dissenting.
In our original opinion, State ex rel Juv. Dept. v. Lauffenberger, 88 Or App 642, 746 P2d 259 (1987), we erroneously relied on a standard of the “best interests of the child.” The majority, on reconsideration, continues that error. It erroneously asserts that because the child is a ward of the juvenile court, the Supreme Court’s decision in Hruby and Hruby, 304 Or 500, 748 P2d 57 (1987), does not apply.1 Under Hruby, in a dispute between the natural father and the maternal grandparents, the court should give custody to the natural father, even though the child is a ward of the court, absent a “compelling reason” to the contrary. We should withdraw our original opinion, reverse the trial court and award custody to the father.
Hruby states:
“We conclude from the foregoing that under the ‘principles of common law and equity,’ as further developed by legislation and the decisions of this court, a natural parent has the right to the custody of his or her children, absent a compelling reason for placing the children in the custody of another; the ‘best interests of the child’ standard applicable to custody disputes between natural parents in a marriage dissolution proceeding is not applicable to custody disputes between natural parents and other persons. 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 *768giving custody to the natural parent.” 304 Or at 510. (Emphasis supplied.)
To establish a “compelling reason,” the evidence must show that the child will not receive adequate care and love from its natural parent or will be unduly harmed physically or psychologically by giving custody to the natural parent. The burden is on the party who seeks to deprive the natural parent of custody.
The juvenile court took jurisdiction of the child in 1984. It made her a ward of the court in 1985 and gave temporary custody to CSD. The majority recognizes that that disposition was temporary. 93 Or App at 760. See ORS 419.576. Then, after completion of CSD’s unsuccessful proceeding in April, 1986, to terminate father’s parental rights, the court conducted the dispositional hearing from which father appeals. The grandparents intervened under ORS 109.119 and asked for custody. Father asked that the child be placed in his custody. CSD recommended that the court place the child in the grandparents’ custody. The prior jurisdictional rulings do not change the fundamental dispositional issue — whether father or the maternal grandparents should have custody.
The language of Hruby is broad:
“In child custody disputes between natural parents and other private parties, this court early resolved the tension between the custodial rights of natural parents and the parents patriae power of the state by applying some variant formulation of the rule that a natural parent was entitled to the custody of his or her children unless that parent was unfit or unable to care for the children properly; absent such a threat to the children’s welfare, their interests, much less the interests of non-parents seeking their custody, were of no concern.” 304 Or at 506.
Father, as the natural parent, still has a preferential right to custody. His rights also have constitutional underpinnings. “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” Santosky v. Kramer, 455 US 745, 753, 102 S Ct 1388, 71 L Ed 2d 599 (1982); see also State v. McMaster, 259 Or 291, 486 P2d 567 (1971). The proceeding under ORS 419.476(1) (e) that made *769the child a ward of the juvenile court did not terminate father’s parental rights. Indeed, in the termination proceeding in April, 1986, the court dismissed CSD’s petition to terminate father’s parental rights.
Without citation of authority, the majority erroneously holds that “after the child has been ‘removed from the control of the parents,’ ORS 419.474(2), and has become a ward of the court, ORS 419.507(1), the presumption in favor of the biological parent ceases to apply.” 93 Or App at 761. Then it quickly backs away from this assertion, stating that “at a minimum, Hruby left open the question of whether it applies to juvenile proceedings.” 93 Or App at 761. The Hruby standard, however, applies even if the child is a ward of the juvenile court, CSD has temporary custody and recommends that the third parties — the grandparents — receive custody.2 Contrary to the majority’s assertion, the natural parent’s right to a custody preference against third parties does not disappear if the juvenile court finds that the child is within its jurisdiction.
ORS chapter 419.474(2)3 recognizes the natural parent’s preference when it states that placement is to be “preferably in the child’s own home.” In State ex rel Juv. Dept. v. G. W., 27 Or App 547, 551, 556 P2d 993 (1976), we stated:
“The general rule is that preference in placement, if a child is within the juvenile court’s jurisdiction, is to be given to the natural parent. State v. Peterson, 3 Or App 52, 471 P2d 853 (1970); Prindel v. Collins, 4 Or App 618, 481 P2d 540 (1971). [Former] ORS 419.474(2) provides:
‘The provisions of [former] ORS 419.472 to 419.590, 419.800 to 419.480 and subsection (2) of 419.990 shall be liberally construed to the end that a child coming within *770the jurisdiction of the court may receive such care, guidance and control, preferably in his own home, as will lead to the child’s welfare and the best interest of the public, and that when a child is removed from the control of his parents the court may secure for him care that best meets the needs of the child.’ (Emphasis supplied.)
