State Ex Rel. State Office for Services to Children & Families v. Frazier

EDMONDS, J.,

dissenting.

The majority holds that the state has met its burden of proving by clear and convincing evidence that mother and father’s parental rights ought to be terminated. At stake in this case is the application of a fundamental principle about the quantum of proof necessary to terminate parental rights. Because that principle transcends any termination case and because I believe that the evidence is lacking in this case to meet that standard, I dissent.

I begin with the axiom that the state must prove the allegations that it made in its petition, see State ex rel Juv. Dept. v. Jones, 290 Or 799, 810 , 626 P2d 882 (1981), and that it must prove at least one of those allegations by clear and convincing evidence in order to prevail. ORS 419B.521. The state alleges that mother’s parental rights ought to be terminated “by reason of conduct or condition seriously detrimental to the child and integration of the child into the home of the parent or parents is improbable in the foreseeable future due to conduct or conditions not likely to change.” ORS 419B.504. The state further alleges the following grounds for termination under ORS 419B.504:

“(a) Addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired.

“(b) An emotional illness, mental illness, or mental deficiency of such nature and duration as to render the mother incapable of providing care for extended periods of time.

“(c) Physical and emotional neglect of the child.

*604 “(d) Lack of effort to adjust the mother’s circumstances, conduct or conditions to make return of the child possible, or failure to effect a lasting adjustment after reasonable efforts by social agencies for such extended periods of time that it appears reasonable that no lasting adjustment can be effected.”

The state makes similar allegations against father.

The trial court concluded that the state did not meet its burden of proof with respect to the allegations against mother of impairment of parental ability because of substance abuse and physical and emotional neglect of Rose, but did prove its allegations regarding mental deficiencies and lack of effort by her to adjust her circumstances. The majority, on de novo review, goes beyond the trial court’s conclusions and holds that the state also proved that mother is unfit because of physical and emotional neglect. 1 Regarding the allegation of neglect, the majority concludes:

“When the entire circumstances are considered here, there is no question that mother’s unfitness has been established by clear and convincing evidence. The record shows that, despite an outpouring of services and attempts to help her learn to parent, mother did not bond with Rose, did little to provide her with the emotional support that she needed, fed her in ways that caused the child to be sick and which could have resulted in malnutrition, did not keep the child or the child’s environment clean and despite urgings from the service providers to correct some safety problems, she refused to make an effort to keep the house in a condition that was safe for an infant or a toddler.” 152 Or App at 598 (footnote omitted).

In arriving at its conclusion, the majority overlooks a great deal of objective evidence, (often provided by the state’s own witnesses), that, when considered in combination with the evidence recounted in the majority opinion, serves to support the trial court’s conclusion that the state failed to meet its burden of proof.

Before Rose was born, mother obtained prenatal care. The County Health Department identified mother as an *605 “at-risk” parent based on several factors, including her youth, the fact that she was a first-time mother and her apparent lack of a viable family support system. When Rose was born in April 1994, she was a healthy baby. After Rose was born, the staff at the hospital also expressed concerns about mother’s behavior toward Rose. They referred mother to “Healthy Beginnings,” a voluntary program designed to help at-risk first-time mothers. Mother voluntarily participated in the program, which included frequent home visits by parenting counselors to provide instruction, regular assessments of the child’s development and group support meetings for the parents. As a result, mother’s care of Rose was regularly observed during the nine months that Rose was in her parents’ custody.

Additionally, Rose was being seen by Dr. Holo, a pediatrician, during this time. She testified that mother brought Rose to her office for treatment for nine different visits. She noted concerns about Rose’s cleanliness on two occasions but testified that she saw no signs of significant medical problems beyond an ear infection and diaper rash and that there was never any evidence of physical or sexual abuse. Contrary to the majority’s speculation regarding mother’s feeding practices, there is absolutely no evidence in the record to indicate that Rose suffered from malnutrition. In fact, Holo testified that, over the course of her treatment of Rose while she was in mother’s care, “[Rose] did appear to be generally in overall good health.”

Regarding evidence that mother had not bonded with Rose, the majority opinion neglects to note that Holo’s partner, Dr. Geisler, who treated Rose for an ear infection, was of the opinion that mother had bonded with Rose. She also made the following note in Rose’s chart: “I spoke to Mom at great lengths. She is very loving and caring. Brought [Rose] in for concerns about the ear but had a poor understanding of child rearing.” Furthermore, mother’s aunt observed mother and Rose together before Rose was removed by the state. She testified:

“A They got along fine. [Mother] would bring her over before CSD had her to visit with me. She always made sure that she was clean. Whenever her diaper was wet, she *606 changed her. When she fussed, she seen if she was hungry, took care of that. She would hold her. She played with her. She had toys that she played with her.

