, and not grounded in an objective assessment of the parent’s actual commitment to this child.

“With regard to housing stability, the parents did live in a shelter facility in Vancouver, which was set up to accommodate children, for an extended period of time. No efforts were made to place the child with parents there on a trial basis and SCF did not provide any assistance in securing other housing. SCF points out the problem in providing housing assistance services without the parents moving back to Oregon, but oddly there seems to be little recognition of the parents’ dilemma in trying to navigate the demands of two child protective agencies in two different states. One is left to wonder why jurisdiction over this child was not transferred to Washington so that a more unified approach to this family might be undertaken.

“Regardless of how the past compliance is characterized, at present the parents have met all six requirements of the December 1998 service agreements. Admittedly the stability of their current residence and employment is still unsettled, but this is not a situation where the parents have never been able to maintain a stable household. Though their living arrangements have been somewhat chaotic when they have not had custody of this child, when they did have custody of the child they lived in the same adequate residence for more than fourteen months. It is also significant to note that a history of unstable employment and living conditions cannot provide the sole basis for termination, although it may be considered where a child has a special need for stability. State ex rel SCF v. Ettinger, 143 Or App 418, 424[, 923 P2d 1290], rev den 324 Or 395 (1996) (Here there is no evidence of circumstances creating a special need for stability in this child, beyond our obvious desire that all children have reasonable stability in their lives.).

“In their subjective measuring of these parents’ compliance with the service plan, SCF seems to give no weight to the parents’ efforts and commitment toward obtaining the return of this child. The parents’ interest in their child is a very important consideration. State ex rel Juvenile Department v. Harden, 51 Or App 681, 687[, 626 P2d 944] (1981). For 20 months despite their recognized intellectual and social skills deficits, these parents participated regularly in programs required by two states and religiously attended two visits a week with this child. They constantly traveled from Washington to Oregon and Oregon to Washington to meet their obligations despite the difficulties this presented for them.

“I have the unsettling impression that the SCF workers never really believed that these parents would be able to mount the sustained, albeit somewhat imperfect, effort they mounted here. It appears to me that by the time of the second service agreement SCF had already committed to termination. The tone of the second service agreement, of autumn 1999, and its subjective focus on outcomes instead of discrete tasks is suggestive of a precursor for termination of parental rights, not an effort toward assisting the parents toward reunification with their child.

“At the time of these second service agreements Ms. Nash warned Parents about the seriousness of the situation given the length of time the child had been in foster care. After then being rebuffed by Ms. Nash as to Mother’s view that ‘they had done everything asked of them’ and so should get their kids back, Mother made the observation ‘you’re going to take our kids and there is nothing we can do.’ Given the context of this case and the efforts undertaken by Parents herein, this statement was chillingly prescient.

“Ms. Nash testified that the agency determined to move forward with termination based upon Dr. Ewell’s evaluation. It appears more likely that Dr. Ewell’s evaluation was requested because SCF had determined to proceed with termination proceedings. It is interesting to note that the evaluation was received by the agency less than a month after Mother had signed the service agreement and prior to Father signing. It is also interesting to note from the Introduction to Dr. Ewell’s report that Ms. Nash had already painted a particularly bleak and hopeless picture of the parents for Dr. Ewell before he began any independent evaluation. It also appears that Dr. Ewell’s evaluation fell on a day that the parents also had to be in Court in Vancouver in connection with another child. This may explain (or may not, the evidence is unclear) why Father refused to do the lengthy individual evaluation and why Mother rushed through the MMPI without even reading the questions.

“I have above stated my assessment of the legal implications of the psychological evidence presented. As a final observation about the inherent limitations of these evaluations I note that Dr. Ewell found ‘[mother’s] overall abilities, problem solving skills and capabilities to manage stress are extremely low. There is little evidence of a commitment to following through with personal responsibilities.’ While I am sure that in some contexts that observation may be true, in this case these parents have remained committed to following through with their obligations for twenty months, while juggling the myriad demands of agencies in two states under circumstances of greater stress than most of us ever deal with.

“Getting back to the specific incidents observed during visits that are proffered as demonstrating the risk these parents represent to this child, I found the evidence decidedly uncompelling. Suffice it to say that the subjective interpretation of a number of witnesses about what clues the child was giving to the parents and the witnesses’ subjective interpretations of the parents’ expectations of the child is not very helpful in this context. Certainly the ability to understand clues from your child as to [the child’s] needs and [the child’s] developmental stages is an important part of parenting, but the deficiencies perceived here are not so severe as to implicate the standards set forth by statute for the termination of parental rights.

“The principal criticism of Mother vis a vis her observed visits with the child are that she seemed to ‘direct the child’s play’ too much, she expected ‘more of the child developmentally than was appropriate,’ she would ‘press the child to repeat words or phrases when the child was distracted or interested in something else’ and that she lacked ‘insight’ as to the importance of the various skills that had been taught to her in parenting programs. Ms. Jenny Keys, the parent mentor, testified that the Mother did ‘improve over time’ and ‘seemed to try to emulate’ the witnesses ‘modeling.’ These observations and the generalized ‘concerns’ the various witnesses spoke of, are not sufficient to warrant termination of parental rights.

“The criticisms of Father are somewhat more varied. His personal hygiene issues and his sometimes angry, sometimes disengaged, sometimes defiant attitudes toward SCF have made for less than harmonious relations. Had Father adopted a more congenial approach toward SCF, no doubt his life and that of the SCF workers would have been easier during this past 20 months, but ultimately of course, this is not a personality contest.

