State ex rel. Department of Human Services v. R. J. T.

SCHUMAN, J.,

dissenting.

The majority concludes that the Department of Human Services (DHS) proved by clear and convincing evidence that mother is unfit by reason of conduct or conditions that are seriously detrimental to L and that termination of mother’s parental rights in L is in L’s best interest. ORS 419B.504; State ex rel SOSCF v. Stillman, 333 Or 135, 145-46, 36 P3d 490 (2001). I disagree. DHS presented no evidence that mother’s conduct or conditions have already had a serious detrimental effect on L, and the evidence of future detriment is speculation that does not even approach the clear and convincing standard. I therefore dissent.

I. HISTORY

With respect, I find the majority’s rendition of the facts to be a litany of mother’s character flaws, psychological problems, and bad conduct. I offer what I hope is a more complete, balanced, and therefore accurate picture.

A. Events leading to L’s removal from mother’s home

L was born on June 7, 2003. When she was four months old, DHS removed L from her biological parents’ home because they were substance abusers and severely neglected her. She was placed temporarily with her great-aunt. The great-aunt hired mother to provide childcare for L, and, after the great-aunt’s health began to deteriorate, mother became L’s foster parent in January 2004. Mother’s other two children, E and R, were six and 11 years old at that time.1 Mother began full-time employment in June 2004. By April 2005, she was working for the federal government and earning $41,000 per year. She continued to hold that position at least part time through the time of trial.

Mother adopted L in February 2005. Although the record does not disclose the screening and application process *643that mother underwent before the adoption, a DHS caseworker testified that the process typically requires

“a progressive study, * * * in depth home study, which is looking at every aspect of that person’s life going—delving into their childhood, talking to family members about that individual’s childhood, and if there’s any kind of trauma that might cause concerns. In addition to that of course they would be looking for references!,] checking financial stability!, and] looking at just the overall scheme of things for this individual to be able to provide for a safe and stable home for [the child].”

The caseworker testified that the adoption process also requires a check of the potential adoptive parent’s mental health history.

In mother’s case, that history would have revealed that, at age 16, she briefly engaged in “cutting behavior” (apparently a form of noncosmetic self-mutilation) and that, when she was 18 years old, she was hospitalized for depression and suicidal ideation. Mother was not hospitalized again or treated for a mental illness until late 2005, when she was 37 years old. At that time, mother’s mental health began to deteriorate, due, apparently, to a disturbing letter that she received from her own adoptive mother. She started therapy for borderline personality disorder. As mother’s mental health deteriorated, she again engaged in cutting behavior. She testified, however, that she had never cut herself while the children were home because she was trying to maintain normalcy for them, and that she had stopped cutting in August 2006.

In March 2006, mother was hospitalized for suicidal ideation. Before her hospitalization, mother arranged for L to stay with mother’s friends Kathy and Michael, who frequently provided childcare for L. The hospital made a referral to DHS, but the referral was coded as “unfounded” because mother had made appropriate plans for all three children prior to her hospitalization. In May 2006, mother was again hospitalized for suicidal ideation. The hospital made another referral to DHS, but the referral was coded as “unable to determine” because mother again had made appropriate plans for all three children, including leaving L with Kathy and Michael.

*644On June 9, 2006, mother was hospitalized for a possible suicide attempt after a friend, suspecting that mother might have overdosed on medication, called the police. The police left L and E in the care of 14-year-old R. A school counselor made another DHS referral; this referral was coded as “unable to determine” because “mother denied the attempted suicide but acknowledged she had taken some pills.” Subsequent toxicology reports indicated that mother had not overdosed on medication. Rhoades, the caseworker who responded to the referral, asked mother “if she would agree to her children staying elsewhere” until Rhoades could confer with Cady, the caseworker assigned to mother’s case. Rhoades wrote, “[Mother] initially didn’t want to agree with the arrangement, then finally agreed. * * * [Mother] was very upset * * *.” Rhoades arranged temporary placements for the children, placing L with Kathy and Michael.

