DA 07
- 0588 IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 127

IN THE MATTER OF J.C. and A.D., Youths in Need of Care.

APPEAL FROM: District Court of the Ninth Judicial District,

In and For the County

of Teton, Ca

use No. DN 2005
- 003 Honorable Tho ma s M. McKittrick, Presiding Judge COUNSEL OF RECORD:

For Appellant: Jim Wheelis, Chief Appellate Defender, Roberta R. Zenker, Assistant Appellate Defender, Helena, Montana For Appellee: Hon. Mike McGrath, Montana Attorney General, Mark Mattioli, Assistant Attorney General, Helena, Montana Joe Coble, Teton County

Attorney, Choteau, Montana Sarah Corbally, Assistant Attorney General, Great Falls, Montana

Submitted on Briefs: February 20, 2008 Decided: A

pril 21, 2008 Filed:

__________________________________________ Clerk April 21 20082

Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 On September 13, 2007, the District Court of the Ninth Judicial District, Teton County, terminated the parental rights of G.C. and J.D. G.C. is the biological mother of J.C., a six year

- old boy, and A.D., a five year- old boy. J .D. is the biological father of A.D. and is currently married to G.C. J .D. now appeals the District Court’s termination of his parental rights to A.D . We affirm.

FACTUAL AND PROCEDURAL BACKROUND ¶2 On February 22, 2005, the Teton County Deputy Attorney, on behalf of the Department of Public Health and Human Services (DPHHS) , filed a petition for temporary investigative authority (TIA P etition) to c onduct an investigation into allegations that J.C. and A.D. had been abused, neglected or abandoned. A show cause hearing on the TIA P etition was held on March 8, 2005. After the hearing, the District Court granted the TIA petition by an order dated March 8, 2005. ¶3 The circumstances leading to the filing of the TIA P etitionare described in the District Court’s order and are undisputed. On December 9, 2004, DPHHS received a report from a physician in Great Falls, Montana, concerning J.C. and A.D. after they were taken to see himby the parents . The physician reported that J.C. and A.D. were not clean, were wearing dirty clothes that did not fit, and that J.C. had rotten teeth that appeared to be from bottle rot. The physician was suspicious that the family “was running from something or somewhere.” ¶4 On that same day , J.D. c ontacted DPHHS c ommunity s ocial worker Patty Jac obs stating that he and G.C. had recently mo ved to Montana from Vermont where they had3

been receiving services and that they would like toc ontinue to receive those services in Montana. M s. Jacobs followed up on their prior services in Vermont and contacted Kathy O’Brien, a child protection s ocial worker for the state of Vermont. M s. O’Brien related she had been assigned to their case, that Vermont had j urisdiction over their case, and that the parents had indicated to officials in Vermont that they were taking a trip to Montana and would be returning to Vermont shortly. M s. O’Brien then related the following information, as contained inthe District Court’s order : She further advised that the Youths were removed from G.C. on June 9, 2004, because of unsafe and unsanitary living conditions in the home. When Ms. O’Brien investigated and entered the home, both J.C. and A.D. were sharing a pl aypen surrounded by garbage and rotten food. A .D. had dry feces on his chest that had been smeared around. The workers found feces in the crib in piles and also smeared on the crib rails. D irty diapers laid around the crib, feces was in toilets left unf lushed, food [ and] garbage was on the floor throughout the house. Protective Supervision over the parents was granted with the parents required to follow recommendations of the agency. . . . The recommendations put in place were that the parents were to work with Family Based Services, participate in parenting class es and mental health counseling, and that they were to receive medical services. ¶5 When G.C. and J.D. learned that DPHHS would continue with the plan initiated in Vermont, they advised that theywould return to Vermont and live in a motel until they could obtain housing. Prior to their arrival in Montana, G.C. had been waiting for housing in Vermont for approximately six months and had been evicted o n a previous occasion . While Ms. Jacobs offered to work with G.C. and J.D., she also informed them that if they were to leave Montana, the children would be removed because they would be homeless and without medical, dental, or mental health services. G .C. and J.D. subsequently obtained housing in Choteau, Montanawith their children.4

¶6 Prior to the show cause hearing on the TIA Petition , a guardian at litem was appointed for the children , and G.C. and J .D. voluntarily entered into a treatment plan with DPHHS. The first section of thistreatment plan , which both parents signed, reads as follows: IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT RESULTED IN THE ABUSE OR NEGLECT: 1) J.C. and A.D. have developmental delay issues, including difficulty with language. 2) J.C. has severe dental decay that require s immediate attention. 3) G.C. and J.D. have no knowledge of child development, no knowledge of appropriate parenting skills, and limited home maintenance skills. ¶7 The treatment plan contained four major goalsand nine specific tasks for G.C. and J.D. to comp letein order to remedy the conditionswhich resulted in the abuse and neglect of their children . At the show cause hearing on March 8, 2005, the District Court asked the parents if they objected to the State’s involvement in the matter, or to any elementof the treatment plan. Neither of the parents objected to the treatment plan itself, although J.D. did object to one portion of the treatment plan that required him to undergo
sex offender counseling. Although the parents did not have counsel at that time, the District Court informed them that he would appoint counsel in the matter if they requested it. The parents did not request counsel at that time. ¶8 In an affidavit in support of the TIA Petition, Ms. Jacobs stated that as a result of her thorough investigation into this matter, she concluded that the parents had failed to
make progress on the deficiencies which originally led to the intervention by the State of Vermont. According to Ms. Jacobs, J.C. and A.D. were still in need of medical care, WIC su pplements, and evaluation and services for language and speech development.5

J.C. was behind in his development, requiring speech evaluation immediately. M s. Jacobs was concerned about the condition of the children’s teeth, their lack of language development, possible hearing deficits, and undergrowth and weight gain. Moreo ver, J.C. appeared unhappy, was screaming and crying frequently, and A.D. was frequently
expressionless and intimidated. ¶9 The District Court granted the TIA Petition. The District Court noted that DPHHS had made reasonable efforts to avoid protective placement o f the children and had not removed the children from G.C. and J.D.’s care, as the continuation of the children in the home at that time was not contrary to the welfare of the children. The District Court ordered that DPHHS be granted the necessary authority to access all information concerning the family “which are relevant to the investigation and determination of whether the above

-named children are youths in need of care . . . . ” As is clear from this language as contained in the order, at the time TIA Petition was granted there had not yet been a formal adjudication that J.C. and A.D. were youths in need of care, notwithstanding the fact that the order granting the TIA Petition was captioned “Order Adjudicating Children as Youth in Need of Care and Granting Temporary Investigative Authority.” ¶10 On April 1, 2005, the District Court appointed counsel for J.D. and G.C. On April 5, the children were removed from G.C. and J.D.’s care. On April 7, 2005, less than one monthafter the granting of the TIA P etition, Teton County, on behalf of DPHHS , f iled a Petition for Adjudication of Child as Youth in Need of Care, Immediate Protection and6