“Q Did she love the child?

“A Yes, very much.

“Q Did the child love her?

“A Yes.”

The majority relates that the program coordinator for the South Lane Family Nursery visited the home in January 1995 and “said that Rose’s movements indicated that she had not had much opportunity to develop her large motor muscles.” 152 Or App at 595. It fails to point out, however, that Rose’s development was being regularly evaluated by the Healthy Beginnings program. In September 1994 (when Rose was 21 weeks old), Rose’s chart from the program’s counselors states that her motor skills were normal. Furthermore, at the age of 21 weeks, its assessment reflects that Rose had the social skills of a 28-week old child and the language skills of a 30-week old child. The only area where Rose tested “questionable” was in “adaptive ability,” where her score was between low normal and high questionable. The Healthy Beginnings worker who performed the assessment testified:

“At this point I don’t refer the child to see the RC.[ 2 ] I don’t call the doctor. I don’t go through any big hoops except to say, ‘Hmm. It looks like 85, 86 [borderline normal/questionable].’ There’s no, honest to God, difference between those two [scores] except that we need to start paying more attention to the child.

“So let me give you some tricks to do with your kid. I want you to put a mobile above her bed. I want you to change her crib to the other side of her room. I want you to take her outside. I want you to dangle a toy and do this. 85, 86 doesn’t matter. My role, when I get a score that’s at that level, as I say, is ‘Hmm. It’s time to intervene. Do these things. I’ll come back next time and test again.’ And that’s *607 what happened at the 35 weeks’ time, and it went up. She came back to normal” (Emphasis supplied.)

A 35-week assessment was performed in December 1994 by the worker before Rose was removed from the home on January 24, 1995. Contrary to the majority’s assertion that “all of her skills were deteriorating,” 152 Or App at 595, Rose’s adaptive score actually improved to the normal range. Furthermore, the worker’s testimony admits to the inference that the improvement could be attributed to the parents following her advice after the 21-week assessment. As the majority correctly notes, all of the other areas that were assessed, while lower than the September assessment, remained in the normal range with the exception of Rose’s gross motor skills, which had dropped into the questionable range. The service provider attributed the low gross motor skills score to the parents leaving Rose in her crib and walker too much of the time, which restricted her movements. On balance, the developmental assessment evidence serves to verify what the public health department and hospital staff suspected from the outset: mother was in need of services. It does not, however, prove that termination of mother’s parental rights was necessary due to neglect. 3 For the majority to hold that mother’s parental rights ought to be terminated because of neglect on this record is unprecedented in our case law, and its holding evidences a complete disregard of the need for evidence that is clear and convincing or highly probable to support that action.

The same deficit pervades the majority’s analysis regarding the home environment. As the majority opinion concedes, the evidence regarding the cleanliness of the parents’ home is conflicting. There are reports of concern about excessive amounts of dog hair present in the home. However, *608 as late as October 1994, the State Office of Service to Children and Families (SOSCF) “Family Resource Worker Plan,” under the category of “Strengths and Supports,” indicated that the parents’ house was “neat and clean.” Rose was removed from the family home three months later. Despite SOSCF’s findings, the majority concludes that mother was an unfit parent because she “did not keep * * * the child’s environment clean.” 152 Or App at 598. Apparently, in the view of the majority, evidence of excessive amounts of dog hair in the home is enough to carry the state’s burden to prove its allegations by clear and convincing evidence. In sum, the evidence simply does not support the majority’s conclusions. Again, the state has failed to prove that mother was unfit in this regard by the requisite standard.

Finally, the majority opinion relates concerns about the safety of the home environment as proof that mother was an unfit parent due to neglect. Although it is correct that father told the service providers that he had wired the couch with electricity to keep the dog off of it, he also told them that he disconnected the power when Rose was up and about. Even though father’s action was unwise, there is no evidence that Rose experienced any harm from it. When the service providers expressed concern about Rose being able to push her walker against the gas stove, father built a PVC pipe barricade to prevent that occurrence from happening. Again, there is no evidence that Rose was ever harmed by the gas stove. There was a report about loaded guns being left around Rose. SOSCF investigated the report and concluded that it was “ ‘unfounded’ for threat of harm.” Mother voluntarily acknowledged that Rose had been burned on one occasion when ash from father’s cigarettes accidentally fell on her arm. Mother also reported that there were two similar accidents in the past, but those incidents were not investigated. Despite those reports, none of the professionals monitoring the home environment acted to remove Rose from the parents’ home at the time. Their inaction is a significant comment on how they viewed the seriousness of the conditions of the home at the time of their observations. Their inaction also gives rise to the inference that their testimony at trial constituted a belated effort to support the state’s allegations, an effort that proved unsatisfactory in the eyes of the trial *609 court. In all, the majority’s conclusion that the state carried its burden of proof in regard to neglect is belied by the observations of Rose’s physicians and the actions of those who were regularly monitoring the home environment.

