State Ex Rel. State Office for Services to Children & Families v. Mellor , 181 Or. App. 468 ( 2002 )

DEITS, C. J.

The State Office for Services to Children and Families (SCF) appeals from judgments denying its petitions to terminate mother’s and father’s parental rights to their child, D. SCF argues that it presented clear and convincing evidence that mother and father are unfit and that termination is in D’s best interest. ORS 419B.504; ORS 419B.500; ORS 419B.521(1). On de novo review, ORS 419A.200(5)(b), we agree and reverse.

We begin by setting out background facts and the facts leading to D being taken into SCF custody. We describe additional facts in connection with the relevant discussion of factors supporting termination. Mother has four children, two with father. Mother’s oldest child, A, is in foster care in Washington. At the time of trial in July 2000, a petition for termination of mother’s parental rights to A, who was then nine years old, had been filed in Washington. Her second child, C, lives with his biological father, and mother has no contact with him. Her third child, D, and her first with father, is the subject of this termination proceeding and has been in foster care since she was 13 months old. Her fourth child, J — her second child with father — has been in foster care in Washington since October 1999, when he was three months old.

D was born on September 24, 1997. Although mother had had a histoiy of housing instability, she and father lived in the same apartment for approximately two years, including most of the time D was in mother’s and father’s custody. Mother and father separated briefly beginning in late October 1998. The circumstances of this separation are somewhat obscure. Mother and D went to mother’s brother’s apartment to drop off some things she had been keeping for her brother. Mother and father had had an argument before mother left for her brother’s apartment. When she arrived at her brother’s apartment, she met a man, Flannery, who also lived in the apartment. Flannery told mother that her brother had said that father did not treat her well and that he, Flannery, could do better. Mother explained that she decided at that time to move in with Flannery because she felt that father had withdrawn his affection from her in favor of D and that father monopolized child’s attention. Mother later explained that “I was being selfish. I wanted my daughter to myself. I didn’t want to share her.”

Mother lived with Flannery for approximately three weeks. D lived with them for part of the time. Mother’s brother and his wife also lived in the apartment. Mother knew that her brother was a convicted sex offender prohibited from having contact with minors. However, brother lived in the apartment while mother and D lived there. Although mother testified that her brother moved out because she and D moved in, the trial court found mother’s testimony on this point to be not credible, and so do we.

Shortly after mother moved out, father obtained a restraining order prohibiting mother from having contact with D. In his application for the restraining order, father alleged that mother had hit him and D. At trial, however, father said that there had never been domestic violence in his household. Father explained that he had not filled out the application for the restraining order but had let a friend fill it out and thought that the contents of the application were “none of my business.” Father apparently used the restraining order to convince mother to give him custody of D for a few days, but he later agreed to let mother take D with her to live with Flannery again.

On November 9, 1998, father called the Portland Police Department and asked to have D removed from mother’s custody and given to him. Officer Hurley responded to the call. Hurley described the neighborhood of the apartment where mother was living as an area that is known to police for drug and gang activity. The apartment complex was subsequently closed down as a chronic crime site. When Hurley arrived at the apartment where mother was living, mother told her that father had had the restraining order dismissed on November 6. Hurley confirmed with the Clackamas County Sheriffs Office that the order had been dismissed, but she testified that she was still concerned about D’s safety. Hurley’s first concern was about mother’s brother’s access to D. She was also troubled by D’s condition that night. Although it was a very cold night, mother brought D outside for an extended time wearing only a light sleeper. Although Hurley asked mother several times to take D inside out of the cold, mother refused to do so. Later on, mother could find no clean or warmer clothes for D or any diapers. Mother told Hurley that she had brought six diapers when she had taken D back from father three days before and had not bought any more.

D was dirty and her clothes were dirty and smelled bad. Hurley testified that, when she changed D’s clothing and diaper later at the police station, she saw that “ [h] er feet were so dirty that they were almost black. It was very obvious that this child had not been bathed in a long time. Her face was dirty. Her hands were dirty. * * * She had dirt under her toes and fingernails.” Mother gave Hurley a bottle to take with her that appeared to have mildew in it. Hurley contacted SCF and, at the direction of D’s caseworker, took D into custody.

Also on November 9, father was arrested in connection with the dismissed restraining order. Father took the position at trial that it was not his idea to try to get D back that night. He said that some of his sister’s friends came to his house, saw that he was unhappy, and decided that he needed to get his child back; according to father, he just went along with what they told him.

After D was removed from their custody, both mother and father entered into several service agreements with SCF. Although mother and father did participate in many of the services identified in the agreement, SCF found that mother and father were not making any significant changes as a result of the services. We disagree with the dissent that mother and father “fully’ participated in services. 181 Or App at 496 (Edmonds, J., dissenting). Based on that failure and on a October 1999 psychological evaluation by Dr. Ewell, which we discuss in some detail below, 181 Or App at 479-80, SCF decided to seek termination of mother’s and father’s parental rights to D. In May 2000, SCF filed petitions to terminate their parental rights. Although the petitions alleged both unfitness, ORS 419B.504, and neglect, ORS 419B.506, SCF pursues only the unfitness ground on appeal.

