dissenting.
The concurrence’s reasoning in this case results in an unconstitutional infringement of mother’s fundamental right to raise her children under the Fourteenth Amendment to the United States Constitution. In this opinion, I will (1) explore the nature and extent of that right; (2) discuss, in light of that right, the type of circumstances that must be present before the state can lawfully deprive a parent of the custody of his or her child; and (3) explain why the application of the Due Process Clause to the facts of this case should have resulted in a decision in favor of mother.
*718I. WHAT IS THE NATURE AND EXTENT OF MOTHER’S LIBERTY INTEREST IN THIS CASE UNDER THE FOURTEENTH AMENDMENT?
“[T]he relationship between parent and child is constitutionally protected.” Quilloin v. Walcott, 434 US 246, 255, 98 S Ct 549, 54 L Ed 2d 511 (1978). “[F]reedom of personal choice in matters of* * * family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v. LaFleur, 414 US 632, 639-40, 94 S Ct 791, 39 L Ed 2d 52 (1974). Although the concurrence acknowledges that principle in this case, it fails to give it the efficacy required by the United States Supreme Court’s jurisprudence.
The Due Process Clause of the Fourteenth Amendment protects the right of the individual to
“establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
Meyer v. Nebraska, 262 US 390, 399, 43 S Ct 625, 67 L Ed. 1042 (1923).1 Consequently, parents have a liberty interest in raising their children as they see fit.
“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that [the Court’s] decisions have respected the private realm of family life which the state cannot enter.”
Prince v. Massachusetts, 321 US 158, 166, 64 S Ct 438, 88 L Ed 645 (1944).2 Thus, the Court explained in Quilloin:
*719“We have little doubt that the Due Process Clause would be offended ‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.’ ”
434 US at 255 (quoting Smith v. Organization of Foster Families, 431 US 816, 862-63, 97 S Ct 2094, 53 L Ed 2d 14 (1977) (Stewart, J., concurring)) (emphasis added; brackets in original).3
The concurrence’s analysis offends those principles by declaring that custody of mother’s children should be granted to the paternal grandparents in the absence of evidence of parental unfitness or similarly grave circumstances, the kind of evidence that the federal constitution requires. That is not to say that ORS 109.119, the statute under which the concurrence analyzes this case, is unconstitutional; rather, any lawful application of the statute necessarily incorporates due process. Although the concurrence gives lip service to mother’s constitutional right to raise her own children, 188 Or App at 701-02 (Deits, C. J., concurring), the concurrence never engages with the understanding of what that constitutional requirement means in the context of the facts of this case and the legal standard it imposes. First, the concurrence’s conclusions that mother cannot satisfy her children’s needs because of her emotional limitations and that therefore they will face an undue risk of physical or psychological harm in the future is based on attenuated evidence, as will be demonstrated later in this opinion. Equally important, the concurrence’s analysis is legally incorrect because it *720is unable to identify through its analysis a legally cognizable, compelling state interest that permits the statutory deprivation of custody from mother, nor does it make the “delicate” accommodation that the constitution requires between a parent’s liberty interest and the interests of the state. Prince, 321 US at 165.
II. WHAT KIND OF STATE INTEREST MUST EXIST BEFORE A PARENT CAN BE CONSTITUTIONALLY DEPRIVED OF CUSTODY?
Parents have a fundamental liberty interest in directing the upbringing of their children:
“The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Pierce v. Society of Sisters, 268 US 510, 535, 45 S Ct 571, 69 L Ed 1070 (1925)4 On the other hand,
“[a]gainst these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children [.] * * * It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens.”
Prince, 321 US at 165. The accommodation of both interests in accordance with the constitution requires standards to define when the state is authorized to interfere with a parent’s right to child custody. No matter how those standards *721are articulated, the fundamental nature of a parent’s right to raise his or her children must be meaningfully reflected in their formulation.
Once a constitutional right has been so determined to be deeply rooted in our nation’s history and tradition as to be classified as “fundamental,” the government may not interfere with that right “at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 US 292, 302, 113 S Ct 1439, 123 L Ed 2d 1 (1993) (emphasis in original).5 Thus, the substantive component of the Due Process Clause provides heightened protection against government interference with rights that have been determined to be fundamental. Washington v. Glucksberg, 521 US 702, 719-20, 117 S Ct 2258, 138 L Ed 2d 772 (1997). The right of a parent to direct the upbringing of his or her children is such a fundamental right. As the lead opinion in Troxel v. Granville, 530 US 57, 65, 120 S Ct 2054, 147 L Ed 2d 49 (2000), said, “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
In Troxel, the Washington Supreme Court had invalidated on constitutional grounds a state statute that authorized grandparent visitation with a child over the parent’s objection when a court found visitation to be in the “best interests of the child.” The grandparents did not allege, and no court found, that the parent was unfit. Troxel, 530 US at 68 (O’Connor, J., plurality opinion). The state court held the statute unconstitutional on two grounds: (1) the failure of the statute to require harm to the child and (2) the statute’s authorization of “any person” at “any time” to petition for and to receive visitation rights based on the “best interests of the child” standard. Id. at 63. The United States Supreme Court granted certiorari.
*722Justice O’Connor, writing for four members of the Court, explained that the Washington trial court’s “order was not founded on any special factors that might justify the State’s interference with Granville’s [the parent’s] fundamental right to make decisions concerning the rearing of her two daughters.” Id. at 68. She observed:
“[TJhere is a presumption that fit parents act in the best interests of their children. * * * Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”
Id. at 68-69 (citations omitted). Justice O’Connor concluded that the Washington statute, as applied, was an unconstitutional infringement on the parent’s fundamental right to make decisions concerning the care, custody, and control of her children:
“Because we rest our decision on the sweeping breadth of [the Washington statute] and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the •Washington Supreme Court—whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with JUSTICE KENNEDY that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best ‘elaborated with care.’ ”
Id. at 73.
Justice Souter concurred in the judgment. He would have affirmed the Washington Supreme Court on the basis that the statute was unconstitutional on its face. He explained, in part:
‘We have long recognized that a parent’s interest in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause *723of the Fourteenth Amendment. * * * As we first acknowledged in Meyer, the right of parents to ‘bring up children,’ and ‘to control the education of their own’ is protected by the Constitution.
“* * * As the [Washington] court understood it, the specific best-interests provision in the statute would allow a court to award visitation whenever it thought it could make a better decision than a child’s parent had done. * * *
“Our cases, it is true, have not set out exact metes and bounds to the protected interest of a parent in the relationship with his child, but Meyer’s repeatedly recognized right of upbringing would be a sham if it failed to encompass the right to be free of judicially compelled visitation by ‘any party’ at ‘any time’ a judge believed he ‘could make a “better” decision’ than the objecting parent had done. * * * Pierce, * * * [268 US] at 535 (‘* * * The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’). It would be anomalous, then, to subject a parent to any individual judge’s choice * * * merely because the judge might think himself more enlightened than the child’s parent.”
