# In Re the Marriage of Winczewski

> Court of Appeals of Oregon · July 16, 2003 · 188 Or. App. 667

URL: https://www.frixlaw.com/law-library/cases/2588571

## Case

- **Full name:** In the Matter of the Marriage of Eileen WINCZEWSKI, AKA Eileen Ordway, Appellant, and Stephen WINCZEWSKI, Respondent Below, and Oliver WINCZEWSKI and Barbara Winczewski, Respondents
- **Court:** Court of Appeals of Oregon
- **Decided:** July 16, 2003
- **Citations:** 188 Or. App. 667; 72 P.3d 1012; 2003 Ore. App. LEXIS 903
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Deits, Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Kistler, Brewer, Schuman
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2588571

## How later opinions describe it (automated extraction)

- finding constitutional a custody and visitation statute that requires only a “preponderance of the evidence” standard for a non-parent to rebut the presumption that the legal parent acts in the best interest of the child

## Opinion text

72 P.3d 1012 (2003)
188 Or. App. 667
In the Matter of the MARRIAGE OF Eileen WINCZEWSKI, aka Eileen Ordway, Appellant, and
Stephen Winczewski, Respondent below, and
Oliver Winczewski and Barbara Winczewski, Respondents.
C94-1968DR; A112079.
Court of Appeals of Oregon.
Argued and Submitted October 3, 2002.
Resubmitted June 4, 2003.
Decided July 16, 2003.
Carol E. Jones, Hillsboro, argued the cause and filed the brief for appellant.
Darcia Krause argued the cause and filed the briefs for respondents.
Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, BREWER, and SCHUMAN, Judges.
Resubmitted en banc June 4, 2003.
PER CURIAM.
Affirmed by an equally divided court.
DEITS, C.J., concurs.
EDMONDS, BREWER, and SCHUMAN, JJ., dissent.
DEITS, C.J., concurring.
Mother appeals from a judgment that awarded custody of two of her children to their paternal grandparents. On de novo review of the facts, ORS 19.415(3); State v. Wooden, 184 Or.App. 537 , 57 P.3d 583 (2002), I conclude the following: (1) ORS 109.119 (2001) applies to this case. (2) Grandparents have rebutted the statutory presumption that mother acts in the best interests of the children by demonstrating by a preponderance of the evidence that mother is unable to care adequately for the children and that circumstances detrimental to the children exist if grandparents are denied custody. (3) Because awarding custody to grandparents is also in the children's best interest, grandparents should be awarded custody under ORS 109.119. (4) Further, that application of the statute does not infringe on mother's federal constitutional right to the care, custody, and control of her children because grandparents have demonstrated by a preponderance of the evidence that mother is unable to care adequately for the children and that the children face an undue risk of physical or psychological harm in mother's custody. (5) That constitutional standard does not require that grandparents demonstrate that mother is unfit under the standards in the termination of parental rights statutes or demonstrate circumstances that present similarly grave risks of harm. Accordingly, I would affirm.
I. PROCEDURAL HISTORY
Mother and father, who is now deceased, had two daughters, A and J. Mother and father's marriage was dissolved in 1995. They initially had joint custody of the children, and the children spent their time with father at grandparents' home.
In November 1996, father obtained sole custody. The judgment that awarded father custody of the children stated, in part, that "[m]other has substantial emotional problems that impact her interactions with [father] and his parents, and her parenting[.]" [1] After that judgment was entered, the court restricted mother's contact with the children because, as grandmother testified, mother was showing up inappropriately at the school. After father obtained sole custody in November 1996 and until his death in April 1999, the children lived with him in grandparents' home. During the time that the children lived in grandparents' home, they provided *1013 substantial assistance in caring for the children.
In 1998, grandparents intervened in the case involving mother and father's dissolution, the case that is now the subject of this appeal. The trial court's order stated, in part, that "[grandparents] are granted intervenor status in the custody case involving [A] and [J] Winczewski, and shall be treated as parties in any future court proceedings involving these children."
Father died of lymphoma in April 1999. Immediately after father's funeral, which was held several days after his death, mother took the children to live with her and her family. Mother is currently married to Paul Ordway, and they have two children, C and L. Also, after father's death, grandparents sought custody of A and J. The children lived with mother until the time of trial, although the children visited grandparents throughout that time period.
The trial took place in May and July 2000. In her trial memorandum, mother's attorney argued that "[t]he 14th Amendment to the United States Constitution protects a natural parent's interest in the right to the care, custody and management of his/her children" and that
"[a] constitutional application of ORS 109.119 requires more than a finding of `best interests of the children,' it requires a finding of `compelling reasons' or `threat of harm' to the children. Hruby [ and Hruby, 304 Or. 500, 509 , 748 P.2d 57 (1987)]. Awarding custody to a non-parent, even in the `best interests of the children' is not `appropriate' if it deprives the parent of a basic and substantive right, in the absence of a compelling state interest. It is not a compelling state interest to simply `maximize every child's welfare[.]' [ Id. at 511 , 748 P.2d 57 ]."
During her closing argument in July 2000, mother's attorney argued that, under Troxel v. Granville, 530 U.S. 57 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000), "there has to be * * * a significant showing of harm or a high risk of harm in order for the [s]tate, and therefore, the courts within the state, to interfere with the ordinary decision-making authority of a natural parent."
After the parties' closing arguments, the trial court stated that, if the standard were the best interests of the children, grandparents would prevail. However, the court also indicated that, if it had to find "a level of harm, if not equal to, close to that in which the [s]tate would be intervening, anyway, where the [s]tate would go in as a CSD or SOSCF matter * * * and take control of the children," mother should receive custody. In its judgment, the court stated, in part:
"THE COURT FINDS that a child-parent relationship exists between [A] and [J] Winczewski and their grandparents, Oliver and Barbara Winczewski; that the provisions of ORS 109.119 apply to this case; and that Oliver and Barbara Winczewski are intervenor grandparents under ORS 109.119.
"THE COURT FINDS that it is in the best interests of these children to reside with their grandparents, Oliver and Barbara Winczewski, because the children would receive better emotional support in the Winczewski home; their educational and psychological needs would be better met; their nutritional and health needs would be better met; and in all respects the children would be much better off living with their grandparents. Based on the testimony of Dr. Sabin, the educational and emotional factors overwhelmingly favor placement of these children with the Winczewski grandparents.
"THE COURT ALSO FINDS that the United States Supreme Court case of Troxel * * * can be distinguished from this case, in that the Oregon statute (ORS 109.119) requires the finding of a `child-parent' relationship, while the Washington statute in Troxel did not require such a finding. Thus, Troxel did not require the [c]ourt in this case to make a finding of harm or unfitness on the part of the biological parent before awarding custody to grandparent intervenors. After reviewing the statutes and case law, the [c]ourt finds that the following language in Sleeper and Sleeper, 328 Or. 504 [, 982 P.2d 1126 ] (1999)[,] applies to this case:
*1014 "`If the best interests of the child call for custody to the nonbiological parent, then the court must make such award, unless to do so would violate some supervening right belonging to the biological parent.' 328 Or. at 511 , 982 P.2d 1126 [.] * * *
"Applying the statutes and case law to the facts of this case, the [c]ourt finds that the law requires an order of custody to the Winczewski grandparents."
Since the conclusion of the trial in July 2000, the children have lived with grandparents.
On appeal, mother makes three assignments of error: (1) "The trial court erred in applying a `best interests of the child' standard to a custody dispute between a natural parent and non-parents." (2) "The trial court erred in holding that [grandparents'] status of having a `parent-child relationship' alleviated the requirement that it find more compelling reasons than `best interests of the child' to award custody to them." (3) "The trial court erred in awarding custody to [grandparents] and placing restrictions on [m]other's parental rights when she is a fit parent and when the court found no threat of harm to the children." The gravamen of mother's assignments of error and arguments is the following: Because she has a liberty interest in the care, custody, and control of her children under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the trial court erred by applying a "best interests" standard and by awarding custody to grandparents without finding that mother is unfit or that there is a risk of harm to the children in mother's custody.
Grandparents counter:
"While this appeal was pending, the Oregon legislature amended ORS 109.119 to include a rebuttable presumption that a legal parent acts in the best interest of his or her child. ORS 109.119(2)(a)[(2001).] That presumption can be overcome by a preponderance of the evidence. If the court finds that the presumption has been rebutted, it is required to make findings of fact in support of the rebuttal. ORS 109.119(2)(b)[(2001).]
"The amended statute allows the court to consider several factors in intervenor custody cases. One of those factors is whether the legal parent is able to adequately care for the child. ORS 109.119(4)(b)(A)[.] A second factor is whether the intervenor has recently been the child's primary caretaker. ORS 109.119(4)(b)(B)[.] A third factor is whether circumstances detrimental to the child would exist if relief is denied. ORS 109.119(4)(b)(C)[.] `Circumstances detrimental to the child' includes circumstances that may cause psychological, emotional or physical harm. ORS 109.119(8)(b)[.]
"In light of changes in the law which have occurred since the time of trial, appellant mother is correct that the trial court should not have based its decision solely on the best interests of the children. * * *
"When the legal standard changes during the course of a custody appeal, the Court of Appeals should apply the new legal standard to the facts on de novo review. Frederiksen v. Ostermeier, 162 Or.App. 430 , 986 P.2d 1194 (1999); Harrington v. Daum, 172 Or.App. 188 , 18 P.3d 456 (2001); Newton v. Thomas, 177 Or.App. 670 , 33 P.3d 1056 (2001)[, overruled in part on other grounds by O'Donnell-Lamont and Lamont, 187 Or.App. 14 , 67 P.3d 939 (2003). 187 Or.App. 14 , 67 P.3d 939 (2003) ]. In this de novo review, the appellate court needs to make findings about whether this mother is `fit' and then decide whether awarding custody to the grandparents is in the best interests of the children."
II. THE APPLICABLE STATUTE
I agree with mother that the trial court erred in applying the "best interests of the child standard." Thus, I must determine the applicable standard.
We have recently decided several cases involving custody disputes between parents and nonparents. Strome and Strome, 185 Or.App. 525 , 60 P.3d 1158 (2003); Wooden, 184 Or.App. 537 , 57 P.3d 583 ; O'Donnell-Lamont and Lamont, 184 Or.App. 249 , 56 P.3d 929 (2002), modified on recons., 187 *1015 Or.App. 14, 67 P.3d 939 (2003); Wilson and Wilson, 184 Or.App. 212 , 55 P.3d 1106 (2002); Newton, 177 Or.App. 670 , 33 P.3d 1056 . In those cases, we did not apply the 2001 amendments to ORS 109.119. In Newton , we reasoned that, because the 2001 amendments became effective July 31, 2001, we would refer to the 1999 version of ORS 109.119. In Wilson, O'Donnell-Lamont, Wooden, and Strome, we relied on our reasoning in Williamson v. Hunt, 183 Or. App. 339, 343-44 , 51 P.3d 694 (2002), overruled in part by O'Donnell-Lamont and Lamont, 187 Or.App. 14 , 67 P.3d 939 (2003). In Williamson, we addressed whether the 2001 amendments to ORS 109.119applied retroactively. We reasoned that the retroactivity section of the 2001 law applies only to petitions filed under ORS 109.119 (1999) or ORS 109.121 (1999) and that, when a petition was filed before the effective date of the pertinent 1999 statute, the 1997 version applies. [2] Because the parties in Wilson, O'Donnell-Lamont, Wooden, and Strome had initiated their requests for custody before ORS 109.119 (1999) became effective, we applied ORS 109.119 (1997), a statute that we had interpreted to incorporate the federal constitutional presumption that gives effect to a parent's fundamental due process right to the care, custody, and control of his or her children. However, on reconsideration in O'Donnell-Lamont, the grandparents in that case drew our attention to the fact that the parenthetical reference to the 1999 edition in the note compiled in the published statutes, on which we had based our holding in Williamson, did not appear in the original statute. Ultimately, we held on reconsideration that, "[a]fter we delete the reference to the 1999 edition of the statutes, it is clear that the legislature intended * * * to make the 2001 amendments to ORS 109.119 applicable to all petitions filed before the effective date of the statute[.]" O'Donnell-Lamont, 187 Or.App. at 18 , 67 P.3d 939 . Thus, the 2001 amendments apply to this case.