Our task on de novo review is to determine whether clear and convincing evidence in the record supports the conclusion that mother and father are presently unfit to parent D as a result of conduct or conditions that are seriously detrimental to D and that the integration of D into mother’s and father’s home is improbable within a reasonable time due to conduct or conditions not likely to change. ORS 419B.504; State ex rel SOSCF v. Stillman, 333 Or 135, 145-46, 36 P3d 490 (2001). The standard of clear and convincing evidence requires a showing that it is highly probable that mother and father are not presently able, and will not be able within a reasonable time, to meet D’s physical and emotional needs. State ex rel Juv. Dept. v. Johnson, 165 Or App 147, 156, 997 P2d 231 (2000). If that standard is satisfied, we must then decide whether termination is in D’s best interest. ORS 419B.500; State ex rel SOSCF v. Hammons, 170 Or App 287, 297,12 P3d 983 (2000), rev den 331 Or 583 (2001).

As the Supreme Court explained in Stillman, generally, a court may terminate parental rights for the purpose of freeing a child for adoption if “the court finds that termination is in the best interest of the child.” 333 Or at 144. The court further observed that the “specific bases” for termination are set out in ORS 419B.502 to ORS 419B.508. Id. One of those statutes, and the statute relevant here, is ORS 419B.504. Under ORS 419B.504, parental rights may be terminated if we conclude that parents are “unfit by reason of conduct or condition seriously detrimental to the child” and that “integration of the child into the home of the * * * parents is improbable within a reasonable time due to conduct or conditions not likely to change.” ORS 419B.504 provides a nonexclusive list of factors that the court must consider in determining whether a parent is unfit and in determining whether the circumstances making the parent unfit are unlikely to change. Stillman, 333 Or at 147 (“statutory examples [in ORS 419B.504] are just that — examples”). The statutory factors relevant to this case are:

“(1) Emotional illness, mental illness or mental deficiency of the parent of such nature and duration as to render the parent incapable of providing proper care for the child for extended periods of time.

“(2) Conduct toward any child of an abusive, cruel or sexual nature.

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“(4) Physical neglect of the child.

“(5) Lack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make the return of the child possible or failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.” ORS 419B.504.¹

In the petitions for termination, SCF advanced several considerations for determining mother’s and father’s unfitness, several of which overlap with the statutory considerations set out above. With respect to mother, SCF asserted:

“a) Lack of effort or failure to obtain and maintain a suitable or stable living situation for the child so the return of the child to the parent is possible.

“b) Failure to present a viable plan for the return of the child to the parent’s care and custody.

“c) Failure to learn or assume parenting and housekeeping skills sufficient to provide for the safe and proper raising of the child.

“d) An emotional illness, mental illness or mental deficiency of such nature and duration as to render the parent incapable of providing care for extended periods of time.

“e) Failure to protect the child from physical and sexual abuse.

“f) Failure to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.”

SCF asserted the same conduct or conditions with respect to father, with the addition of

“Mack of effort to adjust the parent’s circumstances, conduct or conditions to make return of the child to the parent possible.”

Although we will address individually many of the factors stated in the statute and asserted by SCF, we stress that the overall determination is whether mother and father are “unfit by reason of conduct or condition seriously detrimental to the child.” ORS 419B.504. Accordingly, our concern is whether, considered together, conduct and conditions established by the evidence are seriously detrimental to D. That a single factor, standing alone, would not support termination is not determinative of whether mother and father are unfit. D is exposed to all of the proven conduct and conditions together, and our unfitness determination is similarly based on consideration of that combination of conduct and conditions and on whether that combination is seriously detrimental to D.²

Moreover, we conduct our inquiry not in the abstract but with emphasis on the practical effect of mother’s and father’s conduct and conditions on D:

“ORS 419B.090 demonstrates the broader context of the two inquiries under ORS 419B.504. That statute declares that it is the ‘policy of the State of Oregon to recognize that children are individuals who have legal rights.’ ORS 419B.090(2)(a). Those rights include the right to ‘[p]ermanency with a safe family.’ ORS 419B.090(2)(a)(A). * * * Consistent with the foregoing legislative policy, the focus of both parts of the test for termination under ORS 419B.504 is on the detrimental effect of the parent’s conduct or condition on the child, not just the seriousness of the parent’s conduct or condition in the abstract.” Stillman, 333 Or at 146.

We first consider evidence related to any mental or emotional illness or disorder that might render mother or father incapable of caring for D. ORS 419B.504(1); see State ex rel Juv. Dept. v. DeVore, 108 Or App 426, 816 P2d 647 (1991). Under ORS 419B.504(1), a diagnosis of a mental or emotional illness or disorder standing alone is not enough; there must also be evidence that the illness or disorder renders the parent “incapable of providing proper care for the child for extended periods of time.” See also Johnson, 165 Or App at 158-59 (stating that the statute requires more than a diagnosis).