In State ex rel Juv. Dept. v. Pennington, 104 Or App 194 , 799 P2d 694 (1990), we held that even though another environment might maximize the potential of the children in that case, the parental rights of the mother could only be terminated when the state showed by clear and convincing evidence that the mother could not perform her role with minimal adequacy. Accordingly, we reversed the trial court’s decision to terminate the parent’s rights. That case also involved a parent who undertook diligent efforts to improve her parenting skills and did not have the opportunity to demonstrate her ability or inability in the foreseeable future. In contrast, the majority accuses me of “focus[ing] on particular pieces of evidence and concludes that that particular evidence does not provide clear and convincing proof that mother was unfit.” 152 Or App at 597. To the extent that I have given weight to credible mitigating evidence that was before the trial court and evidence that did not find its way into the majority opinion, I stand guilty as charged. After all, de novo review requires a focus on particular evidence in light of all the circumstances as part of a dispassionate, balanced approach in adjudicating whether the allegations of the petition have been proven by clear and convincing evidence.

The majority cites State ex rel Juv. Dept. v. Miglioretto, 88 Or App 126 , 744 P2d 298 (1971), and then uses its holding as a springboard regarding its analysis about the care of Faith. As a result, it incorrectly concludes that under ORS 419B.504(d), evidence that mother neglected Rose is sufficient to terminate mother’s parental rights in Faith on the ground of neglect in the absence of clear and convincing evidence of neglect of Faith. First, the majority’s factual predicates are not supported by the record. The evidence from Rose’s care providers during the time that mother had custody is that while there were some deficiencies in mother’s care that were capable of correction, Rose was a healthy baby at the time that SOSCF took custody. Second, the majority paints a much bleaker picture of mother’s care of Faith than the record supports. It is correct that mother was concerned *610 that Faith could be seized by SOSCF when she was born on May 3, 1996. The petition to terminate parental rights in Faith was filed on June 28,1996, and the warrant for her custody was issued on May 29,1996. At the time of Faith’s birth, mother was under no legal obligation to surrender Faith to SOSCF. When SOSCF found Faith, she was being held in the arms of an individual who mother had accused of abuse of mother as a teenager. Mother was in the same building at the time talking to the police. There is no evidence that Faith had been entrusted to the “care” of mother’s abuser or that her abuser presented a risk of sexual abuse to an infant. Also, there is no evidence that mother had neglected Faith during the time that Faith was in her care and custody.

Finally, in this regard, the majority commits legal error when it holds that evidence that mother neglected Rose is sufficient evidence to terminate mother’s parental rights to Faith. In Miglioretto , we held that where former ORS 419.523(2)(b) 4 provided that parental rights in a child could be terminated if the state proved that the parent had engaged in “[c]onduct toward any child of an abusive, cruel or sexual nature,” (emphasis supplied) that evidence of such conduct need not have been directed at the child who was the subject of the termination proceeding. We reasoned that the statute did not require the return of the child to a parental home where sexual abuse of several young girls had occurred in the past without evidence that the abuser in the home would change in the future would put the child at risk. We said, “Although a parent’s emotional or mental incapacity or physical neglect must be directly related to the child before the court, that is not a requirement for termination based on sexual or physical abuse.” Id. at 129 (emphasis supplied). The majority makes an -unwarranted extension of our reasoning in Miglioretto in this case that is inconsistent with the legislature’s intent in enacting the statute and with what we said in that case about what the state must prove under ORS 419.504(4). The state did not allege and there is no evidence that Rose or Faith was ever abused physically or sexually by either parent. Under the majority’s reasoning, SOSCF will be able to take custody of children and terminate parental *611 rights to them on the basis of the previous neglect of a child, even though the parents are presently providing proper care to the child before the court.

To recapitulate the evidence regarding alleged neglect: Rose’s pediatrician testified that Rose was in good health; Rose’s developmental scores were about normal and were not cause for alarm to the worker who conducted the assessment; one of Rose’s treating physician’s and mother’s aunt believed that mother had “bonded” with Rose; SOSCF evaluated the home as “neat and clean”; some of the environmental safety concerns were adequately addressed by the parents and the report about a loaded gun was determined by SOSCF to be unfounded. In every particular, the state has failed to prove its allegations of neglect by clear and convincing evidence. The majority is wrong to depart from the trial court’s conclusion that the state failed to prove that mother was unfit due to physical and emotional neglect of Rose.

