The broad question presented in this case is whether a trial court, in a proceeding to terminate parental rights under ORS 419.525,1 may quash a subpoena2 that requires the attendance of a minor child to testify as a witness on behalf of the parent whose parental rights to the child are sought to be terminated, and may refuse to allow that child, whose testimonial competence is not challenged, to give relevant testimony, on the ground that to allow the production and testimony of the child would be “contrary to the child’s best interest.”

This is an appeal from a termination of parental rights proceeding. The Tillamook County Juvenile Department initiated a petition to terminate the parental rights of father to his son.3 The parties — the state, the father, and the *447child — were each represented by a lawyer.4 At the time of trial, January 30, 1990, the child, who was six and one-half years of age, was in foster care under the supervision of Children’s Services Division (CSD). Before trial, father moved the court to order CSD to allow him to interview the child. The court denied the motion. Father then served a subpoena on CSD to produce the child at trial to testify as a witness. Father moved to examine the child pursuant to the subpoena, stating that the child’s testimony would rebut much of the state’s evidence.5 In support of his motion, father included an affidavit of his lawyer, which stated that the lawyer believed that the child’s testimony was “vital and crucial to the father’s case.” Father’s lawyer advised the trial court that father was willing to have the child’s testimony taken in the trial court’s chambers by the trial court and the parties’ lawyers without father’s presence.

In opposing father’s motion, the state filed an affidavit of the CSD caseworker with responsibility for the child. The affidavit stated that “requiring [the child] to testify would be harmful to him and detrimental to his best interests.” A letter written by a psychologist and a psychology *448intern, attached to the CSD caseworker’s affidavit, stated that in their opinion there would be substantial risk of harm to the child if he were compelled to testify and that the child’s answers would not likely be accurate because of his impressionability and desire to please.6

The trial court denied father’s motion, quashed the subpoena, and ordered that CSD need, not produce the child as a witness. The trial court concluded that, although the child’s testimony had some relevance to the allegations in the petition, that relevance was outweighed by the risk of harm to the child. The trial court concluded, therefore, that it would be contrary to the child’s best interests to compel his production and testimony.7 Following trial, the trial court terminated father’s parental rights to the child.

Father appealed, assigning as error, inter alia, the trial court’s refusal to allow him to subpoena the child and permit him to call the child as a witness on his behalf. The *449Court of Appeals, with one judge dissenting, reversed and remanded, stating:

“When a parent’s own conduct is on trial and that parent faces one of the most drastic actions a state can impose, the permanent loss of a child, the parent must have the opportunity to rebut the state’s case to the extent that the evidenti-ary rules and statutes allow. See OEC 402. No statute authorizes the court in a termination case to refuse to examine a child because it is not in the child’s best interests. * * * Assuming that the child was competent, the court was required to allow him to be examined in chambers.” State ex rel Juv. Dept. v. Beasley, 106 Or App 515, 519, 809 P2d 117 (1991) (footnote omitted).

We allowed the state’s petition for review. We reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

As a threshold matter, we observe that the Oregon Evidence Code applies to a proceeding to terminate parental rights. State ex rel Juv. Dept. v. Ashley, 312 Or 169, 173, 818 P2d 1270 (1991).8 In the Oregon Evidence Code, the legislature adopted a thematically consistent, overall approach to the way evidence should be treated in those actions, suits and proceedings in which it applies. OEC 402 provides that “[a] 11 relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon, or by Oregon statutory and decisional law. Evidence which is not relevant is not admissible.”

It is clear from a reading of OEC 402 that the Oregon Evidence Code was neither intended to be nor is a complete codification of all the rules of evidence.9 OEC 402 impliedly *450recognizes that decisional evidentiary rules, in areas not covered by the Code, survive the adoption of the Code.10 Thus, proffered evidence may be subject to exclusion under one of the exceptions to the admissibility of relevant evidence in OEC 402 (e.g., decisional law). If the evidence is not barred by OEC 402, it may, nevertheless, be excluded by the trial court under OEC 403. OEC 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”

In this case, there is no dispute that the child’s testimony is relevant.11 Because the child’s testimony is relevant, we must first decide whether the child’s testimony is subject to exclusion under OEC 402. In addressing that inquiry, it is important to note what is not involved and what we do not, therefore, decide in this case. There is no claim that the child’s testimony is inadmissible under the “constitutions of the United States and Oregon, or by Oregon statutory law.” There is no contention that the child is incompetent.12 Nor is there any contention that the stress or trauma to the child that the trial court found would result from requiring him to appear and testify would prevent him from satisfying one or more of the elements of competency (e.g., make the child unable to communicate).