“In addition to the general concerns about the father’s gruff manner and periodic remoteness from the child during the visits, there seem to be three incidents which the State points to as emblematic of his unfitness. These are the ‘shit for brains’ comments to the child, the ‘punching motion’ exchanges with the child and the swinging in the car seat episode.

“I will start with the least significant, the car seat episode. The description of the incident seems remarkably benign, yet the SCF workers acted as though the child was placed in great peril. There was no indication that the child was frightened, that the child almost fell out, that the seat was being so violently swung or at such height that there was some real potential for injury to the child, or that the Father would not have been able to react to protect the child if something unexpectedly happened. From, the testimony presented it seems that this was simply an incident of this Father playing with his child, making the child laugh, having positive interaction with the child, though not perhaps in a fashion free from all possible risk, and being then told by the SCF workers to knock it off.

“This episode tells us more about the relationship between SCF and Father than about Father’s parenting. The real problem the SCF workers had with Father over the car seat swinging was that Father did not do what they told him to do and did not react well to their threats to curtail visits. Father’s small and somewhat childish rebellion resulted, in my view, in an exaggerated perception of the safety implications of this play. The most astonishing dynamic evidenced by this incident, and SCF’s interpretation of it, is the apparent incapacity of the SCF workers to understand that Father might have some modestly legitimate frustration with their agency’s domination of his life.

“From Father’s perspective, as he testified, he “has done nothing wrong for this to be happening.’ This observation cannot be dismissed as the product of an unenlightened mind, it is in fact, strictly speaking, true. The child was taken by SCF because of a situation created solely by Mother, and one which Father was attempting to remove the child from. There has been no evidence presented by the State, and I assume if SCF had some evidence it would have been presented, that Father was deficient in any way as a parent during the fourteen months before his child was taken away from him. The evidence suggests that instead of being sensitive to this position of Father and attempting to defuse his anger and frustration through empathy, SCF appears to have adopted, and retains, the view that Father’s attitude demonstrates a lack of insight justifying their continued retention of the child and now justifies termination of his parental rights.

“Certainly it was not appropriate for Father to let his anger and frustration at times color his visits with his child. No doubt because of Father’s compromised cognitive, developmental and emotional makeup this created more of a challenge than would be present for others, but the entire context, when considered, significantly mitigates these failings.

“Father acknowledges that he made the ‘shit for brains’ remarks, saying he was only kidding. This was certainly an ill advised and inappropriate joke, but as appalling as it may be, the fact is that remarks far more wounding are made to children by their parents every day without SCF intervention. That fact does not excuse Father’s remarks, but as an isolated incident this evidence adds little to the State’s claim for termination.

“The pretended punching is ambiguous in its implications. This may have been something that was part of Father’s interactions with the child for the first fourteen months of her life. This behavior may well seem odd or strange to many people, but there is no indication that it was accompanied by any malevolent intentions or feelings. This ‘pretended punching may or may not have occasionally created confusion for the child. The sad reality is that the entire artificial construct of these brief twice weekly visits, with various monitors observing every move and utterance, creates a climate of awkwardness, anxiousness, defensiveness and potential confusion. This is not to say that these visits do not serve an important, but limited, purpose. It is only to say that it is not particularly helpful to isolate a few parenting blemishes at such visits without keeping in mind the context.

“In sum, SCF has seemingly expected these people to become someone other than whom they are. The Parents have personal limitations that have been discussed at length and which will always exist. The question is whether these limitations and deficiencies preclude these parents from being minimally adequate parents for this child. The State has failed to prove that these parents cannot, and would not, he minimally adequate parents for this child.” (Emphasis added.)

This case is governed by the provisions of ORS 419B.504 (1999). That statute provides, in part, that the rights of a parent may be terminated “if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change.” ORS 419B.504 (1999), as relevant to this case, also provides that, “[i]n determining such conduct and conditions,” the court shall consider:

“(1) Emotional illness, mental illness or mental deficiency of the parent of such nature and duration as to render the parent incapable of providing proper care for extended periods of time.

* * * *

“(4) Physical neglect of the child.

“(5) Lack of effort of the parent to adjust the circumstances of the parent, conduct or conditions to make the return of the child possible or failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.”

ORS 419B.504 was interpreted by the Oregon Supreme Court in SOSCF v. Stillman, 333 Or 135, 36 P3d 490 (2001). Stillman holds that,

“[flirst, the court must address a parent’s fitness: The court must find that the parent is ‘unfit by reason of conduct or condition seriously detrimental to the child.’ That, in turn, requires a two-part inquiry: The court must find that: (1) the parent has engaged in some conduct or is characterized by some condition; and (2) the conduct or condition is ‘seriously detrimental’ to the child. Second — and only if the parent has met the foregoing criteria — the court also must find that the ‘integration of the child into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change.’ That second part of the test for termination requires the court to evaluate the relative probability that, given particular parental conduct or conditions, the child will become integrated into the parental home ‘within a reasonable time.’ ” Stillman, 333 Or at 145-46.