“In Prindel, we affirmed the court’s order which ‘gave due consideration to that legislatively declared policy’ (4 Or App at 620) by awarding custody to the child’s fit natural mother rather than continuing custody with the child’s paternal grandparents.”
Moreover, although ORS 109.119, under which the grandparents intervened here and the aunt intervened in Hruby, refers to the “best interests of the child,” Hruby nevertheless adopted a standard of “compelling reason.”
The majority erroneously asserts that the grandparents should get custody now because the juvenile court found that the child’s emotional and physical needs were not being met in 1985, when it made the child a ward of the court. 93 Or App at 760. In this proceeding in 1986 — the dispositional proceeding — the court found that the father was fit. Moreover, it did not find or believe that the child would not receive adequate care or love from father or would be unduly harmed by placement with him. It stated that it could “just as easily” have awarded custody to father and that “that is the best interest for this child.”4
*771Father’s past inattentiveness toward his child is not determinative of his present intentions and abilities.5 Under Hruby, we should evaluate father’s current capacity and intentions. He has attended parenting classes and has otherwise cooperated with CSD. He has created a stable home environment with his new wife and children. The record suggests strongly the conclusion that father has matured.
The reason that the trial court gave for awarding custody to the grandparents was that they could best provide the child with a stable home. Yet in Hruby, where the child also had not known a home with the father, the court stated:
“[C]ourts will deprive natural parents of the custody of their children only in order to protect the children from some compelling threat to their present or future well-being. Apart from these concerns, it is irrelevant to the court’s custody determination that the children might have a better home or might have greater financial, educational or social opportunities in the custody of another.” 304 Or at 509.
The record here does not show a “compelling reason” to deny father custody of his own child.
In our original opinion, we erroneously applied a “best interests of the child” standard. The majority opinion on reconsideration continues that error. We should have given, and should now give, preference to father over the grandparents, because a compelling reason to the contrary is absent.
I dissent.
Buttler and Warden, JJ., and Van Hoomissen, Judge pro tempore, join in this dissent.The child was made a ward of the court under ORS 419.476(l)(e).
Hruby states that ORS Chapter 419, the juvenile court statute, also implicitly recognizes the natural parent’s common law right to custody of his children. 304 Or at 505 n 3.
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 of 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.”
The trial court stated:
“You see, [the grandparents] have a track record, and if you bet on a horse and you bet on one that ran eight races and won all eight races then you feel pretty safe putting a couple of bucks on the nose on that one.
“[Father] has no track record, so we are going to find out, ladies and gentlemen. We are going to find out whether these folks up in Salem are going to fish or cut bait. I find that [father] is a fit parent for the child * * * to be placed with him as a result of this proceeding. I further find so that * * * his family and where the child would be residing that they would also be fit for this child. A fit place for this child to reside and to reside with.
******
“Further, I am going to find that it is in the best interest of this little girl * * * that her care, custody and control be with the grandparents and that she remain with them and that she be under the supervision of Childrens Services Division. This thing could be taken either way and I will explain to you why I am taking it this way, and I’m sure the lawyers know it is because of what I have said about stability. Just as easily I could have said that the child would go to [father and his wife] and that is the best interest for this child. If that was wrong, then the child would be moved back from [father’s] to the [grandparents’]. We don’t want that to happen because if I am wrong I want there to be only one move, and that is a move and that will be a permanent move.” (Emphasis supplied.)
Father asserted that he did not provide child support, because his allotment went to the child’s mother, while her parents had custody of his daughter. He also stated that his “top-secret” postings made it difficult for him to attend CSD and Support Division hearings. In response to CSD inquiries regarding placement and custody of his daughter, he stated that he would not consent to an adoption but that in early 1985 he did not consider himself to be an appropriate placement for his daughter, because he had to travel back and forth between Maryland and Oregon on his military duties.