The state argues that, under the decisional law of Chandler v. State, 230 Or 452, 370 P2d 626 (1962), it was proper for the trial court to quash the subpoena and refuse to allow father’s child to testify on his behalf because the court found that it was not in the “child’s best interest to compel his production and testimony.” In Chandler, a father petitioned to revoke an order making his 13-year-old daughter a ward of *451the juvenile court. At the hearing, the trial court denied the father’s request to examine his daughter as a witness in open court. The child was questioned privately by the court in the presence of counsel for the father and the state. A record was made of the questions and answers. This court upheld that procedure, stating that permitting such testimony is discretionary with the trial court and that the trial court did not abuse its discretion. This court distinguished between a divorce or custody proceeding and a juvenile court proceeding, stating that the compelling intent of the latter is to protect the child and that the trial court must be given discretion to provide such protection when necessary. This court stated:

“[T]he concept and intent of the juvenile code would he violated if [a rule providing that if children are competent to testify, either party can require them to testify] were to be applied to the proceedings contemplated by the code. The compelling intent of the juvenile code proceeding is to protect the child in any situation in which the court thinks the child may require it. Discretion must be vested in the trial court to make the initial determination if it would be proper to question a child [in open court] in any given case.” Id. at 456 (emphasis added).

The quoted language from Chandler should not be taken to mean that all proceedings that arise from statutes codified in the juvenile code focus initially or exclusively on the best interests of the child.13 A proceeding to terminate parental rights, which arises from a statute, ORS 419.525, and is codified in the juvenile code, does not focus initially on the best interests of the child. The statute for termination of parental rights contemplates a two-stage analysis. The first stage focuses on the conduct of a parent, i.e., the alleged statutory grounds for termination. The second stage focuses on whether the best interests of the child will be served by *452termination. In a termination proceeding, if a parent’s conduct justifies termination, then the best interests of the child are considered explicitly, and could even then prevent termination from occurring.14 As this court stated in State ex rel Juv. Dept. v. Geist, 310 Or 176, 189, 796 P2d 1193 (1990):

“In a termination case, * * * the issue is not whether a parent should be ‘punished’ by a termination of his or her parental rights; rather, the issue is whether the statutory grounds for termination have been established by clear and convincing evidence, ORS 419.525(3), and, if so, whether the child’s best interest will be served by termination of the parent-child relationship. ORS 419.523(1).”

A footnote to this text states: “Even if a court determines that a child’s best interest will be served by a termination of parental rights, it may not be ordered unless the statutory grounds for termination have been established by clear and convincing evidence.” Id at 189 n 15 (emphasis in original).15

In Kreutzer v. Kreutzer, 226 Or 158, 359 P2d 536 (1961), a proceeding for modification of a divorce decree, this court held that, in view of the express provisions in former ORS 44.020 and former ORS 44.030, the statutes that then delineated persons who were competent to testify as witnesses, the trial court could not refuse to permit minor children to testify if they are qualified under those former statutory provisions. The court stated:

“Consequently, the right of the defendant to call the children to the stand and to elicit testimony from them material to the issues was precisely the same as it would have been in the case of any other competent witness. This is, of course, a fundamental right. Lakson v. Lakson, 124 Or 219, *453263 P 891 [1928], In divorce cases, it seems to be uniformly held that the court has no authority to exclude the testimony of children of the parties of tender years if they are otherwise competent witnesses. 17 Am Jur 567, § 455, anno. 2 ALR2d 1330. There is no reason for a different rule in a proceeding for modification of a provision in a divorce decree granting the custody of children, for the parties to such a controversy have the same right to present evidence in open court as in any other case. Rea v. Rea, 195 Or 252, 277, 245 P2d 884 [1952].” 226 Or at 161.