The focus in this case is on the first part of the inquiry defined by Stillman. In order to terminate parents’ parental rights because the parents are “unfit,” the statute requires us to find that they have engaged in some conduct or have some condition that is “seriously detrimental” to D. It is not enough for SCF to demonstrate that the juvenile court properly exercised jurisdiction over D in 1998 or that it should continue to exercise jurisdiction. In State v. McMaster, 259 Or 291, 303, 486 P2d 567 (1971), as well as in Stillman, the court emphasized that “we do not believe the legislature contemplated that parental rights could be terminated because the natural parents are unable to furnish surroundings that would enable the child to grow up as we would desire all children to do.” McMaster, 259 Or at 303. In other words, transiency, incapacity to parent at an optimal level, poverty, or instability alone are not proper grounds for termination. Rather, the statute does not authorize termination so long as the parents’ fitness to parent at the time of trial is minimally adequate. In the context of this case, that means that father and mother must be able to parent D at the skill level they demonstrated for the 14-month period before November 9,1998.³

Washington state’s child protective services agency-made a conscious decision not to remove D from parents’ home during the first 14 months of her life. A sampling of its family assessment reports of parents during that period includes the following entries. For September 26, 1997, the evaluator wrote, “[Mother] is at the best she has ever been. She appeared bonded with the baby, was breast feeding. She had consistent and early pre-natal care with clean UA’s.” On April 16, 1998, on a scale of “Great, Good, Mixed, Poor, and Uncertain,” mother received grades of “Mixed” for participation and understanding of concepts. For May 8, 1998, the evaluator observed mother giving physical affection to D, setting clear limits (not to go too far away from mother, not to pull hair), talking to D, having eye contact with her “at least every few min[utes],” and putting herself at D’s level. The evaluator concluded, “there was a lot of positive interaction-hugs, eye contact, etc.” between mother and D. For May 21, the observer noted that mother “smiles at child,” “praises child,” “responds promptly to child’s needs,” “follows through with discipline,” “uses affirmations with child,” “avoids blaming and putdowns,” and utilized “age appropriate methods of behavior management.”

The record also contains dozens of pictures of D that were taken by parents in their home before SCF was involved with D. The pictures, while dismissed by SCF as showing nothing meaningful, in fact show that D had age-appropriate toys within reach, that she was developing appropriately, and reaching milestones such as crawling, walking, and drinking from a cup, and that D was clean, adequately fed, and suitably dressed. They also show that the family home was reasonably clean and that the family engaged in activities with D. Taken with Bufford’s assessment that, in her professional opinion, there were insufficient reasons to remove D from the home at that time, it becomes clear from those facts that, if parents are able to continue to parent D in the way they did in her first 14 months of her life, there is not clear and convincing evidence of grounds for termination.

To supplement its reliance on the incident on November 9, 1998, SCF essentially relies on four other instances of father’s “conduct” that occurred after D’s removal, to establish conduct or conditions that it claims meet its burden of demonstrating that return of child to the custody of parents will be “seriously detrimental” to D. I agree with the trial court’s assessment of each of the three situations it discussed: (1) father’s conduct of swinging D in a car seat,⁴ (2) father’s calling D an unpleasant name,⁵ and (3) father’s actions in pretending to punch D.⁶ Those incidents standing alone or together do not demonstrate the kind of serious detriment that the legislature had in mind.

The only other conduct on father’s part that could be characterized as “seriously detrimental” conduct is his perceived inability by SCF representatives to interact with D in age-appropriate ways. ⁷ The record contains documentation of father “zoning out,” leaving the room, dozing off during visits, ignoring or excluding D while providing care for the younger child, J, and having power struggles with mother in front of D that caused her to become a go-between for parents. Dr. James Ewell, a psychologist who performed an observation of mother, father, and D, testified that the most salient feature of the observation was the “emotional distance” he sensed between father and D. He testified that father “appeared to almost frown at his daughter” and he recalled that father clench [ed] his fist and put his fist near her face. Ewell testified, “I didn’t think he was going to hit her. I wasn’t concerned for her welfare. But that seemed to me to be an unusual form of greeting.” Ewell also explained that he found remarkable the “emotional distance and the lack of nurturance and lack of affect from the father to the daughter.” He also testified that father, despite obvious back pain, did get down on the floor and roll a toy back and forth with D.

In contrast to Ewell’s one-time observations, witness Diane Staehnke, who supervised a number of parents’ visits, perceived that father was “generally * * * very happy to see [D]” and that his “Hello, shit for brains” comment to daughter was “contrary to what I thought he felt for her.” She testified that father’s manner of interacting with daughter was to pretend to use his hand as a claw or as a fist and say, “I am going to get you.” She conceded that “there were always good moments. I am not saying there weren’t any good moments. They played together at the park outside.”⁸ It follows that the evidence about father’s ability to interact with D in age-appropriate ways is subject to conflicting reasonable inferences.

No evidence was presented at trial of any “condition” of father, such as drug or alcohol issues, or physical, sexual or other abuse issues, or mental deficiencies, except father’s own admissions of a very challenging childhood. Father was diagnosed by Dr. Dudley, a psychologist. He found that father suffers from avoidant personality features, self-esteem issues, anxiety, and antisocial tendencies. However, Dudley did not testify that father’s psychological condition, in itself, was dangerous or seriously detrimental to D. Instead, he explained that father’s typical behaviors include a tendency to avoid others and to be uncomfortable in many situations. Dudley explained that, had father been in therapy, he would have him work on issues like reducing anxiety, not avoiding difficult or challenging situations, and increasing his self-esteem. Nothing in the record correlates those issues with the statutory requirements of ORS 419B.504. Ewell, who performed the parent/child observation discussed above, did not perform a psychological evaluation of father because father left before the evaluation was to begin. In conclusion, the record as to father is wholly inadequate to support a finding by clear and convincing evidence that either his conduct or his psychological conditions render him unfit to parent under the criteria of the statute.⁹