Id. at 77-79 (Souter, J., concurring in the judgment) (footnotes and some citations omitted).
Justice Thomas also concurred in the judgment. In part, he wrote:
“I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenu-merated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.
“Consequently, I agree with the plurality that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Our decision in Pierce * * *, holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, JUSTICE KENNEDY, *724AND JUSTICE SOUTER recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest—to say nothing of a compelling one[.]”
Id. at 80 (Thomas, J., concurring in the judgment) (footnote omitted).
Apparently, the concurrence and I hold significantly different views of the import of the Troxel opinions on this case. The concurrence explains its view:
“[I]n our recent custody cases, we ‘salvag[ed] the constitutionality’ of ORS 109.119 (1997) by incorporating the requirements of Troxel into the statute’s interpretation. Wilson [and Wilson], 184 Or App [212, 218, 55 P3d 1106 (2002)]. In doing so, we expressly rejected the legal standard asserted by Justice Thomas in Troxel. * * * [We] indicated that ‘the plurality opinion * * * gives the best guidance on the effect of the constitution in this situation.’ Harrington [v. Daum], 172 Or App [188, 197, 18 P3d 456 (2001)].”
188 Or App at 709-10 (Deits, C. J., concurring) (emphasis in original).
The concurrence’s argument proves too much, both in terms of what Wilson and Harrington held and in the manner in which it characterizes Justice Thomas’s opinion. I agree that, in Wilson and in Harrington we incorporated the rule of Troxel into the statute to preserve its constitutionality. However, the concurrence’s assertion that “we expressly rejected the legal standard asserted by Justice Thomas in Troxel” misunderstands what we said in Harrington. The discussion that follows explains in more detail what underlies our statements with respect to the Troxel opinions in Harrington.
The plurality opinion, Justice Souter, and Justice Thomas all agreed in Troxel that the right of a parent to raise his or her children is a fundamental right. That agreement among the opinions is based on the line of cases that I have previously described.6 The Fourteenth Amendment includes *725a substantive component that forbids the government from infringing on certain “fundamental” liberty interests “at all * * * unless the infringement is narrowly tailored to serve a compelling state interest.” Flores, 507 US at 302 (emphasis in original); see also California Democratic Party v. Jones, 530 US 567, 573 n 5, 582, 120 S Ct 2402, 147 L Ed 2d 502 (2000); Plyler v. Doe, 457 US 202, 216-17, 102 S Ct 2383, 72 L Ed 2d 786 (1982); Zablocki v. Redhail, 434 US 374, 386-88, 98 S Ct 673, 54 L Ed 2d 618 (1978); Carey v. Population Services, International, 431 US 678, 684-86, 97 S Ct 2010, 52 L Ed 2d 675 (1977). Our understanding of the constitutional right of a parent to have custody of his or her children and its attendant consequences is the underpinning of our decision in Harrington and our cases that have followed it.
It is correct that the plurality opinion in Troxel did not articulate a standard of review regarding infringements of the fundamental right to parent. Justice Thomas observed in his concurrence that, while the opinions of the plurality, Justice Kennedy, and Justice Souter recognized the fundamental nature of the constitutional right of parents to rear children, “curiously none of them articulates the appropriate standard of review.” Troxel, 530 US at 80 (Thomas, J., concurring in the judgment). Justice Thomas followed that statement by saying that he would apply a “strict scrutiny” standard of review. Id. Whether that statement is an assertion that the plurality is unwilling to articulate the applicable standard of review, and he is, or that he and the plurality hold different views as to the standard of review is debatable (see discussion below). It was not necessary in Harrington to address that issue, and the concurrence reads too much into our language in that case. Our statement in Harrington, which the concurrence now characterizes as an express rejection of Justice Thomas’s view, merely communicated our view of a continuum on which the plurality and the two concurring opinions could be said to rest with regard to varying factual circumstances that might be presented to a court. However, there can be no reasonable debate that mother in this case holds a fundamental constitutional interest to have *726custody of her children and that that interest is subject to heightened protection.
Moreover, the concurrence’s assertion that we have expressly rejected Justice Thomas’s “strict scrutiny” standard of review is confusing in the context of the issue in this case. In Troxel, the Washington Supreme Court invalidated the Washington statute based on the text of the statute alone. A “strict scrutiny” standard of review applied to a state statute means that the statute is not entitled to the usual presumption of validity; the state rather than the complainants carries a heavy burden of tailoring its regulation narrowly to serve legitimate objectives and it must demonstrate that it has selected the least drastic means for effectuating its objectives. San Antonio School District v. Rodriguez, 411 US 1, 16-17, 93 S Ct 1278, 36 L Ed 2d 16 (1973). I do not contend that ORS 109.119 is facially unconstitutional. As stated previously, the problem with the concurrence’s view is that it does not afford due process to mother in its application of the statute. Consequently, in my view, there is no need to resolve whether or not we view ORS 109.119 with “strict scrutiny.”
Regardless, for purposes of this case, the distinction that the concurrence draws is a distinction without a difference.7 The plurality and the concurrences in Troxel are unanimous that a parent’s right to parent his or her children is entitled to heightened protection because of the fundamental nature of that right. In this opinion, I assert no other principle of law than that agreed on by the concurrences and the plurality in Troxel, contrary to the efforts to characterize my analysis differently.8 Because the Due Process Clause *727requires heightened protection for mother’s right to have custody of her children and to direct the upbringing of her children and because that right cannot constitutionally be infringed upon by the state in the absence of a compelling state interest, the issue that must be resolved in this case is whether the circumstances present here permit the state to exercise its parens patriae power to protect the welfare of the children and to override mother’s fundamental right to raise her children. It is clear from the United States Supreme Court’s jurisprudence that a “best interests of the children” standard is not sufficient to justify government infringement of a parent’s right to direct the upbringing of his or her children. See Troxel, 530 US at 69-70 (O’Connor, J., plurality opinion). Rather, in a case where a child is receiving minimally adequate care in a parent’s custody, the parent is entitled, under the constitution, to retain custody. As the Court has uniformly held,
“ ‘the best interests of the child’ is not the legal standard that governs parents’ * * * exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents * * * themselves.”
Flores, 507 US at 304 (emphasis added).