Emergency Protective Services, and Temporary Le gal Custody(TLC Petition)
. In the TLC Petition, the Teton County Deputy Attorneyalleged as follows:

Since the date of the Show Cause hearing on March 8, 2005, the children’s living environment, physical condition and care has deteriorated. This change in their circumstances has necessitated their removal from the home. Specifically, Dr. Laura Shelton has diagnose d J.C. as a Failure to Thrive child. Additionally, Public Health Nurse Jolynn Miller indicates both children are below the 5th percentile in the weight and growth charts and that J .C. has actually lost weight over the past month. As is more specifically set forth in the Affidavit of Social Worker Patty Jacobs attached hereto, the home of the children is not adequately furnished despite the apparent financial ability of the parents to adequate ly provide furnishings, the children are frequently in dirty, mismatched clothing, and locked in their bedroom or otherwise confined with limited mo vement in their home. Additionally, A.D. continues to showvery little expression or emotional response . On March 28, 2005, a day care provider observed unusual marks on A.D. that were also sticky. It appears duct tape was placed on the child over the front part of his torso and leg area. This matter has been referred to the Teton County Sheriff’s Office for investigation. F inally, the dietary needs of the children are still not being met. D ay care personnel indicate that every Monday J.C. has diarrhea, but by the end of the week he is f ine. Day care personnel have noted that J.C. eats very well at day care and that none of the eating issues are present that the parents complain about. The dental condition of J.C. continues to be a concern. His front teeth are rotten and J.C. complains his teeth hurt him. Upon removal of the children by the Social Worker on April 5, 2005, it was discovered that both children were infected with head lice. They have had their heads shaved because larvae and eggs were observed. ¶11 In the TLC P etiti on, the Teton County Deputy Attorney went on to allege that: [T] here is sufficient evidence to establish, by a preponderance of the evidence, that the above

- named child is a Youth in Need of Care as defined in Mont. Code Ann. § 41

- 3
- 102 (2003), such that the Court should enter an order of adjudication and temporary legal custody. ¶12 The Teton County Deputy Attorney also requested, in part, the following relief:7

Following an adjudicatory hearing, Petitioner requests the court to: 2. Incorporate the terms and provisions of its previous ordersgranting relief; 3. Enter an order adjudicating the children as youths in need of care, by a preponderance of the evidence; 4. Transfer legal custody of the children to the Department of Public Health and Human Services for a period not to exceed 6 months, or until further order of the Court; 5. For any and all other such disposition that protects the welfare of the child. ¶13 On April 8, 2005, the District Court temporarily granted DPHHS temporary l egal
custody (TLC) over J.C. and A.D., finding that there was probabl e cause to believe that the children were abus ed or neglected, and setting a show c ause hearing for April 19. On April 19 , the District Court appointed Ms. Meghan Lulf Sutton as counsel for the parents, and continued the show c ause hearing to May 6, 2005, allowing the temporary order granting the TLC Petition to remain in place. ¶14 At the May 6 hearing, J .D. and G.C. were represented by Ms. Sutton, and Teton County was represented by Deputy Attorney Ms. Laurie McKinnon. The transcript of that hearing reads as follows: COURT: Alright, this is the time set for a Review Hearing in this matter, the Court having previously granted the State Temporary Investigative authority. Go ahead. MS. McKINNON: Well, I’m not sure when the Review Hearing was set, but today’sthe Show Cause Hearing on an Emergency Removal, as well as on Temporary Legal Custody. COURT: Alright, you may proceed. Ms. Sutton? MS. SUTTON: Yes, Your Honor. My clients are going to stipulate to the request for Temporary Legal Custody. Ihave had a conversation with them about that, and they’re currentlyworking on a treatment plan8

and visits have just started. They have done

—after talking to the Social Worker, she tells me the case is progressing and reunification is comin g on as planned and hope d for, and we would stipulate toT emporary Legal Custody.Iwould ask the Court to set a status hearing in three months just to see where we’re at with reunification and getting those children back in the home. COURT: Alright, I’ll grant, ba sed upon thestipulation of the parents , I’ll grant the State’s request for Temporary Le gal Custody. It will last for a period of six months, and it will expire on November 4th. We’ll have a hearing on July 26th, a Review Hearing, to determine the status of this matter, and at that time, if necessary, I’ll set a further Review Hearing prior to the expiration of Temporary Legal Custody. Will that work? MS. McKINNON: Yes, Judge, thank you. COURT: If you want to give me an order to that effect, I’ll sign it, okay. MS. SUTTON: Thank you, Your Honor. (Emphasis added). ¶15 The District Court signed anorder granting the TLC Petition that same day. Based upon the evidence and allegations contained in the TLC Petition, the District Court issued the following f

indings of f

act in support of its decision : 2. A Petition for Adjudication of Children as Youth in Need of Care and Temporary Investigative Authority was previously filed and granted on March 8, 2005. 3. Since that date, the living environment, physical condition and care of the children has deteriorated. 4. Dr. Laura Shelton diagnosed J.C. as a Failure to Thrive child. 5. Public Health Nurse JoLynn Miller indicates both children are below the 5th percentile in weight and growth charts, specifically J.C. had lost weight. 6. A.D. has been observed to show little expression or emotional response. 7. Daycare provider observed unusual marks on A.D. It appeared that duct tape had been placed on the child over the front of his torso and leg area. 8. The Youths dietary needs have not been meet.9

9. J.C. continues to have dental concerns, i.e., his f ront teeth have rotted. 10. The Court appointed Meghan Lulf Sutton to represent G.C., Mother of the Youths, and J.D., Father/Stepfather of the Youths. ¶16 These findings, in turn, led the District Court to issuethe following c onclusions of l aw: 2. The Court has jurisdiction of this matter.

3. The Petitioner has shown by a preponderance of the evidence that continued court and department intervention is required. 4. The above

- named children were adjudicated as Youth in Ne ed of Care on March 8 , 2005. 5. Temporary Le gal Custody is appropriate and in the best interest of the children. ¶17 On October 18 , 2005, Teton Countyf iled a Petition for Extension of Temporary Le gal Custody(TLC Extension Petition)
. The deputy attorneyallege d in this P etition that the children continued to suffer abuse and neglect. In theTLC Extension Petition, the deputy attorney also alleged that since entering into a treatment plan and agreeing to work with DPHHS, J.D. and G.C. had received two eviction notices. Although arrangements had been made for them to undergo evaluation for gambling problems, the parents denied they had gambling problems in spite of the fact that they both frequented casinos. Moreover, the parents were asked to see a therapist f or couples counseling since they had troubling getting along and were fighting continuously. They told Ms. Jacobs that they had done so but, in fact, they had not attended any counseling at all. Further, they refused to sign releases allowing DPHHS to gather the required information in accordance with their treatment plan. They also refused to schedule appointments with DPHHS social workers to work on nutritional issues, as required under their treatment10