SCF’s evidence as to mother’s conduct has more persuasive weight, in light of the statute’s requirements. Although D was cared for adequately during the first 14 months of her life,¹⁰ the events surrounding November 9, 1998, comment significantly on mother’s fitness to parent on that date. The initial act of taking D to live for three weeks in the home of a convicted sex offender, without adequate diapers, clothing, or supplies, is an example of conduct, in my view, that is “seriously detrimental” to the child. ¹¹ In addition, mother was apparently oblivious to D’s welfare when the officer contacted her. After SCF took custody of D, there is evidence that mother allowed D to stand on a bookshelf to look into a mirror and that she allowed D to stand in a child’s wagon that could have shifted and caused D to fall, but that conduct is hardly the kind of conduct that justifies the termination of parental rights under the statute. Because SCF did not ever attempt supervised visits in parents’ home, there is no evidence showing that mother would engage again in the kind of conduct that occurred in November 1998. Ultimately, therefore, SCF’s case turns on whether its evidence of mother’s psychological conditions demonstrates that it is highly probable that conduct similar to what occurred in November 1998 will be repeated if custody is returned to mother and father.

SCF asserts in response to the above issue that “mother and father cannot be minimally adequate parents for their child or for any other child.” It explains:

“In spite of least four parenting programs, and many other services, parent trainer Schafte testified that mother and father could not safely care for [D] without 24-hour monitoring. According to Linda Mulherin, even visits must be monitored at all times. The state is not required to provide foster care for the parents to enable them to care for the child. * * * Even if the state were required to provide that level of assistance to these parents, there is no evidence that they would cooperate or that their parenting would be improved by it; they resisted hands-on assistance by Jenny Keys and Linda Mulherin, for example and did not benefit appreciably from this mentoring.” (Citations and transcript references omitted.)

In short, SCF contends that, because of mother’s conditions, “none of the[ ] services had any appreciable effect on the ability of’ mother to provide adequate care for D.

In support of its assertion, SCF relies, in part, on the psychological evidence testified to by Dudley and Ewell. Before Ewell conducted the observation of mother, father, and D, SCF provided information to him that tended to convey SCF’s perspective of the family. For example, Ewell was told that mother and father have a “long history with the agency,” these parents “have participated in a variety of services,” and that “neither [parent] seemed capable of demonstrating ‘any skills that they had been taught.’ ” He was also told that “their behaviors and lack of social conscience’ were of utmost concern” and that “both parents had experienced terrible childhoods and most likely endured significant damage to their own development.” Ewell diagnosed mother with conditions that include mild mental retardation, post-traumatic stress disorder, adjustment disorder, and a personality disorder. Ewell concluded that, “she would certainly not be considered amenable to any form of treatment” and “there is little evidence of a commitment to following through with personal responsibilities.”

Dudley performed evaluations of mother at the request of the State of Washington’s child protective services agency. In his evaluation, Dudley noted that, “compared to her previous assessment, some improvement in her judgment and overall functioning is suggested and antisocial trends are less evident.” He concluded that she continues to have cognitive limitations, attention deficit hyperactivity disorder, post-traumatic stress disorder, and a personality disorder. Dudley testified that, when a person has the above conditions in combination, the conditions “could affect any one, any of the number of areas of functioning, not just parenting.” When asked to assume that mother had not benefit-ted from the services offered to her and to give an opinion on her fitness to parent, he opined that her “prognosis is poor.” Unlike Ewell, Dudley opined that “[mother] impressed this examiner as being relatively willing to accept services offered to her.”

Some of the consequences of mother’s conditions, in the view of Dudley and Ewell, are difficulty in managing anger and impulsiveness, a limitation in mother’s ability to feel empathy and to perceive D’s verbal and nonverbal clues as to her needs, and an inability to adapt her own behavior to put the child’s needs first. For example, when asked to give an opinion about what mother’s conditions mean regarding her “ability and future ability and prognosis to parent a child,” Ewell answered, in part, that mother’s mild mental retardation “does not preclude a person from parenting, but it certainly does suggest that he or she [will have] issues of raising children.” Ewell said he was “surprised at the lack of insight that I saw from a person who had gone through programs of intervention.” Later, he testified that “there was a sense that the responses that she gave — sounded like response that might come out of a parenting class. * * * I didn’t have a sense of application.” Ewell, when asked about a written summary that he had provided to a caseworker, said that he did not consider mother “to be a viable placement resource for her children” and that her prognosis was “poor.” He explained that his opinion was based on his assessment that she lacked insight, that she was “quite angry,” and that she had limited cognitive ability. Ewell concluded from his evaluation that mother did not have the ability to provide a stable, predictable, loving and nurturing environment for D and “that there would be a strong risk of some emotional traumatization to the child because of [mother’s] conditions [.]”

In predicting a poor prognosis for change, Ewell and Dudley relied on the assertion by SCF that mother had not improved her abilities or functioning despite extensive parenting training and services; thus, the validity of their prognoses necessarily depends on whether the picture of mother portrayed to them was accurate. Moreover, to the extent that Ewell did not rely on SCF’s written background information, his and Dudley’s prognoses in the abstract should be tested against the evidence of whether mother had, in fact, improved her parenting skills and abilities after November 1998. Ewell evaluated mother once. In contrast, Dudley recognized some improvement in his second evaluation after evaluating mother over a period of time. Because the expert testimony is subject to conflicting inferences about whether mother is capable of parenting and of improving her parenting skills, State ex rel Juv. Dept. v. Pennington, 104 Or App 194, 799 P2d 694 (1990), rev den 311 Or 166 (1991), I turn to the evidence of mother’s state of functioning and her responsiveness, or lack thereof, to the training and services she has received.¹²

In its brief, SCF relies primarily on the testimony of Donna Schafte, Linda Mulherin, and Jenny Keys. At the time of trial, Schafte worked for Clark College in Vancouver, Washington, as a parent educator in a program for parents referred to it by the Washington State Department of Services and Human Resources. Her role was to meet with parents to talk about child guidance and anger and stress management and to promote understanding of how children develop. Schafte met with father and mother for ten weeks, beginning in January 2000, for a weekly two-hour class. She was asked by SCF’s attorney:

“[Q] Were the [mother and father] able to benefit in any significant way from your program?