The Troxel plurality avoided defining the precise scope of the parental due process right described above because it rested its holding on the breadth of the Washington statute. We cannot avoid that question here because our de novo standard of review requires us to consider the state of the evidentiary record. Consequently, it is *728helpful to think about other constitutional exercises of the state’s parens patriae authority in our endeavor to give definition to the scope of mother’s fundamental right. In my view, the constitutional standard of minimal parental adequacy also finds implicit expression in the requirements of Oregon statutes that permit the state to take permanent custody of a parent’s child when the child’s welfare is at stake. See, e.g., ORS 419B.365(4) (providing for permanent guardianship on the same grounds as required for the termination of parental rights); ORS 419B.502 (providing for termination of parental rights because of rape, sodomy, or sex abuse, intentional starvation or torture of the child by the parent, or abuse or neglect resulting in death or serious physical injury); ORS 419B.504 (providing for termination of parental rights because parents are unfit due to emotional illness, mental illness, mental deficiency, abusive, cruel, or sexual conduct toward any child, or addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired and integration of the child into the home of the parent is improbable within a reasonable time due to conduct or conditions that are not likely to change); ORS 419B-506 (providing for termination of parental rights for the failure to provide for the basic physical and psychological needs of the child for six months prior to the filing of the petition); ORS 419B.508 (providing for termination of parental rights in the event of abandonment of the child by the parent). None of the above kinds of circumstances exists in this case.9
*729I believe that due process requires that, before the state is constitutionally permitted to invade the private realm of family life, circumstances like those outlined in the above statutes or other similarly compelling circumstances must be present. We have previously held that the applicable standard in parent-nonparent custody disputes is whether the parent is unfit or whether the parent’s custody presents "an undue risk of physical or psychological harm in the parent’s custody.” O’Donnell-Lamont and Lamont, 184 Or App 249, 256, 56 P3d 929 (2002), modified on recons, 187 Or App 14, 67 P3d 939 (2003) (emphasis added); see also Strome and Strome, 185 Or App 525, 533, 60 P3d 1158 (2003); Wilson, 184 Or App at 220-21; Newton v. Thomas, 177 Or App 670, 674, 33 P3d 1056 (2001), overruled in part on other grounds by O’Donnell-Lamont and Lamont, 187 Or App 14, 67 P3d 939 (2003). In those cases, we understood that the rule of law governing those cases implicitly embodied the requirements of the Due Process Clause; the unfitness to parent or an undue risk of physical or psychological harm are the kinds of circumstances that evidence a compelling state interest that permits a state court to constitutionally deprive a parent of child custody in favor of a third party.10
*730Just as the concurrence and I hold significantly different views about the meaning of Troxel, it appears we also disagree about what constitutes a compelling state interest for purposes of ORS 109.119 and whether there is such an interest in this case. This difference is more than a disagreement about whether the evidence suffices to meet a standard about which we both agree. Rather, it is a difference in opinion about what due process requires in the context of these facts. Discerning and then applying the proper legal standard is the necessary predicate to any analysis of the evidence. It is that difference that ultimately leads to our disagreement about the import of the facts in this case. The importance of that difference cannot be overemphasized because of its due process implications.
The concurrence acknowledges the necessity of a constitutional underpinning to the state standards that it uses, and it relies on the Oregon Supreme Court’s decisions in Hruby and Hruby, 304 Or 500, 748 P2d 57 (1987), and State ex rel Juv. Dept. v. Lauffenberger, 308 Or 159, 777 P2d 954 (1989), and the applicable statutes. So far so good. The problem arises, however, because the concurrence applies those standards in a way that disregards the admonition in Flores that the government is forbidden from infringing on a mother’s fundamental liberty interest “at all* * * unless the infringement is narrowly tailored to serve a compelling state *731interest.” 507 US at 302 (emphasis in original). Just as the Washington statute, as applied, unconstitutionally infringed on Granville’s fundamental parental right in Troxel, so too would the concurrence’s application of the above standards in this case infringe on mother’s constitutional right to parent her children because the concurrence fails to require that the standards, as used, comply with minimum federal constitutional standards. The result of that failure is as Justice Souter suggested in Troxel. The concurrence’s employment of a less exacting standard than that required by the constitution permits grandparents, through the authority of the state, to obtain custody of mother’s children because the concurrence believes that the grandparents will make better decisions regarding the children’s welfare. That may be an “enlightened” approach by the concurrence, but it is not a constitutionally sound one.
Illustrative of the flaw in the concurrence’s analysis is its claim that I “undertake [ ] a ‘new’ examination to determine the legal standard for determining when a nonparent may be awarded custody consistently with the parent’s constitutional right[,]” 188 Or App at 707 (Deits, C. J., concurring), and that, “[i]n Harrington, we expressly rejected the strict scrutiny standard asserted by Justice Thomas in Troxel,” 188 Or App at 709 (Deits, C. J., concurring). The concurrence also asserts:
“Judge Edmonds articulates a ‘compelling state interest’ standard that he derives from a legal standard that we have expressly rejected. In other words, Judge Edmonds is attempting to write anew on a slate that is far from clean.”
188 Or App at 710 (Deits, C. J., concurring).
Of course, the concurrence’s implicit disregard of a “compelling state interest” requirement, as shown by the above quotations, cannot be and is not correct as a matter of constitutional law, nor is that what our own cases such as Harrington and Wilson hold. No matter how the standard is articulated by a state rule of law, or what standard is adopted by a state as the basis for the deprivation of a child from the custody of a parent in order to award custody to a third party, the standard must afford heightened federal constitutional *732protection to the parent’s fundamental right to custody. In other words, there must be a compelling state interest present before the state can constitutionally exercise its authority.
The concurrence’s faulty premise is exacerbated by its misunderstanding of the significance of the holdings in Hruby and Lauffenberger.11 The Hruby court expressly declined to decide what state of facts will suffice to permit the state to usurp a natural parent’s constitutional right to parent his or her own children. 304 Or at 510-11. Nonetheless, both Hruby and Lauffenberger are helpful in understanding why the phrase “compelling reason,” as used in those cases, necessarily embodies the federal constitutional standard.
In Hruby, the child’s aunt intervened in a dissolution of marriage proceeding, seeking legal custody of the parties’ child under the then recently enacted ORS 109.119 (1985). The court affirmed the award of custody to the natural father. First, it held that the statute “does not grant substantive custodial rights and that a court must give custody of children to their natural parents unless there are compelling reasons for giving custody to another party.” Hruby, 304 Or at 502. Thus, as the court later said in Lauffenberger, “ORS 109.119 provides only procedural rights to persons who claim the specified emotional relationship with the child; the statute does not establish or change substantive custodial rights.” 308 Or at 163.