The next day, R found mother with cutting tools and prescription bottles. When R confronted mother, mother slapped R on her cheek, leading to another DHS referral. This referral was coded as “ ‘founded’ for physical abuse.” Cady told mother that, “until her mental health issues were stabilized and she was in compliance with her treatment, the children should remain out of the home. [Mother] reluctantly agreed to this and signed the [voluntary service agreement] form.”

B. Events following L’s removal from the home

On August 8, 2006, mother pleaded guilty to fourth-degree assault for slapping R and was placed on probation. On September 2,2006, mother was hospitalized again for suicidal ideation; records indicate that she was distraught over DHS involvement with her family and was missing her children. On September 14, 2006, mother was hospitalized for overdosing on psychiatric medications; she denied that the overdose was intentional. In October 2006, mother was evicted from her apartment because of unpaid rent.

DHS filed a dependency petition, and the juvenile court took jurisdiction of L on December 4, 2006. L remained with Kathy and Michael. Mother’s service agreement required, among other things, that she maintain stable housing, attend visits with her children, enroll in parenting *645classes, and participate in Dialectical Behavior Therapy (DBT), a therapeutic method developed to treat borderline personality disorder.

Although the service agreement required that mother maintain stable housing, Gordon, another caseworker assigned to mother’s case, testified that mother “definitely has struggled with her living situation in the last two years.” In June 2007, mother moved in with a friend after agreeing to vacate her apartment because she failed to pay a month’s rent. In August 2007, she moved into her own studio apartment, and, in October 2007, she moved in with another friend. At trial, mother testified that she recently had been accepted at Oxford House, a home for people recovering from drug and alcohol addictions, and that L could live with her there.

The record reflects, however, that mother complied with the other requirements of the service agreement. Mother participated in DBT, completing the modules in January 2007. Gordon testified that mother completed the parenting program that was specified in the service agreement and regularly attended visits with L. A DHS visit supervisor testified that L appeared to enjoy her visits with mother; that mother exhibited good parenting skills; and that he never had to intervene or disrupt a visit. Another visit supervisor testified that mother’s visits with L were positive; that he had “no concerns” about their interactions; that on two occasions he interrupted visits when mother failed to notice a safety concern, but that mother usually parented L appropriately; and that, although mother cancelled a few visits due to illness, she never otherwise failed to attend a visit. A parenting consultant who observed mother’s visits with E and L expressed concern because mother “struggled to parent both children at the same time” and devoted disproportionate attention to E.

Around the time that L was removed from mother’s home, mother increased her alcohol consumption. She testified:

“I started having one or two drinks at night, and slowly throughout the next five months it built up. * * * I realized that I was probably consuming too much, and I didn’t want *646to have my children see me and go through what I went through with my parents. So I made the decision that I was going to seek some outside intervention.”

Mother checked herself into an inpatient detoxification program in January 2007. DHS filed a second dependency petition, alleging that mother was abusing drugs and alcohol and needed treatment, but that petition was dismissed following mother’s completion of a drug and alcohol evaluation at Providence Portland Medical Center (Providence). That evaluation, conducted on May 29, 2007, concluded, “Though we find that [mother] would be appropriate for * * * outpatient chemical dependence treatment, we feel she may have adequate support at this time. We are willing to defer to her wishes to avoid outpatient chemical dependence treatment at this time * *

Following mother’s discharge from the detoxification program, her DBT therapist recommended repetition of the DBT modules, but mother was reluctant to repeat the program, citing work conflicts and her desire to continue seeing her individual therapist. Instead of insisting that mother repeat the modules, which would have required that she work only with the DBT therapist, the DBT therapist approved mother’s alternate plan of individual therapy, online DBT program participation, outpatient drug and alcohol treatment, and participation in a sobriety support program such as Alcoholics Anonymous (AA). The record reflects that mother continued to attend individual therapy, participated in the online DBT program, and attended at least a few AA meetings, but did not participate in outpatient drug and alcohol treatment. Mother testified that, based on the Providence evaluation, she believed that she was not required to participate in an outpatient treatment program.