That leaves the allegations of emotional or mental illness or mental deficiency and the lack of effort to make the return of the children possible as potential grounds for termination. 5 The key to understanding the import of the evidence regarding these allegations begins with the uncontroverted fact that the removal of Rose from the home was triggered by mother’s report of father’s acts of violent behavior *612 against mother. SOSCF first became involved with the family in July 1994, when father threatened mother with a gun. When the state removed Rose from the home in January 1995, it was again as a result of a series of phone calls from mother to social workers reporting that father had “started threatening to kill [her].” But for these incidents, the state would never have petitioned to terminate the parental rights of the parties. 6 As a result, the proper inquiry is what connection, if any, the parents’ mental conditions had to those incidents and whether the state has proven that those conditions are unlikely to change in the foreseeable future.

As importantly, the evidence in regard to the remaining allegations must be considered in light of the following time line:

(1) April 1994: Rose is born;

(2) January 1995: Rose is removed from the parents’ custody;

*613 (3) March 1995: The Juvenile Court assumes jurisdiction over Rose;

(4) April 1995: SOSCF enters into a service agreement with mother and encourages father to engage in intensive and long-term therapy;

(5) June 2,1995: SOSCF decides to file a petition to terminate the parents’ parental rights to Rose;

(6) November 17,1995: SOSCF files a petition to terminate parental rights as to Rose;

(7) May 3,1996: Faith is bom, and SOSCF immediately takes custody of her;

(8) June 28, 1996: SOSCF files a petition to terminate the parents’ parental rights to Faith;

(9) September 1996: Trial is held on the petitions.

In April 1995, both parents participated in a comprehensive psychological evaluation conducted by Dr. James Ewell, a psychologist. The SOSCF worker who referred the parents to Ewell requested that the assessment address the following specific concerns:

“1. What are the barriers to either of these parents becoming viable parental resources?

“2. Can services be provided to meet the individual needs of these parents?

“3. Can these services be expected to produce the results of either parent becoming a safe parental resource in the time frame necessary for the almost-one-year-old child?”

During her interview with Ewell, mother reported that her father had left her mother when she was only three months old. When she was about five years old, her mother remarried and then divorced again when she was 12. After that, her mother began having a series of relationships with different men. Mother reported that one of those men sexually abused her from the time she was 14 years old until she was 18. Mother reported other instances of sexual abuse by an uncle and by one of her friend’s boyfriends. Mother has never received any counseling regarding abuse, other than *614 talking to a school counselor. She admits to having a bad temper while in high school and that she would occasionally punch lockers or walls after becoming angry with other students. On at least one occasion, she was involved in a fist fight with another girl, and she was twice suspended from high school, once for fighting.

When mother was 13 or 14 years old, she became acquainted with father and would go to his residence to ride horses. After she turned 18, she moved into father’s house, and she became pregnant. Mother described her relationship with father as being mutually emotional and physically volatile. She reported that a great deal of yelling and arguing occurred between them and that, on four different occasions, father had held a gun to her head and threatened to kill her. She told Ewell that on one occasion, she knocked out two of father’s front teeth. She also reported numerous instances of them throwing things at each other.

At the time that Ewell interviewed mother, she was separated from father and reported that she did not intend to enter into any other intimate relationships within the near future. Based on his interview with mother, Ewell summarized in his written report:

“[Mother] seemed very limited in her level of interpersonal understanding and perception. There was evidence of poor judgment and decision making. Throughout this evaluation interview, [mother] did not accept any responsibility for personal problems or wrongdoing. Her lack of understanding and insight went beyond that which could be explained by limited intellectual ability. Her extremely dysfunctional childhood and early life experiences have most likely combined to create a personality disorder, as well as cognitive impairment.”

Ewell also conducted a battery of psychological tests. Mother’s full scale intelligence quotient score of 79 placed her at approximately the eighth percentile, which is within the borderline range of intellectual deficiency, and just below the low average classification. Ewell explained in his report:

“Individuals of [mother’s] cognitive ability level often have difficulty with abstract forms of reasoning. They may also experience difficulty with social judgment and problem *615 solving. It would be expected that [mother] might be somewhat impaired in her ability to understand the needs of her child. This would be particularly true when considering the more emotional, less tangible needs.”

Ewell concluded:

“[Mother’s] cognitive deficiencies, her personality disorder and history of long-term sexual abuse within a highly dysfunctional family, all render her incapable of parenting at this time. Her level of social judgment, problem-solving and sensitivity are grossly impaired. Reasoning is highly concrete and nearly void of empathy. At the time of this assessment, [mother] did not seem to realize that any of these problems were in existence.