plan. Accordingly, the deputy attorneyre - alleged that there was sufficient evidence to establish by a preponderance of the evidence that they were y ouths in need of c are (YINC) , as defined in § 41
- 3
- 102, MCA, and that the original TLC Petition should be extended. ¶18 At a show c ause hearing on the TLC Extension Petitionon October 25, 2005 , J.D. and G.C. were once again represented by counsel. During this hearing, the following exchange occurred: COURT: Alright, this i s a hearing on the Order to Show Cause. It appears that the State is asking for a continuation of Temporary Le gal Custody; is that correct? MS. McKINNON: Yes, Judge. COURT: Is there any objection from the parents as to a continuation of that Temporary Legal Custody? MS. SUTTON: Your Honor, I had a lengthy discussion with Patty Jacobs and Ms. McKinnon, and we hammered out a new treatment plan, and my clients have agreed to stipulate to that, I’m stipulating on behalf of my clients, at this time, to the extension of T. L. C. (Emphasis added). ¶19 The first section of this second treatment p lan, to which the parents stipulated in open court and later signed, states as follows: IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT CONTINUE T O C ONTRIBUTE TO THE CONDITIONS O F ABUSE AND/OR NEGLECT: 2. Failure to pay bills that are necessary to maintainwarm, safe housing. 3. Failure to work with Quality Life Concepts; missed appointments. 4. Failure to work cooperatively with Family Based Services; rudeness to the provider.11

5. Failure to attend counseling; told Social Worker they were attending. 6. Failure to attend nutritional education; refusal to set appointments resulting in nurses being unable to spend the time to work with G.C. and J.D. if they did happen to show up at [the] Public Health Department. ¶20 A review hearing was later set for January 10, 2006. At that time, G.C. and J.D. were again represented by Ms. Sutton, at which the following colloquy occurred: COURT: Now . . . since this is a review hearing, do we need to do anything more? MS. McKINNON: Nothing more from the State, Your Honor. MS. SUTTON: Your Honor, we’re stipulating tot he treatment plan and we don’t have any opposition to that, at this time. COURT: There is a treatment plan in place that has been signed off on by the Court, I believe? MS. SUTTON: Yes, Your Honor. (Emphasis added
. ) ¶21 A notherreview hearingwasheld on March 14, 2006, where the District Court received an update on the parents’ progress. Prior to the date of this hearing, separate counsel was appointed for J.D. because DPHHS had expressed to the parents that it might
seek to terminate their parental rights. At the hearing, Ms. Jacobs testified that the home visits were not able to be properly supervised because of the smell of cigarette smoke in the apartment, and that the excessive smoke was causing wheezing with the children. Moreover, Ms. Jacobs stated that based on the ob servations of care providers “the least amount of contact they have with their parents, that the less aggressive they are and the better their behaviors are, which leads to the concerns of their treatment of the children12

and their compliance with the treatment plan, or I should say their failure with the treatment plan.” The District Court expressed c oncern over the smoking issueand set another review hearing for April 25, 2006. ¶22 Prior to the next review hearing, G.C. and J.D. signed and agreed to a third treatment plan. The first section of this third treatment plan read as follows: IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT RESULTED IN THE ABUSE OR NEGLECT . 1) J.C. and A.D. have developmental delay issues, especially in the area of language skills. 2) G.C. and J.D. have limited parenting skills and limited home maintenance skills. G .C. and J.D. have limited knowledge of child development. 3) G.C. and J.D. have anger management problems. This causes them to ignore the service providers who are trying to teach them new skills. 4) G. C. and J.D. have relationship problems, creating a tremendous amount of tension and stress in the home environment. 5) G.C. and J.D. have been unable to manage p ayment of monthly living expenses, both have gambling issues that need to be addressed. 6) G.C. and J.D. have childhood abuse issues that interfere with appropriate parenting. In addition, because of their abusive childhoods, extended family is not a supp ortive option for these young parents. ¶23 At the April 25 hearing, the parties again stipulated to continuing the TLC Petition. At that hearing, S.M. (the biological father of J.C. ) , was represented by William E. Hunt, Jr. Mr. Hunt argued that, under statute, the District Court was required to hold a permanency hearing under § 41
- 3
-445, MCA, given the length of TLC. The District Court stated its belief that there was no limitation on the timeframes of TLC, so long as the District Court granted them in six month intervals. However, to address concerns raised by counsel and ensure compliance with statutory procedures, the District Court deemed the proceeding a permanency hearing based on testimony given by Ms. Jacobs13

concerning the children’s status and the parents’ progress on their treatment plans . After her testimony, Ms. Sutton addressed the District Court: MS. SUTTON: 41
- 3
- 445 provides that a permanency hearing can be held in conjunction with any other hearing, and it sets forth some criteria of what needs to be discussed at the permanency hearing, and to satisfy Mr. Hunt’s objection, they could call this a review hearing on a permanency plan. We’re satisfied that all the criteria under the statute, from Ms. Jacobs’ testimony today, has been satisfied
. . . . ¶24 On June 30, 2006, S.M. filed a petition through his attorney Mr. Hunt to have J.C., his b iological son, temporarily reside with him in Vermont. On July 2 5, 2006, the District Court granted the petition, allowing J.C. to temporarily reside with S.M. in Vermont from July 31 to September 1. This date was later extended. ¶25 On O ctober 11, 2006, the Teton County Deputy Attorney, on behalf of DPHHS , filed a petition to terminate G.C. and J.D.’s parental rights. Ahearing was eventually held on this p etition on December 12, 2006. However, the District Court did not grant the petition at that time. Although the District Court received evidence that the parents had not complied with previoustreatment plans, the District Court was concerned that the
existence of multiple treatment plans created some doubt as to which plan had not properly been complied with, and that this uncertainty could leave the proceedings open to reversal on appeal. As a result, the District Court ordered the parents to enter into a fourth treatment plan so that they would have another chance to comply with its terms , leaving no doubt

about the proprietyof a potential termination. ¶26 On October 24, 2006, DPHHS stipulated to extend S.M.’s custody of J.C. until January 31, 2007. Thi s stipulation, to which neither G.C. nor J.D. objected, states in part14

that “J.C. was adjudicated as a Youth in Need of Care onM arch 8, 2005.” On February 22 , 2007, in response to a motion from DPHHS, the District Court allowed S.M. to retain custody of J.C. in Vermont
. According to the record, J.C. c ontinues to reside with S.M. in Vermont. ¶27 With respect to A.D., however, DPHHS continued to retain TLC. On January 24, 2007, the parents entered into a fourth treatment plan with DPHHS. The first section of this fourth treatment plan, which the parents signed and stipulated to, reads as follows: IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT RESULTED IN THE ABUSE OR NEGLECT. 1) G.C. and J.D. have limited parenting skills and limited home management skill s. G .C. and J.D. have limited knowledge of child development. 2) G.C. and J.D. have limited knowledge of nutritional education, causing their children to be diagnosed with Failure to Thrive. In addition, G.C. and J.D. do not attend to their own nutritional needs. 3) G.C. and J.D. must stop smoking, as both of their children are diagnosed with asthma. D octors recommend these children be kept from cigarette smoke. ¶28 On March 23 , 2007, another review hearing was held. At that time, the District Court heard testimony concerning the parents ’ progress toward meeting the treatment goals, which indicated that the parents were not complying with the treatment plan. At the end of the hearing, the District Court addressed the parents, who were still represented by counsel, and informed them that “[t]he State’s going to mo ve to terminate so you have to do what they ask of you in a hurry to stop that, to convince the Court.”15