Accordingly, in this case, it is necessary to examine the interplay between the 2001 amendments to ORS 109.119 and the decisions of this court, the Oregon Supreme Court, and the United States Supreme Court in order to determine whether mother or grandparents should receive custody. [3] If I apply ORS 109.119 (2001) and determine that mother should receive custody, it will be unnecessary to address mother's argument concerning her federal constitutional right. However, if I apply the statute and determine that grandparents should receive custody, it will become necessary to determine whether the application of the statute infringes on mother's substantive due process right to the care, custody, and control of her children. With that analytical template in mind, I turn to the analysis of this case.
III. APPLICATION OF ORS 109.119 (2001)
A. Mother's entitlement to the statutory presumption
ORS 109.119 (2001) provides, in part:
"(1) Any person, including but not limited to a related or nonrelated foster parent, *1016 stepparent, grandparent[ [4] ] or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement, guardianship or wardship of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides, for an order providing for relief under subsection (3) of this section.
"(2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child.[ [5] ]
"* * * * *
"(c) The presumption described in paragraph (a) of this subsection does not apply in a proceeding to modify an order granting relief under this section.[ [6] ]
"(3)(a) If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship, if to do so is in the best interest of child." [7]
Here, I understand that the following issues are not in dispute: (1) Grandparents are the legal parents of A and J's father. See ORS 109.119(1); ORS 109.119(8)(c), (d). (2)Grandparents have established a child-parent relationship with A and J. See ORS 109.119(1); ORS 109.119(8)(a). (3) Mother is the biological mother of A and J, and her rights have not been terminated pursuant to ORS 419B.500 to 419B.524. See ORS 109.119(8)(d). (4) There is a presumption that mother acts in the best interests of A and J. See ORS 109.119(2)(a). Thus, the remaining issues in this case are (1) whether grandparents have rebutted the statutory presumption in favor of mother by a preponderance of evidence, see ORS 109.119(3)(a); (2) if grandparents have rebutted the presumption, whether awarding them custody is in the best interests of A and J, see id.; and (3) if grandparents should be awarded custody under ORS 109.119, whether that application of the infringes on mother's fundamental due process right to the care, custody, and control of her children.
B. The relevant statutory factors for rebutting the presumption
In determining whether the statutory presumption has been rebutted, I turn to ORS 109.119(4)(b), which provides:
"In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:
"(A) The legal parent is unwilling or unable to care adequately for the child;
*1017 "(B) The petitioner or intervenor is or recently has been the child's primary caretaker;
"(C) Circumstances detrimental to the child exist if relief is denied;[ [8] ]
"(D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or
"(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor."
In this case, all of the factors are relevant to a determination of whether the presumption has been.
C. The use of expert testimony
In evaluating the evidence that relates to each statutory factor, I caution that each case must be decided on its own facts. Generally, no single fact will be dispositive. Instead, I examine the totality of circumstances to determine whether the presumption has been rebutted.
As in many cases involving the issue of child custody, the evidence in this case includes the testimony and written reports of Dr. Charlene Sabin and the testimony of Gary MacKendrick, the children's therapist. After mother stipulated to the selection of Sabin, the court appointed her to conduct a custody study and psychological evaluation. She is a children's physician and behavioral pediatrician and has been conducting custody evaluations since 1983. She completes approximately 10 to 20 evaluations each year. In conducting this study, she met with all of the adults and children involved; observed adult-child interactions; consulted with teachers, therapists, a doctor, and dentists; reviewed the children's medical records; and had psychological testing done on all of the adults. She issued a report in November 1999 and completed a follow-up report in May 2000 after the custody hearing had been postponed. [9]
MacKendrick is a therapist who has had extensive involvement with the family over approximately five years. He began working with the children when J was three years old and A was five years old. He saw them two to three times per week at the beginning and eventually saw them approximately two to three times per month. He also had contact with mother, father, and grandparents. Mother apparently discontinued her involvement with the children's therapy with MacKendrick after he testified on father's behalf in the 1996 custody hearing. [10]
In this case, the experts' ultimate conclusions are stated in terms of the best interests of the. Nevertheless, in conducting their evaluations, the experts made detailed observations and factual findings that are relevant to the issues in this case and that are not dependent on their ultimate conclusion regarding the best interests of the children. Thus, contrary to the assertions in Judge Edmonds's dissent, the expert testimony in this record contains more than subjective conclusions.
Additionally, custody cases are difficult to resolve, in part because we are put in the position of having to evaluate human behavior based on our fairly limited knowledge of the people and circumstances involved. We are not physicians, psychologists, or therapists. The evaluations of experts, such as those in this case, may be helpful to us in making decisions because the experts have had the opportunity for direct interaction with the individuals involved in these cases and have had extensive training that allows them to evaluate meaningfully an individual's behaviors and the particular circumstances. In this case, although certainly not determinative, I conclude that Sabin's and MacKendrick's *1018 detailed findings and observations are helpful and persuasive evidence.
D. Application of the statutory factors
With those principles in mind, I examine each of the factors in ORS 109.119(4)(b) in light of the evidence in this case. For ease of analysis, however, I do not discuss the factors in the order in which they appear in the statute. After applying the factors, I conclude that custody of A and J should be awarded to grandparents.
1. "The petitioner or intervenor is or recently has been the child's primary caretaker[.]" ORS 109.119(4)(b)(B). "The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor[.]" ORS 109.119(4)(b)(D). "The legal parent has unreasonably denied or limited contact between the and the petitioner or intervenor." ORS 109.119(4)(b)(E).
The children lived with father in grandparents' home for a substantial period of time. During the period between father's funeral and trial, the children lived with mother. Grandmother testified that she and mother do not have regular communication about the children. Mother and acknowledge that communication between them is sometimes difficult. While the were living with mother, she allowed the children to visit grandparents. During a Thanksgiving vacation, mother allowed grandparents an extended visit with A and J so that grandparents could take them to Denver to visit their uncle. Mother also allowed the children to visit grandparents during other holidays and school vacations. Apparently, visitation with grandparents was not ordered by the court. Mother testified that she believes that A and J are attached to grandparents and that, if she is awarded custody, she "would like them to visit regularly." Thus, grandparents have been involved in caring for A and J, and mother has consented to the continuing relationship between the children and grandparents and has not unreasonably denied grandparents contact with the children.
2. "The legal parent is unwilling or unable to care adequately for the child[.]" ORS 109.119(4)(b)(A). "Circumstances detrimental to the child exist if relief is denied[.]" ORS 109.119(4)(b)(C).
a. The children's general needs and mother's emotional limitations
The evidence demonstrates that mother is unable to care adequately for the children, ORS 109.119(4)(b)(A), and that circumstances detrimental to the children exist if grandparents are denied custody, ORS 109.119(4)(b)(C). Specifically, the evidence demonstrates that mother is notable to satisfy A's and J's particular needs because of her own emotional limitations. Even though I focus my discussion on the issue of whether mother can meet A's and J's needs, much of that evidence also demonstrates that circumstances detrimental to the children exist if grandparents are custody.
MacKendrick testified that A's and J's need for consistency and stability is important because,
"without that basis, the psychological container, whether you call it an ego or self or whatever, just simply does not have a chance to grow and to achieve and develop the various skills and work through the developmental processes that are normal in life, and indeed opens those children to confusion and to significant crises in their lives. "
(Emphasis added.)
Sabin also testified that the children "need all the usual kind of parenting that we all need, in terms of structure, security, stability, predictability, regular schedules and consequences, regular places to sleep." However, according to Sabin, mother cannot provide for those general needs:
"The only clear strength in considering a placement with [mother] is that she is the girls' biologic mother, and this has some symbolic significance to them. This does not outweigh their needs for structure, boundaries, social skills, academic support, therapy, emotional communication, positive role modeling, and perhaps psychotropic medication, that she cannot provide. "
(Emphasis added.) Sabin also acknowledged that the attachment between siblings is an important consideration but that such attachment *1019 is "not more important than health, safety, education, and emotional development." Sabin indicated that the environment in mother's home "is not positive" and "is not healthy" for A and J. Additionally, she testified, "I don't feel that [the children's] relationship with their mother has been emotionally healthy for them, and I don't see that relationship as growing in a healthy way[.]"
In addition to testifying about the children's general needs, Sabin also testified about mother's "confusion in processing and understanding emotional issues":
"My biggest concern, my biggest theme for these children, is probably in the area of emotional development. [Mother] has difficulty separating her needs, her emotional needs, from those of the children. She has difficulty promoting the children's separate physical development, even, in terms of wanting to home school them. She has difficulty trusting others outside the family to have positive relationships with the children.
"The children related to me a number of conflicts with the neighbors, such that the children had set a fire in the lot near the mother's home, and the neighbor had called the fire department, and the neighbor was angry. And [mother] became angry at her for calling the fire department, and [A] recounts all this, but the children don't learn positive ways of processing conflict; they learn more this negative way of always blaming others and being mad."
Additionally, although Sabin testified that the children were calmer during her last contact with them, she also testified that "[mother's] emotional reactivity and her over-focus on certain issues and her inability to look at the children's needs in a larger way, there's been no change in that" and that the calmness of the children was "not an indicator in terms of their long-term emotional and educational needs being met in that home." [11]
Sabin arranged for psychological testing of mother, grandparents, and Ordway. The trial court admitted Sabin's statements about the testing "in order for [the court] to understand the basis of the opinion." The court stated that the statements were "not admissible in order to convince [the court] that they are inherently truthful, or for their truth." Thereafter, Sabin testified that mother's intellectual potential is in the average range, that personality testing indicated signs of depression and loneliness, and that mother has difficulty with perceptual issues such that she
"would focus on one detail and distort it and act upon it and overwork one detail without looking at the big picture, and * * * that also applied to social and visual cues, that she may react to issues that are not there or miss issues that are present, in terms of social and emotional issues."
Of significance, Sabin noted that, although mother has had therapy, she is not a likely candidate for therapy nor is she likely to use therapy to change her parenting techniques or to better address the children's emotional needs:
"[Mother] has had a history of having therapy several times. She has not utilized therapy to deal with the past family of origin issues that continue to require her emotional energy to contain. She has used therapy to some extent for the crisis of the moment or to ventilate her confusion and angry feelings about relationships. She is not a likely therapy candidate now, as she sees no need of therapy, and she is not likely to utilize therapy to change her parenting techniques or her *1020 understanding of the children's emotional needs."
b. Examples of the children's particular needs and mother's inability to meet them
The record contains numerous specific examples of the impact of mother's emotional limitations on her ability to satisfy A's and J's needs. In particular, I focus on examples concerning the following needs of A and J: (1) emotional needs; (2) needs relating to their physical well-being; (3) the need for therapy; (4) educational and social needs; and (5) the need for physical and behavioral boundaries.
