FILED: November 26, 2003


IN THE COURT OF APPEALS OF THE STATE OF OREGON


In the Matter of Jon Bow Robert Michael Lea Smith,
a Minor Child.

STATE ex rel DEPARTMENT OF HUMAN SERVICES,

Respondent,

           v.

DIANA MARIE SMITH,

Appellant.

J020938; A121395


           Appeal from Circuit Court, Marion County.

Joseph C. Guimond, Judge.

Argued and submitted October 6, 2003.

Clayton C. Patrick argued the cause and filed the brief for appellant.

Devorah Signer-Hill, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Landau, Presiding Judge, and Armstrong and Brewer, Judges.

           PER CURIAM

Affirmed. State ex rel Dept. of Human Services v. Smith (A119798), 190 Or App 570, ___ P3d ___ (2003).

           Landau, P. J., concurring.

           LANDAU, P. J., 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, ___ P3d ___ (2003). In light of the court's decision in that case, I therefore concur in affirming the judgment in this case.

           Armstrong, J., joins in this concurring opinion.  


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