Next, the Hruby court commented on the fact that Oregon’s provisional, territorial, and state governments adopted principles of common law in the mid-nineteenth century that recognized, in child custody determinations, the paramount right of parents to the care and custody of their children in the absence of abuse or an inability to care for them. The court observed:
“Apart from the implicit recognition in this [, referring to Or Laws 1880, p 7, § 2,] and other Oregon statutes * * * of a natural parent’s common law right to the custody of his *733(and now her) children, natural parents have custodial rights under the Fourteenth Amendment to the United States Constitution. Natural parents may also have custodial rights unenumerated in the Oregon Constitution. See Or Const, Art I, § 33 [.] * * * The extent to which other persons, such as those satisfying the requirements of ORS 109.119, have constitutional rights in the custody of children is unclear. Also unclear are the circumstances under which a state can constitutionally give persons other than natural parents custodial rights equivalent to those of natural parents. The parties, apart from a brief citation in the father’s brief, have not raised these issues, and our resolution of the case makes it unnecessary for us to discuss them further.”
Hruby, 304 Or at 505 n 3 (some citations omitted).
The court then observed:
“[CJourts 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.”12
Id. at 509.
Finally, after reviewing a number of its decisions, the court summarized:
“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 use ‘compelling’ to emphasize that in a *734custody 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.”
Id. at 510-11 (citations omitted).
In Lauffenberger, the issue was whether the “best interests of the child” was the proper standard for a juvenile court to use when determining if a child should be placed with the child’s parent or with third parties. 308 Or at 161. The child in Lauffenberger was within the jurisdiction of the juvenile court and had become a ward of the court due to parental neglect. The juvenile court, exercising its parens patriae responsibility pursuant to its statutory authority, placed the child, then age four, in the physical custody of her grandparents, while continuing to retain jurisdiction over her. After denying petitions to terminate the parental rights of the child’s parents, the juvenile court held a dispositional hearing. It found that the father was a fit parent but determined that it was in the best interests of the child to remain in the custody of her grandparents. Id. at 162.
This court initially affirmed, holding that the best interests of the child dictated that she remain with her grandparents, despite the fitness of her natural parent. State ex rel Juv. Dept. v. Lauffenberger, 88 Or App 642, 646, 746 P2d 259 (1987). The father petitioned for reconsideration, which we allowed. State ex rel Juv. Dept. v. Lauffenberger, 93 Or App 757, 764 P2d 568 (1988). He argued that this court applied the wrong standard in light of Hruby’s “compelling reasons” standard. A majority of this court rejected father’s argument, reasoning that not to apply a “best interests” standard “would be to change direction and run contrary to the course that the legislature has set.” Lauffenberger, 93 Or App at 762. The majority distinguished Hruby because it involved a private custody dispute rather than a ward of the juvenile court. Four members of this court disagreed, observing that the father, as the natural parent, had a preferential right to custody even under ORS chapter 419 and that those rights had “constitutional underpinnings.” Id. at 768 (Newman, J., *735dissenting).13 It followed that to apply a “best interests” standard was error, in the dissent’s view, in light of the fact that the trial court found that the father was fit. Id. at 770 (Newman, J., dissenting).
On review, the Supreme Court agreed with the dissent and reversed, holding that the preference for parental custody and the “compelling reason” standard from Hruby applied. The court reasoned:
“In sum, the broad goals stated in the juvenile court law to determine and further the child’s welfare and best interests do not demonstrate a legislative rejection of the longstanding assumptions about parental custody that were reviewed in Hruby * * * assumptions that not only were longstanding at the time of Oregon’s statehood but perhaps were thought to be of constitutional magnitude.”
Lauffenberger, 308 Or at 165. The court then remanded, observing:
“The record of the present proceeding is sparse. The [dispositional] hearing * * * largely involved previous documents and oral summaries by counsel for the father and the [grandparents] of what various witnesses would say if they were called.”
Id. at 166-67. Further, the court noted that,
“[d]eciding the case before Hruby, the court made no specific findings with respect to potential harm from parental custody that Hruby called for in ordinary private custody disputes nor with respect to any other factors that might play a role under the juvenile court statute.”
Lauffenberger, 308 Or at 167. Finally, the court explained:
“Under the circumstances, although we reverse the decision of the Court of Appeals, we do not order a change of custody. That will be for the circuit court to decide on remand and on a new and more complete record, if the father still desires custody. [The child] now is nine years old *736and may have some opinions in the matter. CSD may have new recommendations in view of developments since 1986; objections to discontinuity standing alone do not override the preference for parental custody.”
Id. at 168.
The concurrence’s assertion that ORS 109.119 would permit an award of custody to grandparents based on a failure to provide adequate love and care or because placement of the child would cause the child undue physical or psychological harm, 188 Or App at 706-07 (Deits, C. J., concurring), without adherence to constitutional standards, causes the concurrence to repeat the error made by a majority of this court in Lauffenberger. “Adequate love and care” does not mean perfect care, and an “undue” risk of harm is more than just a risk of harm. In effect, the concurrence’s application of the Hruby and Lauffenberger case law and statutory standards without adherence to the federal standard of “a compelling state interest” results in a less exacting standard than the federal constitution requires.14 As both the Hruby and Lauffenberger courts acknowledged in the above-quoted material, the substantive standard underlying ORS 109.119 is based on case law and legislative intent, but necessarily has constitutional underpinnings. So long as the state standard is not inconsistent with the federal constitution, no constitutional issue arises. That was the factual situation in both *737Hruby and Lauffenberger where the trial courts found the parents seeking custody to be capable of providing adequate care for their children. It is only when a state standard is applied to take children away from parents, and that standard fails to adhere to the minimum protections guaranteed by the constitution regarding a parent’s fundamental right to raise his or her children, that the constitution is implicated. That, of course, was the unconstitutional effect of the Washington statute in Troxel. It is also what makes the “inadequate love and care” and “undue physical or psychological harm” standards in this case problematic unless they are applied with the understanding that mother’s fundamental right to parent is entitled to heightened protection and cannot be infringed absent a compelling state interest.
In summary, for purposes of the Due Process Clause, there can be no substantive difference between the federal “compelling state interest” standard and the Hruby “compelling reason” standard. No matter how the state standard is phrased or characterized, it must satisfy the federal constitution before the state may constitutionally interfere with a parent’s rights involving his or her children. Although a “compelling reason” need not be identical to the standards set forth in the termination statutes, it must embody circumstances that present similarly grave risks of harm to a child’s welfare either because of a parent’s unfitness or because of the physical or psychological needs of the child. The termination statutes illustrate the kinds of risks that authorize state intervention and therefore are helpful in understanding the scope of parental due process in the context of a custody award to a third party. Ultimately, it is that federal standard of minimal adequacy that must be violated before a parent can lawfully be deprived of his or her fundamental right by an award of custody to a third party.
