dissenting.
The majority holds that the trial court was required to allow the child to be examined and erred in denying father’s motion to call his child as a witness. Were we writing on a clean slate, I would agree. However, the majority ignores controlling precedent to the contrary by misconstruing the holding in Chandler v. State, 230 Or 452, 370 P2d 626 (1962).
*520The Tillamook County Juvenile Department filed a petition to terminate father’s parental rights under ORS 419.523(3). At the time, the child was six years old and under the supervision of Children’s Services Division. Before trial, father filed a motion asking the court to order CSD to grant his attorney an interview with the child. The motion stated that “such an interview is necessary and vital to [father’s] case.” The state filed a response and an affidavit of a CSD service worker opposing the interview, claiming that the information sought was irrelevant and that an interview would not be in the child’s best interests. The court denied father’s motion.
Next, father served a subpoena on CSD, directing it to produce the child to testify at trial. He also filed a motion to call the child as a witness that stated that the testimony would rebut much of the state’s evidence. The motion was supported by an affidavit of father’s lawyer, who stated that the testimony was “vital and crucial to the father’s case.” In response, the state filed an affidavit of a CSD caseworker, who said that “requiring [the child] to testify would be harmful to him and detrimental to his best interests.” A letter written by a psychologist and a psychology intern was attached to the affidavit; it said that there would be “substantial” risks to the child if he was compelled to testify.1
The trial court quashed the subpoena, concluding *521that, although the child’s testimony had some relevance to the allegations of the petition, most of it was repetitious and irrelevant. The order says:
“Having reviewed the allegations of the petition and heard the arguments of counsel and based on the record herein, * * * and considering [father’s] proposed questions to be asked of the child and the age of the child, both now and at the time he lived with his father; and after weighing the relevancy and importance of the testimony sought to be elicited by defense counsel against the risk of harm to the child,
“The court hereby finds and concludes that it is contrary to the child’s best interest to compel his production and testimony.”
In Chandler v. State, supra, the father challenged an order that his child be made a ward of the court. During the hearing, he sought to call the child as a witness. After the trial judge had privately questioned the child in the presence of the parties’ attorneys, he denied the father’s request. The court affirmed the trial court:
“It is said that Kreutzer v. Kreutzer, [226 Or 158, 359 P2d 536 (1961)], is conclusive on the right to examine the child. The Kreutzer case was a contest between divorced parents for the custody of their children. We held that if the children were competent either party could require them to testify and that the trial judge had no discretion to refuse the right. We think that the concept and intent of the juvenile code would be violated if such a rule were to be applied to the proceedings contemplated by the code. The compelling intent of [c] juvenile code proceeding is to protect the child in any situation in which the court thinks the child may require it. Discretion must be vested in the trial court to make the initial determination if it would be proper to question a child in any given case. We cannot say the discretion was abused in this case.” 230 Or at 456. (Emphasis supplied.)
The majority here says:
“Although this case falls under the juvenile code, it is more like Kreutzer, because Chandler decided a different issue. In Chandler, the issue was father’s right to call the child in open court after the trial court already had examined her in chambers. Here, as in Kreutzer, the issue is whether the court can refuse to permit any examination of the child.” 106 Or App at 518.
*522What is sought here and what was sought in Chandler are identical in substance. Father desires to call his child as a witness in order to procure what he hopes to be favorable testimony. The differences in procedure matter not. Both cases are under the Juvenile Code where the protection of the child’s interests is at the heart of the proceeding. By saying “the reasoning in Kreutzer applies with equal force to this case,” 106 Or App at 519, the majority ignores the very reason that the Supreme Court distinguished Chandler from Kreutzer.
The majority also attaches significance to the fact that Chandler involved a dependency hearing and that this case is a termination of parental rights proceeding. It relies on ORS 419.523, ORS 419.525(3) and State ex rel Juv. Dept. v. Geist, 310 Or 176, 769 P2d 1193 (1990), for the proposition that “the child’s best interests do not come into play until the state has proved the statutory criteria for termination * * 106 Or App 518-19. That reliance is misplaced. Geist did not hold that. Moreover, ORS 419.523(1) provides, in part:
“The parental rights of the parents of a child within the jurisdiction of the juvenile court as provided in ORS 419.476(1) may be terminated as provided in this section and ORS 419.525, if it is in the best interest of the child.” (Emphasis supplied.)
ORS 419.525(3) provides:
“A hearing shall be held by the court on the question of terminating the right of the parent or parents. * * * The facts on the basis of which the right of the parents are terminated, unless admitted, must be by clear and convincing evidence * * * 99
Under those provisions, there is no requirement that the statutory criteria for termination be proven before the court considers the best interests of the child. The issue of whether termination is in the best interests of the child will always be the dominating inquiry in a termination proceeding. See also ORS 419.474(2).2 The trial court did not err by considering the *523best interests of the child in deciding whether to grant the motion.
Additionally, the majority’s reliance on OEC 402 is misplaced for two reasons. First, it presumes that, because no statute is applicable to this case, the trial court has no authority to exclude a child’s testimony because it is not in the child’s best interests. That presumption is based on a mischaracterization of OEC 402, which provides:
“All relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by Constitutions of the United States and Oregon, or by Oregon statutory and decisional law.” (Emphasis supplied.)
It does not matter that no statute is involved in this case, because the decisional law — Chandler v. State, supra — is controlling.
Second, and more importantly, I question the applicability of OEC 402, which concerns the admissibility of evidence, not the ability of a party to call a witness to testify at trial. Under Chandler v. State, supra, we review for abuse of discretion. The trial court had before it evidence that supported its order. On the record, the trial court did not abuse its discretion.
The letter was written at the request of CSD for the purpose of making a recommendation regarding the child’s proposed testimony at father’s termination hearing. The authors made their recommendation on the basis of a recent psychological examination by the child’s therapist, the child’s emotional and behavioral history and developmental considerations. In part, the letter said:
“[The child] is a young boy who has a history of demonstrating exceptionally strong anxiety responses, including but not limited to, self-destructive behaviors, bed-wetting, and hoarding of dangerous items. While he is showing improvements in these areas, it is very likely that he will regress to these earlier behaviors under stressful circumstances. It is felt that in addition to the general stressful nature of courtroom testimony, which would be experienced by any child, it would be particularly anxiety provoking for [the child] due to the following: it will again raise issues regarding the instability of his caretaking situation; he will need to be in contact with his father whom he has not seen since visitation was terminated; and he will be placed in a situation of perceiving himself as hurting or antagonizing his father.
* * * *
“Due to these considerations, it is advised that [the child] not be required to testify. * * *”
ORS 419.474(2) provides:
“The provisions of ORS 419.472 to 419.597, 419.800 to 419.839 shall be liberally construed to the end that a child coming within the jurisdiction of the court may receive such care, guidance and control, preferably in the child’s own home, as will lead to the child’s welfare and the best interest to the public, and that when a child is removed from the control of the parents of the child the court may secure for the child care that best meets the needs of the child.”