The opinion
ROSSMAN, J.,
specially concurring.
There is no basis for holding that mother cannot raise a claim of ineffective counsel on direct appeal. In doing so, the majority locks the courtroom doors to parents who may have some basis to complain that a child has been taken from them unfairly. Although the majority reaches the correct result, in that mother does not prevail on this appeal, I do not believe that we can dismiss a parent’s constitutional right to effective counsel with such ease. I write separately to express that view.
The majority may be correct in arguing that mother’s statutory right to counsel does not present a federal due process claim requiring a procedure for resolving that issue. Wainwright v. Torna, 455 US 586 , 102 S Ct 1300 , 71 L Ed 2d 475 (1982). There is more than a statutory right to counsel involved in this case, however. Both state and federal case law establish that mother’s right to the effective assistance of *20 counsel in a termination proceeding is constitutionally guaranteed. It follows that she must be afforded some means of vindicating that right.
On the federal level, the United States Supreme Court has held that, in determining whether due process requires that a parent receive appointed counsel, a court must weigh “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” Lassiter v. Department of Social Services, 452 US 18, 27 , 101 S Ct 2153 , 68 L Ed 2d 640 (1981). In that context, the Court also considered whether criminal charges could be based on evidence in the termination hearing, whether the state’s substantive standards for termination were complicated, whether the hearing would be “likely to produce difficult points of evidentiary law” and whether expert medical and psychiatric testimony would be presented. 452 US at 29 . The Court stated that, although Lassiter’s interest in retaining her status as a parent was great, none of the factors noted above were present in her case; therefore, it held that she did not have a due process right to appointed counsel. Lassiter v. Department of Social Services, supra, 452 US at 32 .
In the present case, on the other hand, ORS 419.523 is a technical statute, and significant evidentiary questions were raised at mother’s hearing. Additionally, the state called an expert witness to testify that mother is an unfit parent, in part because she is emotionally ill. Applying the Lassiter factors, it is clear that, because she could not receive a fair trial without representation, mother had a constitutional right to appointed counsel. Moreover, the right to counsel is the right to “effective” legal representation. Powell v. Alabama, 287 US 45 , 53 S Ct 55 , 77 L Ed 158 (1932).
Oregon courts have recognized that parents in a termination proceeding have a due process right to adequate counsel. In State v. Jamison, 251 Or 114, 117 , 444 P2d 15 , 444 P2d 1005 (1968), an indigent mother challenged an order terminating her parental rights on the ground that the juvenile court had failed to advise her of her right to a court-appointed attorney. In considering the nature of the mother’s right to counsel, the Oregon Supreme Court noted:
“The permanent termination of parental rights is one of *21 the most drastic actions the state can take against its inhabitants. It would be unconscionable for the state forever to terminate the parental rights of the poor without allowing such parents to be assisted by counsel. Counsel in juvenile court must be made available for parents and children alike when the relationship of parent and child is threatened by the state.”
It thus held that, because the relationship between parent and child is fundamental, due process requires appointment of indigent counsel in termination cases. See also State ex rel Juv. Dept. v. Myers, 58 Or App 622 , 650 P2d 113 , rev den 293 Or 653 (1982).
Given the nature of mother’s right to effective counsel, I am at a loss as to how the majority reaches its result. Nothing bars our consideration of the claim in this instance. Indeed, we have exercised our jurisdiction over similar claims at least twice before. 1 In State ex rel Juv. Dept. v. Wade, 19 Or App 314 , 527 P2d 753 , on reconsideration 19 Or App 835 , 528 P2d 1382 (1974), rev den, app dismissed 423 US 806 (1975), overruled on other grounds, F. v. C., 24 Or App 601 , 547 P2d 175 , rev den, cert den 429 US 907 (1976), for example, we considered whether children in a termination proceeding must be appointed independent counsel. We noted:
“The basic human right to maintain and enjoy the relationship which normally exists between the parents and the children is held no less by the children than by the parents. When the United States Supreme Court ruled this right to be subject to constitutional protection * * * it necessarily guaranteed that neither parents nor children shall be deprived of it without due process. In Re Winship, 397 US 358 , 90 S Ct 1068 , 25 L Ed 2d 368 (1970); Tinker v. Des Moines School Dist., 393 US 503 , 89 S Ct 733 , 21 L Ed 2d 731 (1969); In Re Gault, 387 US 1 , 87 S Ct 1428 , 18 L Ed 2d 527 (1967); Haley v. Ohio, 332 US 596 , 68 S Ct 302 , 92 L Ed 224 (1948).” 19 Or App at 319. (Emphasis supplied; some citations omitted.)
