dissenting.
The majority holds that parents’ parental rights should not be terminated because evidence in the record does not establish that the risk of harm to Matthew is highly probable if he is returned to parents. I respectfully dissent because I believe that we were correct in State ex rel Juv. Dept. v. Nguyen, 182 Or App 294, 48 P3d 864 (2002), aff'd in part, vacated in part, 335 Or 255, 66 P3d 1025 (2003) (.Nguyen 7), where we held that “[u]nless and until” the parents acknowledge their responsibility for Martha’s injuries, their exemplary conduct and “their generalized participation in services does nothing to cure the specific problem that led to Martha’s injuries.” Id. at 306. In Nguyen I, despite the fact that parents’ other child, Mary, was not injured, we held that parents’ rights should be terminated as to both children. In this case, Matthew has not been harmed but parents continue to refuse to acknowledge their responsibility for Martha’s injuries. Therefore, the result should be the same in this case.
In Nguyen I, we reversed the trial court and remanded with instruction to terminate parents’ parental rights in Matthew’s older sisters, Mary and Martha. Our decision was predicated on the finding that one of the parents inflicted serious abuse on Martha by repeatedly breaking her limbs and fracturing her skull, that the other parent knew about it, and that neither acknowledged responsibility. The Supreme Court allowed review, but before it issued an opinion on the merits parents and the state reached a stipulation under which parents voluntarily terminated their rights as *624to Mary and Martha. State ex rel Juv. Dept. v. Nguyen, 335 Or 255, 66 P3d 1025 (2003).
Under State ex rel SOSCF v. Stillman, 333 Or 135, 145-46, 36 P3d 490 (2001), the state must prove by clear and convincing evidence that the parents are presently “unfit by reason of conduct or condition seriously detrimental to the child” and integration into the parents’ home is “improbable within a reasonable time” because the conduct or condition is “not likely to change.” In this case, the testimony from service providers was, overall, positive. However, as the trial court explained,
“Dr. Johnson testified, as he did in Martha and Mary’s T[ermination of] P[arental] Rfights] trial, that ‘a person must acknowledge having abused a child before the person can be treated. Unless and until the problem that caused the abuse is identified, it cannot be remedied.’
“Similarly, Dr. Lorah Sebastian testified that a therapist must know what he/she is treating to ‘target the problem.’ ‘If you don’t know the issue, you can’t measure progress — the treatment provider cannot know all the risk factors.’ The therapist ‘could be missing necessary treatments without acknowledgment.’
“Father’s therapist, Canh Nguyen, one of several therapists who provided generalized health care services to parents, testified that if father had ‘admitted’, he would have changed the treatment. Canh Nguyen further stated that ‘a person who acknowledges problems is better able to solve those problems than someone who doesn’t acknowledge.’
“Similarly, Kim Pham, mother’s counselor from August 2000-March 2003 testified, ‘If I knew that mother injured Martha or that she knew father did[,] I could work with her to avoid further abuse.’
“Dr. Paul Leung, who performed a psychiatric evaluation of mother and provided treatment, agreed that if either mother or father caused the problem he would recommend additional treatment, and without further intervention there is risk of further abuse.”
The majority notes that Le, a service provider, lived in the home with the family for almost two years and that she testified that she “never saw mother harm Matthew and that *625parents appeared to love each other and love the children.” 194 Or App at 611. However, Le testified that she could not “remember exactly” when she moved into the family home but that it was before Matthew was born. She also said that, when Matthew was born, she was living in the home but that she was not a constant presence in the home because she worked outside of the home. Le further stated that she did not know how old Matthew was when Le moved out of the family home but that two months after Le moved Matthew was removed from the home.
The majority argues that the expert witnesses
“believe, contrary to the state’s allegations, that conditions giving rise to the previous termination proceedings have ameliorated since that time and that the risk to Matthew has lessened. * * * They all agree that the abuse of Martha must have occurred under situational circumstances. Finally, no expert witness in this case has made an affirmative risk assessment that posits that parents will cause harm to Matthew in the future.”
194 Or App at 620-21.
I respectfully disagree. The testimony in this case establishes that the parent who abused Martha cannot be treated until that parent acknowledges responsibility for Martha’s injuries. The testimony also establishes that, until the parent responsible for Martha’s injuries comes forward, further abuse cannot be avoided and Matthew’s safety is therefore at risk.
For example, Dr. Johnson did not testify that the risk to Matthew has “lessened.” Rather, he testified, as the majority notes, that an adequate risk assessment cannot be conducted until parents, or one of the parents, acknowledges responsibility for Matthew’s injuries. Although Johnson said that “it is possible” that the risk factors would diminish with a “broad-based approach,” he also explained:
“What’s important for us to understand is when we have a child that’s been severely abused[,] how that child was abused. The conditions and circumstances that led to that child’s abuse could occur rarely, they could occur occasionally, they could occur quite frequently. The fact that a child is in [parents’] care that was not mistreated suggests that *626this is not a problem that is likely to be a frequent occurrence. It doesn’t rule out that it can occur occasionally or even rarely, even a rare occurrence of injuries this severe is something that shouldn’t ever reoccur.