At a permanency hearing on July 26, 2007, the court approved changing the plan for L to adoption, concluding:

“Mother has had on and off again commitment to services. While she is now functioning better she is a far cry away from the ability to remain stable and meet the needs of a young child. Additionally, her illness and substance use and abuse has resulted in [L] forming healthy attachments to another care provider.
*647* * * *
“Despite mother’s current ability to be ‘stable’ and refrain from self harm and self medication, she is at best managing to care for herself. Based on mother’s tenuous mental health and the lack of attachment that her adopted daughter has to her, great harm would come to [L] to force her to try to return home to her mother.”

The source of the court’s finding that L had a “lack of attachment” to mother does not appear in the record; the record indicates that L’s therapist reported only that L had “both pieces of an ambivalent attachment” to mother.

Mother’s relationship with DHS began to deteriorate. In the fall of 2007, she cancelled eight out of 20 supervised visits with L, enough that DHS decided to discontinue one of her two weekly visits. Mother objected to the reduced visitation time, however, and DHS agreed to expand mother’s remaining weekly visit from one hour to two. DHS referred mother to another parenting program, but the program twice discontinued services based on mother’s poor attendance. At the time of trial, mother had reenrolled in the parenting program. Mother’s caseworker, Gordon, testified that, for a period of three or four months, mother revoked the release allowing Gordon to talk with mother’s therapist, Dykstra. Dykstra, however, testified that she chose to stop speaking with Gordon because

“[i]t was my impression that the information I was giving Ms. Gordon was not being treated confidential—with confidentiality. Information I was giving her was coming back to me through * * * [motherfs friends and family in an exaggerated fashion, and also the court documents that I’ve shown from some of the earlier hearings had information that I had given Ms. Gordon in an exaggerated manner.”

Gordon also testified that mother had revoked the release because Dykstra “didn’t want to talk to [DHS] anymore.” On September 27, 2007, DHS filed a petition to terminate mother’s parental rights as to L.

In January 2008, and again in February, mother was arrested for shoplifting; the first case was dismissed in exchange for her guilty plea in the second. In February 2008, mother was hospitalized for suicidal ideation and because *648she had overdosed on prescription medication. On May 16, 2008, mother called Dykstra’s office because she again felt suicidal. Mother told the on-call therapist that, because she had lost her paycheck gambling, she could not afford rent and would not be able to get her children back. Mother’s primary care physician, Dr. Ruggeri, testified that that incident was sparked by mother’s stress related to “a combination of upcoming court dates.” Ruggeri stated, “I think her primary stressor is the status of her children and whether or not she’s going to have custody or not. I think that’s a large part of stress for her.”

During trial in June 2008, mother was cited for improperly using a disabled parking permit. Mother testified that she qualified for the permit based on injuries that she sustained in a car accident. She told a police officer, however, that the permit belonged to her ex-husband’s mother.

C. Psychological evaluation of mother

Mother participated in the first of two psychological evaluations with Dr. Krechman on November 10, 2006. Krechman determined that “[t]he previous diagnosis of Borderline Personality is appropriate” and also diagnosed mother with “Major Depressive Disorder, stable with medications.” Krechman reported that mother “denies any current urges to self harm,” but concluded that, although

“[a]t the time of this evaluation [mother] was presenting a trouble-free picture, * * * she had been hospitalized only two months earlier and since this evaluation, has started abusing alcohol and is now in treatment. Thus, she is not presently considered stable enough to be a safe and adequate resource for her children.”