Some of the evidence about each parent’s mental and emotional condition overlaps. Several health care providers testified about mother’s and father’s mental and emotional conditions and the effect of those conditions on mother’s and father’s ability to provide proper care for D. Deborah Baker, a marriage and family therapist, conducted a couples evaluation of mother and father at the request of SCF. She testified that their relationship was “narcissistic borderline.” Baker explained that, in a narcissistic borderline relationship, one partner — in this case mother — focuses on her own needs to the exclusion of the needs of others, while the borderline partner — in this case father — has strong needs to regulate intimacy and engages in patterns of pulling people closer to him but then withdrawing from them. Baker further testified that the dynamics of such a relationship could have a negative effect on parenting because, in narcissistic borderline relationships, the needs of the parents can take precedence over the needs of the child, restrict empathy with the child, and lead to limited thinking in evaluating a child’s best interests. The evidence of mother’s and father’s behavior provides examples of such a condition. As we will discuss, mother’s and father’s seeming inability to connect with D and their occasional indifference to D is indicative of this condition. With respect to mother, Baker noted that an example of the manifestation of this condition was that mother would play Nintendo between six and thirteen hours a day. Mother said that she believed that D was safe during that time because she kept her in a high chair. Baker also noted that father suffered from depression, for which he was taking medication, and that this condition negatively affected his parenting activities. Overall, Baker stated, “I did not see very much empathy during the evaluation. Neither parent at that time could seem to show any concerns about [D’s] needs.”

In July 1998, Dr. Perry Dudley, a psychologist, evaluated mother and father at the request of the Washington Department of Social and Health Services. Dudley diagnosed mother as presenting with post-traumatic stress disorder related to past sexual abuse, borderline intellectual functioning, and “personality disorder not otherwise specified with cluster B features.” Dudley explained that a “personality disorder” is a disorder in how a person thinks or relates inter-personally and that, in mother’s case, her personality disorder included anger control problems and difficulty seeing things from others’ perspectives, inhibiting impulses, and exercising self-control. Dudley further testified that, given mother’s diagnoses, it would probably be difficult for her to benefit from treatment and parenting training. Dudley diagnosed father with a “mixed personality disorder” with primarily avoidant and antisocial features. Dudley further testified that father could not answer a number of standardized questions about parenting skills. Dudley characterized father’s prognosis for improvement as “poor.”

In October 1998 and April 1999, Sharon Brewer, a licensed counselor, conducted “anger management parent assessments” of mother and father. Brewer reported that, although father resisted taking the assessment, she was ultimately able to conclude that he had significant problems with anger management and depression. Brewer further testified that some of the results of father’s assessment indicated that he was at a high risk for physically abusing a child. Brewer explained that typical child abuse potential scores for the kind of assessment she conducted are in the 40 to 150 range, while father’s score was 287. She also stated that therapy for father would likely take several years.

Finally, in October 1999, SCF requested that Dr. James Ewell conduct a comprehensive psychological evaluation of mother and father, as well as a “parent/child interaction observation.” Ewell was unable to evaluate father because father refused to cooperate. After Ewell had conducted the parent/child observation, father left Ewell’s office; Ewell was later told that father had decided not to complete the evaluation.

Ewell diagnosed mother with mild mental retardation; post-traumatic stress disorder, chronic; adjustment disorder with mixed disturbance of emotions and conduct; and “personality disorder not otherwise specified.” Ewell explained that a personality disorder like mother’s “has a significant impact usually on parenting, a significant major impact. Individuals who are personality disordered, by definition, tend to lead rather chaotic, traumatic lives where there is upheaval, instability. And that, of course, flies in the face of what a child needs as far as consistency, predictability and love in [his or her] life.” Ewell concluded that mother was not an appropriate placement for D, that the prognosis for change was very poor, and that he could not recommend any forms of intervention to remedy that prognosis. Ewell explained why his evaluation was so negative:

“When I then talked to her and tried to engage her in conversations related to parenting and how she might interact with the child, I talked to her about her family life and how she understood the children, and her history, I was very surprised at the lack of insight that I saw from a person who had gone through programs of intervention. I would have expected for someone who had gone through such programs for there to be a deeper understanding and insight.

“In addition to that lack of understanding and insight, it was clear to me that she was quite angry. She did not feel she needed much more intervention. I believe she said possibly some family counseling or some marital counseling. But she did not seem to, from my opinion, grasp the severity of her circumstance and the need for fairly intense long-term intervention. The fact that she did not grasp that or did not seem to be very amenable to treatment is also a negative prognostic indicator.

“A third reason that it is so bleak is that at least one of the conditions diagnosed, that a limited cognitive ability doesn’t change with intervention. That stays pretty much the way it is. And when an individual, in addition to the limited intellectual ability, has these other forms of maladjustment that I have also described, the entire picture is very negative. And in this case it led me to conclude that I could not come up with other programs that I thought would be likely to be helpful.”