“[Mother] is in need of long-term, individualized psychotherapy. Intervention will need to be tailored to her own level of cognitive ability. I doubt that she would be able to benefit from group forms of intervention. The learning which took place within her childhood and the role models she had of how a family should function, were inadequate. In addition to insight oriented psychotherapy, [mother] will need to be taught basic skills of self-management and interpersonal communication.

“[Mother] will also require parenting classes and homemaker skill building. This case will necessitate long-term monitoring and supervision. The prognosis for change is poor. There is a high risk of [mother] entering intimate relationships with abusive, or otherwise domineering, men.

“In answer to [SOSCF’s] specific questions, the barriers [mother] faces in becoming an appropriate parental resource include borderline intellectual ability, a personality disorder and the psycho/social confusion caused by years of living within a dysfunctional, sexualized family environment. As a result, she does not currently comprehend the devastating nature of these conditions and her own need to seek treatment. Under the most optimistic scenario, [mother] will probably require a year to two years of intensive intervention, followed by long-term monitoring and supervision. Without successfully completing this level of treatment, her condition is not likely to spontaneously improve.”

At the trial held 18 months after his evaluation, Ewell testified that none of mother’s diagnosed conditions— *616 personality disorder, past sexual abuse, or low IQ — would by themselves lead to a conclusion that mother was incapable of raising children. Significantly, Ewell never reevaluated mother or father after April 1995 and after they were involved in various personal or parenting enhancement programs. His testimony at trial was based on evaluations that occurred before mother completed her efforts to improve her parenting abilities.

Mother offered evidence that after Rose had been removed from her custody in January 1995, she, on her own initiative, enrolled in a parenting class that was specifically designed to address the needs of parents with cognitive disabilities. The class lasted for approximately 30 weeks and was structured in three terms around a traditional academic schedule. It began in October 1995 and concluded in June 1996. Mother’s evidence indicates that she attended regularly and participated fully and diligently until she gave birth to Faith in May 1996. At trial, Ewing testified that he found it significant that, on her own and without the compulsion of a court order, mother had voluntarily gone to parenting classes and completed them. Her SOSCF caseworkers testified, however, that even though she was attending the class, her parenting skills that they observed during supervised visits with Rose did not visibly improve. Of course, that testimony must be tempered by the facts that SOSCF had already decided to terminate mother’s rights in June 1995 and that mother has never had custody of Rose and Faith since January 1995.

Shortly after Rose was removed, SOSCF entered into a service agreement with mother that required mother to obtain a substance abuse evaluation, a psychological evaluation, to keep appointments with SOSCF workers and to maintain a regular visitation schedule with Rose. Mother complied with all of these requirements. Nevertheless, SOSCF decided to petition to terminate her parental rights before she completed the requirements. Even more indicative of SOSCF’s approach is the fact that SOSCF did not seek to help mother deal with domestic abuse after Rose was removed; the very problem that had prompted Rose’s removal from mother’s custody. At trial, mother’s SOSCF caseworker testified:

*617 “Q. Well, realistically, you have control of her child. In fact, your agency has continued to have control of her child since January of 1995. So why couldn’t you say to her, ‘[Mother], we have a concern about domestic violence. We have groups that can help you. If you want the child back, go to those groups’? I mean, you clearly had the power to do that, didn’t you?

“A. Yeah, I could have done that, and my response would have been that — you know, as far as the initial service agreement, it seemed to me like the things in the initial service agreement were the first steps. Domestic violence would be something that we’d look at further down the road, when we had a psychological evaluation that — you know, it — I was looking for the big picture at first of wanting to know what I was dealing with this person and, you know, what would she need in the big picture rather than simply plugging her into a specific service.

“Q. * * * did anybody at your agency ever offer [mother]—

“A. I really don’t know.”

Finally, there is no evidence in the record that SOSCF ever made it clear to mother after Rose was removed, that the return of Rose and Faith was dependent on her demonstrating her ability to deal constructively with the potential of domestic abuse (the major problem in the home).

The defect in the majority opinion regarding neglect runs as a common thread in its treatment of the remaining issues. It declines to focus on what occurred between January 1995 when Rose was removed and the date of trial. In June 1995, SOSCF was aware of all the above circumstances. Yet, the agency’s response to mother’s efforts to get Rose back was its decision on June 2,1995, to petition to terminate mother’s parental rights. The mandate of the statute is clear: the ability of the parent to change in the foreseeable future must be “improbable” and that fact must be demonstrated by evidence that is clear and convincing. When the reason for the removal of Rose from the family home is properly considered along with what occurred within the relevant time period, it can hardly be said that the state has met its burden. As a matter of law, that’s not the “stuff’ of which clear and convincing evidence is made.