Mother participated in a second evaluation with Krechman on December 10, 2007. Following that evaluation, Krechman wrote:

“It is this evaluator’s opinion that [mother’s functioning is somewhat improved in that she has not, to anyone’s knowledge, been psychiatrically hospitalized in the past year. Her sessions with her individual therapist have decreased * * *, reportedly due to her increased stabilization. She continues to take medications, per her report, and sees the prescribing doctor each week * *

*649However, Krechman expressed concern about “a number of discrepancies between her self-report and information in the records,” noting that DHS could not verify whether mother had followed through on alcohol and drug treatment and DBT because mother had revoked releases for DHS to have contact with her providers; that mother had abused alcohol; and that mother “has moved several times in the past year and has had one eviction.” Krechman concluded that

“[mother] denies and minimizes the majority of her difficulties. She overestimates her level of functioning, despite many facts to the contrary, is somewhat entitled, and has unfortunately gotten herself into a major power struggle with DHS. These issues are reflective of her personality difficulties. * * *
«sj; % ^
“[Motherl’s history suggests that when she deteriorates, she becomes a significant risk to herself and to those in her environment. If she were to experience another depressive episode or relapse on alcohol, she would likely be at risk for self harm.”

The factual basis for Krechman’s assertion that mother ‘becomes a significant risk to * * * those in her environment” is not evident from the record. In any event, Krechman determined that, “[a]t this time, [mother] is not considered a viable custodial resource for these children.” Krechman testified, “Given the history I would want to see stability and functioning and engagement in sessions and treatment, probably beyond six months,” before L was returned to mother.

D. Psychological evaluation ofL

L participated in a psychological evaluation with Dr. Eastman on June 25, 2007. Before the exam, Eastman received and reviewed background material on mother from DHS. The exam itself lasted only three hours, 30 minutes of which were observation without interaction. L was four years old at the time. Eastman observed that “[L]’s play themes were very significant. She wanted to make sure the baby was safe and protected. The characters in the play scenario frequently were hurt, through scratches and cuts. They would get better, and then be hurt all over again.” Eastman testified that such “symbolic play * * * reflected anxiety about safety *650* * * which I sensed was her trying to come to terms with her mother’s suicidal behavior.”

Eastman noted that L “generally does not have any emotional or behavioral issues. She is very social around other children. She has not had any behavioral difficulties.” She concluded that L “is generally affectionate, social, and well adjusted and happy.” However, she testified that, if L were removed from her placement with Kathy and Michael, “the risk to her would be severe depression related to the loss of her psychological family with * * * the foster parents.” Further, she testified, “[t]he other risk that I’m concerned about is that [L] would begin integrating borderline personality disorder dynamics as her way of coping with emotions.” Eastman summarized her recommendations as follows:

“[Mother’s depression, borderline personality disorder, and the severity and chronicity of her difficulties bode poorly for her to be able to be a stable and safe, full time parent to [L], * * * [L] does not need the emotional trauma of having to caretake her mother, witness mother’s further decompensation, and/or be present when mother may finally kill herself. This is too high of a risk and return of [L] to her mother is not recommended.”

Eastman testified that mother should be stable for “a minimum of a year, optimistically two years given the severity and chronicity and frequency of the difficulties,” before L was returned to her care.

L’s therapist, Crutchfield, also testified. She based her testimony on eight therapy sessions with L, one visit with mother, a one-hour observation of interaction between mother and L, and over 75 pages of “case history,” including Eastman’s evaluation. Crutchfield reported that L had anxiety related to having “two mommies”; she did not report any other source of anxiety. She noted disapprovingly that, at one point, mother had asked L, “Why didn’t you call me on Mother’s Day?” and, further, that mother took L to see films that were “not appropriate” (Monster House and one of the Harry Potter movies). She also reported that mother’s borderline personality disorder would have “insidious and long-term” detrimental effects on L: in Crutchfield’s opinion, *651returning L to mother would increase her level of anxiety and could lead to depression.