“[A] Absolutely, we saw a real turnaround, change of attitude, maybe the fourth week of class. The first few weeks were really tough. We were bucking along with resistance. We saw a turnaround. They continued to come very faithfully. They received certificates. So their attendance was very good.”

Later, Schafte stated:

“But the part that I saw in the parenting sessions with the parents was that cooperation, communicating with other parents, talking about the material and information that was covered, that kind of thing.”

When asked about parents’ “ability to be parents at * * * [t]he point they left [her] program,” Schafte responded, ‘Well, again because I didn’t see them interacting with the children very much at all, that’s a little more difficult for me to evaluate.” When asked if either parent improved his or her ability to understand child development, Schafte said,

“[Mother], all long, you know, was able to share and talk. I think she’s had a lot of background before this. The impression I got, really knew a lot of the terms and seemed to have some knowledge already of the parent education. [Father] was very quiet in most of the parenting classes, but he became more cooperative as time went on, at least in my portion.”

Counsel for SCF appears to have realized at that point that the witness’ testimony was not favorable to his client. He reminded the witness of a phone interview that she had with an investigator for SCF. He asked:

“Do you remember telling him[, the investigator,] that, ‘[mother and father were] one of the most difficult couples [you have] had the misfortune to teach,’ in your 28 years of teaching?”

Schafte answered:

“I didn’t say ‘misfortune,’ but I did say that — in fact, that’s when we had the talk with them because I wasn’t willing to continue with that resistance. It was just taking too much energy from the other couples in the class. They were very difficult to deal with. And we told them that as well. But I did not use the word ‘misfortune.’ We were really happy to see the change in attitude.”

Again, counsel reminded the witness of her conversation with the investigator:

“[Q] Did you remember him asking you if you thought that [mother and father] would make good parents * * * ?

* # ‡ j}c

“[A] If they would make good parents? Yes, I guess so.

He probably did phrase that. I don’t remember the term exactly.

“[Q] Do you remember what you said?

“[A] From my conversations with the other instructors, we felt they needed a lot more support, and we would not recommend that at this point without a lot of support.

“ [Q] Do you remember saying—

“[A] We would worry about the children’s safety. Pardon me?

* * * *

“[Q] Did you also indicate that the parents are too into themselves to be parents?

“[A] Oh, I don’t know, again, if that’s the term that I used, but yes, I believe that they both need an intense amount of therapy and help to work through their own issues.”

On cross-examination, Schafte testified that “[parents’] attendance was excellent. They really put forth great effort. They were there on time, stayed through the whole class.” When asked about the ability of mother and father to understand the information being given to them, Schafte volunteered that, as to mother, “it seemed like she had a really good handle on what we were talking about. [Father] was more quiet, more withdrawn during that time.” Schafte said generally that mother and father “had made some progress and had benefitted some from the program.” Counsel then asked:

“And you indicated that if they were going to be parenting in the home, that they would need some support. What type of support would you — do you feel that they would need?”

Schafte answered, “Did I say that?” Counsel responded, ‘You tell me.” Schafte answered, “Tremendous amount of support. I would almost say a live-in, someone there consistently to begin.” Counsel inquired, “Someone to check up on them on a regular basis?” Schafte replied, “Absolutely.”

On redirect examination, counsel for SCF asked:

“Did you also indicate that you were afraid that they would bomb your house because of the anger and rage they possessed?”

Schafte answered, “I said that flippantly. And I am sorry that that came through. I said that to [the investigator] just in a flippant manner because of the anger problems that I saw.” On re-cross, Schafte conceded that mother and father had never made any threats to her and that any conflict that she observed occurred between them and was not directed toward D. In light of Schafte’s inconsistent testimony, there is little weight to be accorded her opinions about mother’s future fitness as a parent.

At the time of trial, Linda Mulherin was a home support specialist for the State of Washington. She was assigned to assist mother and father in their parenting skills with D during their visits with her beginning in January 2000 until the time of trial. The visits occurred twice a week, and each visit was one and one-half hour in length. Then about a month before trial, SCF reduced the parents’ visits with D to once a week. Based on her supervision of those visits, Mulherin testified that she had concerns about father’s and mother’s parenting abilities. She explained,

“Well, I think that in [mother’s efforts to show that she has learned certain parenting skills in classes and things, she discusses them. She’ll say, ‘I have learned this or I’ve learned that’ and then she’ll — in trying to sort of follow through or demonstrate that, she’ll be real rigid, for example — rigid but inconsistent.”

Mulherin gave an example to illustrate her concern.

“When [mother] would want [D] to do a certain thing and it might be to say the ABC’s or count * * * and [D] wanted to do something else, and [mother] was, like * * * kind of force her to kind of go through — -just go through certain routines instead of having it to be fun and kind of a natural learning experience. It’s more of a demanding thing.”