Ewell also testified that he was “concerned * * * that there would be a strong risk of some emotional traumatization to the child because of [mother’s] conditions and how those negatively [affect] her ability to parent and also as a result of what I understand to be a fairly continuous upheaval, turmoil, lack of progress in terms of stabilizing her life.” Finally, Ewell stated that his evaluation indicated that mother did not have the ability to provide the stable and nurturing environment necessary to children.

We have affirmed the termination of parental rights when the parent is diagnosed with mental or emotional problems that make the affected individual unfit to parent. State ex rel SOSCF v. Frazier, 152 Or App 568, 600, 955 P2d 272, rev den 327 Or 305 (1998). There is clear and convincing evidence in this record that mother and father suffer from mental and emotional deficiencies. Although the deficiencies suffered by mother and father are different, each parent’s deficiencies render him or her presently unfit to parent D. As noted above, the trial court in this case, in a very thoughtful and detailed opinion, denied the petitions to terminate mother’s and father’s parental rights. In reaching that disposition, the court concluded that, although mother and father were not model parents and, in fact, had serious deficiencies as parents, the state had not proved that mother and father were presently unfit to parent D. In our view, however, the trial court erred in overlooking the consistent opinions of the experts who evaluated mother’s and father’s conditions and the many persons who worked with mother and father that these parents were not presently capable of caring for D and that the prognosis for mother and father acquiring minimally adequate parenting skills was not good. The persons who evaluated and worked with these parents did so in a variety of capacities over a significant period of time and represented a number of different social service entities.

The evidence of mother’s and father’s conduct is consistent with the opinions of those who worked with and evaluated mother and father and expressed reservations about their present fitness as parents and their ability to change. This conduct demonstrates how the mental and emotional deficiencies, identified by those who worked with and evaluated them, make them unfit parents. For example, each parent seemed to view D as a means of satisfying his or her own emotional needs: mother explained that she moved in with another man because father had withdrawn his affection from her in favor of D and because she wanted D to herself, while father misused the restraining order process in order to regain custody of D. As another example, there is evidence that, at least at times, mother has neglected the health of this child and one of her other children.

There is also considerable evidence of instability in mother’s and father’s lives. It appears that, since November 1998, when D was removed from the home, until the time of trial, they had been homeless, living in homeless shelters (one of which they were asked to leave), and apparently living somewhat of a nomadic existence, moving frequently in and out of the homes of relatives and friends. Mother’s and father’s relationship also appears to be unstable. Although they apparently remained together as a couple, father testified that mother left him on a monthly basis. Mother admitted that she did leave father for affairs, but not as frequently as he claimed. As explained by Baker, a marriage and family therapist who evaluated them, the process of breaking up and reuniting “creates a lot of problems in the home.”

The record here also includes considerable evidence of how mother’s and father’s conduct and conditions have had or pose a risk of a seriously detrimental effect on D. Many of the experts who evaluated mother and father, and many of the social service workers who worked with mother and father, expressed serious concerns about D being left in mother’s and father’s care. Jenny Keys, a parent mentor who worked with mother and father concerning their parenting of D and her younger sibling for 10 months beginning in March 1999, was very concerned about their ability to provide minimal care for D. She indicated that, in addition to being concerned about inappropriate actions by mother and father in their interaction with D, she was very concerned for D’s safety. At the time that her work with mother and father ended in December 1999, Keys recommended that mother’s and father’s visits with the children be closely supervised. She stated:

“I have extreme concern for the safety and well being of [¶] and J]. During the ten months that I have worked with this family I have seen limited improvement in parenting skills and, in fact, have seen a sharp decrease in [father’s] behavior, demeanor, parenting abilities, etc.”

During a psychological evaluation that took place after mother and father had taken parenting classes and participated in sessions with a parenting mentor, Ewell reported that both parents, especially father, were very emotionally distanced from D and that they displayed “[v]ery few parenting skills.” Ewell described father’s demeanor during the evaluation as “rough” and “angry.” Ewell stated that D seemed confused by her father’s behavior and avoided approaching him. He further stated that D was “withdrawn” from both parents. He characterized the emotional distance displayed between mother and father and D as “remarkable” and “alarming.” Ewell explained that he asked mother’s and father’s caseworker to come into the room during his observation because he was concerned that there was a danger to D. According to Ewell, who said that he had done about a thousand such evaluations, this rarely happens during an observation. In his written report, Ewell summarized his parent/child observation as follows:

“The most salient feature of this parent/child observation was the fact that neither [mother nor father] expressed much affection toward their daughter. Neither parent attempted to structure the visitation, or encourage their daughter’s enjoyment. [Father] was extremely withdrawn and self-isolating. In fact, he appeared quite menacing and ‘scary.’ He complained frequently about his back pain. [Mother] did not respond to him. Much of the interaction was spent in silence.

“During this observation, very few parenting skills were noticed. [D’s] behavior was appropriate, so there was no need for either parent to intervene. Their lack of emotional spontaneity and encouragement was alarming. They did very little to reassure their daughter, or attempt to amuse her. Rather profound deficits would be suggested by the materials gathered during this observation.”