It is with the federal constitutional standard in mind that I proceed to analyze the evidentiary record in this case.15
*738III. IS GRANDPARENTS’ EVIDENCE CONSTITUTIONALLY SUFFICIENT TO PERMIT MOTHER TO BE DEPRIVED OF CUSTODY OF HER CHILDREN?
In major part, the discussion that follows is not a dispute with the concurrence over what the evidentiary record contains.16 Rather, it is the failure of the concurrence to apply due process standards with which I disagree. In effect, the concurrence’s unwillingness to actually apply a federal constitutional standard to this case constitutes an implicit acknowledgment that the evidence in this case is insufficient to meet the requirements of due process. The evidence fails to show that mother is not a minimally adequate parent17 and, thus, does not support the result endorsed by the concurrence: that mother should be deprived of the custody of her children. The following is an effort to look at the facts objectively as they appear in the record and then evaluate whether their gravity evidences a compelling state interest that would permit infringement on mother’s fundamental interest in parenting her own children, keeping in mind the required heightened protection given to mother’s right. Some preliminary observations are germane to that discussion before a detailed evaluation of the evidence occurs.
First, the trial court, unlike the concurrence, properly recognized that the evidence did not rise to the level that the constitution requires. After hearing the evidence and *739closing arguments, the court told the parties that it would take the case under advisement:
“I think this case is driven more by what I interpret the law to be than by the facts in this particular case. If it was driven by the facts, and all I had to decide is a—what is in the best interests of the child, the answer is relatively easy for me to reach, and that is I would find that clearly the grandparents are—would prevail. * * *
“I don’t think that that necessarily ends my inquiry. I think I really need to look into seeing what they meant in Sleeper by that supervening right that exists. And [mother’s counsel] may have hit upon that, and that’s her supervening right being of a constitutional nature. It may be that the Court will have to find that there has to be a level of harm, if not equal to, close to that in which the State would, be intervening, anyway, where the State would go in as a CSD or SOSCF matter nowadays and take control of the children. And if that is what I believe the law to be, then the right answer would be to allow the biological mother * * * to maintain custody of these children.”
(Emphasis added.) Subsequently, the trial court wrote a letter opinion in which it ruled that “I do not believe Troxel required this court to find harm or unfitness before awarding custody to non-biological parties.” The court incorporated nearly identical language into the judgment.
Second, a major flaw in the concurrence’s reasoning is that it substantially relies on the subjective factual conclusions and opinions of two expert witnesses. Those witnesses evaluated mother and grandparents and made recommendations based solely on the best interests of the children. Necessarily, their subjective views of mother’s psychological state and its effect on the children is colored by the wrong lens. Moreover, because the concurrence evaluates the expert witness evidence under a standard that the experts themselves did not apply, it takes their testimony out of context. For example, the concurrence uses Sabin’s statement that the children “have extensive needs that aren’t going to be met in [mother’s] home” to support its rather damning conclusion that “mother is unable to meet the children’s needs [.]” 188 Or App at 714 (Deits, C. J., concurring). However, in context, *740Sabin’s testimony is quite different and does not have the significance that the concurrence gives it:
“[Counsel]: [Has mother] discussed her educational plans for the children?
“[Sabin]: Yes, she would plan on schooling them at home. She feels that they have separation issues, that they don’t want to be away from home, and that they should be home-schooled.
“[Counsel]: And did she tell you that she would have liked to be doing that now, during the school year?
“[Sabin]: Yes, she said she would have liked to have been doing that now, but she felt that [grandparents] were, quotes, breathing down her neck and would not have allowed that.
“[Counsel]: Do you think that home schooling would be appropriate for [J]?
“[Sabin]: No, I don’t think home schooling’s appropriate for either of these children.
“ [Counsel]: And why is that?
“[Sabin]: Well, I think they both have extensive needs that aren’t going to be met in the home, and I think that the home environment creates its own culture that’s isolated and insulated from the larger culture that these children hopefully will come to live in. I don’t think that home education would prepare them for social interactions and for getting along with others.
“[J] does have very special needs in terms of her education, and even a well-educated parent, I think, would have a hard time providing all that at home, and [mother] has no special training or education in education.”
Consequently, the concurrence finds itself in an awkward position. It disagrees with the trial court as to the import of the facts regarding unfitness to parent and undue risk of harm to the children, and it bases its conclusion on expert testimony that used a standard disapproved by the United States Supreme Court. In an effort to rescue itself from this dilemma, it invokes its de novo review of the facts underlying the subjective opinions of the experts and then *741applies its own value judgments regarding the state standards. See 188 Or App at 712-13 (Deits, C. J., concurring). There is no problem with that exercise so long as the analysis applies a minimal constitutional standard of care to mother’s performance as a parent and identifies a compelling state interest at stake. But the concurrence appears unwilling to embrace such a constraint on its review. The state law standards, “inadequate love and care” and “undue risk of physical or psychological harm,” are by their nature subjective. Any minimally adequate parent could be found guilty of “inadequate love and care” or of creating an “undue risk of physical or psychological harm” merely because, in the words of Justice Souter, an “enlightened” judge believes that the care given by the parent on a particular occasion is “inadequate” or that the risk of harm is “undue.” The constitution requires more, as I have said previously in great detail.18 We, as judges, are not “social engineers”; rather our role is to apply the law, including the constitution as it exists.19
Ultimately then, the purpose of this subsection is not to evaluate the evidence solely through the eyes of the expert witnesses but to examine it objectively in light of the constitutional requirement that there must be a compelling state interest before the children can be lawfully taken from their mother’s care. To that end, I take into account both the expert testimony as described in the concurrence’s opinion and also the evidence that reflects mother’s parenting in a positive light to answer the question of whether the evidence rises to *742the level that permits the state to take custody away from a natural parent and award it to third persons.
Mother is remarried and works as an in-home childcare provider. She and her current husband have two children in addition to A and J, the children who are the subject of this litigation. A and J are emotionally attached to their younger brother and sister as well as to mother and her husband and grandparents. Mother has no history of drug or alcohol abuse or violence. She has never been in trouble with the law and has not been involved with Services to Children and Families or any similar state agency.
Due to J’s difficulty in school, as described in detail by the concurrence, mother hired a tutor to assist J. As a result of the tutoring, J made significant academic improvement. Mother and her husband also worked with J to improve her reading and helped her with homework when necessary. Mother explained at trial that some of the absences, as described in the concurrence’s description of the facts, 188 Or App at 695 (Deits, C. J., concurring), occurred after father’s death and during the transition that had to be made as a result; other absences occurred because J was introverted and was reluctant to go to school. Mother also explained that she wanted the children to get themselves up in the morning with the help of an alarm clock and that J had a hard time accomplishing that task. A, in contrast to J, excelled in school. She got nearly straight As and consistently completed her homework. A’s teacher for the 1999-2000 school year noted A’s social progress. Although A was new to the school that year, she had a group of friends by the end of the school year and was described as being sensitive to other children.