*618 I turn to the evidence as to father regarding the remaining allegations. Although father’s conduct could have put Rose in danger of harm, it was not directed at her. In fact, according to the home nurse who visited mother and father while they had custody of Rose, father interacted with Rose and had established a close bond with her before she was removed from the home. As will become apparent, the major thrust of the state’s evidence comes from a time period that preceded father’s participation in anger management and parenting classes. It is accurate that the conduct against father’s ex-wife before 1975, as testified to by his daughters, his treatment of mother, and the baseball bat incident after his strokes suggest that he will continue to be abusive in the future. However, that evidence is offset somewhat by the fact that there are no reports of abusive conduct between 1975 and 1993. Moreover, it is uncontroverted that father underwent medical treatment for a health condition that apparently was related to his problems with anger after Rose was removed. Significantly, no witness testified to incidents of violence committed by father after his surgery, even though the trial was not held until September 1996.

The medical evidence from father’s physicians regarding father’s condition is as follows: Father sought treatment in 1992 for symptoms that were later attributed to his having had a stroke. The stroke was caused by the restriction of one of father’s carotid arteries, which in turn decreased the amount of oxygen reaching portions of father’s brain. The restriction of the arteries predated the strokes by some unknown period of time and it is medically probable that he experienced “transient ischemic attacks” (TIA’s) before he had the stroke. The TIA’s would have caused stroke-like symptoms without causing permanent brain damage. The loss of oxygen due to the stroke, however, caused organic brain damage, which provides a neurological explanation for father’s stroke symptoms which included loss of cognitive ability, aphasia, 7 frustration, depression and worry. His treatment included vascular surgery to relieve the *619 restriction. It is unclear from the record exactly when the surgery took place except that it occurred after Ewell evaluated father in April 1995 and before Grosscup’s evaluation in August 1996.

The majority says that no witness testified that there was a correlation between father’s abusive conduct and his medical condition and concludes that “there is clear and convincing evidence in this record that indicates that father’s mental problems and behavior are not related to his strokes.” 152 Or App at 578-79. 8 Both assertions are erroneous.

The first assertion is contrary to the testimony of father’s physicians as well as the testimony of the state’s principle expert witness, psychologist Dr. Ewell. Ewell testified:

“[S]ome of those delusions, may in fact be neurologically caused. So I guess the best I can say is that I think the relationship is that possibly some of these delusions have a neurological base, but it is possible that they do not.” (Emphasis supplied.)

In addition to his acknowledgment that father’s delusions could have been caused by his neurological condition, Ewell testified that “individuals who have persecutory delusions or have paranoid kinds of thoughts do sometimes act on those thoughts, thinking other people are out to harm them, even their spouses, and react physically or in a violent way to them.” Ewell also confirmed that he had experience treating “individuals who’ve had neurological problems that have caused delusions, and in those cases I believe that medication has been at least somewhat helpful.” (Emphasis supplied.)

Father’s physician testified that in addition to the vascular surgery performed to improve the oxygen supply to father’s brain, his treatment included medication and that father’s symptoms of frustration, depression and worry had improved. Also, father’s physicians testified that they believe *620 that there is no physical reason why father could not parent his children. Besides Ewell’s and the physicians’ testimony, Zaeklin, a retired military noncommissioned medical officer who was familiar with the family, testified that after the medical treatment, father ceased being “delusional” and became “a lot more calm, * * * a lot more under control.”

Additionally, Dr. Grosscup, who examined father after Rose was removed and after father had undergone surgery, presented equivocal testimony about father’s present ability to parent. Grosscup testified that father has a schizophrenic disorder and a major depressive disorder, both related to his medical condition. She opined that his prognosis is “extremely poor” even if his difficulties are neurologically based. On the other hand, she also testified that she did not “see anything to suggest [that father] should have no contact” with his children. Ultimately, when asked, in substance, the “bottom line” question about whether his parental rights should be terminated, she replied, “I’m in the gray area.” Opinions in the “gray area” hardly equate to “clear and convincing” evidence. For these reasons, the testimony of Grosscup and Ewell cannot legally suffice to meet the state’s burden that it is highly probable that father is unable to parent now and in the future due to conduct or conditions not likely to change.

In summary, the evidence is uncontroverted that because of the TIA’s, father probably experienced stroke-like symptoms for years before Rose was bom. Sometime in 1992 or before, father experienced a stroke that caused organic brain damage, which could have caused or contributed to the delusional behavior observed by many of the state’s witnesses. After Rose was removed from his custody, father sought and obtained medical treatment, including vascular surgery and medication, and his symptoms improved. Significantly, Dr. Grosscup, the only psychologist to evaluate father after he obtained medical treatment, was not able to express an opinion in favor of permanently terminating his parental rights. Again, I am hard-pressed to understand how the state’s evidence rises to the level of the clear and convincing standard that the law requires under the above circumstances.

