concurring.

I would conclude that the state failed to establish by clear and convincing evidence the requirements of the statute and would vote to reverse. However, this case is materially indistinguishable from State ex rel Dept. of Human Services v. Smith (A119798), 190 Or App 570, 79 P3d 374 (2003). In light of the court’s decision in that case, I therefore concur in affirming the judgment in this case.