concurring.
I concur with the majority opinion of Judge Graber that, under ORS 419.474(2) and ORS 419.507(1), the applicable standard in this case is the “best interests of the child” and that, under that standard, the child should remain with her grandparents. However, in my opinion, even if the test is not “best interests of the child,” and the standard articulated in Hruby and Hruby, 304 Or 500, 738 P2d 977 (1987), applies, the result should be the same.
In Hruby, the court established the standard for determining custody involving a natural parent and a third *763party: The natural parent should have custody unless there is a compelling reason not to award custody to the parent. The court recognized that the standard for determining custody in this type of case has varied considerably and has not been precisely articulated. The standard, sometimes used in the past, that a natural parent must be shown to be unfit before custody will be denied, was clearly rejected. The court also rejected the standard at the other end of the spectrum, “the best interests of the child,” which allows consideration only of the needs of the child. Instead, the court adopted a test between those two extremes: A fit parent is entitled to custody unless there are “compelling reasons” for placing the child in the custody of another. The court explained:
“We do not use the adjective ‘compelling’ in an effort to provide more precision to our holding through the use of that word in other contexts. We might have as easily used words such as ‘good cause,’ Ex parte Barnes, supra, 54 Or at 550, or ‘most cogent,’ Gheen v. Gheen, supra, 247 Or at 19. Because of the variety of circumstances in which custody disputes arise, any standard for determining custody will of necessity be somewhat vague. We use ‘compelling’ to emphasize that in a custody dispute between a natural parent and some other person, a court should not be concerned with attempting to maximize a child’s welfare, but with determining whether the child will receive adequate care and love from its natural parent and whether the child will be otherwise unduly harmed, physically or psychologically, by giving custody to the natural parent.” 304 Or at 510.
The circumstances of this case are quite distinguishable from the facts in Hruby. In that case, the parents separated two months after the child’s birth. Because neither parent was then able to care for the child, the father placed the child with his sister. The father sought and obtained custody of the child in the dissolution judgment. He was in the Navy and was stationed in a succession of West Coast cities. Because of that, his sister continued to care for the child. However, he visited the child frequently and regularly paid his sister support for the child. Even though the child developed a parent-child relationship with her aunt and uncle, she also had an emotional attachment to her father. In 1985, the father remarried and sought to regain physical custody of his child. The court concluded that there was no compelling reason not to give him custody and did so.
*764In this case, the child was with her parents for approximately the first two years of her life. However, during that time, she stayed with her maternal grandparents for extended periods of time. After the parents separated in 1982, she began living with the grandparents permanently. Father entered the military service in March, 1983. Both before entering the military and during his service, he had very limited contact with the child. In January, 1984, CSD filed a petition seeking jurisdiction over the child, alleging that both parents had failed to provide for her physical and emotional needs and that she was suffering from emotional problems resulting from the lack of a stable parent figure and a stable living situation. Father was aware of that proceeding and the concerns of CSD. He appeared at the first hearing on the matter. However, he did not appear at any subsequent hearings.1 In April, 1984, the trial court placed the child in the temporary custody of the grandparents. In August, 1984, the court held that the jurisdictional allegations in CSD’s January, 1984, petition were proven and found the child to be within the jurisdiction of the court.
In September, 1984, CSD began writing to father, asking him to participate in the development of a permanent plan for the child. In June, 1985, CSD wrote to him:
“The purpose of this letter is to emphasize Children’s Services Division’s eagerness to work with you so that you may be in a position to provide a permanent home for Brenda. It is imperative that a permanent home, preferably with her parent, be found for her soon.
“In the past few months I have mailed six letters. You have responded to only one. I made arrangements to have Children’s Services in Umatilla County work with you and you did not show for their appointments. I set up a visitation schedule; as you requested, and you appeared for only one visit. I arranged to meet with you on a Saturday, which was the time you suggested and you did not appear. I am very concerned with your overall lack of progress and your lack of follow through with commitments you have made. Time is running out and this pattern must not continue if you expect to regain custody of Brenda!