Mulherin also testified that, “[a]t certain moments, [mother] — and I am not going to say she didn’t generally— she didn’t ever notice what [D] wanted. There were lots of times when she did.” When asked about mother’s use of discipline during the visits, Mulherin replied:

“There were times when [mother] did good redirection as far as if [D] was trying to get something of [J]’s, for example, and she didn’t want (tape inaudible), she would find something else. * * * I would like to see a little more active diversion kind of thing where you get up and go to the child and you say, ‘Did you see this,’ or whatever. And that’s the kind of thing I would model * * * the preferred method really, would be * * * providing an alternative for it[.]”

When asked by SCF’s counsel whether mother would “yell” at the children, Mulherin responded, “I didn’t see her as a — yell, not at the children. I saw her get angry [with father] a couple of times.” When asked whether the lessons being learned in the parent training were actually being applied, Mulherin said:

“I didn’t really notice that the kind of techniques that I teach when I am teaching the parenting class or doing the actual parent training, I didn’t notice them using those techniques and skills.”

Mulherin continued, explaining that when mother asked her to tell her if she was doing something wrong, and Mulherin did, “on a couple of occasions * * * she would get pretty angry * * * and say, ‘that’s not what they told me in the other class.’ ” Mulherin described disagreements with mother over D not wearing earrings because mother was concerned that her pierced ears would close up. Mulherin said, “after a few weeks of this, [Mother] did finally, — I guess I could say, dropped the subject.” Counsel asked if there was anything else that the witness wished to describe concerning mother’s “understanding of the needs of the child [.]” Mulherin described how mother would sit and rock J and wanted to rock D on a couple of occasions, even though D didn’t want to be rocked. She concluded, “That’s what I mean by activities were geared more to meet the needs of the parents.”

On cross-examination, Mulherin testified that she had not seen any progress over the last six months and that the parents’ visits with D were still supervised. She said that D was “eager” to see her parents during visits, and she was unaware of the reason why the visits with D had been reduced. She commented on mother’s parenting skills,

“[a]nd as far as the skills, I am not saying that [Mother] doesn’t have parenting skills. She knows them. She can tell me all the right things. It’s simply a matter of applying them. So, I am not saying that she doesn’t do that.”

Mulherin concluded that mother was a “strong, loving” parent, but “I don’t know about [father].” She conceded that she had never seen mother at home with D because the visits always occurred in a state office or facility. SCF did not conduct a redirect examination of Mulherin.

The third witness on whose testimony SCF relies to demonstrate that mother and father cannot be minimally adequate parents for D or any other child is Jenny Keys. At the time of trial, Keys was a parent mentor employed by Parrot Creek Child and Family Services. She worked with father, mother, and D from March 1999 until December 1999. She was with parents while they had two visits per week with D at an SCF facility during that period of time. On direct examination, Keys testified that, when she first started working with the parents, “[mother] was pretty resistant. She seemed pretty angry and threaten [ed]. She wasn’t very receptive or open to information or just my presence [.]” Keys said that mother’s responsiveness improved over time. However,

“[i]t seemed hard for [mother] to stay focused, particularly after [J] was bom. They really struggled to divide their attention, and it seemed really hard for her to read [D]’s cues.”

Keys perceived mother as giving inconsistent directions to D and attempting to control D’s play during visitations. Mother

and Keys disagreed about whether D was developmentally ready for certain activities. Keys said that, toward the end of her experience with father and mother, “there was a lot of positive stuff’ because mother would try to emulate Keys’s behavior. SCF’s counsel asked, “Was there a concern about her ability to continue that after you stopped working with her?” Keys answered, “Yeah, I mean, it was short term, and I would have a concern that she wouldn’t be able to identify those things on her own.” Counsel asked, “[I]n your estimation, are either of these parents able to successfully take care of [D]?” Keys did not directly answer that question, responding instead about her concerns regarding father’s safety choices.¹³ Keys stated that she saw little improvement in mother’s ability “to meet the child’s needs on her own,” although she conceded that she “occasionally” saw an ability on mother’s part to carry over the things she learned from one session to the next. Keys concluded:

“Positively, one of the last visits that I had with her, she became visibly upset with [D] told her no or — no, refused to follow directions, which — it was very difficult behavior for her age. [Mother] was able to hold it together and actually asked, after the visit was over, how she could handle it different.”

On cross-examination, counsel pointed out that Keys had written in a March report that “[b]oth [parents were] receptive” to the information and suggestions that Keys had given them.

As stated above, the weight to be accorded to Dudley’s and Ewell’s prognoses for change, and to SCF’s projections that mother’s psychological conditions will continue to render her unfit to parent, depends in large part on whether mother’s behavior and performance have in fact improved in response to the parenting training and services she has received. Certainly, SCF can point to the events surrounding November 1998 to show poor judgment on mother’s part. However, the failure to remove D from the family home before November 1998 and the other evidence in the record belies SCF’s assertion that mother was unable to provide minimally adequate care before that time.¹⁴

The trial court found that mother “made efforts to benefit from the programs [she] participated in” and that she was “at least modestly successful.” Besides the testimony in the record to which I have already referred, there is additional testimony that supports the inference that regarding her parenting skills, mother is capable of change.

Kathleen Bufford, a marriage and parental therapist, worked with the family during the first 14 months of D’s life, while D still lived with parents. Mother had come voluntarily to the program for which Bufford worked. Bufford testified that, during the 14 months that father and mother had custody of D, they had regular contact with representatives of the states of Oregon and Washington, the family home was clean and D was generally clean and adequately cared for. Bufford’s closing summary indicates that mother had successfully completed the parenting program and that, in regard to understanding a child’s development, she had

“[achieved a number of goals related to understanding child development, behavior, emotional management, and improved her bonding skills by practicing eye contact, positive verbal communication.”