“At a minimum, the fact that [parents] have done well with the child for a period of 10 months suggests that this may not be a problem of severe, chronic, pathological proportions * * * but it doesn’t rule out that there could be a variety of other possible explanations which could reoccur.”
Johnson further stated that, although parents
“may be capable under the best of conditions and circumstances with a high degree of structure and intensive supervision of doing well, * * * in the absence of those conditions and circumstances, the very conditions that originally led to a child being harmed could reoccur, and there would not be effective means to intervene to identify and protect that child.
“Q. Does that highlight the need to make internal change in order to make it truly safe?
“A. In my opinion, yes.”
Additionally, as the majority noted, Johnson testified that the fact that parents have not acknowledged their responsibility for Martha’s abuse makes the risk to Matthew “high until proven otherwise.” 194 Or App at 612 n 2. In fact, Johnson testified that parents could have no psychological or psychiatric disorders and still pose a risk to Matthew because “[a] psychological or psychiatric evaluation is not a risk formulation[.]”
The majority correctly points out that Johnson did not conduct an interview with parents. However, he did testify that he could offer “an opinion about what is likely to have occurred and what type of issues should be addressed by a forensic psychologist^]” Johnson also testified that it is “vitally important” for purposes of treatment for a parent to acknowledge responsibility for a known injury caused by child abuse. He said:
“In order for you to engage in what I consider to be treatment, you have to have two parties working on the same *627contract. That is, some mutually agreed-upon understanding that establishes goals, establishes ways to measure those goals, and that you enter into that agreement in good faith, that you agree to be candid and forthcoming, that you acknowledge strengths and weaknesses, and, in the case of child abuse, that you acknowledge your responsibility for it.
“For a therapeutic relationship to be effective under those conditions, the therapist has to know what the problem is. [The therapist has] to develop a strategy and a treatment plan to address those problems. And in the absence of an admission of responsibility, you don’t know what your goals are, you don’t know how to track or target those. * * * [Y]ou will have no confidence that you’re actually addressing the issues that could have brought about the abuse to begin with.”
When asked whether the fact that parents had a child with no evidence of harm living in the family home would change his analysis, Johnson said, “In my opinion, no, it does not.”
Daniel-Hershey, like Johnson, did not testify that the risk to Matthew had ‘lessened.” Rather, when asked whether the risk had, in fact, lessened, Daniel-Hershey said, as the majority notes, that there was not enough information to make a risk assessment and that, under those conditions, the safety of Matthew could not be guaranteed. She also said that she would not recommend that Matthew be returned home to his parents, “until there’s a way to come up with an adequate safety plan, we cannot risk his physical well-being.” Although Daniel-Hershey did not treat parents or interview them, she observed their visitations with Mary and Martha. Furthermore, while acknowledging that she had not seen any scientific studies that correlate risk of future abuse with parents’ failure to acknowledge the abuse, Daniel-Hershey said that she was “certain” that such studies exist. She also testified that, “the literature * * * speaks very clearly to the need for parents to identify * * * what the triggers were that led to the abuse.” She explained that, when parents acknowledge abuse, it “does change the risk analysis.” She further said that “community standards of treatment [are] predicated on that very concept.” Daniel-Hershey also testified that parents “could well have provided exemplary care * * * 23.45 *628hours of every day of Martha’s life and broken her bones in 15 minutes.” Therefore, she explained, the fact that parents have not harmed Matthew is irrelevant “because it was irrelevant for Mary * * *. [Parents’] track record with Mary did not protect Martha.”
Dr. Sebastian, like Johnson and Daniel-Hershey, also did not testify that the risk to Matthew has been “lessened.” When asked whether the risk had, in fact, been lessened, Sebastian said that she did not think that there was a way to answer that question. She did say, however, that “a risk always remains. * * * [W]hen there’s a situation that’s serious enough to remove a child from a home * * *, when you return that child it’s always taking a risk * * Sebastian also testified that she has worked with parents who have physically abused their children and that acknowledgment of the abuse advanced the parents’ progress in treatment and that “obviously the person who acknowledges that [he or she has] a problem is more amenable to treatment.” Sebastian said that “it’s absolutely better to have an acknowledgment. It’s much better to know what happened than to not know what happened. Thatfs the problem here.” (Emphasis added.)
The most compelling testimony for the majority probably comes from Dr. Leung. However, Leung’s testimony is not as persuasive as the majority suggests. As the majority explains, when Leung testified that it is not necessary for a person to acknowledge child abuse in order to accept and participate in effective treatment, he qualified his answer by noting his experience with patients in sexual abuse and addiction cases. Dr. Leung also testified that
“if situations in the future resemble the original conditions, [it is likely that] abuse would come up again. So it is necessary to understand under what conditions the original abuse occur[red] so that a plan can be formulated to help the person to look at the situations and at least learn how to deal with [them] so that in the future when similar conditions arise, at least the person would have the skills to deal with it instead of just resort to [an] automatic reaction and [the] abuse would come up again.”