E. Trial court judgment and opinion

On July 25, 2008, the trial court issued a judgment terminating mother’s parental rights as to L. The court attached and incorporated a letter opinion explaining its decision:

“For purposes of this letter opinion, * * * the court will concentrate on [motherl’s mental illness which is of such nature and duration that it renders her incapable of providing care for extended periods of time.
“[Mother] has been diagnosed with Borderline Personality Disorder.
* * * *
“In 2008, most significantly, [motherl’s self harming thoughts have continued. In late February and early March 2008, [mother] again experienced suicidal ideation and was hospitalized. * * *
“In addition to her suicidal ideation, the record shows that [motherl’s living situation continues to be unstable. * * *
“She also continues to engage in impulsive, self detrimental conduct. In May 2008, she lost $900 (almost her entire paycheck) gambling. * * *
«sf: if:
“Also indicative that her DBT therapy has not been adequately effective is her criminal conduct in 2008. In January, she was arrested for shoplifting and then again on February 15. * * *
“In addition, during the trial of this case in June 2008, while one would expect she would make every effort to make a positive impression and do nothing to jeopardize her position, [mother] continued to engage in wrongful behavior * * *. Specifically, she used a disabled parking permit which she had stolen from a relative. * * *
“That is not a stable living situation for any child and not one where a five year old would feel secure. Frankly, [mother] is sufficiently challenged trying to take care of *652herself in moments of distress. Although she loves [L] dearly, the added challenge of raising a young child (in and of itself—separate from the inevitable stresses that one must face) would be an added stressor and not safe for either individual.”

II. DISCUSSION

The trial court terminated mother’s parental rights under ORS 419B.504. That statute

“sets out a two-part test for determining whether to terminate parental rights, both parts of which must be met before the court orders termination. First, the court must address a parent’s fitness: The court must find that the par-' ent is ‘unfit by reason of conduct or condition seriously detrimental to the child.’ That, in turn, requires a two-part inquiry: The court must find that: (1) the parent has engaged in some conduct or is characterized by some condition; and (2) the conduct or condition is ‘seriously detrimental’ to the child. Second—and only if the parent has met the foregoing criteria—the court also must find that the ‘integration of the child into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change.’ ”

Stillman, 333 Or at 145 (quoting ORS 419B.504, in part). If all of the foregoing requirements are met, the court must also decide whether the termination of parental rights is in the best interest of the child, ORS 419B.500, measured at the time of trial. State ex rel Dept. of Human Services v. Simmons, 342 Or 76, 95-96,149 P3d 1124 (2006).

Guided by these precepts, I conclude that the state failed to prove by clear and convincing evidence that mother’s conduct or condition was seriously detrimental to L. Because I reach this conclusion, I do not address whether integration of L into mother’s home is “improbable within a reasonable time,” ORS 419B.504. See Stillman, 333 Or at 145 (integration inquiry necessary only if serious detriment found).

Further, I do not consider whether termination is in L’s best interest. I understand that not taking that factor into consideration runs counter to our natural inclination to protect children and to enable them to flourish. However, under *653ORS 419B.504, in a contest between a neurotic, dysfunctional, criminal, or otherwise marginal parent who, despite these qualities, can provide minimally adequate care for a child, on the one hand, and the state, which may have identified an adoptive placement where the child will probably thrive and flourish, on the other, the bad parent wins. Some would say we have chosen to sacrifice children on the altar of parental rights. Others would point out that a regime in which bad parents can lose their children when the state finds what it regards as better parents can easily degenerate into a dystopia where every parent must live in fear that some bureaucrat will decide that another parent is more deserving. In any case, under well-settled state and federal law, sometimes bad parents win and, as a consequence, children lose.