It is true that, under the holding in Kreutzer, a trial court may not refuse to permit minor children to testify simply because they are children if they possess the requisite testimonial qualifications. Nevertheless, the Kreutzer rule would not prevent a trial court from excluding relevant testimony of the child under an exclusionary rule set forth in the Oregon Evidence Code, such as OEC 402 or OEC 403. Although Chandler v. State, supra, did not involve a termination of parental rights proceeding, we conclude that the rule that it announced and the procedure followed by the trial court in that case should be applied in a termination proceeding.16

The “child’s best interest” rule of Chandler involves a balancing of interests, as does OEC 403.17 Although the risk of severe emotional or psychological harm that would result to a child is not one of the dangers or considerations set forth *454in OEC 403,18 Chandler, as a decisional law exception under OEC 402, is a basis independent of OEC 403 for inadmissibility of a child’s testimony in a termination proceeding. The rule set forth in Chandler and the procedure followed by the trial court in that case are consistent with the analytical approach set forth in OEC 403 to determine the admissibility of a child’s testimony in a termination proceeding. Similar to the balancing in OEC 403, under the Chandler rule, the child’s testimony cannot be excluded unless the probative value of the child’s testimony is substantially outweighed by the risk of severe emotional or psychological harm to the child. If, for example, the child’s testimony has minimal probative value, but is substantially outweighed by the risk of severe emotional or psychological harm to the child, the trial court may exclude the child’s testimony. Balancing the probative value of the child’s testimony against the risk of severe emotional or psychological harm to the child under the Chandler rule, like the balancing under OEC 403, commonly will involve examination of the child in chambers where requested.19

Before a trial court may refuse to allow a child whose testimonial competence is not challenged to give relevant testimony that is not otherwise excluded, in order to protect the “child’s best interests,” the trial court must perform the balancing required by Chandler, i.e., the trial court must determine whether (1) the probative value of the child’s testimony is (2) substantially outweighed by the risk of severe emotional or psychological harm to the child from testifying. In making the determination regarding the risk of severe emotional or psychological harm to the child, the trial court should consider such factors as: (1) the probability of severe emotional or psychological injury to the child as a result of *455testifying; (2) the degree of anticipated injury; (3) the expected duration of injury; and (4) whether the expected psychological injury is substantially greater than the reaction of an average child who testifies. Unless the probative value of the child’s testimony is substantially outweighed by the risk of severe emotional or psychological harm to the child from testifying, there is no discretion to exclude the child’s testimony; the child’s testimony must be admitted. If, however, the balance goes against probative worth, the trial court may exclude the evidence.20 We realize that, in practice, these factors are extremely difficult to quantify. The opinions of mental health experts usually will be necessary in order for the court to make its assessment of the asserted emotional and psychological injury that would result to the child. We encourage the trial court to articulate on the record the reasons for its ruling.

The trial court here did not have the benefit of this opinion to guide it in performing its balancing task under the decisional law of Chandler, as clarified here. However, we need not remand this case to the trial court to perform that task in accordance with the approach outlined in this case. Although father never agreed that the child need not testify, father did submit a written offer of what the child would testify to, and in the hearing on the motion to quash the subpoena, father summarized what the child’s testimony would be and its importance to the case. See supra, note 5. We accept father’s summary of facts as having been established for purposes of our de novo review and hold that, in light of *456the record as a whole in this case, the state has established by clear and convincing evidence that father’s parental rights should be terminated.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

specially concurring.

I concur in the result in this case. That is, I agree with the statement that even accepting “father’s summary of facts [as to what the proposed witness would testify] as having been established for purposes of our de novo review * * * in light of the record as á whole in this case, the state has established by clear and convincing evidence that father’s parental rights should be terminated.” 314 Or at 455.

That being true, there is no need to deal with the admissibility of the proposed testimonial evidence merely because the parties continue to contest its exclusion. Whether or not the evidence is admissible will have no practical effect on the outcome of the case. Because the ruling on the evidence does not affect the outcome, we need not (and in my view should not) decide whether the ruling was correct. The court’s consideration of the excludability of the evidence, thus, is dictum. It is dictum that I do not wish to join.