(1) The children's emotional needs
A number of letters that mother wrote to the children, apparently during father's illness, demonstrate mother's lack of understanding of and confusion about A's and J's needs. In the letters, mother blamed the children's father for developing cancer. She wrote, "Daddy Steve's personal choices have made it easier for him to develop disease with nobody to blame." [12] A few months before father died, mother promoted her home with her husband, "daddy Paul," because it was "a family unit free from the emotional and physical impacts of living with someone who has a chronic and disabling disease." [13] Mother focused on her own grief to the exclusion of children's grief. She wrote that she experienced grief by "being blamed by [her] own biologic family members for the inappropriate behaviors of another" and "watching [her] father minimize his poor health and the emotional and physical impacts on his family unit" and that her grief has healed. [14] Finally, mother appeared to attempt to disrupt the's relationship with grandparents. She wrote that "[i]t is illegal" for grandparents to "state lies about [her] to other people" and to "state in any way that they have rights to make decisions pertaining to you and [A]." [15]
Grandmother testified that the correspondence came by registered mail, return receipt requested, approximately three times a week and that, "at some point[, mother] quit sending them, and gave them to the kids when they were over there visiting." According to Sabin, the "letters are confusing and were not always read to the children at the discretion of the Winczewskis." Mother now acknowledges that the letters were an awkward and inappropriate attempt to communicate with the children. She testified, in part, that "[t]hey were letters to myself to *1021 vainly and awkwardly help, to get some openness in a very painful situation."
The letters are a concern because they reflect mother's inappropriate attempts to communicate with the children and respond to her perception of their emotional needs. Mother addressed her young children about adult issues using adult language. [16] She appears to have focused on her own interests rather than the interests of her children, who, at the time they apparently received those letters, were dealing with the impending death of their father. Moreover, mother sent the letters to communicate with the children even though J had extremely poor reading skills.
The letters caused MacKendrick and Sabin to be concerned. MacKendrick testified that the correspondence of which he was aware
"was injurious to the children, and I think confusing, because it seemed to press for the death of that parent, and to prejudge situations that I felt were not really helpful and that the really couldn't comprehend at all."
According to Sabin, the letters "are an opportunity to see some of the confusion in [mother's] thinking about the girls' emotional needs. [Mother] seems to consistently address them about inappropriate issues, using adult language, and confusing her own childhood experience with theirs."
(2) The children's physical well-being
While in mother's care, A suffered from extensive tooth decay; mother stopped giving A Paxil, an antidepressant, without consulting with A's psychiatrist, who had prescribed the medication; and J underwent unnecessary medical testing at mother's request. Mother's emotional limitations and extremely poor judgment as to the needs of her children are reflected in her responses and decisions relating to those events.
A suffered from extensive tooth decay while in mother's care. Sabin consulted with Dr. Cain, A's dentist when she was in grandparents' home, and Dr. Breche, her dentist when she was in mother's. Sabin testified to the following: A saw Cain in January 1999 while she was living with. Cain said that A had had a normal checkup and that he saw no evidence of decay. The hygienist made notes about A's good oral hygiene. A moved to mother's home in April 1999. When A saw Breche in November 1999, he found extensive and severe decay. Breche did substantial work on A's teeth, including work that might be considered root canals in an older person. Breche and Cain agreed that it was highly unusual to have such extensive decay in such a short period. Breche attributed the problem to poor oral hygiene and diet. According to Sabin, Breche indicated that "he hadn't made any specific notes about oral hygiene, but he noticed that [A's] physical hygiene was less than optimal, and that that might carry over to difficulty with her oral hygiene." [17] In her 2000 report, Sabin indicated:
"The issues that have arisen regarding [A's] dental needs do not indicate that her previous care was neglectful, as she was followed by a reputable dentist who felt that her oral hygiene was good. The more recently seen dentist felt that her teeth had deteriorated. This deterioration occurred during the time she was in her mother's care primarily."
When Sabin talked with mother about this problem, she blamed it on grandparents, asserting that they had neglected A's dental needs. Mother testified that the decay occurred before the children were in her custody. Sabin also testified that mother expressed concern to her that the reason the decay was not detected in prior dental examinations *1022 was that grandparents "hadn't gotten [A's] teeth x-rayed enough." As indicated by Sabin's testimony above, 188 Or.App. at 680 , 72 P.3d at 1019 , mother's attempt to shift the blame is an example of her nonproductive and inappropriate way of dealing with the children's difficulties and reflects her general unwillingness to accept responsibility for the children's problems.
Additionally, at some point while MacKendrick was working with A, she "seemed to develop a significant depression" and was having "explosive outbursts, losing control, clearly was depressed, physically, having nightmares, [and] a variety of other symptomatology of depression." A psychiatrist was contacted, and, according to MacKendrick, A began taking Paxil in late 1994 or 1995. MacKendrick testified that A "seemed to almost immediately calm, and it was a help to her during that period." Nonetheless, after mother took custody of the children following father's death, and without consulting with the psychiatrist, mother discontinued administering Paxil because she believed that it was not safe. [18] According to Sabin, the psychiatrist believed that was a bad time for A to stop the medication.
In her 1999 report, Sabin indicated that mother's decision to discontinue administering Paxil to A reflected mother's emotional limitations:
"[A] has anxiety and depression that benefit[t]ed historically from the use of Paxil, which is both an antidepressant and an antianxiety medication. [Mother] did not choose to follow the advice of Dr. Gale, the child psychiatrist. [Mother] focuses on a small piece of information, that historically [A] had had difficulty sleeping, and she noted that [A] was sleeping well at her house, and she then assumed that the child should not take medication. In addition, [mother's] way of understanding the children's emotional needs is very limited, and consists of understanding through her own experiences. She indicates that [A] was acting these ways because she is grieving, as [mother] herself [had] done as [a] young child, or because [A] is preadolescent. I, like Dr. Gale, see [A] as clinically anxious, depressed, and likely to benefit from medication in modulating her affect."
I emphasize that the issue in this case concerning Paxil is not whether A should or should not take Paxil or any other medication. Instead, the issue is mother's decision to abruptly discontinue administering Paxil to A without any attempt to confer with the persons who had been treating A to determine the advisability and possible effects of discontinuing the medication and without any effort to understand how the drug should be discontinued in a manner that would minimize possible effects.
Mother also had J undergo a vaginal examination and blood testing that concerned Sabin. She testified that, in 1996, the following behavior was reported to the Child Abuse Response and Evaluation Services (CARES):
"[J], who was five, and [a relative, who was older although close in age], were in a bedroom with an open door, and [A] saw them. They did not have their clothes on. They had blankets wrapped around them,[ [19] ] and they were jumping on the bed. And [A] related that [the relative] had wanted her to do that, but she hadn't wanted to."
CARES completed physical and emotional assessments. After reviewing the CARES reports, Sabin testified that there was (1) no indication that J had been coerced by the relative, (2) no indication that there was "damage to [J's] private parts," and (3) no indication that J had been touched by the relative. Sabin indicated that CARES's impression was "that this sexual behavior falls within the spectrum of normal behaviors for children of this age." Sabin also said that, in her review of the CARES report, she did not find a recommendation that the children not have unsupervised contact with the relative but that mother had recently told her that the report contained such a recommendation. Sabin indicated that, based on her review of *1023 the CARES records, she would have no concerns about the girls having contact with that relative. I note that mother testified that, after the CARES evaluation, the court ordered that the relative be supervised around the children. However, the trial court did not specifically indicate the basis of its ruling in that regard.
Despite the apparent resolution of the alleged abuse of J in 1996, approximately four years later, mother requested that J undergo another vaginal examination "because [she] had heard [her] daughters' confusion about their [uncle who] was not letting his * * * children * * * be at Grandma and Grandpa's overnight if [the relative] was there. But he would let [his children] be there if [A] and [J] were there" and because "[A] and [J] have been very unfriendly and have not liked boys that are within 12 months of [the relative's] age." According to, in 2000, when mother took J to the emergency room for a sore throat, mother "also mentioned that she was concerned about sexual abuse because she was concerned about lack of supervision with the [relative]." Sabin testified that "[t]he doctor talked to [J] separately and felt that [J] wasn't making statements about allegations, and her physical exam was normal. But because of the concern, the doctor referred her to the CARES unit again." Even though a CARES examination had been scheduled, mother testified that she canceled the appointment:
"I was contacted by CARES, and I really struggled with whether or not to do an appointment because, as I said, it's been so awkward, and just unsettled between me, [grandmother] and [grandfather] that after I made the appointment, I went ahead and I cancelled it." [20]
When asked whether she was concerned about the CARES appointment, Sabin responded:
"Yes, I was concerned about the CARES appointment. I called you and asked you to perhaps appoint or have the [c]ourt appoint an attorney for the children because I felt that the children's needs were getting disregarded because of the high level of conflict about the custody issue, and that going to CARES after this issue had been discussed and settled in 1996, and with [J] making no new statements, was an abusive situation. "
(Emphasis added.)
Sabin learned about the CARES appointment when she called to talk to the emergency room doctor about "[mother's] request that [J] have a blood test for a Paxil level because she suspected the Winczewski grandparents were administering Paxil on the weekends." Before having J's blood tested, mother did not ask J whether she had taken any pills. Mother also did no task grandparents whether they had given Paxil to either child. When asked whether she was concerned about the blood testing, Sabin replied:
"[O]bviously a blood test is somewhat uncomfortable for a child, and it was based on suspicions and, for lack of a better word, paranoid concerns of [ mother ] that the grandparents would administer medicine without a doctor's authorization."
(Emphasis added.) Sabin testified that the test results indicated that there was no Paxil in J's blood.
In her 2000 report, Sabin noted that the unnecessary medical testing was a consequence of mother's emotional limitations:
"The mother's way of understanding these children through the narrow interpretation of a few issues is a pattern seen in the previous assessment. This narrow and emotional focus on a few issues leads to potential ignoring of other issues that are also significant. In addition, when the narrow focus includes the resurgence of sexual abuse allegations, unnecessary interviews and examinations, this is harmful to the children and communicates the mother's mistrust of others to them.
"[Mother's] emotional responses continue to be out of context at times, and focused extensively on her perceptions of past events. These emotional responses *1024 do not help her integrate new information or to clearly see the children's needs aside from her own perceptions."
(Emphasis added.)
(3) The children's need for treatment of their emotional issues
The record demonstrates that A and J need therapy and grief counseling to deal with their emotional issues. The evidence also demonstrates that mother has not adequately recognized and responded to that need.
Since the children were three and five, MacKendrick had been working closely with them in dealing with their behavioral and emotional difficulties resulting from their chaotic lives. MacKendrick testified that, in 1996,
"both children suffered from some anxieties. [A], being the oldest, seemed to demonstrate more symptomatology, with the exception of the fact that I always thought [J] was somewhat regressed, had some speech difficulties, but [A] seemed to be the child that was more clearly marked with depression.
"I saw [A] as taking on anger that I felt came from the mother. At times I would see [A] trying to comfort or care for her mother, which are typical indicators of what we call a parentified child, a child that is trying to take care of a parent, as opposed to the parent taking care of the child.
"And with [J], [J] was quickly becoming a caretaker and a peacemaker, in order to placate the conflict that seemed to exist at that time."