As late as June 2000, Donna Schafte, a parent educator at Clark College in Vancouver who had taught mother and father in a 10-week parent-training program, stated that, in her opinion, before D could go home, mother and father would need a “[t]remendous amount of support. I would almost say a live-in, someone there consistently to begin [with].” She said that someone from a social services agency would need to be with them all the time. Schafte emphasized that both parents displayed significant anger problems and that, consequently, she would have fear for children living in their home.

As is evident from the comments of the social services workers who have worked with mother and father and the experts who have evaluated them, a major component of mother’s and father’s lack of ability to provide adequate parenting relates to their inability to identify risks to D and protect her. The incident where mother went to live at her brother’s home is an example of their extremely poor judgment regarding D’s safety. Mother acknowledged that her brother was a convicted sex offender, for what she characterized as “sex abuse on a girl.” However, she insisted that, when she went to live in his home, he moved out. The trial court did not believe mother, nor do we. Mother also said that she did not believe her brother was a sex offender. When father was asked if he was concerned about D living in mother’s brother’s home, he said “not really. That’s her uncle.” He also expressed the view that the brother was falsely accused and that he did not pose a risk to D.

Although not determinative, a parent’s conduct with respect to children who are not the subject of a petition to terminate may be pertinent to a parent’s fitness. The negative effect of mother’s and father’s mental and emotional deficiencies on their ability to care for D is also demonstrated by the behavior they exhibit in interacting with their younger child, J. During supervised visits, father would pick up J — then an infant — by his arms or by one arm. Father tried to feed six-week-old J a bottle by placing him in a car seat and propping his bottle up in the seat. Moreover, the addition of J to their family seems to have placed an additional burden on mother’s and father’s already overtaxed ability to parent D. Parent mentor Keys stated that, after J was born, mother and father struggled to divide their attention between the two children and that mother had a hard time focusing. Father would generally focus on J during visits while excluding D.

Mother’s behavior with her oldest child, A, also underscores her parenting deficiencies. A was removed from mother’s home at three weeks of age after community health nurses informed SCF that A was losing weight at such an alarming rate that his life was in danger. After several weeks in the hospital, A was released back into mother’s custody. After about six months, mother voluntarily placed A with her mother. After her mother disappeared with A for several weeks, SCF took A into custody and placed him in foster care, citing employment and housing instability and parenting deficiencies. Although mother participated in some parenting training programs regarding her care for A, her SCF caseworker at that time, Walter Wickline, testified that he never became comfortable returning A to her care. Wickline explained that mother “came to be a new mom with far more barriers than many young women that I met.” He further explained that mother could talk about parenting skills that she had learned, but she could not apply them in dealing with A.

Antonia Rathburn, a child therapist, testified about therapy sessions she had with mother and A beginning in December 1998. Rathburn explained that mother could not adjust her interaction with A to his true level and instead insisted on directing A’s actions as if he were more mature. Rathburn testified that mother appeared to be unable to learn from A’s responses and modify her approach to suit his developmental age; instead, she proceeded to forcibly instruct him, causing him increasing distress. Rathburn testified that mother was unable to put her own needs on hold and attend to A. According to Rathburn, mother entirely lacked skills in reading A’s emotions and communicating her understanding to him and this induced anxiety in and damage to A.

In summary, mother has been diagnosed with a number of mental conditions: borderline intellectual functioning, a personality disorder that includes anger control and impulsivity problems, mild mental retardation, chronic post-traumatic stress disorder, and adjustment disorder. There is evidence that those conditions negatively affect mother’s parenting skills: she is incapable of appreciating risks to D’s safety and places D in unsafe situations, she has subjected D to chaotic and dangerous living conditions, and she neither understands nor pays sufficient attention to D’s physical and emotional needs. Those effects establish that mother’s mental and emotional conditions render her incapable of providing proper care for D for extended periods of time.

Father has been diagnosed or assessed with a mixed personality disorder with avoidant and antisocial personality features, anger management problems, depression, and a high child-abuse potential score. There is evidence that those conditions negatively affect father’s parenting skills: he withdraws emotionally from D, he has shown limited concern about D’s needs, he has demonstrated little understanding of basic parenting skills, and he does not appear to appreciate the risks that mother’s conduct poses to D. Although father’s mental and emotional conditions, and the effects of those conditions, differ from mother’s, they are also sufficient to establish that father’s mental and emotional conditions render him incapable of providing proper care for D for extended periods of time.

We conclude that the evidence is clear and convincing that, because of their mental and emotional deficiencies, mother and father are not presently capable of providing proper care for D, that their conduct and condition have constituted a serious detriment to D in the past, and that the overwhelming bulk of the testimony from service providers indicates that there is a continuing risk of serious detriment to D in the future.