¶29 On June 11, 2007, DPHHS filed a second Petition for Permanent Le gal Custody and Terminationo f Parental Rights with the Right to Consent to Adoption(Termination Petition) . In support of the Termination Petition , DPHHS alleged that: (1) A.D. and J.C. had been adjudicated as YINCwithin the me aning of § 41
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- 102, MCA (2005) , by the District Court on May 6, 2005; (2) four appropriate treatment plans had been prepared and approved by the District Court and G.C. and J.D. had failed to comply with them; (3) the conduct or condition rendering J.D. and G.C. unfit parents is unlikely to change within areasonable time; (4) the continuation of the parent- child relationship will likely result in continued abuse or neglect; ( 5) the children had been in out- of

-home care for approximately twenty

- four months; and (6) that the best interest of the children would be served by terminating G.C. and J.D.’s parental rights and granting DPHHS’ s P etition. ¶30 On September 13, 2007, a termination hearing was held before the District Court. Based on the evidence taken at that hearing, and the fact that G.C. and J.D. had failed to comply with the most recent treatment plan, the District Court granted the Termination Petition. In its order, the District Court stated that J.C. and A.D. had been adjudicated YINCon March 8, 2005, and that, based on the evidence before it, all the other statutory requirements for a termination had been satisfied. ¶31 On October 25, 2007, J.D. filed a notice of appeal with this Court challenging the termination of his parental rights. The kernel of J.D.’s appeal is that the District Court abused itsdiscretion in terminating his parental rights because A.D. and J.C. were never formally adjudicated as youths in need of careprior to the termination of J.D. and G.C.’s16

parental rights. J .D. argues that the absence of this adjudication requires reversalo f the proceedings below. J.D.’s appeal is timely taken. ISSUE ¶32 We state the sole issue on appeal as follows: Did the District Court err in terminating J.D.’s parental rights? STANDARD OF REVIEW ¶33 We review a district court’s decision to terminate parentalrights for an abuse of discretion. In re L.H. , 2007 MT 70, ¶ 13, 336 Mont. 405, ¶ 13, 154 P.3d 622, ¶ 13. “An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason.” State v. Mc Caslin , 2004 MT 212, ¶ 15, 322 Mont. 350, ¶ 15, 96 P.3d 722, ¶ 15. ¶34 When making a decision to terminate parental rights, the district court must make specific factual findings in accordance with the requirements of § 41
- 3
- 609, MCA, and
we review these factual findings under the clearly erroneous standard. In re L.H. , ¶ 13.

“A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if our review of the record convinces
us that a mistake has been committed.” Gelderloos v. Duke , 2004 MT 94, ¶ 22, 321 Mont. 1, ¶ 22, 88 P.3d 814, ¶ 22 (citations omitted). We review the district court’s conclusions of law in terminating parental rights to determine if they are correct. In re L.H. , ¶ 13. DISCUSSION17

¶35 “The termination of parental rights invokes fundamental liberty interests which must be protected by fundamentally fair procedures.” In re Custody and Parental Rights of M.W. and C.S. , 2001 MT 78, ¶ 4, 305 Mont. 80, ¶ 4, 23 P.3d 206 , ¶ 4 (citing Santosky

v. Kramer, 455 U.S. 7 45, 102 S. Ct. 1388 (1982) )
. “We have previously held that fundamental fairness requires that a parent be represented by counsel at proceedings to terminate parental rights in order to ‘have an equal opportunityto present evidence and scrutinize the State’s evidence.’ ” In re Custody of M.W. , ¶ 25 (quoting In re A.S.A., J.L.A., G.A. and A.J.A. , 258 Mont. 194, 198, 852 P.2d 127, 129 (1993)). We have also stated that “due process requires that the parent not be placed at an unfair disadvantage during the termination proc eedings. ” In re A.S. , 2004 MT 62, ¶ 12, 320 Mont. 268, ¶ 12, 87 P.3d 408, ¶ 12 (footnote omitted). Moreover, the party seeking termination must “prove each of the applicable statutoryrequirements before terminating an individual’s parental rights.” In re Custody of M.W. , ¶ 4. “Additionally, when considering the criteria for termination of parental rights, courts mu st give primary consideration to the best interests of the child as demonstrated by the child’s physical, mental, and emotional needs.” In re F.M. and D.M. , 2002 MT 180, ¶ 22, 311 Mont. 35, ¶ 22, 53 P.3d 368, ¶ 22. Moreover, Article II, Section 15 of the Montana Constitution, explicitly guarantees to those persons under the age of e ighteen “all the fundamental rights of
. . . Article [II] unless specifically precluded by laws which enhance the protection of such persons.” ¶36 The required statutory criteria for termination are at § 41
- 3
- 609, MCA (2005) , and read as follows: 41 -3 - 609. Criteria for termination18 (1) The court may order a termination of the parent- child legal relationship upon a finding established by clear and convincing evidence, except as provided in the federal Indian Child Welfare Act, if applicable, that any of the following circumstances exist: (a) the parents have relinquished the child pursuant to 42
- 2
-402 and 42
- 2
-412; (b) the child has been abandoned by the parents; (c) the parent is convicted of a felony in which sexual intercourse occurred or is a minor adjudicatedadelinquent youth because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of the sexual intercourse, the child is born; (d) the parent has subjected a child to any of the circumstances listed in 41

- 3
-423(2)(a) through (2)(e); (e) the putative father me ets any of the criteria listed in 41
- 3
- 423(3)(a) through (3)(c); or (f) the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. ¶37 The factso f this case fall under subsection (f) of the statute. J.D. maintains that under subsection (f) a YINC adjudication a jurisdictional prerequis iteto a parental termination, argues that no such adjudication occurred in this case, and, further, that the parents never stipulated that A.D. and J.C. were YINC. J.D. notes that the District Court’s order granting the Termination Petition states that J.C. and A.D. were adjudicated
as YINCon March 8, 2005. J.D. maintains that a review of the March 8 order shows that J.C. and A.D.’s status as YINCwas never formally adjudicated at that time, and that they
were never in fact adjudicated as YINC during any of the subsequent proceedings over the course of approximately two years. As a result, J.D. maintains, the TIA, TLC, court

-19

approved treatment plans, and termination proceedings are not valid, and the termination of his parental rights by the District Court must be reversed. ¶38 As aninitial matter, we note that a YINC adjudication isnot always required for TIA and court