Further, the state authorities charged in the first instance with deciding whether to seek termination of parental rights do not, I presume, choose their calling because they want to protect bad parents; they choose it because they want to help children. Yet under our statutory and constitutional law, helping children by taking them from a bad but marginally competent biological parent and placing them with an obviously better one is (to put it bluntly) illegal. The child’s best interest, in other words, enters into the calculation only when the state has proved by clear and convincing evidence that the parent’s conduct or conditions have a seriously detrimental effect on the child.

A. Conduct or condition

I conclude that the only conduct or conditions potentially rising to the level contemplated by that statute are mother’s mental illness and its direct behavioral consequences—cutting behavior and suicide attempts. The abstract diagnoses themselves do not by any stretch of the imagination constitute grounds for terminating a person’s parental rights. We will not terminate parental rights based solely on a diagnosis of mental illness. State ex rel SOSCF v. Hammons, 170 Or App 287, 298-99, 12 P3d 983 (2000), rev den, 331 Or 583 (2001). As quoted by the majority, the symptoms of mother’s conditions are “impulsivity, poor decision *654making, an inability to regulate emotions and affect, and particularly anger, substantial difficulty in relationships, volatility in relationships, suicidal gestures and acting out, self-harm behavior, and chronic feelings of emptiness, serious negative response to any perceived rejection or abandonment,” as well as “feelings of hopelessness, worthlessness.” 229 Or App at 623-24. A person with those symptoms, we can all agree, will probably not be an ideal parent. But I would wager that most people have at least a few acquaintances who fit the description and who have nonetheless raised exemplary, happy, thriving, and successful children. I know that I do.

Thus, it is what mother has done, not the label the psychologists use to characterize her, that matters. By that measure, the state has not met its burden. I am not persuaded that the record presents clear and convincing evidence that mother has displayed a “[l]ack of effort * * * to adjust the circumstances of the parent, conduct, or conditions to make it possible for the child * * * to safely return home within a reasonable time,” or that mother has failed “to effect a lasting adjustment.” ORS 419B.504(5). Nor am I persuaded, as the trial court concluded, that the record presents clear and convincing evidence that mother has shown a “[l]ack of effort or failure to obtain and maintain a suitable or stable living situation” for L or failed “to present a viable plan for the return of [L]” to mother’s care. Mother enrolled in parenting classes, attended DBT therapy, and, at least for the first year, regularly attended visits with her children, as required by her service agreement with DHS. Although mother did not always maintain stable housing, at the time of trial she had obtained housing where L could live with her. After the court approved changing the plan for L to adoption, mother began to cancel visits with L, failed to attend additional parenting classes, and revoked releases allowing her caseworker to talk with her therapist, factors that weigh in favor of the trial court’s conclusion. However, given that mother reenrolled in parenting classes, and given the evidence that at least some of the deterioration in communication had to do with mother’s therapist’s distrust of mother’s caseworker, I am reluctant to give this factor conclusive weight.

*655Further, although mother did engage in some criminal conduct, two instances of shoplifting and one instance of improperly using a disabled parking permit do not rise to the level of “[c]riminal conduct that impairs the parent’s ability to provide adequate care for the child or ward.” ORS 419B.504(6). To the contrary, there is no evidence that any such instance of criminal conduct involved or affected L or interfered with mother’s ability to parent L. See Stillman, 333 Or at 147 (“Criminal conduct that meets [the requirements of ORS 419B.504(6)] could include such conduct as abetting the child’s own criminal conduct, stealing the child’s property, or soliciting the child to commit a crime.”); State ex rel SOSCF v. Freeman, 174 Or App 194, 206, 23 P3d 1009, rev den, 332 Or 430 (2001) (concluding that, although incarceration alone is not sufficient, “a recurring pattern of criminal conduct and incarceration,” in combination with other factors weighing against fitness, can justify termination of parental rights).

It is undisputed, however, that mother’s conduct, in particular her cutting and her suicide attempts, are legitimate grounds for profound concern.2 That concern, however, relates to the effect of that conduct on L, and, in the words of the statute, whether mother’s conduct and condition are “seriously detrimental” to L.

