dissenting.
Because I believe that the District Court could not reasonably have been persuaded that it was highly probable that the biological mother was unable to protect her son from jeopardy, I respectfully dissent.
The flaw in the Court’s analysis, in my view, is its mistaken evaluation of the expert testimony quoted at length in the opinion. In concluding that the record supports a finding of jeopardy, the Court substantially relies on statements from medical experts that removal from the foster parents’ home would jeopardize the child. It quotes the testimony of Dr. DeMaso, who stated: “I think the trauma of being taken away from [the foster] mother would be quite emotionally stressful for this youngster.” (emphasis added). The opinion also refers to the testimony of Dr. James Maier who similarly testified to the effects of removal. He said: “I think the jeopardy to Chris, were he to be taken out of his foster home, would be enormous. In effect [it would be disastrous]. In effect, it’s a kind of a sword of Solomon hanging over his head, to have to face the possibility of being disrupted and taken away from his foster family.... It would seem to be extremely unwise to even contemplate a change in custody.’’ (emphasis added). Again, the opinion includes excerpts from letters of Drs. Richard Grand and Patricia Adams. Dr. Grand wrote: “[I]t would be extremely disruptive, damaging and irresponsible to allow him to be removed from this supportive environment_ Christopher should remain with Mrs. [M.]. From my point of view, there is no alternative.” (emphasis added). Dr. Adams wrote: “I feel that to remove Chris from this environment he considers home ... would be to court disaster both emotionally and physically.” (emphasis added).
Since a denial of a petition for termination need not in any way affect child custodial arrangements or arrangements to visit with the birth parent, away from the foster home, evidence of the effects of removal is irrelevant to this parental termination proceeding. See In re Sabrina M., 460 A.2d 1009, 1016 (Me.1983) (“The child’s interest in safety does not arise in a termination proceeding because, under our statutory structure, when such a proceeding commences, the child is not in a dangerous environment and [a] ... failure to terminate parental rights does not return the child to a dangerous environment; rather, the child remains with his present custodian.”) (emphasis added). The Court’s analysis is erroneously based on an assumption that absent a termination of parental rights, protective measures are unavailable to prevent removal from the foster home or stability threatening visitation. The Department is free through the mechanism of judicial review of the custody order to request the imposition of whatever conditions are deemed necessary to ensure that reintroduction efforts are undertaken at the child’s foster home and under close supervision of appropriate personnel. See 22 M.R.S.A. § 4038(2), (4) (Supp.1985-1986). Accordingly, the Court’s reliance on evidence of the effects of removal distorts its review of the District Court’s finding.
The remaining expert testimony attempting to establish a threat of harm to the child if the natural mother were reintroduced into the child’s life is so vague and speculative that the District Court could not reasonably have been persuaded that the natural mother was unable to protect her child from jeopardy. Again, the Court leans heavily on the testimony of Dr. Maier who stated that: “The jeopardy that I would foresee would be that, were parental rights not terminated, the possibility of some action by [Sybil] or her lawyer, which *802Chris in some way might get wind of, could potentially threaten his emotional stability and make him more anxious, at a time when he can ill afford to have any additional stress in his life.” (emphasis added). He went on to say that a disruption of the child’s life by the introduction of the natural parent “might cause some real complications or problems [for Chris]. ... And ... this, in turn, could have consequences that would be deleterious to his health in the form of, perhaps, his anxiety taking a form of decreased compliance with taking medication or with his diet, or other kinds of behavior which could jeopardize his condition.” (emphasis added). The remaining quoted portions of the expert testimony relate to the best interests of the child. I concede that this evidence clearly supports a finding that termination would be in the best interests of the child. Because this criterion, however, must not be examined until it is first determined that the evidence clearly and convincingly demonstrates that the natural mother is unable to protect Christopher from jeopardy within a time reasonably calculated to meet the child’s needs, In re Shannon R., 461 A.2d 707, 712 (Me.1983), it is imperative that the best interests issue not unconsciously color the Court’s judgment on the ability-to-protect question.
The State can point to no evidence of harmful results from any attempts at supervised contact between mother and child. The record does show that the mother would be entirely cooperative and would abide by any restrictions as to time, place, frequency and duration of any proposed contacts. No evidence of a deficiency in her parenting abilities has been presented. There is no evidence whatsoever demonstrating that steps short of this extreme action could not be undertaken to accomplish the protection of all interests involved. Cf. In re Daniel C., 480 A.2d 766, 773 (Me.1984) (Violette, J., dissenting) (“The break-up of the family unit should, however, be a last resort, when all else has failed.”).
Rather than attempting to design a statutorily mandated plan during the fourteen years the child has been in the Department’s custody, see 22 M.R.S.A. § 4041(1) (Supp.1985-1986), the State pursued a policy of making no effort whatsoever to expose Christopher to his natural parent.. More shocking is the fact that when the Department learned in 1978 that Sybil believed Christopher was dead, it did absolutely nothing to correct this erroneous belief. Amazingly, one of the caseworkers for the Department testified that she believed “it was possible to complete an adoption without notifying the natural parents.” Instead of making any attempt to inform Sybil that her child was alive, the Department let the natural bonding between Christopher and his foster mother continue to be enhanced and now, ironically, argues that in order not to interfere with the stability that that bonding promoted, termination is required. Compare In re Daniel C., 480 A.2d at 773 (Violette, J., dissenting) (“The department could, by adopting a policy of doing nothing and letting nature run its course, create the inexorable result that the majority of these cases would end in the termination of parental rights.”). While the termination statute focuses on the conduct of the parent rather than the shortcomings of the Department, the Department’s egregious nonfeasance is a factor to be considered in evaluating the parent’s conduct to determine whether there is clear and convincing evidence that Sybil is unable to protect her son from jeopardy. In re Daniel C., 480 A.2d at 771.
“Few forms of state action are both so severe and so irreversible” as a decision terminating parental rights. Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 1397-98, 71 L.Ed.2d 599 (1982), quoted in In re Shannon R., 461 A.2d at 715. The clear and convincing evidentiary standard is required in these cases in part to force states to present sufficient proof of their allegations rather than to allow decisions to be made solely on the basis of the child’s best interests as perceived by judges. *803Santosky v. Kramer, 455 U.S. at 769, 102 S.Ct. at 1403.
I conclude that the District Court was clearly erroneous in finding that the evidence was sufficiently persuasive as a matter of law to meet the required evidentiary standard. Testimony couched in terms of “possibility," “could potentially threaten," “might cause,” “could have consequences” or “could jeopardize,” is clearly not the kind of clear and convincing evidence required to show that a mother is unable to protect her son from jeopardy.
I would vacate the order and remand to the District Court with instructions to deny the petition to terminate parental rights.