- approved treatment plans. Under § 41

- 3
-433, MCA (2005) , DPHHS “may petition the court for authorization to conduct an investigation into allegations of child abuse, neglect, or abandonment when necessary. A n order for temporary investigative authority may not be issued for ap eriod of longer than 90 days. The petition must be served as provided in 41
- 3
- 422.” The statute makes no mention of anY INC adjudication
. This makes sense because TIA is generally granted in order toallow DPHHS to determine if a child is a YINC . S imilarly, under § 41

- 3
-443 (1) , MCA (2005) , “[t]he court may order a treatment plan if: (a) the parent or parents admit the allegations of an abuse and neglect petition; (b) the parent or parents stipulate to the allegations of abuse or neglect pursuant to4 1
- 3
-434; or (c) the court has made an adjudication under 41
- 3
-437 that the child is a youth in need of care.” H ere, the parents admitted their children had been abused or neglected on four occasions inthe treatment plans they
entered into with DPHHS. See¶ ¶ 7, 20, 23, 28
. Thus, the treatment plans and TIA were proper, irrespective of anYINC adjudication. ¶39 However, J.D. correctly notes that an adjudication that a child is a YINC is required for TLC under § 41
- 3
- 442(1), MCA(2005) , and for a termination of parental rights under § 4 1
- 3
- 609(f), MCA (2005) , if none of the other criteri a under § 41
- 3
- 609, MCA(2005) , are applicable. See¶ 37
. “By definition, a ‘youth in need of care ’
. . . is a youth who has been adjudicated or determined, after a hearing, to be or to have been20

abused or neglected. Such a finding, pursuant to § 41
- 3
-404(1), MCA, must be determined by a preponderance of the evidence.” In re B.N.Y. , 2003 MT 241, ¶ 26, 317 Mont. 291, ¶ 26, 77 P.3d 189, ¶ 26. Moreover, we have repeatedly ref erred to the YINC adjudication as a jurisdictional prerequisite, or “threshold requirement,” to the terminationo f parental rights. In re B.N.Y. , ¶ 2 2 ; In re M.O. , M.O. and M.O. , 2003 MT 4, ¶ 12, 314 Mont. 13, ¶ 12, 62 P.3d 265, ¶ 12. ¶40 Throughout these pro ceedings, the District Court continuously stated that J.C. and A.D. had been adjudicated as YINC on March 8, 2005. As noted above at ¶ 10, despite the fact that the order was captioned “Order Adjudicating Children as Youth in Need of Care and Granting Tem

porary Investigative Authority,” no adjudication occurred on that date. Instead, the District Court granted DPHHS TIA so that it c ould have all the necessary powers to conduct an investigation to determine whether J.C. and A.D. were YINC. ¶41 However, an ad

judication of the children’sYINC status was not actually required until the District Court granted TLC on May 6. The State acknowledges that it did not present evidence that the children were YINC at the adjudication hearing on M ay 6 , but argues that this failure amounts to harmless error in this case and did not undermine the fundamental fairness of the seproceedings. The State, citing to In re F.H. , J.K., and B.K. , 266 Mont. 36, 878 P.2d 890 (1994) and In re A.N. and C.N. , 2000 MT 35, 298 Mont. 237, 995 P.2d 427, notes that we have previously applied the doctrine of harmless error in theparental termination context.21

¶42 The State asserts that DPHHS did not present evidence of abuse and neglect in support of a formal adjudication at the May 6 hearing because the parents stipulated to treatment plans

—in which they admitted their children had been abused or neglected

— and alsostipulated in open court to the TLC P etition. See¶ 1 4
. The State concedes that its counsel and the District Court should have sought a speci fic stipulation from the parents, or taken evidence and made an adjudication based on evidence presented at that time, but that because the parents were stipulating to the proceedings through counsel, and did not object to the contents of the treatment plans, TLC Petition, or subsequent petitions thereafter, the State’s failure to present evidence and “any error below did not undermine the fundamental fairness of the proceedings and would be harmless.” ¶43 We conclude that the error in these proceedings was harmless and did not offend the parents ’ d

ue process rights
. As we have previously stated, “ [t] his C ourt has consistently interpreted abuse and neglect statutes to protect the best interest of the children. ‘In matters involving abused and neglected children we have consistently held that a district

court may protect the children’ s best interest despite procedural error.’ ” In
re Inquiry Into M.M. , A.D., and L.D. , 274 Mont. 166, 173, 906 P.2d 675, 679 (1995) (quoting In re F.H. , 266 Mont. at 39, 878 P. 2d at 892 )
. In In reF .H., we cited to
numerous Montana cases in which procedural errors were held harmless and did not prevent us from protecting the best interest of children. In reF .H. , 266 Mont. at 39, 878 P.2d at 892. In In re A.N. , we upheld a termination even though it was based on compliance with an unconstitutional treatment plan which forced a father “to cho o se between his Fifth Amendment right against self

- incrimination and his parental rights.” In22

re A.N. , ¶ 38. We affirmed the termination , stating that “ [o]n this record, we cannot conclude that inclusion of the inappropriate requirements in [the father’s]
. . . treatment plan significantlyimpacted on the District Court’ s decision or resulted in substantial injustice.” In re A.N. , ¶ 41. In so doing, we relied upon the “we ll established [principle]
. . . that ‘no civil case shall be reversed by reason of error which would have
no significant impact upon the result; if there is no showing of substantial injustice, the
error is harmless.’ ” In re A.N. , ¶ 39 (quoting Newbauer v. Hinebauch , 1999 MT 115, ¶ 20, 288 Mont. 48 2, ¶ 20, 958 P.2d 705, ¶ 20). ¶44 Many other jurisdictions similarly apply the harmless error doctrine in termination proceedings. As the South Dakota Supreme Court has stated, “ [o] n rare occasions, this Court has applied harmless error analysis to the adjudicatory phase to affirm the termination of parental rights despite errors oc curring below. The question is ‘ if reversing for an adjudicatory hearing will truly produce any rational possibility of a different result. ’ ” In terest of J.G.R. , 691 N.W.2d 586, 592 (S.D. 2004) (quoting Interest of C.V. , 579 N.W.2d 17, 20( S.D. 1998) )
. S imilarly, the North Dakota Supreme Court has held that “non prejudicial mistakes” in termination proceedings constitute harmless
error and are not grounds for reversal
. In the Interest of K.S. and A.S. , 652 N.W.2d 341, 346 (N.D. 2002 ). ¶45 By the time of the May 6 hearing, the parents agreed to a treatment plan in which they admitted their children were abused or neglected. At the May 6 hearing, the parents then stipulated in open court to the TLC Petition. They were represented by counsel who did not object to any part of the TLC P etitionwhich clearly states that “Petitioner alleges23

that there is suffi cient evidence to establish, by a preponderance of the evidence, that the above

-named child is a Youth in Need of Care
. . . such that the Court should enter an order of adjudication and temporary legal custody.” Additionally, the TLC Petition contains sp ecific allegations of abuse and neglect, inc luding an affidavit from DPHH S social worker