B. Serious detriment to L

The Supreme Court has explained that

“the focus of* * * the test for termination * * * is on the detrimental effect of the parent’s conduct or condition on the child, not just the seriousness of the parent’s conduct or condition in the abstract. Thus, the court first must identify the parent’s conduct or condition, and then measure the degree to which that conduct or condition has had a seriously detrimental effect on the child.”

Stillman, 333 Or at 146. We will not terminate parental rights “merely because of an inability to maximize the child’s potential.” State ex rel Dept. of Human Services v. Squiers, *656203 Or App 774, 793, 126 P3d 758 (2006). Instead, in requiring that the parent’s conduct or condition be seriously detrimental to the child, “[t]he legislature had in mind conduct substantially departing from the norm * * State v. McMaster, 259 Or 291, 303, 486 P2d 567 (1971).

Thus, for example, in State ex rel SOSCF v. Lehtonen, 172 Or App 584, 590-91, 20 P3d 210, rev den, 333 Or 73 (2001), the child suffered from a reactive attachment disorder and behavior difficulties, including tantrums and bedwetting, that increased around the time of visitations with the mother. Those facts, combined with the mother’s history of placing the child in high-risk circumstances when she consumed alcohol so excessively that she was unable to care for him, established that the mother’s conduct had caused serious detriment to the child. Similarly, in State ex rel DHS v. Payne, 192 Or App 470, 483, 86 P3d 87, rev den, 337 Or 160 (2004), the child “showed hyperactivity, aggression, and unsafe behavior. He was diagnosed with post-traumatic stress disorder, attention deficit disorder, and ‘attachment issues.’ After a period of isolation from [his] mother, * * * he showed marked improvement.” Those behavioral problems were enough to establish that the mother’s conduct had caused serious detriment to the child.

In the present case, in contrast, the state has not proved that mother’s conduct caused serious detriment to L. First, L demonstrates no serious psychological or behavioral issues attributable to mother’s conduct or condition. Crutchfield reported that L was “anxious,” and that the anxiety stemmed from confusion about the relationship between her biological mother and her foster mother. The fact that a foster child has such anxiety is hardly remarkable. In fact, Eastman concluded that L “is generally affectionate, social, and well adjusted and happy” and that L “generally does not have any emotional or behavioral issues. She is very social around other children. She has not had any behavioral difficulties.”3 In view of that assessment, Eastman’s testimony *657that L’s play reflected safety concerns is not enough to prove that mother’s conduct or condition was severely detrimental to L. Indeed, it is difficult for me to believe that the state, the trial court, or the majority can seriously consider an isolated, brief play episode as even minimally relevant to the question of whether the state should take L away from her mother, especially when that episode is reported by a psychologist who had only the briefest contact with L and who had been prebriefed by the state, after the state had decided to terminate mother’s parental rights, about mother’s psychological issues.

Beyond L’s anxiety about having “two mommies” and her doll play, the state’s evidence of serious detriment consists of speculation about the future, mostly based on the psychologists’ general observations of what tends to happen to the children of borderline or depressed parents. I recognize that the requirement that mother’s condition or conduct be seriously detrimental to L does not mean “that the serious detriment must already have occurred as a prerequisite to termination.” Payne, 192 Or App at 483. I also understand that “[a] condition or conduct can be called ‘detrimental’ based on potential harm even before that harm comes to pass.” Id. In the present case, I recognize that the psychologists have grave concerns about L; Eastman expressed concern that L might “begin integrating borderline personality disorder dynamics as her way of coping with emotions.” But grave concerns are not clear and convincing evidence. Given the absence of evidence that mother exposed L to suicide attempts or cutting behavior in the past, and even if we were to credit the theory that borderline personality disorders may be passed from generation to generation by proximity, future serious detriment is far too speculative to justify terminating mother’s parental rights. As we recently held, “The indeterminate ‘risk’ that [the child] will develop [a psychological] disorder is not, in the totality of the circumstances, sufficient to warrant termination under ORS 419B.504.” State ex rel *658Dept. of Human Services v. R. T., 228 Or App 645, 657, 209 P3d 390 (2009).