The nature of mother’s and father’s unfitness here, however, is not such that it could not be overcome with sufficient effort. Thus, a critical issue in this case concerns the efforts that mother and father have made, the effectiveness of those efforts, and the prognosis for mother and father becoming capable of providing proper care for child in a “reasonable time.” ORS 419B.504. In assessing this issue, we first consider a factor set out in ORS 419B.504(5) and relied on by SCF in connection with father here — “Mack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make the return of the child possible.” The evidence regarding father on this point is not entirely negative. Father did attend parenting classes and counseling visits with D and, in some cases, traveled a significant distance to do so. More telling, however, is evidence demonstrating that father’s participation was grudging and, at times, even hostile. Schafte, a parent educator who led one of the parenting classes that mother and father attended, stated that these parents were one of the most difficult couples she had taught in 28 years, due to their resistance to being in class. She further testified that father refused throughout the parenting class sessions to wash his hands at the beginning of class, which was a class protocol intended to minimize the spreading of disease. Father tended to be quiet and withdrawn during class and did not turn in optional homework that Schafte assigned. Mark Niskanen, a Washington social worker who worked with mother and father, testified that on one occasion, when D called her foster parent “mommy,” father told Niskanen that he was going to jump over the counter separating them and “beat the crap out of’ Niskanen.

Keys, a parent mentor who attended visits between mother and father and D at SCF, testified that, beginning in July 1999, father refused to work with her during the visits. Keys said that, when she tried to make parenting suggestions, father would make inappropriate comments and then increase the behavior that she had asked him to change or entirely disengage from interacting with child. During the last few months of her work with mother and father, Keys said father either focused on the other child, J, or on nothing at all. Staenke, another SCF worker who supervised visits between mother and father and D from November 1998 to October 1999, testified that father sometimes fell asleep during the visits or left during the middle of visits to go outside to smoke. Charmin Sadamori, an SCF caseworker who worked with mother and father beginning in early 1999, testified that, because of father’s depression, she thought counseling would help him with his parenting skills. However, father was “pretty resistant” to obtaining counseling; Sadamori would make counseling appointments for father, but he would not show up. Another of mother’s and father’s caseworkers, Carrie Nash, testified that, while they were discussing visitation with D, father walked off as she was speaking.

Father himself admitted that he did not like people telling him how to parent and that that feeling made him less cooperative than he should have been. Father also testified that he stopped going to individual counseling because he just wanted to stop going. When asked about whether he sometimes did not participate with D during visits, father responded:

“All these people — all I can say is all these people can say anything they want. Everybody has their own opinion. Everybody can do as they want. But there is a lot of times that, yeah, I do. I would just sit there and don’t do nothing. That’s my time. Eventually I come out of it. I start playing with my daughter or my kids, you know. * * *

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“* * * I am to the point where I go to these visits, I don’t feel like visiting with the kids. Big deal. I show up anyway.”

When asked by the trial court about the reasons why he had been provided with parenting training and other services, father stated,

“I’m not here to satisfy myself. I am here to satisfy other people, to prove other people are wrong. I think this whole thing is wrong, but that’s not for me to say. The only thing I can do is do what I have been told, jump through the hoops, do everything that I am told, and hope to hell something good comes out of it.”

The state is required to make reasonable efforts to assist parents in making the adjustments necessary to enable them to become minimally adequate parents. ORS 419B.504(5); Frazier, 152 Or App at 582. Whether the state has made reasonable efforts to provide services depends on the particular circumstances. Id. This factor also requires us to evaluate the effort expended by the parent and, in particular, whether the parent ignored or refused to participate in services. See, e.g., State ex rel Juv. Dept. v. Oseguera, 96 Or App 520, 526-27, 773 P2d 775 (1989).

As discussed above, in this case, mother and father were offered a variety of counseling and parent-training services. One of the social workers who worked with mother and father testified that they had “received more services than any other case I have ever had.” Father does not argue, nor do we believe, that the services offered to him did not constitute “reasonable efforts.” However, we find that father demonstrated a “lack of effort” to take advantage of those services and adjust his circumstances. He refused to participate in a psychological evaluation requested by SCF, he resisted reasonable hygiene protocols in parenting classes, he was withdrawn during parenting classes and visits with D, he fell asleep or left during visits, and he testified that, in his opinion, participating in services offered by SCF was “jumping] through hoops.” Mere physical presence is not sufficient to satisfy the “effort” referred to in ORS 419B.504(5). The service providers who testified in this case consistently indicated that father was uninterested in, or even hostile to, their efforts. Father’s own actions and words indicate that, at most, he was “going through the motions” with respect to offered services. The fact that father disliked the intervention of the social service agencies in his life and did not think it was necessary cannot excuse his lack of effort and progress in making himself available as a parent. We conclude that the state proved by clear and convincing evidence a lack of effort on father’s part to adjust his circumstances and conduct to make return of D possible.

SCF did not rely on lack of effort with respect to mother. 181 Or App at 475-76. Despite that difference, both mother and father — mother in spite of her efforts and father, at least in part, because of his lack of effort — have “fail [ed] * * * to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.” ORS 419B.504(5). SCF alleged that mother and father have failed “to learn or assume parenting * * * skills sufficient to provide for the safe and proper raising of the child.”