According to MacKendrick, the parentification issue is "significant because the child's development is impaired because that child is not able to play and learn and develop at [his or her] own pace because [he or she is] so worried and preoccupied about a particular parent." [21]
After father died, mother terminated the children's personal therapy program with Mackendrick. However, he did see the children a few times after their father's death. Mackendrick testified that the week after their father died "both the girls were regressed." He saw the children again in September 1999 and testified that "[A] had gained a great deal of weight.[ [22] ] [J] was much more regressed. I felt both situations suggested to me a great deal of distress." Mackendrick also saw the children in January 2000 and testified that
"[J] seemed to be much more regressed, was using a lot of baby talk, and—I had seen her at the time of the death of her father being much more outgoing and being able to fend for herself and not be a caretaker to her sister. And at this case, she had really kind of returned almost to a fetal-type situation, and needed to be held in somebody's lap at that point.[ [23] ]
"[A] * * * was much more outgoing, and was eager to show me other things she was working on. She clearly had become more controlling and domineering, but that had been a trait off and on that we had worked on in therapy. But at this point I really think it was more of a meeting, and not trying to do therapy as much as to just see how the children were doing, and to be able to evaluate, you know, over the period *1025 of time what had happened to them since I had stopped regular therapeutic contact."
Based on his knowledge and experience with the children, Mackendrick testified that
"both children have an ongoing need to be seen by some mental health professional, and I would highly recommend that, certainly with everything they've gone through, that they see such a person on a weekly basis for a period of the next several years, and that family situations be carefully monitored."
When asked whether all children need therapy or whether there is a special reason that A and J need therapy, Mackendrick responded:
"I don't know that I think all children need as much therapy or structure as these children do, but their life has been relatively chaotic, by virtue of separation and a divorce, a contemptuous contentious custody situation, and ongoing battles that have embroiled them. And it needs to be resolved so that they can go on with their lives. The children are the victims here."
As noted above, other than some grief counseling, mother completely discontinued the children's personal therapy. 188 Or.App. at 690 , 72 P.3d at 1024 .
The children did receive grief counseling from Izetta Smith. Sabin spoke with Smith three times. Sabin noted that, if the children's grief issues are not resolved, "it creates risk as they get older for depression and for resolving those issues in other ways through inappropriate relationships or self-injurious behavior." Sabin testified that, according to Smith,
"[the children's] grief issues have not really been dealt with because of their anxieties about where they're going to live.
"She was trying to help the parents—or all the adults—learn how to reassure them and how to not involve them with the adult issues, how to not talk to them about the grownup problems.
"She felt that was more difficult for [mother] than it was for the other parenting figures because it's hard for her to stop herself, it was hard for her to contain her feelings, and that [mother] herself has many historical emotional issues that kind of overflow into this, and [mother] has trouble separating her emotional issues from the children's emotional issues.
"She can't tell whether or not [mother is] making progress or not, and she feels that [mother] would do better with individual therapy, but that seems unlikely. She's made there commendation about individual therapy before."
Sabin also testified that Smith had recommended that mother allow grandparents to participate with the children in two grief counseling groups because their grief issues are similar to the children's issues. However, mother did not allow that to happen. Apparently, mother accompanied the children to one grief counseling group, and grandparents accompanied the children to a second group. Sabin indicated that, according to Smith, mother wanted to go with the children "because she herself was grieving for her father, and that was her reason for not having the Winczewski grandparents go, in spite of * * * Smith's recommendation." (Emphasis added.) When asked whether it was significant that mother would want to accompany the children to grief counseling in order to help her understand their issues, Sabin replied:
"Well, [mother] is very interested in grief, and she * * * didn't say she wanted to go to help them. She said she wanted to go because of her own grief about her parental loss, is what * * * Smith related to me. So I was more concerned about her going for her own needs, as opposed to following the direction of the therapist when the therapist said it would be better if the grandparents went.
"Q You don't think that it might help [mother] understand her children if she understands her own grief issues?
"A Yes, I think it would, but I think she needs to resolve that in the context of individual therapy or in her own grief work, and let the children have their own opportunity to resolve their own grief separately."
(4) The children's educational and social needs
*1026 The evidence demonstrates that J has significant learning problems that are unrelated to her vision problems, that she has developmentally delayed speech, that both children were excessively absent and tardy from school following the move to mother's home, and that mother has plans to home school the children. That evidence also demonstrates that mother's narrow focus on certain issues while disregarding others and her tendency to blame others for the children's problems have prevented her from adequately addressing the children's problems.
J struggled considerably in school. She was behind in all academic subjects and was going to have to repeat second grade. J was tested but did not qualify for special education services because her low achievement was consistent with her ability. J does have a vision problem, but the experts do not feel that her problem is severe. Further, the school psychologist did not believe that the vision problem was the cause of J's learning problems. Nevertheless, although mother was aware of the assessment that J's vision was not the cause of her learning difficulties, mother was convinced that the assessment of J's intellect was mistaken and that her learning difficulties were due to her vision. Mother also asserted that the problem with J's vision was caused by grandparents' neglect. At one point, mother believed that J had a "severe vision problem in both eyes" and thought that she might have a qualifying disability under the "Federal Disabilities Act" and that, if J's condition were disabling, the $1,400 monthly Social Security check that mother was presently receiving for the children would increase.
At times, mother referred to J's vision problem in J's presence. Sabin indicated that she is "concerned about a child getting a message that she has a physical disability, when her vision is not a disability in that way." As Sabin indicated, such comments by a parent "affects [the child's] self-esteem, and sometimes it becomes a self-fulfilling prophecy. It may keep the child more dependent on the parent longer. It may decrease the child's confidence."
In response to J's difficulties in school, mother hired a tutor to assist J. Mother and Ordway also worked with J to improve her reading and helped her with her homework. However, it was difficult for Sabin to evaluate the effectiveness of the tutoring because mother refused to "release the tutor to talk with [her]." Sabin noted that the tutoring schedule of four days each week for one and one-half hours each day "sounds extremely unusual."
Additionally, J's speech is developmentally delayed, and she receives speech therapy in school. In her 1999 report, Sabin indicated:
"Both the Winczewskis and the Ordways are aware of this issue, and can facilitate the appropriate interventions in the school, but there are also appropriate interventions in the home that the Ordways will have difficulty facilitating. * * * The Ordway home life seems full of noise and chaotic emotionally and [J] is not making much noise herself. [J] further withdraws as a coping mechanism at times when faced with the overwhelming stimuli. She allows herself to be managed by [A] in her mother's presence. The Winczewskis are more likely to be in social and home situations where [J's] speech is listened and responded to appropriately."
Excessive absenteeism was also a serious problem for the children after moving to mother's home. Immediately after the move, A was often absent and tardy and did not always complete her homework as she had before. However, A did not appear to have those problems the following school year. Additionally, during the last trimester of the 1998-99 school year, after having had good school attendance when she was living with grandparents, J was absent or tardy 28 and one-half days out of 44 days. [24] The excessive absences continued through the next school year when J was absent 16 days and tardy 23 days. However, only two of those absences occurred after the school sent a letter to mother regarding J's poor attendance. The excessive absenteeism and tardiness is a particular concern because J was having difficulty *1027 in school and her speech therapy was generally the first thing in the morning.
Mother explained at trial that some of the absences had occurred after father's death, during the transition between homes, and that others occurred because J was reluctant to go to school. Mother's other explanation for the tardiness and absences was to blame father and grandparents for having given too much assistance to the children in getting ready for school. Mother explained that she and Ordway had a different approach; they wanted these 8- and 10-year-old children "to do some self-starting" and to get themselves going in the morning.
Mother's other response to the children's educational needs was her plan to home school the children even though she apparently had no training in education. She told Sabin that she would be doing this now if grandparents were not "breathing down her neck." Sabin saw this possibility as inappropriate for these children:
"Well, I think they both have extensive needs that aren't going to be met in the home, and I think that the home environment here creates its own culture that's isolated and insulated from the larger culture that these children hopefully will come to live in. I don't think that home education would prepare them for social interactions and for getting along with others.
"[J] does have very special needs in terms of her education, and even a well-educated parent, I think, would have a hard time providing all that at home, and [mother] has no special training or education in education."
(5) The children's need for physical and behavioral boundaries
Finally, the children need physical and behavioral boundaries. The evidence demonstrates that mother's emotional limitations prevent her from meeting that need.
The lack of physical boundaries for the children concerns the sleeping arrangements at mother's house. According to Sabin, the children need "to have their own bed and [to] know where they should be sleeping." J told Sabin that, although they have their own beds at mother's home, they "`never use them because there's stuff on them.'" There was evidence that Ordway had slept in the same bed with J. When asked whether mother and Ordway denied that that had occurred, Sabin responded:
"No. No. In fact, in [mother's] philosophy about parenting and sleeping together, she wasn't sure that there was anything wrong with the casual arrangement of whose bed is whose and the parents sleeping with the children."
Sabin testified that those sleeping arrangements are
"not healthy in terms of developing structure, predictability, boundaries. `This is my own space, this is my own room, these are my own things, this is my own bedtime, this is where I belong.' It's emotionally a boundary issue, especially for children that are as old as these, I think, to be not knowing where you're going to sleep tonight."
Although Sabin indicated that she did not have a safety concern about the issue of the children's sleeping arrangements, she did express serious concerns about that boundary issue and its reflection of mother's emotional limitations:
"Poor physical boundaries in the home are an additional emotional issue related to these children's development. The children have no consistent sleeping arrangement in their mother's, but they usually sleep with one, two, or three other family members in the same bed. The usually do not sleep together, but rather each sleeps with various children. The mother[]as well as the children report this. The mother does not see having one's own sleeping space as a developmental need for the children. This issue is related to the ongoing ways that she sees the children as fulfilling her needs for companionship aside from their own developmental needs."
In her follow-up evaluation in 2000, Sabin learned from mother and Ordway that "they had the sleeping arrangements more structured, where [A] would sleep with [L], and [J] would sleep with [C]."
*1028 Consistently with mother's general continued unwillingness to accept responsibility for the children's difficulties, mother and Ordway blamed grandparents for the sleeping arrangements. Mother asserted that the grandparents had been sleeping with the children, and, therefore, they had no choice but to continue the practice. Grandparents testified that the children had not slept with them. Grandmother testified that each child had her own bedroom and that, at times, she "would probably go in with [A]. I wouldn't sleep with her. I might [lie] down with her till she went to sleep." Grandmother also testified that,
"when [father] first came home, [J] slept on a daybed, a little youth bed, that was in [father's] room because it just didn't work out with [J] and [A] sleeping together in the same bed. And then we made a second bedroom. I had to give up my office for a second bedroom for—so that [J] could have her own bedroom. And [J] was really very good about sleeping. She just needed somebody during the time [father] was in the hospital, and after he died she had—would have anxiety, and that's why we sat with her until she went to sleep."
Sabin indicated that there were times that the children would sleep with an adult in the Winczewski home, "but that's not the tradition in their home[.]" Additionally Sabin testified:
"Q Did you see it as appropriate in [the Winczewski] home, and yet inappropriate in the Ordway home?
"A I believe the inappropriateness that I was commenting on in the Ordway home is the fact that these children don't feel that they have a bed, and these children sleep in a different place every night. And in the Winczewski home, there were times the children would come into their bed related to the illness and grieving and impending loss of their father. There may be times when that's appropriate and times when it's not, but it's always appropriate for children to have their own bed and know where they should be sleeping."