P atty Jacobs. (See¶

¶ 10
- 11
. ) The District Court made clear that it was granting the TLC Petition based on the stipulation of the parents in open court. In previouss ituations, we have recognized that parents may stipulate a child is a YINC and that such a stipulation will satisfy this threshold requirement of anYI NC adjudication in the absence of a formal adjudication hearing. In re M.B. , J.B., W.B. , 2004 Mont. 304, ¶ 17, 323 Mont. 4 68, ¶ 17, 100 P.3d 1006, ¶ 17. In its order granting the TLC Petition, the District Court found that:

2. The Petitioner has shown by a preponderance of the evidence that continued court and department intervention is required. 3. The above

- named children were adjudicated as Youth in Need of Care on March 8, 2005. ¶46 The error committed by the District Court in this and subsequent orders was its repeated reference to March 8 as the date of adjudication, whereas in reality May 6 was the date upon which the District Court established, by a preponderance of the evidence and the stipulation of the parties, that continued involvement was required
. As J.D. correctly notes, the “YINC definition calls for a definite determination of abuse, neglect,
or abandonment.” The evidence from the treatment plans, TLC Petition, and the District Court’s f indings of f

act and c onclusions of law (See¶ ¶ 10
- 16 ), demonstratethat abuse and neglect of these children was determined and established by a preponderance of the24

evidenceby the May 6 hearing
. While J.D. avows that neither he nor G.C. ever stipulated that J.C. and A.D. were YINC , he fails to consider the significance of stipulating to the TLC Petitionand TLC Extension Petition in open court though counsel. (See¶ ¶ 14, 18
. ) While J.D.’s appellate counsel has carefully examined the record and correctly noted that no adjudication actually occurred on March 8, and that the District Court’s repeated references to that date as the date of adjudication was in error, she has failed to establish why this erroneous reference is anything other than procedural in nature , given the parents ’ repeated stipulationsto the TLC Petition which alleged that a preponderance of the evidence established that J.C. and A.D. were YINCand contained sufficient evidence to support those allegations, as well as theDistrict Court’s f indings of f act in the order granting the TLC Petition
. (See¶ 15
. ) ¶47 J.D. does not challenge the evidence or allegations contained in either petition, nor does he allege that he or his counsel was not aware of their contents , that he was misled as to the nature of the proceedings, or that the proceedings were fundamentally unfair. In this regard, the cases upon which J.D. relies, In re B.N.Y. and In re M.O. , are distinguishable. In In re B.N.Y. , for instance, we reversed a termination of parental rights because were there was no evidence of abuse and neglect, or findings to that effect which were established

by a preponderance of the evidence. In re B.N.Y. , ¶ 12
. In that case, the mother whose rights were terminated never properly stipulated that her children were abused or neglected in a treatment plan, and no adjudication had occurred; thus, we held the treatment plan and subsequent termination was invalid. I n re B.N.Y. , ¶ 26. H ere, by contrast, the parents have stipulated to and signed treatment plans which alleged that their25

children have been abused or neglected. They have had counsel throughout these proceedings. Theyalso stipulated to the TLC P etition , which explicitly stated that the evidence established, by a preponderance , that continued court involvement was required and that the children were youths in need of care , even though the date of adjudication which it referred to was erroneous. J .D. and G .C. then stipulated to the TLC Extension Petition, which alleges the same. Finally, J.D. and G.C. did not object, at either termination hearing, that the children were not adjudicated YINC. ¶48 In In re M.O. , a petition seeking TIA was filed by DPHHS with re spect to a mother’s (L.K.) three children. At the time, L.K., who was not represented by counsel, objected to some of the factual allegations in the petition and reserved her right to object to those allegations at a later date
. In re M.O. , ¶ 3. Five days prior to a review hearing on the TIA, DPHHS filed a petition for TLC, and a show cause hearing for TIA and TLC was scheduled for April 3, 2000. At the joint hearing, DPHHS informed the district court that it had not actually filed a petition for TLC, but that it would do so if L.K. had no objection. L.K., who was still not represented by counsel at that time, agreed to the TLC petition, although at that time there was no evidence or testimony taken concerning the TLC petition. The district court subse quently granted the petition. ¶49 The TLC petition was extended on two occasions. Then, on April 23, 2001, DPHHS filed a petition to terminate L.K.’s parental rights. The district court granted the petition, and in its order stated that L.K.’s children had b een adjudicated as YINC on April 3, 2000. In re M.O. , ¶ 8. L.K. appealed the termination, and we reversed. In that case, there was no testimony and no evidence taken at the April 3, 2000 proceedings.26

Thus we concluded that “the court neither made nor c ould have made

—given the absence of any evidence

—a determination that a preponderance of the evidence established the children were youths in need of care.” In re M.O. , ¶ 15. ¶50 In the instant case, the evidence of abuse and neglect as set forthin the TLC P etition , order granting the TLC Petition, andTLC Extension Petition , i s overwhelming. If the parents had objected to any part of the TLC Petitionor subsequent findings of the District Court, or disputed the status of their children as YINC, the District C ourt could have easily made a ruling on the children’s YINC status at that time. As it stands, the District Court’s May 6 order c learly indicates that it was granting TLC based on the parents’ stipulation and a preponderance of the evidence that TLC should be granted. The factual findings issued by the District Court in support of its decision demonstrate abuse and neglect by a preponderance of the evidence (See¶ 1 6), showing that J.C. and A.D. were YINC. In re B.N.Y. , ¶ 26 (“[A] ‘youth in need of care’ . . . is a youth who has been adjudicated or determined, after a hearing, to be or to have been abused or neglected . . . by a preponderance of the evidence.”). We agree that the District Court should have made the adjudication effective on May 6 inste ad of referring to the March 8 adjudication
. To its credit, DPHHS alone noticed that May 6 was properly the date of adjudication, and in both of its termination petitionsalleged that A.D. and J.C. had been adjudicated as YINCby the District Court on May6 , 2005, not on the erroneous March 8 date. However, the error committed by the District Court in this case is harmless and did not undermine the fundamental fairness of the termination proceedings.27

¶51 While we agree with J.D. that parents should not have their parental rights terminated based solely on “unwitting stipulations” due to erroneously captioned court documents, such is not the case here. A review of the record demonstrates unequivocally that these parents were afforded full due process at every stage, and had ample opportunity to object to the proceedings and findings, yet they stipulated and agreed to the court proceedingsthrough counsel and at every turn. ¶52 A reversal at this point in the proceedings on the groundsadvocated by J.D. would have adevastating effect on the rights of the children and their best interests. The evidence of abuse and neglect in this case is overwhelming, and the parents have been afforded ample opportunity to comply with treatment plans, object to any evidence presented against them

on the issues of neglect or abuse , and ensure that their rights have been respected and protected. More importantly, if the parents had timely objected that J.C.’s and A. D’s YINC status had not been adjudicated, the District Court could have done so easily due to the ample evidence before it. ¶53 In her dissent, Chief Justice Gray expresses concern that our Opinion in this c ase will subject “any and everystatutory requirement”relating to the termination of parental rights to the “harmless error axe ” (Gray, C.J., Dissent at ¶ 57 ), and that the Court “simply writes both the statutory and jurisprudential bases for the [YINC] adjudication out of existence
. . . .” (Gray, C.J., Dissent at ¶ 62
. ) S imilarly, in his dissent Justice Nelson express es concern that our approach in this case will “encourage sloppy practice and procedures in the termination process” and thereby deny parents the benefits of their constitutional rights. (Nelson, J., Dissent at ¶ 73 .) The s ec oncerns arewell

