ORS 419B.521(1) defines the state's burden of proof regarding its allegations under ORS 419B.504. It states, in part, "The facts on the basis of which the rights of the parents are terminated, unless admitted, must be established by clear and convincing evidence * * *." The "clear and convincing" standard of proof imposed by ORS 419B.521(1) is required by the due process clause of the Fourteenth Amendment, State ex rel Juv. Dept. v. Habas, 299 Or 177, 180 n. 1, 700 P2d 225 (1985), and is generally understood to refer to evidence that makes an asserted fact highly probable, see, e.g., State ex rel Juv. Dept. v. Johnson, 165 Or App 147, 156, 997 P2d 231 (2000). When applying the standard of clear and convincing evidence to the facts of this case, it is important to identify what is at issue, i.e., what the state must prove by clear and convincing evidence.

The court found that appellant would need continued treatment for the rest of her life, and concluded that, though she had improved, she had not yet become the type of parent her daughter needed, and that she was unable to become that type of parent. It is generally recognized that termination for mental illness requires that the mentally ill parent is unable to provide proper care for the child and that the inability is likely to continue for the foreseeable future. Ann M. Haralambie, Handling Child Custody, Abuse, and Adoption Cases, § 13.13 26 (2d ed. 1993); State v. Habas, 299 Or. 177, 700 P.2d 225 (1993); In re J.N.M, 655 P.2d 1032 (Okla. 1982); In re Hime Y., 52 N.Y.S.2d 241, 418 N.E.2d 1305 (1981). As the majority notes, testimony indicated that, even though appellant had done everything required of her, she was not presently able to be the type of mother her daughter needs.

We turn to the merits of the state's petition seeking termination of mother's parental rights. Upon de novo review of the entire record, giving considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony, ORS 19.125; see State ex rel Juv. Dept. v. Habas, 299 Or. 177, 183, 700 P.2d 225 (1982); State ex rel Juv. Dept. v. Jones, 290 Or. 799, 810, 626 P.2d 882 (1981), we agree with the Court of Appeals, 97 Or App at 14-15, that the state's evidence supporting the circuit court's termination order is clear and convincing. We also agree that the children's best interest will be served by terminating mother's parental rights.

Lee sets forth the test for terminating a parent's rights for unfitness under ORS 419B.504 and ORS 419B.500. Father did not cite the neglect statute, ORS 419B.506, nor did the word "neglect" appear anywhere in father's brief. Likewise, the other cases on which he relied, State ex rel Juv. Dept. v. Habas, 299 Or 177, 700 P2d 225 (1985), Huston, and Rodgers, discuss the requirements for termination based on unfitness, not neglect. Father argued briefly that he made efforts to maintain contact with M, one of the criteria to be considered under ORS 419B.506, but he made that point in the context of how his drug use — an alleged "seriously detrimental condition" rendering him unfit — affected that contact. In the statement of his assignment of error, father did challenge the trial court's finding that "it was in the best interest of [M] for the father's rights to be terminated."

Otherwise, we establish a precedent that lowers the threshold standard for termination of parental rights and we, in effect, instruct SOSCF to act accordingly, to the detriment of all Oregon citizens. In State ex rel Juv. Dept. v. Habas, 299 Or. 177, 186-87, 700 P.2d 225 (1985), the Supreme Court said, "Although we recognize that the legislature considers the interest of the child to be paramount, nevertheless, the legislature also recognizes that parental termination is the last resort after all other interventions of social services have failed." It is worth repeating that in State v. McMaster, 259 Or. 291, 486 P.2d 572 (1971), the court recognized the constitutional implications of terminating parental rights.

Mother asserts that, cumulatively, trial counsel's performance establishes a failure to exercise the skill, judgment or diligence of a reasonably competent attorney. She contends that trial counsel's failure to discover the court legal file or court social file in preparation for trial, her failure to cite State ex rel Juv. Dept. v. Habas, 299 Or. 177, 700 P.2d 225 (1985), as controlling precedent on the mental illness issue and her failure to use the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3d ed 1985) (DSM III) during cross-examination of a psychiatric expert demonstrate inadequate preparation and investigation. According to mother, trial counsel was inept in her use of the rules of evidence, failing to qualify an individual as a social work expert, failing to preserve the testimony of an unavailable witness and allowing the state to get damaging testimony in evidence without objection.

CSD is required to make reasonable efforts to assist parents in making adjustments that will enable them to function as effective parents. State ex rel Juv. Dept. v. Habas, 299 Or. 177, 700 P.2d 225 (1985); State ex rel Juv. Dept v. Herman, supra, 69 Or. App. 709-710; State ex rel Juv. Dept v. H., 62 Or. App. 288, 659 P.2d 1027 (1983). It did so here. The conditions imposed on mother were not arbitrary or unreasonable. CSD repeatedly attempted to assist her in complying with them, but she refused to work with CSD. Mother argues that CSD was aware of her personality disorder, but it never offered or arranged for her to receive psychological counseling.