*765“As I have stated previously, you have the right to a review hearing if you disagree with Children’s Services Division’s actions or wish Court clarification of an issue regarding your child. Please inform me if you wish to have a hearing scheduled. In addition, please be advised that you have the right to have an attorney. If you are without funds, one can be appointed to represent you.
“IF I DO NOT HEAR FROM YOU BEFORE JULY 15, 1985, to develop a plan for Brenda I WILL FILE A TERMINATION OF PARENTAL RIGHTS PETITION, in order to free Brenda for adoption.” (Emphasis in original.)
CSD did file a petition to terminate father’s parental rights, but, in April, 1986, the court denied the petition. In that proceeding, CSD recommended that custody remain with the grandparents.
Father also failed to provide financial support for the child. While in the military service he provided support only after CSD secured a military allotment for the child. During the six months after leaving the service in January, 1986, he had provided only $100 to the grandparents.
Although father was aware of CSD’s serious concerns about the welfare of his daughter, which eventually resulted in her being made a ward of the court, he did virtually nothing. The only explanation he offered as to why he did not maintain contact with the child or participate in CSD’s planning for her was that he was in the military service on a secret mission. As explained by his attorney in a memorandum accompanying father’s trial court motion to reconsider: “Father was assigned to a secret mission, on 24-hour call and could not travel more than 50 miles without advance permission.” However, even assuming that father’s ability to travel was limited, he failed to maintain any contact with his child or CSD.2
Applying the Hruby standard, I conclude that father’s lack of commitment to or interest in his child’s well being for a substantial period constitutes a compelling reason not to give *766custody to him.3 Just as a parent’s inadequate care of a child may support a conclusion that giving that parent custody would be harmful, a parent’s total lack of care or concern for a child for an extended period of time may also support that conclusion. Father’s almost total absence from this child’s life for an extended period outweighs his current good intentions. Father’s track record of care and concern for his daughter, considered together with the fact that father’s absence has resulted in the development of a stable living situation for her with the grandparents, convince me that “the child [would not] receive adequate care and love from his natural parent” or that the child would be otherwise “unduly harmed, physically or psychologically by giving custody to the natural parent.” Hruby and Hruby, supra, 304 Or at 511.
The dissent completely disregards father’s past history:
“Father’s past inattentiveness toward his child is not determinative of his present intentions and abilities. Under Hruby, we should evaluate father’s current capacity and intentions.”4
Although it cannot be assumed that a person who has not properly carried out parental responsibilities in the past will never reform, the “track record” is highly relevant to determining whether he can provide adequate care and love to the child now. Our decision here, as in most cases, must be based on what has occurred in the past, regardless of how much we would like to believe a parent’s promise to “do better next time.”
Because our previous decision is consistent with the Supreme Court’s recent clarification of the standard applicable in a custody dispute between a natural parent and a third *767party, I would allow the petition for reconsideration and adhere to our former decision.
Richardson, J., joins in this concurring opinion.
Father appeared at the first hearing and requested the appointment of counsel. The affidavit supporting the request showed his military pay to be $900 per month. His request was denied.
The dissent does not dispute that father’s absence or failure to provide support occurred, but asserts that we should not use that against father because, on this limited record, we do not know the reasons for father’s actions. However, father had the opportunity to offer an explanation of his conduct at the hearing. Although, as the dissent points out, the trial court limited the hearing, father did not object to the procedures and did not attempt to offer evidence.
The dissent errs in its application of the Hruby standard by deciding that, because the father in this case is presently “fit,” there is no compelling reason not to award him custody. Parental fitness, however, is not the appropriate standard. Under Hruby, a fit parent may be denied custody if there is good cause to do so.
The dissent characterizes father’s behavior as “inattentiveness.” I question whether, if a mother had acted as father has in this case, having had virtually no contact with his child, having failed to provide any nurturing whatsoever for the child and having failed to cooperate in a meaningful way with CSD, her behavior would be called “inattentiveness.”