Grandparents also had concerns about the children’s hygiene and grooming while they were under mother’s care. J’s first grade teacher noted that there were several occasions after the children went to live with mother when J came to school dirty or with her clothes sloppy or her hair uncombed. Sabin also observed that the first couple of times that the children came into her office with mother, they had dirty or uncombed hair or their clothes were mismatched. She also noted that A’s teacher for the 1998-99 school year had *743reported that, after the move to mother’s house in April 1999, A wore dirty clothes to school and that her hygiene was poor. In contrast to the previous year, the children’s teachers for the 1999-2000 school year both said that the childrens’ hygiene, grooming, and dress were appropriate.
As the concurrence emphasizes, a dental check-up of A in November 1999 revealed that she had extensive dental decay. However, there does not appear to have been obvious evidence of tooth decay. Grandmother testified that, when mother told her that A was going to have dental work done, she looked but “there wasn’t anything visible in [A’s] mouth that [she] could see,” and, when asked, A said that her teeth were not bothering her. Earlier examinations, including one in January 1999 while the children lived with grandparents, had not shown evidence of tooth decay. Although the dentist stated that “possible” causes were poor oral hygiene and drinking too much soda pop, mother testified that she believed that the decay occurred before A was in her custody. Sabin also testified that mother had expressed concern to her that the reason that the decay was not detected in prior dental exams was because no x-rays were taken.
The evidence of J’s difficulty in school, her subsequent academic improvement, the children’s poor hygiene and its subsequent improvement, and A’s tooth decay, which cannot be clearly attributed to either mother’s or grandparents’ custody, is hardly the kind of evidence that permits the state to intervene into mother’s private life. The uncontrov-erted evidence shows that mother has made efforts to change the quality of her parenting. As to J’s academic problems, mother hired a tutor and worked with J to improve her performance. Further, tutoring improved J’s academic abilities. While it is correct that, at the time of the trial, J was going to be held back a grade, it is unclear from the evidence that the absenteeism alone, rather than J’s overall academic ability, caused that result. Although the concurrence appears to accept Sabin’s conclusions about the cause of A’s tooth decay as fact, on the record of this case as a whole, that evidence is conflicting. Further, once the problem was discovered, mother undertook to have the necessary dental work done. Finally, although mother discontinued the children’s therapy with MacKendrick due to her personal animosity towards *744him, she continued the childrens’ grief counseling with another counselor after father’s death. Those actions demonstrate mother’s willingness and ability to make decisions regarding her children’s welfare. Although the concurrence disagrees with mother’s decisions, it is clear from Troxel and the related Supreme Court jurisprudence that the constitution protects parents from the kind of second-guessing engaged in by the concurrence.
I turn now to the substance of the testimony of the experts, mindful that it is appropriate to look behind their conclusions to the facts that they rely on to evaluate the weight their opinions should be given. No expert witness expressly testified that mother is incapable of providing adequate care for the children in the future. Rather, according to Sabin, it is in the best interests of the children that their custody be with grandparents because mother “has difficulty separating her needs, her emotional needs, from those of the children.” Sabin believes that the “Winczewski children should not have to be part of this ongoing generational dysfunction since there are alternatives available for them,” (Emphasis added.) Sabin agrees that mother’s intellectual potential is in the average range. However, she suffers, according to Sabin, from depression and loneliness, causing her to “focus on one detail * * * without looking at the big picture [.]” By way of contrast, the expert witnesses do not opine that mother is mentally retarded or of limited intellectual ability or that she suffers from a psychosis or an entrenched personality disorder. The latter are the kinds of diagnoses that typically arise in a state proceeding to deprive a natural parent of custody. It is also important to note that there is no suggestion that mother has ever abused or wilfully neglected her children. Rather, Sabin suggests that there are “alternatives available” to having the children remain with mother, an “emotionally limited” parent. That is not a constitutionally appropriate standard under which natural parents can be deprived of the custody of their children by the state. Moreover, it can generally be said from common knowledge that many at least minimally adequate parents live in dysfunctional environments, may have difficulty separating their needs from the needs of their children, may be lonely, may suffer from occasional depression, and may fail to see *745the big picture, but none of those diagnoses constitutes a “compelling circumstance” sufficient to deprive mother or any parent of custody. Although retaining the children in mother’s custody may not allow them to maximize their potential, courts cannot effectively sever parent rights just “because the natural parents are unable to furnish surroundings which would enable the child to grow up as we would desire all children to do.” State v. McMaster, 259 Or 291, 303, 486 P2d 567 (1971).
On the other hand, mother has not been a model parent. Certainly, no one would approve of the tone of the confusing letters that she wrote to her children while their father was dying, and perhaps mother should be faulted for causing J to undergo a blood test or having J evaluated for sexual abuse. But the fact remains that all of those actions occurred in the midst of a highly emotionally charged “tug of war” for the custody of the children. However improper, in the view of the concurrence, those decisions were, they are not the kind of actions that create compelling circumstances to permit the state constitutionally to intervene and award custody to a third party.
Ultimately, Sabin’s and MacKendrick’s testimony reduces to the following factors when balanced with the remaining evidence: (1) mother’s relationship with the children has not always been emotionally healthy for them; (2) mother has suffered from confusion in understanding and processing emotional issues; (3) mother tends to overfocus on certain issues and ignore the big picture; (4) A has had serious tooth decay (mother had the problem corrected); (5) mother stopped giving Paxil, a psychotropic drug, to A because she decided it was unhealthy for her; (6) mother had a blood test administered to see if there was Paxil in J’s system without first asking J if she had taken the medication; (7) mother terminated the children’s therapy with MacKendrick (but continued their therapy in two grief counseling groups); (8) mother, in the furtherance of her own interests, attended one of the children’s two grief counseling groups with them rather than allowing grandparents to attend both of them; (9) A gained weight in mother’s custody; (10) mother planned to home school the children although she had no training or background in education; (11) mother *746referred to J’s vision problem in J’s presence, characterized it as severe, and blamed it for some of J’s academic problems (however, A’s academic performance was excellent while in mother’s care); (12) the sleeping arrangements at mother’s home were not stable and did not establish appropriate boundaries (mother later made adjustments in those arrangements); (13) mother, in her parenting activities, talks slowly and feels powerless to influence the children’s behavior; (14) the children had excessive absences from school after the move to mother’s house (according to the evidence, those problems were eventually corrected); and (15) no one disputes that mother cares deeply for the children.