Characterizing the issue as “[w]hether either the district attorney or the counsel for the parents is capable of providing the children with the ‘effective’ representation to which they *22 have a constitutional claim,” we concluded that due process required that children always be provided counsel separate from that of their parents or the state. 19 Or App at 321.
We subsequently altered that view in F. v. C., supra, 24 Or App at 607 , holding that whether due process requires independent counsel for children in a termination proceeding must be determined on a case by case basis. We did not, however, retract our willingness to address ineffectiveness of counsel claims in the termination context. See also State ex rel Juv. Dept. v. Bryant, 84 Or App 571 , 735 P2d 5 (1987). Clearly, not only may we hear claims of ineffectiveness of counsel in termination cases; we have an obligation to provide a forum in which parents may vindicate fundamental constitutional rights. That is consistent with the position of the majority of jurisdictions, which hear such claims on direct appeal. See, e.g., V.F. v. State, 666 P2d 42 (Alaska 1983); In Interest of D. W., 385 NW2d 570, 580 (Iowa 1986); In Interest of Rushing, 9 Kan App 2d 541, 684 P2d 445 (1984); In re Mosely, 34 Wash App 179, 660 P2d 315 (1983); but see In Re Stephen, 401 Mass 144, 514 NE2d 1087 (1987) (holding that, “[a]bsent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal.”)
Unquestionably, the majority has unearthed legitimate institutional concerns about hearing claims of ineffective counsel on direct appeal. Just as certainly, those problems require legislative attention. However, they neither arise in mother’s case nor present the parade of horrors that haunts the majority. 2 Because mother does not contend that she has *23 new evidence to present on remand, I would decide mother’s inadequacy claim on the record before us now.
First, I agree with mother that the Sixth Amendment standard should apply in measuring adequacy of counsel. In discussing the right to counsel of indigent parents in termination proceedings, the Oregon Supreme Court has noted: “While the case at bar is not a criminal matter, the consequences of the denial of counsel are as serious as they are in most criminal prosecutions.” State v. Jamison, supra, 251 Or at 118 . The severity of the consequences, coupled with the adversarial and accusatory nature of such proceedings, makes society’s interest in obtaining a fair result as great as in a criminal trial. Recognizing that fact, most state courts that have considered the issue have applied a Sixth Amendment analysis, despite the civil nature of a termination. 3 Accordingly, mother must show that trial counsel’s performance has been deficient, resulting in prejudice to her at trial. Strickland v. Washington, 466 US 668, 687 , 104 S Ct 2052 , 80 L Ed 2d 674 (1984). Mother must overcome a strong presumption that counsel rendered reasonable professional assistance. Strickland v. Washington, supra, 466 US at 689 .
Mother asserts that, cumulatively, trial counsel’s performance establishes a failure to exercise the skill, judgment or diligence of a reasonably competent attorney. She contends that trial counsel’s failure to discover the court legal file or *24 court social file in preparation for trial, her failure to cite State ex rel Juv. Dept. v. Habas, 299 Or 177 , 700 P2d 225 (1985), as controlling precedent on the mental illness issue and her failure to use the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (3d ed 1985) (DSM III) 4 during cross-examination of a psychiatric expert demonstrate inadequate preparation and investigation. According to mother, trial counsel was inept in her use of the rules of evidence, failing to qualify an individuabas a social work expert, failing to preserve the testimony of an unavailable witness and allowing the state to get damaging testimony in evidence without objection. Most significantly, mother contends, trial counsel’s theory of the case was completely untenable. Instead of challenging the state’s contention that mother is emotionally ill, counsel argued that she was suffering the “battered women’s syndrome” and so was not at fault for failing to comply with CSD’s plan. According to mother, far from being a “defense,” trial counsel’s theory and cross-examinations actually helped the state’s case.
