Amy Fabbrini and Eric Ziegler sat silently in court this week as attorneys argued over whether they are intellectually capable of raising their sons.

A bench trial underway in Deschutes County will determine if the state can keep custody of 9-month-old Hunter and terminate their parental rights to 4-year-old Christopher. Both boys have been in foster care almost since birth, after Fabbrini's family raised concerns to the state.

This isn't a case about abuse or neglect. The crux of the state's argument is that the Redmond couple would be unable to anticipate and meet the needs of their children. Fabbrini's IQ has tested at 72, Ziegler's at 66, whereas the average IQ falls between 90 and 110.

Taking away parental rights is one of the most severe steps the state can take, so it ought to be an exhaustive, intensively researched ordeal. As such, five attorneys are on the case: one for each parent, one from the Department of Justice representing the Department of Human Services, one from the District Attorney's office representing the state, and one appointed to represent the two children. Each child also has a Court Appointed Special Advocate in the courtroom.

Family court records are sealed to public review, but anyone (except pending witnesses) can sit in the gallery while court is in session. In the day and a half of testimony I watched, the two major witnesses were psychologists. One had evaluated the father but had never seen the children; the other had evaluated the older child but had never met his parents.

Admittedly, this was only a small portion of what will be an eight-day trial, but this doesn't seem the strongest way to make a case about parenting.

William Trueblood, a Bend neuropsychologist, testified that Zeigler had "below average cognitive skills." While he performed better than expected on learning and memory testing, overall, Trueblood said, "the expectation would be for below average performance in terms of planning, organizing, thinking flexibly."

He said intellectual shortcomings could lead Ziegler to get frustrated more easily and have a difficult time regulating his emotions.

"Would Mr. Zeigler's cognitive ability have some impact on his understanding of general duties and general obligations as a parent?" asked deputy district attorney Jason Kropf.

"Yes," Trueblood said.

But Trueblood has never seen Ziegler parent, nor, he said, is he trained to evaluate someone's ability to parent. On cross examination, Ziegler's attorney Terry Rahmsdorff asked, "Is there as correlation between a high intellect and the ability to parent?"

"I would just say I don't know," Trueblood said.

Ziegler has a standard diploma from Bend High School, where he received a 3.02 GPA, his attorney said. He has a driver's license, has served on a jury, pays his bills. Rahmsdorff asked if there was a minimum IQ required to be a competent parent.

"I don't think there's a specific cutoff number," Trueblood said.

Fabbrini's attorney, Jaime Gerlitz, pointed out that people with high IQs can have a difficult time managing emotions and frustration, too.

Child psychologist Roxanne Edwinson evaluated Christopher twice, once when he was 2 and again when he was 3, to determine if he had special needs. Edwinson said Christopher was behind development in language and some skills.

"Just a lot of love and support won't help this child," Edwinson said of the parenting skills needed to help Christopher. "It's working with different providers, it's listening to doctor recommendations, it's making sure that they make all their appointments. It's really following through on all the different varieties of homework that you're given."

If those supports weren't given, she said, Christopher could plateau in his development or even regress. But Edwinson has never met Christopher's biological parents, she testified, so she was unable to speak to whether they could provide those needs.

She also spoke to the damage that would be done if the healthy attachment to his foster parents were severed – but she had never been asked to evaluate Christopher's attachment or relationship with his biological parents.

Attorney Karen Stanley, representing the Department of Human Services, said attachment to foster parents would not be a basis to terminate parental rights, but "it is a factor, I believe, as to whether or not these parents can sufficiently parent this child."

Circuit Judge Bethany Flint was skeptical.

"I don't think you can bootstrap an argument about whether they're capable of helping him with the grief, the breaking of an attachment that was created by the removal of the child by the state," Flint said. "I don't think can be a basis or an element or a component or a factor to be considered in the termination of parental rights."

The case is scheduled for an eight-day trial but at the rate I witnessed, it could go longer. Deschutes County, as Fabbrini's attorney pointed out to me, was once home to the longest trial in Oregon history – a child abuse case that lasted 14 months.

-- Samantha Swindler

@editorswindler / 503-294-4031

sswindler@oregonian.com