IV. CONCLUSION
The “compelling interest” standard imposed by the Due Process Clause is onerous. Even though the concurrence acknowledges mother’s constitutional right, there is little suggestion in its analysis that it gives mother the heightened protection to which she is entitled. In its view, Hruby, Lauffenberger, Fenimore, Cerda, Wilson, and other cases establish a statutory standard of “compelling reasons.” Under that standard, the concurrence concludes that, on these facts, the heightened protection of mother’s fundamental right to parent her children has been overcome.
There can be no less exacting standard applied in this case than what the Due Process Clause requires. No case previously decided by this court or the Oregon Supreme Court has taken custody from a natural parent and given it to a third person on the kind of evidence that exists in this case. More than a mere evidentiary presumption or a statutory standard is implicated by mother’s right to custody of her children. Troxel and its predecessors make clear that the “presumption” in favor of granting custody to mother is of constitutional magnitude. For the presumption to be overcome, there must be a compelling state interest implicated and not merely that mother has, on some occasions, failed to act in her children’s best interests. The evidence of instances of inattentive parenting followed by remedial measures by mother, even when considered along with mother’s emotional limitations, simply do not amount to a compelling state interest that justifies taking custody away from mother. The most *747serious of mother’s alleged offenses, the tooth decay issue and the failure on occasion to be sensitive to the childrens’ emotional needs, even when viewed in the light most favorable to grandparents, do not constitute an “undue” risk of harm in the constitutional sense.
As long as mother is capable of providing minimally adequate care (and the evidence does not disprove that ultimate fact in this case) and her custody does not present a clear and undue risk (¿.e., not just some risk, but rather, a constitutionally significant risk) of harm to the children, the state cannot constitutionally interfere with her right to the custody of her children by giving custody to grandparents. In sum, the concurrence fails to apply the test that is required under the federal constitution and thereby deprives mother of the custody of her children in violation of her constitutional rights.
I respectfully dissent for the reasons expressed above.
In Meyer, the Court held unconstitutional a Nebraska statute that prohibited teaching a language other than English to children in school before the eighth grade. The Court reasoned that “[t]he established doctrine is that this liberty [interest] may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” Meyer, 262 US at 399-400.
In Prince, the Court upheld the constitutionality of a statute that prohibited children of certain ages from selling or offering for sale newspapers on streets and other public places. The Court reasoned that the state’s interest in combating the *719“crippling effects of child employment, * * * especially in public places, and the possible harms arising from activities subject to all diverse influences of the street” was sufficiently compelling to overcome the interest of parents in directing the upbringing of their children. Prince, 321 US at 168 (footnotes omitted).
In Quilloin, as well as in Stanley v. Illinois, 405 US 645, 92 S Ct 1208, 31 LEd 2d 551 (1972), the Court addressed the procedural rights of unwed fathers regarding adoption of their children. It observed in Stanley:
“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ [and] ‘basic civil rights of man,’ * * *. The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.”
405 US at 651 (citations omitted).
Pierce, along with Meyer, are the seminal cases on this issue. In Pierce, the Court, in articulating the fundamental interest of parents to direct the upbringing of their children, held an Oregon statute that prohibited children from attending private schools unconstitutional in violation of the Fourteenth Amendment. 268 US at 534-35. After Pierce, several cases have reaffirmed the right of parents to direct the education of their children. Among those cases are West Virginia State Board of Education v. Barnette, 319 US 624, 63 S Ct 1178, 87 L Ed 1628 (1943) (holding unconstitutional a state statute requiring children to recite the Pledge of Allegiance in school over their parents’ objection), and Wisconsin v. Yoder, 406 US 205, 92 S Ct 1526, 32 L Ed 2d 15 (1972) (holding a statute unconstitutional that required parents to keep their children in school until the age of 16). The Yoder Court explained, “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” 406 US at 232.
In Flores, a class of alien juveniles arrested and held in custody pending deportation hearings argued, among other things, that substantive due process required that they be released into the custody of “responsible adults” while awaiting hearings. 507 US at 294. The Court held that the juveniles’ fundamental rights were not implicated by the type of detention that occurred in that case. Id. at 302-03.
All three opinions cite Pierce. Troxel, 530 US at 65 (O’Connor, J., plurality opinion); id. at 77 (Souter J., concurring in the judgment); id. at 80 (Thomas J., *725concurring in the judgment). Both the plurality and Justice Souter cite Meyer. Id. at 65 (O’Connor, J., plurality opinion); id. at 77 (Souter, J., concurring in the judgment).
I can find no United States Supreme Court case law that suggests that there is a meaningful nuance in constitutional law between applying a “strict scrutiny” standard of review to a state regulation and discerning when a compelling state interest exists because of the heightened protection afforded to a fundamental liberty interest.
The opinions of the court in this case disagree about how to articulate the proper due process standard. According to the concurrence, the due process standard that I propose requires “strict scrutiny.” That characterization appears to be the “lightning rod” for its disagreements with my result and the source of the reluctance of the other dissents to agree with me regarding the applicable legal standard. The “strict scrutiny” characterization becomes the vehicle employed by the concurring opinion to label my view of the due process as a view not endorsed by a majority of the justices in Troxel in an effort to isolate it along with the view of Justice Thomas. I take exception to being credited for a view that is not necessary *727to my analysis. Such a tactic is reminiscent of “false premise” or “straw man” arguments for which we criticize lawyers when those arguments are made to us. I do not know how to explain more clearly than I already have that whatever the words used to describe the applicable due process standard—“strict scrutiny, compelling state interest,” “compelling reasons,” or “minimal parental adequacy,” the legal consequence of the facts in this case do not satisfy due process. Moreover, I do not know how to more accurately describe the holding of Troxel than to use the language of the opinions on which its reasoning relies. The reality is that some description of the applicable due process standard is necessary for analytical purposes. In an effort to describe that standard, I am content to say that grandparents must demonstrate a compelling state interest before the constitution permits them to use state-sanctioned intervention as a vehicle to deprive mother of her fundamental liberty interest in parenting her children.
The circumstances outlined by the termination and juvenile court jurisdiction statutes provide clear, concrete, and nonexclusive examples of compelling circumstances and stand in stark contrast to the circumstances present in this case. The comparison of the effect of an award of custody to a nonparent under ORS 109.119 with the effect of the termination of parental rights is apt because of the consequences to the natural rights of a parent. For all practical purposes, an award of custody to a nonparent under ORS 109.119 operates as a final, nontemporary deprivation of the fundamental right of the parent to raise his or her children, similar in effect to the termination of parental rights or an order of permanent guardianship. The concurrence’s unwillingness to acknowledge this comparison for purposes of an application of a federal constitutional minimal requirement for state interference with parental rights is puzzling. See, e.g., 188 Or App at 711 n 36 (Deits, C.J., concurring). No matter the statutory context, the constitutional standard applies across the board as a protection against unconstitutional state interference with child custody, and the task should be to merely identify whether the circumstances relied on satisfy that requirement.