- founded.28

The doctrine of harmless error should be applied in parental termination cases only on the rarest of occasions and with great caution. In the overwhelming majority of cases, failure to strictly comply with the statutory requirements governing termination proce edings will
constitute grounds for reversal. ¶54 However, the record before us shows that this is one of those very rare occasions where the harmless error doctrine should be applied. The Chief Justice argues that the parents ’ repeated agreement to treatment plans and their subsequent stipulationsto the proceedings should not be construed to mean that the children in this case were adjudicated as youths in need of care. (Gray, C.J., Dissent at ¶ ¶ 66, 67 .) However, Chief Justice Gray fails to make mention of the District Court’s findings in this case pursuant to the May 6 hearing, which establish abuse and neglect of thechildren by a preponderance of the evidence. (See¶

1 5
. ) The allegations and evidencein support of these findings
were contained in the TLC Petitionand the affidavit of Ms. Jacobs which was attached thereto. By stipulating to the TLC Petition, and by failing to object to any of its contents or the evidence contained therein, the parents admitted those allegations as trueand, more importantly, the evidentiary bases upon which the District Court made its decision . Thus, this case is a far cry from situations such as In re M.O. and In re B.N.Y. , where there was no evidence of abuse or neglect before the district courts. Had the District Court failed to
make these findings , or if there was even the remotest suggestion that they were not supported by substantial evidence, the case for reversal would be much more compel ling. However, the point of an adjudicative hearing o n a child’s status as aY INC is to establish, by a preponderance of the evidence, that the child has been abused or29

neglected. TheD istrict Court did that here by virtue of the May 6, 2005 hearing when it decided to grant the TLC Petition. ¶55 On appeal, the parents do not point to any substantive manner in which the proceedings in this case violated their due process rights. Although J.D. correctly notes a procedural error in the District Court’s proceedings, he does not argue this error affected the outcome of the caseor that the error prejudiced him in substantive manner . When parents , who are represented by counsel , stipulate time and again to treatment plans and TLC p etitions which allege their children have been abused or neglected and are adjudicated YINC , and fail to l odge any objections whatsoever, we should not turn a blind eye to the best interests of the children, and their constitutional rights

—especially given that Article II, Section 15 of the Montana Constitution explicitly guarantees to those persons under eighteen “ allthe fundamental rights of
. . . Article [II] unless specifically precluded by laws which enhance the protection of such persons. ” CONCLUSION ¶56 In face of the overwhelming evidence and repeated stipulations of the parents to allegations of abuse and ne glect, the District Court did not abuse its discretion in terminating G.C. and J. D .’s parental rights. Although the District C ourt erred in concluding a YINC adjudication of the children occurred on March 8, 2005, subsequent proceedings rendered this error harmless. Thus, we affirm the termination of G.C. and J.D.’s parental rights. /S/ PATRICIA COTTER30

We concur: /S/ W. WILLIAM LEAPHART /S/ JIM RICE /S/ JOHN WARNER /S/ BRIAN MORRIS

Chief Justice Karla M. Gray, dissenting. ¶57 I resp ectfully, but strenuously, dissent from the Court’s opinion. Itotally agree that the best interests of the children are ultimately the paramount consideration in child abuse and neglect cases. It is my view, however, that statutory and jurisprudential r ules must be followed in reaching that ultimate stage. T oday, the Court determines that a failure to adjudicate children as youths in need of care
—an adjudication clearly required by statute as a prerequisite to termination of parental rights and by this Court’s jurisprudence holding such an adjudication is a required threshold step in the process
— can constitute harmless error which does not violate a parent’s fundamental liberty interests in fundamentally fair procedures. I conclude from this that not a single statutory requirement need be followed during trial court proceedings involving allegations of child abuse or neglect

—that is, any and every statutory requirement can fall to the “harmless error” axe. I cannot agree that the end justifies the meanswhen fundamentally fair procedures are constitutionally required. ¶58 I also cannot agree that repeated “findings” by the trial court

—that an adjudication which did not occur actually occurred in early March of 2005

—can possibly be other31

than clearly erroneous findings. Under nearly identical circumstances, we have held such a finding “plainly wrong” without equivocation. Matter of T.C. , 2001 MT 264, ¶ 16, 307 Mont. 244, ¶ 16, 37 P.3d 70, ¶ 16. We should do so here and, on that basis, reverse. ¶59 My remaining disagreements with the Court’s opinion are numerous and substantial, but I will address just the most serious of them in order to avoid further delay. I begin with the errors

—of omission and commission

— which are contained in the FACTUAL AND PROCEDURAL BACKGROUND portion, and which set the stage for a flawed legal analysis. ¶60 First, the record is clear that the petition filed on February 22, 2005, was not merely a TIA Petition, as the Court terms it. It was a “Petition for Adjudication of Child

as Youth in Need of Careand Temporary Investigative Authority” (emphasis added) which contained allegationsthat “sufficient evidence
. . . establish[es] the
. . . children are Youths in Need of Care and requested the trial court to enter “anorder of adjudication and temporary investigative authority.” During the March show cause hearing on the petition, the only mention that an adjudication of the children as youths in need of care was being sought came from the District Court at the very o utset of the hearing. Nothing
more was said and no evidence or testimony was presented. Notwithstanding the form order presented to the trial court suggesting that it was an adjudication order as well as an order granting TIA, the record is clear that noadjudication occurred. Subsequent petitions likewise were dual in nature; for example, the petition for TLC was also a petition for adjudication. The record remains clear that no adjudication ever occurred in this case.32

¶61 I also observe with some dismay the Court’s repeated reliance on the parents stipulating to TIA, and later TLC, as though those stipulations bear any relationship to the required adjudication of the children as youths in need of care. A parent’s stipulation to TLC