Sabin also noted that mother is unable to set behavioral boundaries for the children:
"[Mother] does not parent the children in an active way. She tends to use words, talk slowly, and not act on her instructions. She portrays herself as feeling powerless to influence their behavior in some areas. Although when interviewed individually she can describe appropriate parenting interventions, she did not demonstrate those interventions in my presence, and the girls report more talking and yelling than any other sort of parental intervention. Any time * * * I have called her home, there is a chaotic noise of children yelling in the background, not the noise of children playing. Because [mother] feels powerless at times with the children, she can become angry with them."
E. Conclusion
There is no doubt that mother and grandparents love A and J, and A and J love them. A and J are attached to both families and to their half-siblings. Mother has not abused her children. Nevertheless, this is not a case involving a choice between two adequate homes for A and J. Instead, the evidence demonstrates that mother is unable to provide adequate care for the children and that circumstances detrimental to the children exist in her care. As the experts in this case have explained, based on A's and J's experiences, they have particular needs that must be met for them to avoid serious physical and emotional problems and, because of mother's emotional limitations, she will be unable to meet the children's needs. Sabin discussed mother's "emotional reactivity and her over-focus on certain issues and her inability to look at the children's needs in a larger way" and mother's "confusion in processing and understanding emotional issues." According to Sabin, mother's "emotional responses do not help her integrate new information or to clearly see the children's needs aside from her own perceptions." Sabin indicated that mother's home "is not positive" and "is not healthy" for A and J, that the children's relationship with mother has not "been emotionally healthy," and that she does not see the relationship "as growing in a healthy way." Sabin described various behaviors and plans of mother as inappropriate, harmful, and based on mother's "suspicions." As Sabin *1029 expressly indicated, mother is not capable of meeting A's and J's needs. Moreover, Sabin noted that, during her last contact with the children, there had been no change in mother's "emotional reactivity" and that mother is not a likely candidate for therapy to help her learn to better address the children's needs.
As I have already explained, each case is fact specific and the totality of circumstances must be examined to identify the particular needs of the child involved and the circumstances of the parent. Here, I have reviewed the entire record and, on de novo review, I find the facts consistently with the experts' findings. I have described in great detail several examples of the children's particular needs and mother's inability to satisfy them. See 188 Or.App. at 682-98 , 72 P.3d at 1019-1028 . There is not one circumstance or event here that compels the result. Rather, taken together, the examples that I have described illustrate that (1) mother is unable to understand the needs of the children; (2) for the most part, she is unwilling to accept responsibility for the children's difficulties; and (3) she has exhibited very limited ability to take action that is helpful rather than potentially harmful to the children. For all of the above reasons, I conclude that grandparents have demonstrated by a preponderance of the evidence that mother is unable to care adequately for A and J and that circumstances detrimental to the children exist in her care. Thus, grandparents have overcome the statutory presumption that mother acts in the best interests of the children.
Because grandparents have rebutted the presumption, I must determine the best interests of the children. ORS 109.119(3)(a) ("If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody * * * to the person having the child-parent relationship, if to do so is in the best interest of the child."). After considering all of the statutory factors discussed above in light of the evidence in this case, I conclude that granting grandparents custody is in the children's best interests. Because application of ORS 109.119 (2001) results in an award of custody to grandparents, I must determine whether that result infringes on mother's substantive due process right to the care, custody, and control of her children.
IV. CONSTITUTIONAL ANALYSIS
A. The constitutional standard
In Newton, Wilson, Wooden, and Strome, recent cases involving custody disputes between parents and nonparents, we applied prior versions of ORS 109.119, a statute that we had interpreted to incorporate the federal constitutional presumption that gives effect to a parent's fundamental due process right to the care, custody, and control of his or her children. In this case, I did not incorporate the federal constitutional principles into my interpretation of ORS 109.119(2001). However, the constitutional principles that we identified in our earlier custody cases are instructive in determining whether the application of ORS 109.119 (2001) infringes on mother's right.
In his dissent, Judge Edmonds asserts that my application of those principles would turn us into social engineers who decide custody by our determination of what is in the best interests of the child. However, I have not articulated a best interests of the child standard. Instead, as I will explain, the standard articulated in our prior case law requires that, in order to obtain custody, a nonparent must demonstrate that a parent cannot or will not provide adequate love and care or that placement of the child in the parent's custody would cause the child an undue risk of physical or psychological harm. Also contrary to Judge Edmonds's assertion, my application of that standard is not equivalent to a personal value judgment about who will make the best parents. Rather, just as in many other types of cases, including termination of parental rights, our responsibility is to determine whether the legal standard has been satisfied based on the facts of the case. With that understanding, I summarize the established constitutional principles *1030 before turning to their application in this case.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel, 530 U.S. at 66 , 120 S.Ct. 2054 (O'Connor, J., plurality opinion). As indicated by the Troxel plurality, we give force to "the traditional presumption that a fit parent will act in the best interest of his or her child." Id. at 69 , 120 S.Ct. 2054 . A parent who has established a sufficient relationship with a child has the fundamental right and is entitled to the presumption. [25] Wooden, 184 Or. App. at 546-51 , 57 P.3d 583 . We have also held that a "parent will presumptively prevail over a nonparent unless the nonparent presents compelling reasons to overcome that presumption[.]" [26] Wilson, 184 Or.App. at 219 , 55 P.3d 1106 ; see also Strome, 185 Or.App. at 533 , 60 P.3d 1158 ; Wooden, 184 Or.App. at 551-52 , 57 P.3d 583 . In sum, our cases establish the following principle that operates in this case: An application of ORS 109.119 that results in an award of custody to a nonparent unconstitutionally infringes on a parent's fundamental right to the care, custody, and control of his or her children unless the nonparent has demonstrated by a preponderance of the evidence that there are compelling reasons that the parent should not receive custody.
As we have reasoned in our recent custody cases, in determining whether compelling reasons exist, we take guidance from Hruby, a case in which
"[t]he court noted expressly that nonparents could establish compelling reasons to obtain custody without proving that the parent was unfit. Rather, the proper inquiry was whether custody with the parent would be `"highly detrimental" to the child's welfare, regardless of the parent's fitness,' [ 304 Or. at 508 , [ 748 P.2d 57 ]]; whether custody with the nonparent was necessary `to protect the children from some compelling threat to their present or future well-being,' id. at 509 , [ 748 P.2d 57 ]; and whether there was `good cause' or `cogent' reasons, to place the child with the nonparent, id. at 510 , [ 748 P.2d 57 ]."
Wooden, 184 Or.App. at 551 , 57 P.3d 583 . At its core, Hruby stands for the following proposition: In a custody dispute between a parent and a nonparent, the court may award custody to a nonparent where grounds for termination of parental rights do not exist but where the child must be protected from "some compelling threat to [his or her] present or future-being." Hruby, 304 Or. at 509 , 748 P.2d 57 .
In State ex rel Juv. Dept. v. Lauffenberger, 308 Or. 159 , 777 P.2d 954 (1989), the Supreme Court, in an analogous context, reaffirmed its understanding that, in custody disputes between parents and nonparents, the "compelling reason" standard from Hruby is not equivalent to the standard necessary to terminate a parent's parental rights. In *1031 Lauffenberger , the child had become a ward of the court due to parental neglect. Thereafter, the Children's Services Division (CSD) filed petitions to terminate the parental rights of both parents. The petitions were denied. After a later dispositional hearing, the trial court vacated the child's commitment to the custody of CSD, retained its own jurisdiction over the child, and placed the child in the "`care, custody and control'" of her maternal grandparents. The court found that father was a fit parent but that it was in the child's best interest to be in the custody of her grandparents. We affirmed. [27] The Supreme Court reversed our decision. The court indicated that it decided Hruby after the trial court had made its decision. It held that the parental preference articulated in Hruby applied in that case and noted that, under Hruby , a parent was entitled to custody of his or her children in the absence of compelling reasons. [28] However, the court refused to order a change in custody, stating that "[t]hat will be for the circuit court to decide on remand and on a new and more complete record, if the father still desires custody." Lauffenberger, 308 Or. at 168 , 777 P.2d 954 . If the compelling reasons standard under Hruby were equivalent to the standard for termination of parental rights, there would have been no reason for the court in Lauffenberger to remand the case to the trial court to determine the issue of custody under the Hruby standard because the petition to terminate the father's parental rights had been denied and the court had already determined that he was a "fit" parent.
Similarly, our application of the Hruby standard in Fenimore v. Smith, 145 Or.App. 501 , 930 P.2d 892 (1996), rev. den., 326 Or. 389 , 952 P.2d 62 (1998), and Cerda and Cerda, 136 Or. App. 104 , 901 P.2d 263 (1995), rev. den., 322 Or. 598 , 910 P.2d 1110 (1996), demonstrates that a parent's fundamental right is not absolute and that the compelling reasons standard is not to the standard necessary to terminate a parent's parental rights. In Fenimore, the child had suffered severe trauma resulting from the circumstances of her mother's death. [29] We determined *1032 that "[t]here is no question but that father loves child and can provide her physical needs," Fenimore, 145 Or.App. at 509 ; however, we concluded that the "[c]hild has suffered a traumatic loss from which the testimony shows she is not likely to heal if she is forced from the only family situation she has ever known. Under the circumstances of this case, an award of custody to father would cause undue psychological harm to child," id. at 510 , 930 P.2d 892 . Although we noted that child had expressed a preference for living with stepfather, perceived father to have an alcohol problem, and did not feel safe in father's home, we based our holding that stepfather should be awarded custody on the fact that the expert opined that there "`would be a very great risk'" if the child were moved from stepfather's home. Id.
In Cerda, we held that there were compelling reasons to award custody to the grandparents:
"As the trial court found, father has had difficulty controlling his anger and has been abusive toward other family members, although none of those episodes involved the children. Father demonstrates a tendency to minimize his problems and, until he won the lottery, his life was aptly characterized as unstable. We are not persuaded that his newly found source of income will necessarily trigger a change in those behavior patterns. Moreover, the children have lived with their grandparents in a stable and emotionally healthy environment for eight years, which is most of their lives. Father has accepted that arrangement and made no attempt to change custody until pressured to pay an increased amount of child support. Also, father does not contradict [the expert's] testimony that the children are at a particularly vulnerable age and that a change in their custody would cause them to regress emotionally, academically and socially. * * * Because the evidence is that the children would be unduly harmed by changing their custody to father, we conclude that an award of custody to grandparents under ORS 109.119 is appropriate with reasonable visitation by both father and mother."
Cerda, 136 Or.App. at 109-10 , 901 P.2d 263 . In neither Fenimore or Cerda did we hold that a compelling reason for awarding custody to a nonparent was equivalent to a circumstance sufficient to terminate a parent's parental rights. Instead, we focused on whether the child would face an undue risk of harm in the parent's custody in light of the child's particular needs and the parent's abilities and limitations.