Furthermore, when asked whether his opinion in this case would change if it was determined by this court that parents had abused Martha, Leung answered:
*629“I would want to know the evidence and to see the evidence, how [that would] relate to my patient. And, of course, if it is * * * convincing * * *, I would need to reconsider the risk factor and [I] would need to confront my patient to the point that we can re-establish the trust in the therapy relationship so that we can go on.”
When asked what mother had told him about this court’s decision regarding Mary and Martha, Leung replied, “I don’t think she informed me exactly the way that we discussed. She only informed me that the agency is going to take away the children.” When asked whether he would recommend additional intervention and treatment if he knew that parents caused Martha’s injuries, Leung replied, ‘Yes.” And, when asked whether, if parents had abused Martha, parents’ ability to care for the children without further intervention would be compromised and whether there would be a risk of further abuse, Leung replied, ‘Yes.”
The majority next notes that Nguyen, father’s counselor, “testified that he had not discovered any anger management, psychological, or psychiatric issues on the part of father wídle counseling him.” 194 Or App at 617. However, I do not find the testimony to be compelling. In fact, Leung testified that it is possible for a person not to have any psychosis, disorders, or chronic mental health problems and still abuse a child. And, as noted above, Johnson testified that parents could still pose a risk to Matthew, even without the presence of psychological or psychiatric disorders.
The majority states that, during the August hearing, Ta, a community health nurse, “recommended that Matthew be returned to his parents because she had not detected any abuse, his growth and development were normal, and there was significant bonding between him and parents.” 194 Or App at 617-18. However, the transcript from the August hearing did not record Ta’s testimony very well. For example, the transcript reads:
“I also, during the time that I go to their home, I observed to see evidence of domestic violence, verbal abuse. And any alcohol and drugs involved. And during all those times that I tried, at first when I got the referral, (indiscernible). It convinced me that (indiscernible) had been abused. But during all that time, four months before she *630had Matthew until now, I could not find any evidence of physical abuse or they abused the children.”
However, later in the transcript, it sounds as if Ta did not observe the family before Matthew was born.
“Q. And you testified that you’ve observed their parenting while you were present in the home, and that the girls were also present at times when you were there.
“A. Not the girls.
"* * * * *
“Q. Only Matthew.
“A. Have you ever observed them parenting the two older girls?
“Q. I was at a (indiscernible) once with Kim Keller, but at that time that the appointment, joint visit with SCF, had been cancelled.”
Ta also testified that, “I have (indiscernible) the two children, the older girls. I (indiscernible). But, anyway, (indiscernible) with the purpose that ask you to return to the child, Matthew, to the parents.”
In sum, the transcript of Ta’s testimony is so difficult to comprehend that I would ascribe less weight to it than the majority does.
The majority next notes that Pham, mother’s therapist, testified that mother has made progress with her depression and that she did not observe anything that would cause her to be concerned about the care Matthew was receiving from mother. 194 Or App at 618. However, as the majority explains in a footnote, Pham also conceded that it is impossible to know whether a parent has developed sufficient skills to prevent the parent from reoffending if one does not know which parent caused the injury or the circumstances surrounding the incident. Id. at 618 n 3. Additionally, Pham testified that assisting mother with child abuse prevention skills would be beyond her expertise.
“Q. * * * If you knew that the mother injured the child, are you telling us you cannot say whether she’s developed *631skills that will assist her to avoid that behavior in the future?
"* * * * *
“A. * * * If I knew then, that is different. If I knew then we can work with her specifically to get that — to the point that she can avoid that.
“Q. Okay. And if you knew that she had done that, would you have offered some of the same services that you offered to her?
“A. I do, but I think that I have to have additional working on top of that. That will be beyond my training. If I knew * * * then I have to refer her to some other specialist who [has] more expertise in this to work with her.
“Q. So she might have to develop other skills besides dealing with her depression?
“A. Yes.
“Q. Okay. And your focus is on assisting- with her depression?
“A. Right.
"* * * * *
“Q. And you would refer her to somebody else?
“A. Definitely. It’s beyond my speciality. I have to.”
Pham further stated that the caseworker had asked Pham to try to explore with mother what had happened to Martha. However, when asked whether Pham actually pursued this course of treatment with mother, Pham answered, “when I explore — I don’t get anything and it’s beyond my ability.” Pham said that, in her “role as a therapist, I just have to support the case, the patient. That’s all.”
Applying our reasoning in Nguyen I to this case does not change the fact that the burden of proof lies with the state. My argument is simply this: the facts are the same in this case as they were in Nguyen I— one child was harmed, a second child has not been harmed, and neither parent has taken responsibility for the harm done to the first child. Therefore, termination was in the best interest of the second child. Although our holding in Nguyen I was vacated by the *632Supreme Court, the circumstances have not changed and the same result is warranted. Therefore, I would hold that parents remain unfit, reintegration of Matthew into their home is improbable because they are unlikely to change, and termination is in Matthew’s best interests.
I respectfully dissent.
Deits, C. J., joins in this dissent.