—and presumably TIA

—is not a stipulation that the children are youths in need of care; nor does a trial court’s adoption of such a stipulation imply that the court adjudicated the children as such. See e.g. Matter of T.C. , ¶¶ 17
- 18. ¶62 The Court does correctly set f orth § 41
- 3
- 609(1)(f), MCA, as containing the criteria on which the termination of parental rights in the present case was intended to proceed. See ¶¶ 36
- 37. The first statutory criterion, of course, is that the child is an adjudicated youth in need o f care. If the adjudication is not made at the initial show
cause hearing, it must be made within 90 days thereafter. S ections 41
- 3
-432 and 41
- 3
- 437, MCA. The Court candidly cites, at ¶ 39, to the cases in which this C ourt has “repeatedly referred to the YINC adjudication as a jurisdictional prerequisite, or ‘threshold requirement,’ to the termination of parental rights.” The Court then simply writes both the statutory and the jurisprudential bases for the adjudication out of existence by mo ving on to a“harmless error” analysis and improperly “distinguishing” the noted cases. I cannot agree. ¶63 It is true that we have, on occasion, applied the harmless error standard in a termination of parental rights case. We have never done so, however, in a case where no adjudication of children as youths in need of care
—the initial requirement pursuant to both statute and our cases
—occurred, and the Court does not suggest otherwise. How a proceeding which culminates in a termination of parental rights , but which begins by33

ignoring the first and underlying requirement for termination, can be a fundamentally fair procedure protecting the parents’ liberty interest is inconceivable to me. ¶64 The Court also relies at ¶ 45 on the parents’ agreement to a treatment plan sometime prior to the May 6 hearing, in which they purportedly “admitted their children
were abused or neglected.” The truth of the matter is somewhat different, however, as the record and transcripts reflect. S oon after the DPHHS filed its initial petition for adjudication and for TIA, the District Court entered an order to show cause, observing that there was probable cause to believe that J.C. and A.D. were abused or neglected or in danger of being abused or neglected. That order also gave the DPHHS certain emergency authority and set the March 8 show cause hearing. Prior to that hearing and without authority or approval from the District Court, the DPHHS presented the parents with the first treatment plan. The parents

— no doubt e ager to keep the children at home and cooperate with the DPHHS

—signed the treatment plan, as did the DPHHS. It was presented to the trial court during the March 8 hearing, and an objection was made

—and resolved

—

regarding one of the elements of the treatment plan. The other elements of the plan were not challenged. At that hearing, the parents stipulated to TIA and the District Court set a review hearing for the following month. ¶65 This process totally ignores the mandates in § 41
- 3
-443(1), MCA, pursuant to which the court may approve a treatment plan if the parents admit the allegations of abuse and neglect, the parents stipulate to the allegations or the court has made the adjudication of youths in need of care. Conversely, it also ignores § 41

- 3
- 4 34(2), MCA, which allows
a parent to stipulate to a treatment plan if the child has been adjudicated a YINC. The34

statutes simply do not contemplate or allow the kinds of procedures used by the DPHHS, its counsel and the trial court in this case. ¶66 Notwithstanding, the Court construes the parents’ agreement to the formatted treatment plan

— which sets forth goals, tasks for the parents and tasks for the social worker

—as admissions to the allegations of abuse and neglect. It does so on the theory that, because the beginning portion of the “Treatment Plan” is captioned IDENTIFICATION OF THE PROBLEMS OR CONDITIONS THAT RESULTED IN THE ABUSE OR NEGLECT , the parents’ signatures admitted that abuse or neglect occurred. This cannot be so. The record and transcripts of the March, April, May, July and October of 2005 hearings make no mention of such admissions; they clearly do reflect the parents’ agreement with the elements of the treatment plan, with TIA, with TLC, and with an extension of TLC. The separate section of the document on which the Court relies has nothing at all to do with the elements, goals and tasks of the treatment plan portion to which the parents did agree. The DPHHS simply cannot be permitted to “hornswoggle” unsuspecting parents into damning admissions in such ways. A nd yet this is the portion of the various “treatment plans” on which the Court relies in attempting to distinguish In re B.N.Y. and In re M.O . According to the Court, ¶47, signing treatment plans containing separate sections of allegations of abuse or neglect constitutes a stipulation to abuse or neglect. In my view, it does not and cannot. ¶67 The Court also states that the parents stipulated to the TLC and the TLC Extension Petitions, both of which stated that the evidence established that the children were YINC. This is simply incorrect. The parents stipulated to TLC and to extension of TLC, and35

nothing of record reflects stipulations or admissions to anything more. F inally, no evidence or testimony was taken atany of the hearings in which an adjudication of YINC could have timely taken place. ¶68 I cannot join in the Court’s approach, analysis or resolution of this case. Iwould reverse the District Court, and I dissent from the Court’s failure to do so.

/S/ KARLA M. GRAY

Justice James C. Nelson dissents. ¶69 I join Chief Justice Gray’s dissent and likewise respectfully state my strenuous disagreement with the Court’s decision. ¶70 Youth

- in

-need

- of

- care cases are some of the most difficult this C ourt reviews. Indeed, in my nearly 15 years serving as a member of this Court, I can honestly say that there are few cases where the child or children would not be better off with an adoptive family, a foster family, or in a group living arrangement, than being “parented” by the biological parents. Time and time again we see innocent children as the victims of sexual and physical abuse or abject neglect; living in filth that animal control officers would condemn; and “parented” by incompetent and uncaring “parents” who operate in a haze of methamphetamine or some other chemical. We see children whose lives and36

development are devastated by the people who should be teaching and nurturing them. Every case is different; but every case is as bad as, or worse than, the last. Indeed, if the best interests of the child were the sole criteria for terminating parental rights, our jobs would be simple. We could simply state the facts of the case and affirm. ¶71 However, given the fundamental liberty interest of parents to parent and to not suffer termination of that interest except through fundamentally fair procedures

— see I n
re D.B., 2 007 MT 246, ¶ 17, 339 Mont. 240, ¶ 17, 168 P.3d 691, ¶ 17

—the Legislature has imposed upon the government a statutory scheme which protects that right. It is the duty of the county attorney, DPHHS, and the trial courts to follow these statutes. And, it is our job to make sure they do. ¶72 Unfortunately, in many cases, this C ourt turns a blind eye when this statutory scheme is not followed. 1 We justify this approach because, in our view, the best interests of the child or children are better served than requiring the government to follow the law. ¶73 There is mischief in this approach, however. We encourage sloppy practice and procedures in the termination process, we deny parents the benefit of their constitutional rights and of the laws the Le gislature has enacted, and we invite trial courts to short

circuit the statutory scheme.

1 See I n re K.J.B. , 2007 MT 216, 339 Mont. 28, 168 P.3d 629; In re B.B. , 2006 MT 66, 331 Mont. 407, 133 P.3d 215; In reA .N.W. , 2006 MT 42, 331 Mont. 208, 130 P.3d 619; In re A.T. , 2006 MT 35, 331 Mont. 155, 130 P.3d 1249; In re S.C. , 2005 MT 241, 328 Mont. 476, 121 P.3d 552; In quiry into M.M., 2 74 Mont. 166, 906 P.2d 675 (1995); Matter of F.H., 266 Mont. 36, 878 P.2d 890 (1994).37

¶74 Indeed, there is no incentive for the government to follow the law since there is no consequence for violating it. ¶75 I, too, dissent from this approach.
/S/ JAMES C. NELSON