Consistently with Hruby, Fenimore, and Cerda , we have established that, even if a parent has not been shown to be unfit, compelling reasons not to award custody to the parent exist where, in light of the child's particular needs, the parent cannot or will not provide adequate love and care for his or her child or placement of the child in the parent's custody would cause the child an undue risk of physical or psychological harm. See Strome, 185 Or.App. at 527 , 60 P.3d 1158 . In other words, the application of ORS *1033 109.119 resulting in an award of custody to a nonparent is an unconstitutional infringement on a parent's fundamental right to the care, custody, and control of his or her child unless the nonparent has demonstrated by a preponderance of the evidence that, in light of the child's particular needs, the parent cannot or will not provide adequate love and care for his or her child or that placement of the child in the parent's custody would cause the child an undue risk of physical or psychological harm. [30]
B. Application of the constitutional standard
With those principles in mind, I turn to this case. Mother has a fundamental due process right to the care, custody, and control of her children. Thus, the issue in this case is whether grandparents have demonstrated by a preponderance of the evidence that mother cannot or will not provide adequate care for A and J or whether placement of the children in mother's custody would cause them an undue risk of physical or psychological harm. For the reasons that I have already discussed, grandparents have demonstrated by a preponderance of the evidence that (1) based on A's and J's experiences, they have particular needs that must be met for them to avoid serious physical and emotional problems and (2) because of mother's emotional limitations, which are reflected in her inability to understand her children's needs and her limited ability to take action that helps rather than potentially harms them, and because of her apparent inability to improve, she is unable to adequately care for the children and they will face an undue risk of physical or psychological harm in her custody. [31] Thus, an award of custody to grandparents under the statute does not infringe on mother's federal constitutional right.
Accordingly, I now turn to the dissenting opinions. Judge Edmonds contends that he is not applying a strict scrutiny standard; however, in effect, the standard that he applies is strict scrutiny. Judge Edmonds also contends that, in order to satisfy his "compelling state interest" standard, a nonparent must clearly demonstrate that the parent is unfit under the standards in the termination of parental rights statutes or demonstrate circumstances that present similarly grave risks of harm. Although Judges Brewer and Schuman have dissented separately, they both contend that, although I have articulated the correct legal standard, the facts in this case do not demonstrate that that standard has been satisfied.
In his dissent, Judge Edmonds refers to numerous United States Supreme Court cases to support the proposition that mother has a fundamental constitutional right. See 188 Or.App. at 717-20 , 72 P.3d at 1039-1041 (Edmonds, J., dissenting). I do not disagree with Judge Edmonds that mother has an extremely important right, the fundamental constitutional right to the care, custody, and control of her children.
As I have explained, we have already articulated the legal standard for protecting that right in our recent custody cases. Judge Edmonds, however, disregards those cases and undertakes a "new" examination to determine *1034 the legal standard for determining when a nonparent may be awarded custody consistently with the parent's constitutional right. Although his reasoning is lengthy and complex, his position may be reduced to two points: (1) the state can interfere with a parent's right to the care, custody, and control of his or her children only if the state's infringement of the right is narrowly tailored to serve a compelling state interest, 188 Or. App. at 726 , 72 P.3d at 1044, n. 7 (Edmonds, J., dissenting), and (2) the legal standard that we have articulated in our recent custody cases ( i.e., whether, in light of the child's particular needs, the parent cannot or will not provide adequate love and care for his or her child or that placement of the child in the parent's custody would cause the child an undue risk of physical or harm) requires that a nonparent clearly demonstrate that the parent is unfit under the standards in the termination statutes or demonstrate circumstances that present similarly grave risks of harm. [32] I address each of those points in turn.
The gravamen of Judge Edmonds's position is that the state cannot interfere with a parent's right to the care, custody, and control of his or her children unless the state's infringement of the right is narrowly tailored to serve a compelling state interest. See 188 Or.App. at 721, 724-725, 726 , 72 P.3d at 1041, 1043, 1044, n. 7 (Edmonds, J., dissenting). From that "strict scrutiny" standard, Judge Edmonds derives his "compelling state interest" standard that is to be applied in custody cases between a parent and a nonparent. 188 Or.App. at 724-725, 726-727 , 72 P.3d at 1043-1044, 1044-1045 (Edmonds, J., dissenting). Judge Edmonds's reasoning is flawed because the Court in Troxel did not adopt the "compelling state interest" standard and we have expressly rejected that legal standard.
The plurality in Troxel acknowledged that it was not considering "whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation" and that it was not defining "the precise scope of the parental due process right in the visitation context." Troxel, 530 U.S. at 73 , 120 S.Ct. 2054 (O'Connor, J., plurality opinion). Thus, the Court did not adopt the "compelling state interest" standard asserted by Judge Edmonds.
Moreover, in our recent custody cases, we "salvag[ed] the constitutionality" of ORS109.119 (1997) by incorporating the requirements of Troxel into the statute's interpretation. Wilson, 184 Or.App. at 218 , 55 P.3d 1106 . In doing so, we expressly rejected the legal standard asserted by Justice Thomas in Troxel . Justice Thomas concurred in the judgment in Troxel . He reasoned:
"The opinions of the plurality, JUSTICE KENNEDY, and JUSTICE SOUTER recognize [a parent's] right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lack seven a legitimate governmental interest—to say nothing of a compelling one— in second-guessing a fit parent's decision regarding visitation with third parties. On this basis, I would affirm the judgment below." [33]
Troxel, 530 U.S. at 80 , 120 S.Ct. 2054 (Thomas, J., concurring in the judgment). In Harrington , we expressly rejected the strict scrutiny standard asserted by Justice Thomas in Troxel and indicated that "the plurality opinion [in Troxel ] gives the best guidance on the effect of the constitution in this situation." [34] Harrington, 172 Or.App. at 197 , *1035 18 P.3d 456 . We also noted that, under Justice Thomas's standard, the court's ability to award visitation to nonparents would be more difficult than it would be under the plurality's standard. Id. Nevertheless, Judge Edmonds articulates a "compelling state interest" standard that he derives from a legal standard that we have expressly rejected. In other words, Judge Edmonds is attempting to write anew on a slate that is far from clean.
Relying on his constitutionally required "compelling state interest" standard, Judge Edmonds then asserts that I err by applying the "compelling reason" standard that is "less exacting" than the constitution requires. [35] 188 Or.App. at 736 , 72 P.3d at 1050 (Edmonds, J., dissenting). According to Judge Edmonds, "[a]lthough a `compelling reason' need not be identical to the standards set forth in the termination statutes, it must embody circumstances that present similarly grave risks of harm to a child's welfare either because of a parent's unfitness or because of the physical or psychological needs of the child." [36] 188 Or.App. at 737 , 72 P.3d *1036 at 1050 (Edmonds, J., dissenting). However, regardless of the particular label that Judge Edmonds places on the legal standard, the point of contention between me and Judge Edmonds is whether the legal standard that we have articulated in our recent custody cases as being consistent with the constitution ( i.e., whether, in light of the child's particular needs, the parent cannot or will not provide adequate love and care for his or her child or that placement of the child in the parent's custody would cause the child an undue risk of physical or psychological harm) requires a nonparent to demonstrate that the parent is unfit under the standards in the termination statutes or to circumstances that present similarly grave risks of harm.
As I have already explained, 188 Or.App. at 700-706 , 72 P.3d at 1029-1033 , we have not applied the standard used in termination cases to custody cases between parents and nonparents. In Hruby , the Supreme Court articulated a standard for determining whether a nonparent had demonstrated that he or she is entitled to custody. As the Supreme Court demonstrated in its opinion in Lauffenberger , the compelling reasons standard from Hruby is not equivalent to the standard for the termination of parental rights. We applied the Hruby standard in Fenimore and Cerda . Most importantly, in our recent custody cases in which we interpreted ORS 109.119 (1997) to salvage its constitutionality, we established that the Hruby standard provides guidance in determining whether a nonparent has established that he or she is entitled to custody consistently with the constitution and stated that, in Hruby , the court "noted expressly that nonparents could establish compelling reasons to obtain custody without proving that the parent was unfit," Wooden, 184 Or.App. at 551 , 57 P.3d 583 . Additionally, we cited Fenimore and Cerda as examples of cases applying the Hruby standard. Thus, we have already determined that the Hruby standard, as applied in Fenimore and Cerda , is consistent with constitutional principles. [37]
If Judge Edmonds were correct, a determination that a parent's rights are not subject to termination would result in an award of custody to the parent even in cases in which there is uncontroverted evidence that, because of the child's particular needs or the particular circumstances of the case, the child would suffer harm in the parent's custody. Although Judge asserts that my understanding of his position is too narrow because a nonparent could receive custody if he or she demonstrates circumstances that present risks of harm that are as grave as those illustrated in the termination statutes, he provides no explanation as to when a risk of harm rises to that level. Essentially, Judge Edmonds would require a nonparent to demonstrate *1037 that the parent is "unfit," as that term is used for purposes of termination, in order to obtain custody.
Judge Edmonds also asserts that the facts of this case do not justify an award of custody to grandparents. According to Judge Edmonds, the "instances of inattentive parenting followed by remedial measures by mother, even when considered along with mother's emotional limitations, simply do not amount to a compelling state interest that justifies taking custody away from mother." 188 Or.App. at 746-747 , 72 P.3d at 1055 (Edmonds, J., dissenting). In support of that assertion, Judge Edmonds points to isolated incidents and short excerpts of testimony from the record. [38] However, as I have discussed in detail in this opinion, mother's efforts and success have been very limited. My de novo review of the entire record reveals that mother's actions and her inaction have amounted to much more than inattentive parenting. Further, this is not a case such as Strome in which the father had engaged in inadequate parenting for a long period of time but then demonstrated remarkable improvement for the 10 months before the hearing. As I have already explained, the evidence in this case indicates that A and J have particular needs of a serious nature and that, because of her emotional limitations, mother is unable to meet those needs and that the children face an undue risk of harm in mother's custody.
Finally, Judge Edmonds emphasizes that "[n]o expert witness expressly testified that mother is incapable of providing adequate care for the children in the future." [39] 188 Or.App. at 744 , 72 P.3d at 1054 (Edmonds, J., dissenting)(emphasis in original). I disagree. As noted above, Sabin stated that mother is unable to meet the children's needs:
"The only clear strength in considering a placement with [mother] is that she is the girls' biologic mother, and this has some symbolic significance to them. This does not outweigh their needs for structure, boundaries, social skills, academic support, therapy, emotional communication, positive role modeling, and perhaps psychotropic medication, that she cannot provide. "
(Emphasis added.) Additionally, Sabin testified that both children "have extensive needs that aren't going to be met in [mother's] home" and that the children's calm demeanor during her last visit with them was "not an indicator in terms of their long-term emotional and educational needs being met in [mother's] home." Under Judge Edmonds's reasoning, I may not rely on those express statements about mother's inability to care adequately for the children in the future to support a change of custody. Judge Edmonds apparently would require a nonparent *1038 to produce an express statement from an expert that, in the future, the parent in fact and definitely cannot provide adequate care and love to the children or that the children in fact and definitely will be harmed in the parent's custody. That is not a requirement that we have imposed in our previous decisions. Moreover, such a requirement would be completely unrealistic. As a matter of common sense, it is not possible to demonstrate with certainty how a person will behave in the future. Of necessity, we must predict a person's future behavior based on his or her present and past behavior. In making that prediction, we often give weight to the assessments of experts who have had the opportunity to interact with and observe the person and who have expertise in evaluating that person's behavior. Mother's past conduct and present inability is indicative of her future ability to care for her children and the risks of harm that the children will face in her custody. See Cerda, 136 Or.App. at 109 , 901 P.2d 263 .