As to mother’s progress after taking Bufford’s program, Bufford testified, “And it seemed to me that [mother] was, first of all, for a mom to learn that she needed to make eye contact. And in that respect I felt that [mother] had made progress.” She was asked, “You noticed progress in her ability to make eye contact,” and she answered, “Yes.” She explained her concern:

“I felt that in the lab situation [mother] displayed minimally adequate parenting. But I had grave concerns about what would happen within the next year as the child learned the word ‘no’ and as she learned to pull away from Mom rather than receive hugs from Mom, holding from Mom.”

On cross-examination, Bufford was asked, “You felt that [mother] was, in fact, demonstrating, at least minimally adequate parenting skills?” and Bufford answered, “She was learning minimally adequate parenting skills. And by the end, in lab she was demonstrating those skills.” (Emphasis added.) Bufford concluded:

“What I found encouraging was her ability to relate well to me. And I felt that she had made progress in terms of her ability to relate well to other adults, such as the other parent educator, and in her desire to do what she needed to do, her desire to parent well and her confidence [.]” (Emphasis added.)

Melissa Brown, a mental health therapist, worked with mother for 13 weeks in anger management therapy. She testified:

“I think initially, when she came for the initial sessions of therapy, she seemed to have difficulties with her anger. When I saw her the subsequent sessions, several months later, she seemed to have made quite a bit of progress in handling anger. * * * She seemed more able to utilize techniques that we talked about for managing anger such as time-outs and conflict resolution.” (Emphasis added.)

Brown said that “it’s hard to make many changes in a short period of time.” Although she acknowledged that she had concerns about mother’s ability based on her “limited cognitive ability which make[s] it more difficult for change to be sustained long-term” without additional counseling, Brown explained that mother had expressed an interest in continuing the services after the 13-week session ended but was unable to do so financially.

In essence, SCF’s entire case against mother focuses on its continuing concerns about mother’s ability to apply what she has learned. Mother has met all of the requirements of her service agreements, she has made bona fide efforts to benefit from the programs she participated in and, as the trial court found, she and father were at least modestly successful in those endeavors. It is noteworthy that almost all of the care providers who had repeated interactions with mother, especially Bufford and Brown, said consistently that mother made observable improvements over the duration of their services, that she was incorporating their suggestions in. her care of the child, and that she was amenable to more parent education. The evidence of mother’s inability to change, therefore, is subject, at least, to conflicting reasonable inferences.

In my view, those conflicting inferences prevent SCF from carrying its burden of proof by clear and convincing evidence. When the evidence of parents’ efforts and moderate successes after November 1998 is combined with the evidence of their minimally adequate care for D before she was taken into custody by SCF, it is impossible to conclude that SCF has proved by highly probable evidence that father’s and mother’s parental rights should be terminated. On this record, the trial court wisely ordered that SCF immediately begin good faith efforts to reunite D with father and mother at the earliest appropriate time with appropriate safeguards for D’s welfare. It may be that father and mother will be unable to adequately parent D in the future, but until they are given more of an opportunity than was afforded them by SCF since November 1998 to demonstrate that they can apply what they have learned, no one will know if that is the case.

For those reasons, I dissent.

Landau and Armstrong, JJ., join in this dissent.

1 Mother’s fourth child, J, is also a child of father in this case. He was born during the pendency of this proceeding. He is not part of this termination proceeding. Father has an older child from a different relationship who is also not part of this proceeding.

2 Washington State child protective services workers were involved with the family during that time in an effort to determine if mother’s oldest child, A, could be placed in the home. He had been sexually assaulted by his biological father and presented too many difficult behaviors to make placement possible with these parents.

3 The majority declines to draw the inference that, because the State of Washington did not intervene during this time period, mother and father must have been parenting adequately. It reasons that, “unfortunately, it is likely true that there are many parenting situations that would justify termination even before SCF intervenes.” 181 Or App at 476-77 n 2. However, the record shows that the agency’s nonintervention was deliberate. A therapist, Bufford, who worked with parents consistently during this time period said, “During that time, I felt that there was not sufficient indication to remove the child from the home.” Additionally, as discussed below, the progress reports from mother’s classes and pictures of the family home and D during this time show that parents’ ability to parent was at least minimally adequate.

4 The “conduct” in question is that, during visits, father would occasionally “swing” D in a car seat without restraining her. As the trial court found, there was no evidence of actual danger involved in the activity, and again, in the words of an eyewitness to the event, “he was — she was laughing, of course, because it was fun for her.” When father asked, “Go again!?],” she repeated, “Go again, go again.” Like the trial court, I agree that father’s choice of that entertaining activity was not “free from all possible risk,” but it did not scare D or impair her relationship with father, and it was certainly not grounds for termination of parental rights.

5 Father greeted D with, and then repeated, the comment, “Hello, shit for brains.” When questioned by counsel about that event, father testified that it had been intended as a joke, and that he realized afterward that D would probably not understand it to be a joke. Counsel then asked father, “How did you think that your daughter would feel about that? Did you think about that?” Father responded, “Afterwards, yeah, I did.” He answered that he later thought, “It’s my daughter. It was her looking at me and [asking], “Dad, why would you say that to me?’ ” The court asked,

“[w]hy didn’t you say that when [counsel] was asking you about it. When [counsel] was asking you about it, you were kind of acting like it was just a joke and nobody should think anything about it. If you felt like you kind of screwed up there and shouldn’t have probably said it and one of those things you wished you hadn’t said, why didn’t you tell us that when [counsel] was asking you those questions?”

Father replied, “I really didn’t understand why he was asking it.”