Nor does the record establish that mother’s mental illness is so severe “that her ability to safely parent a child on a sustained basis [is] impaired.” State ex rel Dept. of Human Services v. J. A. C., 216 Or App 268, 279, 172 P3d 295 (2007). Instead, the evidence shows that, when mother’s mental health deteriorated, she took steps to keep L safe. For example, mother made appropriate plans for L prior to her hospitalizations, and she testified that she never engaged in cutting behavior in L’s presence. Dykstra’s testimony that mother “fell within the mild to medium range” of borderline personality disorder and “does not have that damage to others component” common to that diagnosis bolsters my conclusion. Although it may be true, as the state argues, that the atmosphere in mother’s house was “chaotic” and that her moods were “unpredictable,” “seriously detrimental” means more than the inability “to furnish surroundings which would enable the child to grow up as we would desire all children to do.” McMaster, 259 Or at 303. I am not persuaded that mother’s mental illness is so severe that it prevents her from safely parenting L.

In short, the state has shown that L has anxiety, that her doll play shows concern for others’ safety, and that she may grow up to have even more anxiety and, although she is happy now, depression. The state has also shown that mother has engaged in some deplorable and regrettable conduct. The question is whether we can take people’s children away from them under those circumstances. The answer is that we cannot.

III. CONCLUSION

Mother’s condition and conduct are cause for serious concern, and continued vigilance will be necessary because of the possibility that they could become seriously detrimental to L if they do not continue to improve. But based on the extensive record before us, I believe that the situation here resembles the one described in State ex rel Dept. of Human Services v. Huston, 203 Or App 640, 660, 126 P3d 710 (2006) (Brewer, C. J., concurring):

*659“[P]arents with entrenched multiple diagnoses and problems have become the norm in termination of parental rights cases. Such parents, like mother in this case, generally present with both mental or emotional issues and substance abuse problems. To expect parents to resolve within a few months serious, layered, and complex psychological issues that often have taken a lifetime to develop simply is not realistic. On the other hand, the agency is charged with protecting society’s most precious resource, the safety and well-being of a child, and it cannot be expected to wait indefinitely, pouring finite resources into a parent-child relationship that has little chance of resumption within a reasonable period of time. In circumstances such as these, the agency can expect to be criticized for acting either too precipitously or too slowly regardless of the permanency plan that it pursues. So, what to do?
“In a case like this, the key for me is the health and condition of the child. If the child has few if any special needs and is psychologically healthy, as is undisputedly the situation here, it is better to err on the side of giving a parent who is making progress toward addressing multiple deficiencies a more comprehensive opportunity to remediate them than would otherwise be the case.”

Because I reach this conclusion, I would not address whether integration into mother’s home is “improbable within a reasonable time,” ORS 419B.504, or whether termination of mother’s parental rights is in L’s best interest.

I dissent.

Mother stipulated to termination other parental rights as to R. At the time of trial, E was living with her father and was not involved in this proceeding.

I do not regard instances of “suicidal ideation,” without more, to be of any significance.

Although L’s lack of emotional or behavioral issues may he due at least in part to Kathy and Michael’s care, the issue before us is not whether L would be better off if she remained in their care, but whether the state has established a serious detriment to L. See Simmons, 342 Or at 102 n 12 (although “the fact that [the] child has done as well as she has is due largely to the excellent care that she has received *657in the home of her foster parents, * * * the issue before us is not whether [the] child would be better off if she remained with [her foster parents, but] * * * whether the state has shown by clear and convincing evidence that [the] mother is unfit because her conduct or condition was seriously detrimental to [the] child”).