As noted above, there is clear and convincing evidence in this record that, at the time D was taken into custody, mother and father were not displaying adequate parenting skills. The evidence in this record further demonstrates that mother’s and father’s parenting skills have not improved to any appreciable extent despite extensive efforts by social services providers. As discussed above, mother and father have participated in numerous services offered by SCF and its Washington counterpart, some related to D and others related to their second child, J, and mother’s first child, A. Several service providers testified at trial. As an overall matter, the testimony of those witnesses is remarkably consistent: Although mother and, to a lesser extent, father participated regularly and actively in the services that were offered to help them develop the skills to be better parents, neither one was able to demonstrate an improvement in applied parenting skills as a result.

Despite all of the services that these parents received, every service provider who testified continued to express reservations about allowing mother and father to parent D unsupervised. For example, as noted above, parent educator Schafte said that, even though mother and father had completed a 10-week parenting class that she had taught, she would fear for D if she were returned to mother’s and father’s home and would recommend that someone from a social service agency be in the home at all times. Linda Mulherin, a Washington home support specialist, worked with mother and father from January to July 2000. She observed that “the connection isn’t there” between mother and D and that mother and father seemed to be using the visits with D to meet their own needs, not D’s needs. She said that she noticed no improvement in the interactions between parents and D during the time she was observing the visits.

Father appears not to have learned what kinds of interaction are appropriate with a child his daughter’s age. Despite explanations from service providers about why it is inappropriate, father continued to “play” with child by grabbing her by the arms, “pretending” to punch her, and pulling her chair to startle her. Father did not respond to a parent mentor’s concern that it was unsafe for him to swing D around unprotected in her car seat. Moreover, father does not seem to understand the importance of being nurturing and affectionate to D. During supervised visits, father provided inconsistent affection to D, often withdrawing his attention entirely or focusing on his younger child and refusing to interact with D. On several occasions during supervised visits, father called D “shit for brains.” Not surprisingly, D has become increasingly wary of father and, ultimately, not interested in interacting with him.

Several service providers testified that, although mother could repeat back what she had learned about parenting, she could not apply that information. Although mother would state that her parenting skills had improved, she would deny that there had been anything wrong with her parenting to begin with. Furthermore, mother characterized herself at times as a “perfect parent.” When confronted with the report that D was not in good shape when she was taken into care by the police, she denied that that report was true. Mother is unable to interact with D on an age-appropriate level, continually subjecting D to expectations that are unrealistic for her age. Despite warnings from service providers, mother continues, during supervised visits, to fail to understand D’s mental and physical capabilities or what mother should do to protect D from injuring herself. Mother has not been able to apply what she has been taught in parenting class to provide a developmental-age-appropriate environment and toys for D; instead, mother selected toys that were developmentally too advanced or too fragile for D. Counselor Brewer assessed mother’s motivation for treatment as “fair to poor.” As noted above, Ewell, who did a psychological evaluation of mother, described her prognosis for improvement as “very poor.”

Both parents seem to be unable to understand the emotional effects of their behavior on D and continue, despite contrary instruction, to put their emotional needs above those of D, to use D as a bargaining piece in their own relationship, and to inappropriately bring up their own relationship problems in front of D. Father’s misuse of the restraining order process is an example of how these parents use D for their own purposes, instead of putting her needs ahead of their own. As discussed above, neither parent fully recognizes the danger from exposing D to mother’s brother, a convicted sex offender.

In mother’s case, although she has participated relatively compliantly in social services, she continues to demonstrate inadequate parenting skills. Despite extensive parenting training and other services she has received, mother continues to be unable to interact with D on an age-appropriate basis, to protect D from dangerous situations, and to subject D to inappropriate emotional demands. In father’s case, his failure to improve his parenting skills may be attributable in part to his refusal to fully participate in some of the offered services. 181 Or App at 486-89. SCF has, however, offered father an extensive array of services and education, and his parenting skills have not improved as a result. Father continues to engage in unsafe and threatening behavior with respect to D and fails to understand why it is important to nurture D and show her affection. Despite parenting training and other services, child is afraid of father. Finally, like mother, father subjects D to inappropriate emotional demands by using her as a bargaining piece in their relationship.

To summarize, we conclude that the state established by clear and convincing evidence that mother and father suffer from a number of mental and emotional conditions that make them unable to provide proper care for D. 181 Or App at 477-86. In addition, mother and father have failed, despite extensive efforts of social service agencies, to effect a lasting adjustment to their parenting skills such that it appears they can safely care for D. 181 Or App at 486-91. In addition, the state established by clear and convincing evidence that father has demonstrated a lack of effort to adjust his circumstances and conduct to make a return of D possible. 181 Or App at 486-89. Taken together, 181 Or App at 476, the conduct and conditions proved in this record are seriously detrimental to D such that mother and father are unfit.