Other exhibits show that father exhibited pride in D’s accomplishments. In my understanding of father’s testimony as a whole, father had a difficult time getting past his resentment of SCF in order to acknowledge his shortcomings. However, upon the further questioning of the trial court, he was able to demonstrate that he now recognizes the wrongfulness of his words to D and, in any case, isolated comments such as he made, while ill advised and inappropriate, are not grounds for termination without a showing that they were seriously detrimental to D.

6 The record contains several references to instances of father pretending to punch D. In context, the record shows that father’s typical conduct was a general roughness or abruptness in his interactions with D, and that he would typically do things like suddenly jarring D’s chair to startle her, or growl at her. However, those who observed such conduct stated, “[D] would end up laughing. It did turn into a game.” Father himself acknowledged that “My growl is not a growl. I play with my daughter in a very strange way. It’s just like my sense of humor is very strange.”

The trial court found that this “conduct” was not seriously detrimental to D; instead, the trial court characterized it as a somewhat unnatural reaction to highly supervised, highly unnatural circumstances of interaction in a small, enclosed space. I agree.

7 There was testimony about father’s angry and hostile conduct toward social workers, including the fact that, when he heard child call her foster mother “mommy,” he threatened to “beat the crap out of’ a social worker. While such evidence is probative of father’s tendencies in dealing with anger, it was not correlated in any way in this record to any effect on D.

8 Much of SCF’s evidence focuses on father’s hostility toward its representatives, which, as the trial court recognized, may have made for an unpleasant time for father and the workers involved, but is evidence that is not sufficient to meet the requirements of ORS 419B.504.

9 The majority views the import of the testimony about father’s psychological conditions differently. See 181 Or App at 485. Apparently, the majority relies on the assessments of Deborah Baker, a marriage and family therapist, which occurred in December 1998, and on the assessment of Sharon Brewer, a counselor, who tested mother and father in April 1999. However, both witnesses made clear that father was “resistant to doing the assessment,” or that he "deferred to [mother]” throughout the sessions. Baker acknowledged that she was not able to make diagnoses because she is not a psychologist, but she testified that “the mental health conditions [she] saw * * * are things that could be overcome with some counseling.” Brewer reached her conclusion that father could not be a parenting resource for D based in part on “the difficulty in having him respond, first of all, to the assessments.” With respect to the majority, there is no demonstrated nexus between father’s difficulty or unwillingness to complete a psychological assessment and his ability to be a minimally fit parent. Also, those “assessments,” to the extent that they were actually based on information provided by father at all, conflict with Dudley’s evaluation done in July and August 1998. He found that father’s conditions would not necessarily affect his ability to be a parent. Conflicting psychological evaluations about fitness for parenting will rarely give rise to clear and convincing evidence, absent a clear reason to completely disregard one side of the conflicting evidence. See, e.g., State ex rel Juv. Dept. v. Pennington, 104 Or App 194, 799 P2d 694 (1990), rev den 311 Or 166 (1991). Here, the majority offers no reason to disregard Dudleys opinion in favor of the other assessments.

10 There is conflicting evidence to the effect that child may have been left in a high chair or on the floor for an undue period of time, with a TV remote to play with, while mother played Nintendo for long periods of time. That conduct allegedly occurred during the time child lived with parents and, as discussed above, child’s overall condition was not sufficient to trigger intervention by the State of Washington.

11 I agree with the trial court that such an incident, standing alone, would be insufficient grounds for termination. However, mother’s failure to recognize or appreciate the danger that her conduct created, both at that time and at trial, makes the conduct more troubling. Mother persisted in her belief, even at trial in this case, that her brother had been wrongly convicted. Father, on the other hand, acknowledged that, although the convicted sex offender was D’s uncle, he could pose a threat to D.

12 The majority says that “[mother] is incapable of appreciating risks to D’s safety and places in unsafe situations; she has subjected D to chaotic and dangerous living conditions, and she neither understands nor pays sufficient attention to D’s physical and emotional needs.” 181 Or App at 485. The majority implies that the “placing [of D] in dangerous conditions,” the “subjecting [her] to chaos and danger” and mother’s “inattentiveness” is ongoing. However, the evidence does not support the majority’s assertions. The evidence can be divided into two time periods: the first 13 months of D’s life and the time period when D was in foster care and mother had no opportunity to take care of D. As discussed more fully below, the evidence is in conflict regarding mother’s fitness to parent during those time periods. During the first period, the State of Washington made the calculated assessment that it was not necessary for D’s protection to remove her from the family home. It was a single event that prompted D’s removal from the family home. During the second period, the most serious evidence that can be mustered against mother about her care for D is that she allowed D to stand on a raised object to look into a mirror and that she allowed her to stand in a wagon that could have rolled and injured her.

13 Keys answered that her concerns were “choices, safety choices that they have made.” She then referred to the choice of father to swing D in the car seat, discussed above. See 181 Or App at 507 n 4 (Edmonds, J., dissenting).

14 It appears that SCF is relying, as the trial court suggested, on its trial counsel’s assertions that “the first 14 months of the child’s life are not particularly [informative as to how the parents are going to be able to handle that child once the child starts to develop more challenging behaviors,” and “we know by simple— by common knowledge [t]hat babies don’t move around as much. They don’t get into things. They don’t — they’re not as difficult to handle. It’s once they start maturing a bit. And that is when — that is more challenging.” That reasoning is not very persuasive, first because the parenting of an infant can be a difficult endeavor, and second, because SCF’s own witnesses and exhibits show that mother had learned to some degree how to adjust her behavior and expectations to the child’s developmental level.