No claim is made that refusing to hear the testimony of a competent witness improves the truth-seeking function of the court. Given that both parent and child have a liberty interest in continuation of their association, see Zockert v. Fanning, 310 Or 514, 519, 800 P2d 773 (1990), citing Lassiter v. Department of Social Services, 452 US 18, 27, 101 S Ct 2153, 68 L Ed 2d 640 (1981) (“parent’s interest in the accuracy and justice of the decision to terminate * * * parental status is * * * a commanding one”), excluding relevant evidence of a competent witness should not be entered into lightly.1

No one suggests that the testimony would so influence the judge emotionally that the judge might not enter a finding of fact on the merits notwithstanding the emotional *457charge carried by the testimony. Thus, OEC 403 (“probative value is substantially outweighed by the danger of unfair prejudice”) is not involved in rationalizing the court’s dictum, nor should it be. Imwinkelried, The Meaning of Probative Value and Prejudice in Federal Rule of Evidence 403: Can Rule 403 Be used to Resurrect the Common Law of Evidence?, 41 Vand L Rev 879 (1988).

OEC 402 is referred to by the dicta. This rule provides:

“All relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon or by Oregon statutory and decisional law. Evidence which is not relevant is not admissible.”2

Obviously, the Oregon rule intends to preserve deci-sional law evidence rules. Passing over the issue whether the reference is to decisions and cases that may arise in the future, after adoption of the rules or, instead, is a retroactive incorporation of all prior cases announcing exclusionary rules of evidence, the dicta in the lead opinion in the present case refers to a 1962 decision of this court where the issue was simply whether a 13-year-old child was within the jurisdiction of the juvenile court after having run away from home. Chandler v. State, 230 Or 452, 458, 370 P2d 626 (1962).

This court remanded that case for an additional hearing on the ground that the parent should have been permitted to inspect the files of the public agency having custody of the 13-year-old child under court order. On the way to that holding, the court stated that the trial judge did not abuse discretion “in refusing to permit the child to be called as a witness and to have been examined in open court.” Id. at 456. However, the court only rules after pointing out that, in that case:

“The child was questioned privately by the court in the presence of counsel for the father and for the state. A record of the questions and answers is here.” Id.

*458In Chandler, this court comments that the juvenile court is vested with discretion to make an initial determination whether it would be proper to question the child in any given case. The comment was itself dictum. The court said that the compelling intent of the juvenile code proceeding is to protect the child in any situation in which the court thinks the child may require it, but did not discuss this reasoning further.3 That statement is dictum because that rationale and statement about discretion were not employed in that case, in that the child was questioned on the record albeit outside of open court. Thus, the dicta in the present case is based on the dictum in the pre-OEC Chandler case.

The opinion of the court also passes by the question whether the judiciary is bound by statutory rules of evidence or only required to apply them until the judiciary develops a contrary common law rule. That question arises because, in a different setting, namely, child sexual abuse cases, the legislature has adopted a rule that is different than the rule articulated by the lead opinion in the present case, although the statutory protection of the child has some of the same features as are in the lead opinion’s new rule. The somewhat similar statutory rule is clearly limited to the class of cases for which it was enacted.4 In child sexual abuse cases, OEC 803(18a)(b) permits hearsay testimony of statements by a child victim of sexual abuse. The rule allows the hearsay when the child witness “is substantially likely * * * to suffer lasting severe emotional trauma from testifying” and provides that “[ujnless otherwise agreedby the parties, the court shall examine the child in chambers and on the record.” The *459rule expressly states that it covers “civil, criminal and juvenile court proceedings.” OEC 803 (18a)(c).

That rule requires examination on the record and requires a higher standard of proof of emotional damage to the child than are found in the court’s dicta in the present case. Most significantly, the evidence that the child could give still comes in. The legislature’s rule places the relevant evidence on the record; the rule in the lead opinion’s dicta may, if the criteria created in it are satisfied, exclude relevant evidence. Confrontation and some cross-examination are no doubt impacted by the legislative rule protecting children in the limited circumstance and terms described. But the court is not deprived of the testimony as a whole, and the ability of a party to call a witness possessing relevant testimony is not totally thwarted, as would potentially be possible under today’s dicta.

Of course, the legislature has not spoken in the context of a case like this one involving parental neglect. But the differences between the lead opinion’s choice and the choice of the legislature in an analogous, egregious situation should be rationally resolved before a rule that may be invoked to facilitate exclusion of relevant evidence is adopted. That has not occurred. At the least, the dicta in the present case is premature, and I do not join in it.