I note also that, along with the substantive requirement on the state to show a compelling state interest in order to afford due process to mother, there is also a procedural due process component that may apply in cases like this one. In Santosky v. Kramer, 455 US 745, 753-54, 102 S Ct 1388, 71L Ed 2d 599 (1982), the Court explained:
“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. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.”
(Footnote omitted.)
The Santosky Court observed that, when the individual interests at stake in a state proceeding are both particularly important and more substantial than mere loss of money, the balance is struck in favor of the private interest by the imposition of heightened procedural protections. 455 US at 761. Consequently, it held that the use of a “preponderance of the evidence” standard in termination of parental rights cases violated due process and that at least a “clear and convincing standard” was constitutionally required because of the natural parent’s fundamental interest in the custody of his or her children. Id. at 768-70.
*730A standard of proof operates, within the concept of due process, to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Addington v. Texas, 441 US 418, 423, 99 S Ct 1804, 60 L Ed 2d 323 (1979) (quoting In re Winship, 397 US 358, 370, 90 S Ct 1068, 25 L Ed 2d 368 (1970) (Harlan J., concurring)) (internal quotation marks omitted). “Clear and convincing” evidence is evidence that makes the truth of the asserted fact “highly probable.” Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 402, 737 P2d 595 (1987).
Curiously, ORS 109.119(3)(a) provides for a “preponderance of the evidence” burden of proof in custody cases. In contrast, ORS 109.119(3)(b) and (6)(b)(B), regarding visitation rights and intervention by grandparents, provide for a “clear and convincing” standard.
In light of the Court’s decision in Santosky, and because the effect of depriving a parent of custody in favor ofa third party is similar to the consequences of the termination of parental rights at issue in that case, procedural due process may require a “clear and convincing” standard of proof to be applied in cases like the one at issue. However, that question need not be resolved in this case because it is well settled that, for the state to interfere with a fundamental right, there must be compelling circumstances, and no such circumstances are present here.
In Sleeper and Sleeper, 328 Or 504, 510-11, 982 P2d 1126 (1999), the Supreme Court recognized that the Hruby “compelling reason” standard was based on the version of ORS 109.119 under which Urafry was decided.
See also Sleeper, 328 Or at 511 (recognizing that, in some circumstances, giving custody to nonparent rather than parent might violate a “supervening right belonging to the biological parent”).
Quoting from Santosky, 455 US at 753, Judge Newman, writing for the dissent, observed that “[t]he 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 [.]” Lauffenberger, 93 Or App at 768 (Newman, J., dissenting).
The concurrence also cites Fenimore v. Smith, 145 Or App 501, 930 P2d 892 (1996), rev den, 326 Or 389 (1998), and Cerda and Cerda, 136 Or App 104, 901 P2d 263 (1995), rev den, 322 Or 598 (1996), to support its application of a legal standard less onerous than the constitutional “compelling state interest” standard. 188 Or App at 704-06 (Deits, C. J., concurring). In Fenimore, the court emphasized that custody could be awarded to a nonparent over a parent where a child would be “unduly harmed, physically or psychologically, by giving custody to the natural parent.” 145 Or App at 509 (emphasis and internal quotation marks omitted). An expert witness testified in that case that his “opinion [was] very clear and very emphatic that it would be a very great risk for [child] to be relocated in any other home than [stepfather’s] home at [that] time.” Id. at 510. Thus, the court determined that the Hruby compelling reasons test was met. In Cerda, the children had lived with their grandparents for most of their lives. The father had a history of drug abuse and violence. Further, an expert testified that changing custody of the children from the grandparents to father would “cause them to regress emotionally, academically and socially.” Cerda, 136 Or App at 110. The court held that, under the circumstances, the children “would be unduly harmed by changing their custody to father!.]” Id. Aside from being decided on the basis of facts that are not present in this case, both Fenimore and Cerda reflect decisions that implicitly incorporate due process standards..
What I would require in this case if I were writing for the concurrence is nothing more than compliance with federal constitutional requirements. Nonetheless, the concurrence asserts that, under my analysis, courts would be required to award custody to parents when “the child would suffer harm in the parent’s custody,” 188 Or App at 712 (Deits, C. J., concurring), and that I “apparently would require a nonparent to produce an express statement from an expert that, in the *738future, the parent in fact and definitely cannot provide adequate care and love to the children or that the children in fact and definitely will be harmed in the parent’s custody,” 188 Or App at 714 (Deits, C. J., concurring) (emphasis in original). The concurrence can ascribe whatever “parade of horribles” it wishes to my reasoning. My desire is to do nothing more than be faithful to the constitution.
Admittedly, the concurrence’s factual recitation is much lengthier than what follows. However, my effort has been to search the record for facts that could have constitutional’ implications and isolate them for purposes of scrutiny under due process standards.
In the context of this opinion, I have used the term “minimally adequate” for descriptive purposes in an effort to articulate the constitutional line between the right of a parent to raise his or her own child and a compelling state interest that permits a child to be removed from the custody of his or her parent by the state in the exercise of its parens patriae function. See, e.g., Flores, 507 US at 304. The determination of whether particular circumstances rise to the level of demonstrating a compelling state interest necessarily will always be fact-specific. Thus, my conclusion that a compelling state interest is not present here is necessarily limited to the facts of this case, contrary to the speculations of the concurrence.
In his dissent, Judge Brewer responds to my comments regarding the subjective nature of the statutory standards by stating, based on those standards, that I “appearf ]” to believe that the statute cannot be constitutionally applied. 188 Or App at 758 (Brewer, J., dissenting). As I have previously indicated and the above discussion so states, Judge Brewer’s assumption is incorrect. The statutory standards can be constitutionally applied, so long as the statutory standards of “inadequate love and care” and “undue risk of physical or psychological harm” are understood to encompass the need to satisfy a due process (or in my view, a compelling state interest) standard.
Nor are we “physicians, psychologists, or therapists” as the concurrence concedes. 188 Or App at 678 (Deits, C. J., concurring). It is difficult to understand how the concurrence could find the testimony of the experts, who based their opinions on an incorrect legal standard, “helpful and persuasive,” id., without assuming one of the above roles and drawing its own “expert” witness opinion from the “facts” testified to by the experts.