The most difficult question presented by this case is whether “integration of the child into the home of the * * * parents is improbable within a reasonable time due to conduct or conditions not likely to change.” ORS 419B.504 (emphasis added). A “reasonable time” is defined as “a period of time that is reasonable given a child’s emotional and developmental needs and ability to form and maintain lasting attachments.” ORS 419A.004(21). Consequently, we must consider all of the circumstances of each individual case, including the mother’s and father’s conditions and conduct, their impact on the child, and the child’s individual needs. As discussed above, mother and father have a number of conditions and have engaged in conduct that shows that they are not presently capable of taking proper care of D. There is also evidence of the extensive services that mother and father have been provided and the minimal, if any, improvement in their parenting skills that has resulted.

The evidence indicates that, at the time of trial, at which time she was three years old, D seemed to be functioning reasonably well. At that time, she had spent well over half of her life in foster care. There was evidence, however, from the expert witnesses, that further instability and delay in establishing a permanent home for D would be damaging to her. Dr. Ewell testified:

“Well, you mentioned that there have been several, two or three anyway, different placements for this child already in her young life. One placement is considered very disruptive to a child. I don’t believe that anyone in the field of psychology or studying child development sees placement in foster care as a good thing for a child’s development. It is seen as the lesser of evils.

“When a child has multiple placements in foster care and then is returned home and that fails, the likelihood of the child developing severe forms of pathology in his or herself increases. In the adults that I evaluate where I find high levels of maldisturbance or maladjustment, I often find histories themselves of having been placed in substitute care as a child or having significant changes in care providers.

“So given that this child has already experienced two or three different placements, I would say it would be very risky for this child to have another move. And that that move, from a psychological perspective, should only take place if it is a virtual certainty or guarantee that she will be moving to a more stabilized, adjusted, healthy environment.”

Considering all of the circumstances here, we conclude that integration of D into mother and father’s home is improbable within “a reasonable time.” These parents have received extensive social services over an extended time with little, if any, improvement to show for it. Their trial testimony indicates that they continue not to appreciate the effects on D of their self-centered, destructive, and unsafe behavior, nor do they understand the skills needed to safely parent a child of this age. In addition, mother’s and father’s mental and emotional conditions and father’s resistance to intervention are unlikely to change. We conclude that mother and father are unfit under ORS 419B.504.

We turn to the question of whether termination of parental rights is in this child’s best interest. ORS 419B.500. “Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time so as to provide a [wholesome and healthful] environment, the best interests of the child(ren) generally will require termination of that parent’s parental rights.” State ex rel Juv. Dept. v. Geist, 310 Or 176,189, 796 P2d 1193 (1990). In this case, there is substantial and uncontroverted testimony from social service providers and psychologists that indicates that there is nothing that can be done to enable mother and father to become adequate, safe parents within a reasonable time. We accordingly determine that it is in D’s best interest that mother’s and father’s parental rights be terminated and that child be freed for adoption.

Reversed.

1 ORS 419B.504 was amended in 2001. Or Laws 2001, ch 686, § 24. The parties do not argue that this amendment affects this case. All references in this opinion are to the 1999 version of ORS 419B.504.

2 The dissent states that, to avoid termination of parental rights, parenting skills must be only “minimally adequate.” 181 Or App at 505 (Edmonds, J., dissenting). We agree that parents need not establish that they meet some kind of model parenting standard in order to avoid termination. However, the dissent makes two related points that require discussion. First, the dissent states that “minimally adequate” parenting for purposes of this caséis equivalent to parenting at the skill level mother and father demonstrated before D was taken into SCF custody. Id. However, we do not necessarily know that their parenting was adequate before SCF took custody of D. There is minimal evidence in the record as to the adequacy of the care that mother and father provided to D before SCF’s intervention. As we will discuss, there is evidence of at least mother’s difficulties with caring for her other children before SCF intervened in this case. There is evidence in the record, as the dissent cites, that might indicate that mother and father engaged in at least some positive interaction with D. Id. at 505-06. That SCF did not intervene earlier cannot, however, in our view, be taken to mean that SCF believed, or that we must accept, that mother and father were functioning at a “minimally adequate” parenting level before child was taken into custody. Unfortunately, it is likely true that there are many parenting situations that would justify termination even before SCF intervenes. In our view, our role on de novo review is simply to evaluate the evidence presented of mother’s and father’s conduct and conditions under the statutory standard and determine their fitness at the time of the termination hearing.

Second, the dissent states that “transiency, incapacity to parent at an optimal level, poverty, or instability alone are not proper grounds for termination.” Id. at 505. To the extent that the dissent means that any conduct or condition must also have a “serious detriment” to a child in order to support termination, we agree. However, we note, as did the Supreme Court in Stillman, that the legislature amended ORS 419B.504 after State v. McMaster, 259 Or 291, 486 P2d 567 (1971), to expressly include at least some of those kinds of conduct as grounds for termination — grounds that require establishment of “serious detriment” as well, but nonetheless are designated in the statute as grounds for termination. Stillman, 333 Or at 151-52.