Unlike Judge Edmonds, Judge Brewer agrees that I have properly articulated the legal standard to be applied in custody cases between parents and nonparents. See 188 Or.App. at 758 , 72 P.3d at 1062 (Brewer, J., dissenting) ("[W]e have adhered to the compelling reasons test and that is the lens through which the concurrence properly has examined the record in this case."). However, Judge Brewer disagrees that, based on the facts of this case, compelling reasons exist. His argument reduces to two points: (1) The most significant consideration in this case is the children's emotional attachment to mother and her family. (2) Even though mother has been insensitive to the children's emotional needs, the evidence of that conduct relates, directly or indirectly, to father's death, and, for that reason, the evidence cannot be weighed "as heavily in the balance as [it] would if it involved less stressful circumstances." 188 Or.App. at 760 , 72 P.3d at 1063 (Brewer, J., dissenting). I address each of his points in turn.
Judge Brewer is correct that the evidence demonstrates that the children are attached to both families and that Sabin testified that there is no "differential attachment" between the children and the two families. However, I understand Judge Brewer to assert that attachment to the parent is the most significant issue in custody cases between a parent and nonparent. I disagree. A determination that a child is attached to a parent does not preclude the determination that compelling reasons exist to award custody to a nonparent. Moreover, and as my conclusion in this case demonstrates, emotional attachment is not more important than issues such as health, safety, education, and emotional development.
Judge Brewer also reasons that
"the evidence shows that mother has been insensitive to the children's emotional needs. However, much of the evidence to that effect involves conduct relating, directly or indirectly, to the death of the children's father and the present custody dispute. Although that evidence is troubling, I do not weigh it as heavily in the balance as I would if it involved less stressful circumstances. It is also true that the children's physical circumstances while in mother's care were not optimal. In that regard, the evidence concerning A's tooth decay is a cause for concern, but it does not necessarily suggest serious neglect on mother's part. In sum, although much of the evidence does not flatter mother, the overall quality of her parenting is no worse than that of thousands of Oregonians who struggle with their own limitations but ultimately succeed, without state intervention, in raising their children safely."
188 Or.App. at 760 , 72 P.3d at 1062-1063 (Brewer, J., dissenting).
As I have discussed in exhaustive detail, this case is about much more than mother's insensitivity to A's and J's emotional needs. Moreover, no one related all of mother's conduct to father's death and this custody dispute with grandparents. With all due respect, this case concerns a mother with particular emotional limitations that are reflected in her long-term conduct and two children with needs that have arisen, at least in part, because of their life experiences. In determining whether mother cannot provide adequate care for A and J or whether placement *1039 of A and J in her custody would cause A and J an undue risk of physical or psychological harm, I do not compare her parenting to the parenting of other parents because such a comparison would disregard the children's particular needs. Instead, I evaluate mother's parenting to determine whether, in light of the children's particular needs, mother cannot provide adequate care or whether placement in her custody will cause an undue risk of physical or psychological harm. My approach is the same as the approach that we took in Fenimore. See 188 Or.App. at 704-705 , 72 P.3d at 1031-1032 . In that case, the parent was capable of providing for the physical needs of his child;however, because the child had particular needs as a result of the loss of her mother, we concluded that an award of custody to the parent would have caused the child undue psychological harm.
Finally, in his dissent, Judge Schuman also agrees with my legal analysis. Specifically, he concludes that the "compelling state interest" rule does not apply. However, Judge Schuman asserts that "the harm that can justify abridging the parental right must be far, far more serious" than what grandparents have demonstrated here. 188 Or.App. at 760 , 72 P.3d at 1063 (Schuman, J., dissenting). I disagree. As I have already explained in my responses to the dissents of Judge Edmonds and Judge Brewer, grandparents have demonstrated that mother cannot adequately care for A and J and that placement of the children in her custody will cause an undue risk of physical or psychological harm. For all the reasons discussed above, I do not agree with the dissents that an award of custody to grandparents would infringe on mother's federal constitutional right to the care, custody, and control of her children.
V. CONCLUSION
In sum, ORS 109.119 (2001) applies to this case. Grandparents have rebutted the statutory presumption that mother acts in the best interests of the children by demonstrating by a preponderance of the evidence that mother is unable to care adequately for A and J and that circumstances detrimental to A and J exist if grandparents are denied custody. Because awarding custody to grandparents is also in the children's best interest, grandparents should be awarded custody under ORS 109.119. Further, that application of the statute does not infringe on mother's federal constitutional right to the care, custody, and control of her children because grandparents have demonstrated by a preponderance of the evidence that mother is unable to care adequately for the children and that the children face an undue risk of physical or psychological harm in mother's custody. Thus, I would hold that the trial court did not err in awarding custody to.
HASELTON, LINDER, WOLLHEIM, and KISTLER, JJ., join in this concurring opinion.
EDMONDS, J., dissenting.
The concurrence's reasoning in this case results in an unconstitutional infringement of mother's fundamental right to raise her children under the Fourteenth Amendment to the United States Constitution. In this opinion, I will (1) explore the nature and extent of that right; (2) discuss, in light of that right, the type of circumstances that must be present before the state can lawfully deprive a parent of the custody of his or her child; and (3) explain why the application of the Due Process Clause to the facts of this case should have resulted in a decision in favor of mother.
I. WHAT IS THE NATURE AND EXTENT OF MOTHER'S LIBERTY INTEREST IN THIS CASE UNDER THE FOURTEENTH AMENDMENT?
"[T]he relationship between parent and child is constitutionally protected." Quilloin v. Walcott, 434 U.S. 246, 255 , 98 S.Ct. 549 , 54 L.Ed.2d 511 (1978). "[F]reedom of personal choice in matters of * * * family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 , 94 S.Ct. 791 , 39 L.Ed.2d 52 (1974). Although the concurrence acknowledges that principle in this case, it fails to give it the efficacy required *1040 by the United States Supreme Court's jurisprudence.
The Due Process Clause of the Fourteenth Amendment protects the right of the individual to
"establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
Meyer v. Nebraska, 262 U.S. 390, 399 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923). [1] Consequently, parents have a liberty interest in raising their children as they see fit.
"It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that [the Court's] decisions have respected the private realm of family life which the state cannot enter."
Prince v. Massachusetts, 321 U.S. 158, 166 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944). [2] Thus, the Court explained in Quilloin :
"We have little doubt that the Due Process Clause would be offended `[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.'"
434 U.S. at 255 , 98 S.Ct. 549 (quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-63 , 97 S.Ct. 2094 , 53 L.Ed.2d 14 (1977) (Stewart, J., concurring)) (emphasis added; brackets in original). [3]
The concurrence's analysis offends those principles by declaring that custody of mother's children should be granted to the paternal grandparents in the absence of evidence of parental unfitness or similarly grave circumstances, the kind of evidence that the federal constitution requires. That is not to say that ORS 109.119, the statute under which the concurrence analyzes this case, is unconstitutional; rather, any lawful application of the statute necessarily incorporates due process. Although the concurrence gives lip service to mother's constitutional right to raise her own children, 188 Or.App. at 701-02 , 72 P.3d at 1030-1031 (Deits, C. J., concurring), the concurrence never engages with the understanding of what that constitutional requirement means in the context of the facts of this case and the legal standard it imposes. First, the concurrence's conclusions that mother cannot satisfy her children's needs because of her emotional limitations and that therefore they will face an undue risk of physical or psychological harm in the future is based on attenuated evidence, as will be demonstrated later in this opinion. Equally important, the's analysis is legally incorrect because it is unable to identify *1041 through its analysis a legally cognizable, compelling state interest that permits the statutory deprivation of custody from mother, nor does it make the "delicate" accommodation that the constitution requires between a parent's liberty interest and the interests of the state. Prince, 321 U.S. at 165 , 64 S.Ct. 438 .
II. WHAT KIND OF STATE INTEREST MUST EXIST BEFORE A PARENT CAN BE CONSTITUTIONALLY DEPRIVED OF CUSTODY?
Parents have a fundamental liberty interest in directing the upbringing of their children:
"The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."
Pierce v. Society of Sisters, 268 U.S. 510, 535 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925). [4] On the other hand,
"[a]gainst these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children[.] * * * It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens."
Prince, 321 U.S. at 165 , 64 S.Ct. 438 . The accommodation of both interests in accordance with the constitution requires standards to define when the state is authorized to interfere with a parent's right to child custody. No matter how those standards are articulated, the fundamental nature of a parent's right to raise his or her children must be meaningfully reflected in their formulation.
Once a constitutional right has been so determined to be deeply rooted in our nation's history and tradition as to be classified as "fundamental," the government may not interfere with that right " at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302 , 113 S.Ct. 1439 , 123 L.Ed.2d 1 (1993) (emphasis in original). [5] Thus, the substantive component of the Due Process Clause provides heightened protection against government interference with rights that have been determined to be fundamental. Washington v. Glucksberg, 521 U.S. 702, 719-20 , 117 S.Ct. 2258 , 138 L.Ed.2d 772 (1997). The right of a parent to direct the upbringing of his or her children is such a fundamental right. As the lead opinion in Troxel v. Granville, 530 U.S. 57, 65 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000), said, "the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court."
In Troxel , the Washington Supreme Court had invalidated on constitutional grounds a state statute that authorized grandparent visitation with a child over the parent's objection when a court found visitation to be in the *1042 "best interests of the child." The grandparents did not allege, and no court found, that the parent was unfit. Troxel, 530 U.S. at 68 , 120 S.Ct. 2054 (O'Connor, J., plurality opinion). The state court held the statute unconstitutional on two grounds: (1) the failure of the statute to require harm to the child and (2) the statute's authorization of "any person" at "any time" to petition for and to receive visitation rights based on the "best interests of the child" standard. Id. at 63 , 120 S.Ct. 2054 . The United States Supreme Court granted certiorari.
Justice O'Connor, writing for four members of the Court, explained that the Washington trial court's "order was not founded on any special factors that might justify the State's interference with Granville's [the parent's] fundamental right to make decisions concerning the rearing of her two daughters." Id. at 68 , 120 S.Ct. 2054 . She observed:
"[T]here is a presumption that fit parents act in the best interests of their children. * * * Accordingly, so long as a parent adequately cares for his or her children ( i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."
Id. at 68-69 , 120 S.Ct. 2054 (citations omitted). Justice O'Connor concluded that the Washington statute, as applied, was an unconstitutional infringement on the parent's fundamental right to make decisions concerning the care, custody and control of her children:
"Because we rest our decision on the sweeping breadth of [the Washington statute] and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court—whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with JUSTICE KENNEDY that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best `elaborated with care.'"
Id. at 73 , 120 S.Ct. 2054 .
Justice Souter concurred in the judgment. He would have affirmed the Washington Supreme Court on the basis that the statute was unconstitutional on its face. He explained, in part:
"We have long recognized that a parent's interest in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment. * * * As we first acknowledged in Meyer , the right of parents to `bring up children,' and `to control the education of their own' is protected by the Constitution.
"* * * As the [Washington] court understood it, the specific best-interests provision in the statute would allow a court to award visitation whenever it thought it could make a better decision than a child's parent had done. * * *
"Our cases, it is true, have not set out exact metes and bounds to the protected interest of a parent in the relationship with his child, but Meyer's repeatedly recognized right of upbringing would be a sham if it failed to encompass the right to be free of judicially compelled visitation by `any party' at `any time' a judge believed he `could make a "better" decision' than the objecting parent had done. * * * Pierce , * * * [268 US] at 535, [ 45 S.Ct. 571 ] (`* * * The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.'). It would be anomalous, then, to subject a parent to any individual judge's choice * * * merely because the judge might think himself more enlightened than the child's parent."