*621 There is another factor regarding father that weighs against the conclusion that the state has carried its statutory burden: the absence of efforts by SOSCF to offer services to him after Rose was taken into custody. Father was told by SOSCF to obtain a psychological evaluation, to get a drug and alcohol evaluation and to participate in visitation with Rose. Thereafter, father and mother continued to visit regularly with Rose. In April 1995, their caseworker received Ewell’s psychological evaluation, and she told father that she wanted him to undergo intensive psychotherapy as recommended in the evaluation. She also told him that he had a deadline to obtain the therapy. However, SOSCF did not offer in any way to facilitate the implementation of such a program for his benefit. Nonetheless, father agreed to commence therapy within 30 days. On June 23, 1995, the caseworker met with the parents and informed them that SOSCF was going to seek termination of their parental rights. After he was informed of that fact, father rejected the notion of therapy and told SOSCF that he would oppose its decision to terminate his parental rights. Three months had elapsed since Rose had been found within the jurisdiction of the court and 60 days had passed since the caseworker had demanded that father become involved in therapy. Apparently, SOSCF’s decision created an adversarial relationship with father that stalled any efforts on his part to become involved in a therapy program. Nonetheless, father thereafter continued to be involved in other programs designed to help him.

Father’s counsel aptly summarizes the effect on his client as a result of the above circumstances and SOSCF’s hasty decision to terminate:

“[Father] has taken an anger management class and done well in it; he has shown he has no problems with drugs or alcohol; he has obtained treatment for the neurological problems caused by his strokes. He has taken some 30 weeks of parenting classes; and he has consistently visited with Rose. No one knows how these changes have affected father’s parenting abilities. With respect to Faith, a child father has hardly met (perhaps not met at all, the record is unclear), we have never seen how successful or inadequate his parenting is. But even if father has not effected changes, *622 he deserves the chance to make them.” 9 (Emphasis in original.)

These kinds of cases are not easy to decide. Because children are involved, there is a temptation to overlook the policy of the law regarding termination of parental rights that transcends every case like this one. However, we must be mindful that the termination of parental rights severs the fundamental liberty of natural parents to care for and have the custody of their children. Santosky v. Kramer, 455 US 745 , 71 L Ed 2d 5999 , 102 S Ct 1388 (1982). Termination of parental rights is forever. It is for that reason that the legislature has decreed that the state must prove the statutory requirements by clear and convincing evidence or, in this case, evidence that makes it highly improbable that the children can be returned to father and mother’s home in the foreseeable future. 10 The burden that is on the state in this case exists to protect a fundamental right of all parents, and we should be circumspect about following the statutory requirement of proof in every case, regardless of the emotional pull to place the children in an environment more conducive to their well-being. 11 Otherwise, we establish a precedent that lowers the threshold standard for termination of parental rights and we, in effect, instruct SOSCF to act accordingly, to the detriment of all Oregon citizens.

I have examined separately the evidence of neglect and the conduct and mental and emotional conditions of father and mother for the purpose of determining whether the state has proven that those circumstances are not likely *623 to change in the foreseeable future. Although the majority has garnered volumes of evidence to support its position, all of that evidence suffers from the same flaw. It predates the 60-day period in the spring of 1995 within which SOSCF first offered services to the parties and then decided to terminate their parental rights. There is little or no evidence that is probative of the parents’ condition after father’s surgery and the parties’ participation in numerous programs, even though the termination trial was not held until the fall of 1996. The proof regarding each allegation is inadequate when considered in light of the state’s burden. Although it does not necessarily follow that the sum of the parts is also inadequate, the state is required to prove at least one of its alleged grounds for termination. It has not accomplished that task when all the evidence is considered in regard to the general allegation that parental rights ought to be terminated “by reason of conduct or condition seriously detrimental to the child and integration of the child into the home of the parent or parents is improbable in the foreseeable future due to conduct or conditions not likely to change.” Father’s claim that he and mother have never had an opportunity to demonstrate their ability to meet SOSCF’s concerns rings with accuracy.

Protection for the children would not end if we were to reverse the judgment in this case. They would remain under the jurisdiction of the trial court, and their care would be subject to its supervision. If it were highly probable that father’s past abuse of others would repeat itself and endanger Rose and Faith’s welfare in the foreseeable future, I would not hesitate to affirm the trial court. But, the state’s “rush” to seek termination prevented it from making that showing. In light of the constitutional implication that this decision has, I cannot hold in good conscience on these facts that the state has carried its statutory burden.