On the record before us, it cannot be said that mother was denied effective assistance of counsel. As the Oregon Supreme Court has noted,
“The constitution gives no defendant the right to a perfect defense — seldom does a lawyer walk away from a trial without thinking of something that might have been done differently or that he would have preferred to have avoided. Adequacy of assistance of counsel allows for errors which are inconsequential in the context of the entire trial or proceeding. It also allows for tactical choices that backfire, because, by their nature, trials often involve risk.” Krummacher v. Gierloff, 290 Or 867, 875 , 627 P2d 458 (1981).
With respect to counsel’s trial strategy, I would not second guess her decision to prove and argue that mother’s non-compliance with the terms of CSD’s service plan was the result of numerous barriers, including the “battered woman’s syndrome,” but that, because those barriers were diminishing, she would be able to adjust her condition in the future. See Krummacher v. Gierloff, supra, 290 Or at 875 . Moreover, as far as the record discloses, there may have been good reason for *25 trial counsel’s inability to qualify a particular witness as an expert. Finally, there is ample evidence supporting the termination judgment. Even assuming that trial counsel did make some evidentiary mistakes, mother has not met her “burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland v. Washington, supra, 466 US at 696 .
To conclude, we would break no new ground by hearing mother’s claim on direct appeal. On the other hand, the majority’s holding makes it possible for a parent to lose her parental rights because of inadequate counsel and have no forum in which to contest that result. Because “there is no place in our system of law for reaching a result of such tremendous consequences * * * without effective assistance of counsel,” I would not foreclose such a claim. In Re Gault, supra, 387 US at 30 (quoting Kent v. United States, 383 US 541 , 86 S Ct 1045 , 16 L Ed 2d 84 (1966)).
ORS 419.561(1) provides, in pertinent part:
“Except as provided in ORS 419.578, any person whose right or duties are adversely affected by a final order of the juvenile court may appeal therefrom.”
The majority has expressed two main concerns with considering mother’s claim on direct appeal. First, it notes that applying the rule that matters subject to review on direct appeal must be “raised or waived” will create a host of problems. For example, trial counsel will be required to defend the termination case while simultaneously making a record regarding his adequacy, and he would invariably be required to file a notice of appeal in order to preserve any existing error. Second, it contends that reviewing adequacy of counsel on the record might be inadequate for constitutional purposes. Thus, remand would be required, causing intolerable delay in the termination process.
Assuming that hearing ineffectiveness claims on direct appeal could pose insoluble problems, this is not the case in which to address them. First, one of mother’s assignments of error is that the trial court did not grant her trial counsel’s motion to withdraw, which was based on her belief that she should not be “doing this case” because she had been removed from the Juvenile Court list. That motion probably gave the trial court sufficient opportunity to consider counsel’s adequacy, thus preserving mother’s error. Moreover, mother does not contend that she has new evidence *23 on the adequacy issue to present or that for some other reason fairness would dictate remand. Therefore, our review on the record made in the trial court does not offend her due process rights.
Even were this the appropriate case in which to address the majority’s concerns, the problems it points out are not totally insoluble. For one thing, “raise it or waive it” is “not an invariable rule. Where important considerations of public policy are encountered in the solution of a case before the court, it has the duty to apply the law which is dictated by that policy.” Agan et al v. U.S. National Bank, 227 Or 619, 629 , 363 P2d 765 (1961). If we apply that exception in cases involving ineffectiveness of counsel claims in the termination context, most of the dilemmas pointed out by the majority will disappear.
The fact that many termination cases would require remand remains a problem. However, remand would not be necessary in all cases, and the state has offered a reasonably expeditious procedure for handling such cases when they arise. Given the nature of parents’ right to effective counsel, and until the legislature provides a better plan, hearing such claims on direct appeal seems the only reasonable alternative.
See, e.g., V.F. v. State, supra; In Interest of Rushing, supra; Cf. In re Moseley, supra (applying a civil test which asks whether the attorney was effective in providing a “meaningful hearing”).
The manual provides a standard system for making psychiatric and psychological diagnoses.