Id. at 77-79, 120 S.Ct. 2054 (Souter, J., concurring in the judgment) (footnotes and some citations omitted).
*1043 Justice Thomas also concurred in the judgment. In part, he wrote:
"I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.
"Consequently, I agree with the plurality that this Court's recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Our decision in Pierce * * *, holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, JUSTICE KENNEDY, AND JUSTICE SOUTER recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest—to say nothing of a compelling one[.]"
Id. at 80, 120 S.Ct. 2054 (Thomas, J., concurring in the judgment) (footnote omitted).
Apparently, the concurrence and I hold significantly different views of the import of the Troxel opinions on this case. The concurrence explains its view:
"[I]n our recent custody cases, we `salvag[ed] the constitutionality' of ORS 109.119 (1997) by incorporating the requirements of Troxel into the statute's interpretation. Wilson [and Wilson], 184 Or.App. [212, 218, 55 P.3d 1106 (2002)]. In doing so, we expressly rejected the legal standard asserted by Justice Thomas in Troxel . * * * [We] indicated that `the plurality opinion * * * gives the best guidance on the effect of the constitution in this situation Harrington [v. Daum ], 172 Or. App. [188, 197, 18 P.3d 456 (2001) ]."
188 Or.App. at 709-10 , 72 P.3d at 1034-1035 (Deits, C. J., concurring) (emphasis in original).
The concurrence's argument proves too much, both in terms of what Wilson and Harrington held and in the manner in which it characterizes Justice Thomas's opinion. I agree that, in Wilson and in Harrington we incorporated the rule of Troxel into the statute to preserve its constitutionality. However, the concurrence's assertion that "we expressly rejected the legal standard asserted by Justice Thomas in Troxel " misunderstands what we said in Harrington . The discussion that follows explains in more detail what underlies our statements with respect to the Troxel opinions in Harrington .
The plurality opinion, Justice Souter, and Justice Thomas all agreed in Troxel that the right of a parent to raise his or her children is a fundamental right. That agreement among the opinions is based on the line of cases that I have previously described. [6] The Fourteenth Amendment includes a substantive component that forbids the government from infringing on certain "fundamental" liberty interests " at all * * * unless the infringement is narrowly tailored to serve a compelling state interest." Flores, 507 U.S. at 302 , 113 S.Ct. 1439 (emphasis in original); see also California Democratic Party v. Jones, 530 U.S. 567 , 573 n. 5, 582, 120 S.Ct. 2402 , 147 L.Ed.2d 502 (2000); Plyler v. Doe, 457 U.S. 202, 216-17 , 102 S.Ct. 2382 , 72 L.Ed.2d 786 (1982); Zablocki v. Redhail, 434 U.S. 374, 386-88 , 98 S.Ct. 673 , 54 L.Ed.2d 618 (1978); Carey v. Population Services, International, 431 U.S. 678, 684-86 , 97 S.Ct. 2010 , 52 L.Ed.2d 675 (1977). Our understanding of the constitutional right of a parent to have custody of his or her children and its attendant consequences is the underpinning of our decision in Harrington and our cases that have followed it.
*1044 It is correct that the plurality opinion in Troxel did not articulate a standard of review regarding infringements of the fundamental right to parent. Justice Thomas observed in his concurrence that, while the opinions of the plurality, Justice Kennedy, and Justice Souter recognized the fundamental nature of the constitutional right of parents to rear children, "curiously none of them articulates the appropriate standard of review." Troxel, 530 U.S. at 80 , 120 S.Ct. 2054 (Thomas, J., concurring in the judgment). Justice Thomas followed that statement by saying that he would apply a "strict scrutiny" standard of review. Id. Whether that statement is an assertion that the plurality is unwilling to articulate the applicable standard of review, and he is, or that he and the plurality hold different views as to the standard of review is debatable (see discussion below). It was not necessary in Harrington to address that issue, and the concurrence reads too much into our language in that case. Our statement in Harrington , which the concurrence now characterizes as an express rejection of Justice Thomas's view, merely communicated our view of a continuum on which the plurality and the two concurring opinions could be said to rest with regard to varying factual circumstances that might be presented to a court. However, there can be no reasonable debate that mother in this case holds a fundamental constitutional interest to have custody of her children and that that interest is subject to heightened protection.
Moreover, the concurrence's assertion that we have expressly rejected Justice Thomas's "strict scrutiny" standard of review is confusing in the context of the issue in this case. In Troxel , the Washington Supreme Court invalidated the Washington statute based on the text of the statute alone. A "strict scrutiny" standard of review applied to a state statute means that the statute is not entitled to the usual presumption of validity; the state rather than the complainants carries a heavy burden of tailoring its regulation narrowly to serve legitimate objectives and it must demonstrate that it has selected the least drastic means for effectuating its objectives. San Antonio School District v. Rodriguez, 411 U.S. 1, 16-17 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973). I do not contend that ORS 109.119 is facially unconstitutional. As stated previously, the problem with the concurrence's view is that it does not afford due process to mother in its application of the statute. Consequently, in my view, there is no need to resolve whether or not we view ORS 109.119 with "strict scrutiny."
Regardless, for purposes of this case, the distinction that the concurrence draws is a distinction without a difference. [7] The plurality and the concurrences in Troxel are unanimous that a parent's right to parent his or her children is entitled to heightened protection because of the fundamental nature of that right. In this opinion, I assert no other principle of law than that agreed on by the concurrences and the plurality in Troxel , contrary to the efforts to characterize my analysis differently. [8] Because the Due Process *1045 Clause requires heightened protection for mother's right to have custody of her children and to direct the upbringing of her children and because that right cannot constitutionally be infringed upon by the state in the absence of a compelling state interest, the issue that must be resolved in this case is whether the circumstances present here permit the state to exercise its parens patriae power to protect the welfare of the children and to override mother's fundamental right to raise her children. It is clear from the United States Supreme Court's jurisprudence that a "best interests of the children" standard is not sufficient to justify government infringement of a parent's right to direct the upbringing of his or her children. See Troxel, 530 U.S. at 69-70 , 120 S.Ct. 2054 (O'Connor, J., plurality opinion). Rather, in a case where a child is receiving minimally adequate care in a parent's custody, the parent is entitled, under the constitution, to retain custody. As the Court has uniformly held,
"`the best interests of the child' is not the legal standard that governs parents' * * * exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the of the parents * * * themselves."
Flores, 507 U.S. at 304 , 113 S.Ct. 1439 (emphasis added).
The Troxel plurality avoided defining the precise scope of the parental due process right described above because it rested its holding on the breadth of the Washington statute. We cannot avoid that question here because our de novo standard of review requires us to consider the state of the evidentiary record. Consequently, it is helpful to think about other constitutional exercises of the state's parens patriae authority in our endeavor to give definition to the scope of mother's fundamental right. In my view, the constitutional standard of minimal parental adequacy also finds implicit expression in the requirements of Oregon statutes that permit the state to take permanent custody of a parent's child when the child's welfare is at stake. See, e.g., ORS 419B.365(4) (providing for permanent guardianship on the same grounds as required for the termination of parental rights); ORS 419B.502 (providing for termination of parental rights because of rape, sodomy, or sex abuse, intentional starvation or torture of the child by the parent, or abuse or neglect resulting in death or serious physical injury); ORS 419B.504(providing for termination of parental rights because parents are unfit due to emotional illness, mental illness, mental deficiency, abusive, cruel, or sexual conduct toward any child, or addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired and integration of the child into the home of the parent is improbable within a reasonable time due to conduct or conditions that are not likely to change);ORS 419B.506 (providing for termination of parental rights for the failure to provide for the basic physical and psychological needs of the child for six months prior to the filing of the petition);ORS 419B.508 (providing for termination of parental rights in the event of abandonment of the child by the parent). None of the above kinds of circumstances exists in this case. [9]
*1046 I believe that due process requires that, before the state is constitutionally permitted to invade the private realm of family life, circumstances like those outlined in the above statutes or other similarly compelling circumstances must be present. We have previously held that the standard in parent-nonparent custody disputes is whether the parent is unfit or whether the parent's custody presents "an undue risk of physical or psychological harm in the parent's custody." O'Donnell-Lamont and Lamont, 184 Or. App. 249, 256 , 56 P.3d 929 (2002), modified on recons, 187 Or.App. 14 , 67 P.3d 939 (2003)(emphasis added); See also Strome and Strome, 185 Or.App. 525, 533 , 60 P.3d 1158 (2003); Wilson, 184 Or.App. at 220-21 , 55 P.3d 1106 ; Newton v. Thomas, 177 Or. App. 670, 674 , 33 P.3d 1056 (2001), overruled in part on other grounds by O'Donnell-Lamont and Lamont, 187 Or.App. 14 , 67 P.3d 939 (2003). In those cases, we understood that the rule of law governing those cases implicitly embodied the requirements of the Due Process Clause; the unfitness to parent or an undue risk of physical or psychological harm are the kinds of circumstances that evidence a compelling state interest that permits a state court to constitutionally deprive a parent of child custody in favor of a third party. [10]
Just as the concurrence and I hold significantly different views about the meaning of Troxel , it appears we also disagree about what constitutes a compelling state interest for purposes of ORS 109.119 and whether there is such an interest in this case. This difference is more than a disagreement about whether the evidence suffices to meet a standard about which we both agree. Rather, it is a difference in opinion about what due process requires in the context of these facts. Discerning and then applying the proper legal *1047 standard is the necessary predicate to any analysis of the evidence. It is that difference that ultimately leads to our disagreement about the import of the facts in this case. The importance of that difference cannot be over-emphasized because of its due process implications.
The concurrence acknowledges the necessity of a constitutional underpinning to the state standards that it uses, and it relies on the Oregon Supreme Court's decisions in Hruby and Hruby, 304 Or. 500 , 748 P.2d 57 (1987), and State ex rel. Juv. Dept. v. Lauffenberger, 308 Or. 159 , 777 P.2d 954 (1989), and the applicable statutes. So far so good. The problem arises, however, because the concurrence applies those standards in a way that disregards the admonition in Flores that the government is forbidden from infringing on a mother's fundamental liberty interest " at all * * * unless the infringement is narrowly tailored to serve a compelling state interest." 507 U.S. at 302 , 113 S.Ct. 1439 (emphasis in original). Just as the Washington statute, as applied, unconstitutionally infringed on Granville's fundamental parental right in Troxel , so too would the concurrence's application of the above standards in this case infringe on mother's constitutional right to parent her children because the concurrence fails to require that the standards, as used, comply with minimum federal constitutional standards. The result of that failure is as Justice Souter suggested in Troxel . The concurrence's employment of a less exacting standard than that required by the constitution permits grandparents, through the authority of the state, to obtain custody of mother's children because the concurrence believes that the grandparents will make better decisions regarding the children's welfare. That may be an "enlightened" approach by the concurrence, but it is not a constitutionally sound one.
Illustrative of the concurrence's flaw in its analysis are its claims that I "undertake[ ] a `new' examination to determine the legal standard for determining when a nonparent may be awarded custody consistently with the parent's constitutional right[,]" 188 Or. App. at 707 , 72 P.3d at 1033 (Deits, C.J., concurring), and that, "[i]n Harrington , we expressly rejected the strict scrutiny standard asserted by Justice Thomas in Troxel," 188 Or.App. at 709 , 72 P.3d at 1034 (Deits, C.J., concurring). The concurrence also asserts:
"Judge Edm

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2588571. Public record. Not legal advice.