Accordingly, I must dissent.

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

The majority agrees with the trial court that the state failed to prove that father was unfit due to substance abuse and neglect.

We are unable to determine from the record what the witness meant when she referred to the “RC.”

The majority responds that, “We agree with the dissent that the evidence shows that mother was in need of services. However, the evidence also shows that services were being provided and that, despite the services, mother’s parenting skills were not improving.” 152 Or App at 595. That statement, even if correct, does not complete the analysis. The termination of parental rights for neglect requires more than the demonstration of deficiencies in parenting abilities. Moreover, the evidence demonstrates that mother became involved in several parenting improvement programs after Rose was removed, but never has had the opportunity to have custody of her children and to demonstrate that she has benefitted from her participation in them.

Now renumbered as ORS 419B.504(2).

The majority said, “Our conclusion that mother physically and emotionally neglected her children is also supported by evidence that she is incapable of protecting her children from abuse and danger.” 152 Or App at 598. That single sentence speaks volumes about a consistent flaw in the majority’s analysis. In order to support its conclusion that the state had proven its allegation under ORS 419B.504(4) that mother neglected Rose, the majority relies on the use of evidence that ignores the distinction that the statute itself makes between evidence of the physical neglect of a child and evidence about the ability of a parent to provide care for a child. The latter focuses on the parent’s parenting abilities while the former focuses on the particular level of care actually given to the child. ORS 419B.504(1) provides that a court in determining whether the rights of parents should be terminated because they are unfit shall consider whether parents suffer from an emotional illness, mental illness or mental deficiency of such nature and duration “as to render the parent incapable of providing proper care for the child for extended periods of time.” In contrast, ORS 419B.504(4) says that the court shall consider any “[pjhysical neglect of the child.” The majority’s statement is telling because it illustrates an analytical method that lumps all of the evidence together to create an effect rather than requiring the state to prove its specific allegations by clear and convincing evidence.

The SOSCF caseworker assigned to the family testified:

“Well there were two different reports of domestic violence. The first one concerned a — and I’m reading from the notes of [the public health worker] on 1/13/95, that said * * * he tried to choke her * * * and stuck a derringer to her throat, said if she left with the baby he’d find her and murder her. And mother said that he hadn’t had his [methamphetamine] yet this morning.

“And I talked to [the public health worker] again on the 13th. The incident with the gun occurred Wednesday morning — I don’t know what date that would have been offhand — occurred in the house. [The public health worker] hadn’t asked if the derringer was loaded. She doesn’t know where Rose was. The baby was — that was — it said that the baby was dirty again, but that wasn’t the reason for removal, in particular.

“And then on the 24 — 1 went out on the 20th, and [mother] said, “He just handed me the gun.” She’d been mistaken. She did admit that they were fighting at the time in the kitchen and that Rose was awake in the living room. The living room is the next room — is adjacent to the kitchen in that house.

“Then there was another call from [the public health worker] that [father] started threatening to kill [mother], A * * friend of [mother’s] had called [the public health worker] — [mother] wants [the friend] to take the baby. [Father] wants the baby to go to it’s sister’s [father’s adult daughter by a previous marriage] and [mother] doesn’t want to leave the baby with [father] because of his temper.

“So those were the events that led up to the removal of the child.” (Emphasis supplied.)

Aphasia is “the loss or impairment of the power to use words as symbols of ideas that results from a brain lesion.” Webster’s Third New International Dictionary, 99 (1993).

The majority is apparently also relying on the testimony of father’s daughters that he was paranoid and delusional many years before his stroke. While their testimony regarding father’s conduct is credible, they were not qualified as experts to make medical or psychological conclusions about father’s mental condition. Accordingly, their testimony in that regard ought to be given no weight at all.

There is no rule of law that dictates a particular outcome depending on services actually offered. State ex rel CSD v. Rollins, 322 Or 599, 603 , 910 P2d 1107 (1996).

In State ex rel Juv. Dept. v. Habas, 299 Or 177, 186-87 , 700 P2d 225 (1985), the Supreme Court said, “Although we recognize that the legislature considers the interest of the child to be paramount, nevertheless, the legislature also recognizes that parental termination is the last resort after all other interventions of social services have failed.”

It is worth repeating that in State v. McMaster, 259 Or 291 , 486 P2d 572 (1971), the court recognized the constitutional implications of terminating parental rights. The court said, “[W]e do not believe the legislature contemplated that parental rights could be terminated because the natural parents are unable to furnish surroundings which would enable the child to grow up as we would desire all children to do.” Id. at 303 .