dissenting.
I must respectfully dissent from the Court’s opinion on issue 1, regarding whether the District Court erred by failing to dismiss the youth court action after DFS admitted it failed to follow the 48-hour time requirement contained in § 41-3-301, MCA (1991). Because it is my view that the District Court must be reversed on that issue, I would not reach issue 2.
Cases involving youths in need of care are among the most difficult faced by this Court. I have on a number of occasions joined the Court in allowing DFS to depart from relatively clear statutory requirements. On some of those occasions and not unlike my brethren, I suspect, I have done so because of the overriding and overwhelming *42importance of protecting the best interests of the children of Montana. In this case involving an emergency situation for which a clear and unequivocal statutory time frame has been imposed by the legislature and where we previously have warned DFS’ predecessor agency regarding its failure to comply with the law, I cannot agree with the Court that it is sufficient to characterize DFS’ conduct as unconscionable and issue another warning.
The statute at issue here needs no interpretation; it provides that, absent circumstances not at issue here, “[a] petition shall be filed within 48 hours of emergency placement of a child ....” Section 41-3-301(3), MCA (1991). Here, DFS admits that it did not meet the statutory requirement. On motion for dismissal by the natural mother, S.T., it is my view that the District Court was required to dismiss the action on the basis of DFS’failure to comply with the clear statutory mandate.
The Court quotes the District Court’s discomfort with dismissal under the statute:
[A] sanction of dismissal of a case involving kids to be protected is not appropriate ... [;] there would have to be some other remedies for violating the [48-hour rule] other than dismissal of a petition.
This is almost certainly the same kind of reaction most of the judiciary, including myself and this Court, has had to the prospect of dismissing a petition. At the very least, we are as judges extremely troubled at the idea that a child ultimately could be harmed by our requiring DFS to comply with the law. The problem with this approach is that it results in judicial amendment of legislative enactments; because of our fear, we conclude that dismissal of a case “involving kids to be protected is not appropriate.” Similarly, while we might wish — with the District Court — that there were some other remedy for a violation of the 48-hour rule by DFS, the legislature has provided no such remedy. Whatever our fears, the fact remains that the legislature has enacted a mandatory time frame within which DFS must file a petition in an emergency protective services situation pursuant to § 41-3-301, MCA (1991). It is our job to require adherence.
Furthermore, we previously have condemned disregard of the statutory 48-hour rule by DFS’ predecessor agency:
[T]his Court strongly condemns the negligent disregard of [the predecessor statute] by the SRS and county attorney. By statute, a petition shall be filed within 48 hours following the emergency removal and placing of a youth in a protective facility. SRS failed *43to comply in this case. SRS was acting under the guise of the law when it removed the children. SRS therefore has a duty to strictly adhere to the requirements of that same law. Removal of children from their parents is an area too sensitive to allow any abuse or noncompliance of the law.
In re Gore (1977), 174 Mont. 321, 329, 570 P.2d 1110, 1115 (emphasis in original). This clear statement of the duty to comply with the statute apparently had no impact whatever in how state agencies regard the law and this Court. Yet, in the case now before us, the Court not only does not require adherence by dismissing DFS’ petition, it ignores its own clear warning in In re Gore that the statute would be applied as written in the future. I simply cannot fathom this Court allowing itself, the district courts and the families of Montana to be held hostage by DFS in such a manner.
Moreover, the Court incorrectly applies an abuse of discretion standard to the District Court’s action in determining whether to dismiss the petition for failure to comply with the 48-hour rule. While it is true that that standard applies to “discretionary actions” and was properly applied to the question of abandonment in Matter of D.H. and F.H., on which the Court relies, it is my view that no discretion was involved here because the statute is clear and unequivocal in requiring that a petition be filed within 48 hours. If the statute provided for the kind of “careful balancing” between the statutory time requirement and the best interests of the children the Court seems to suggest would be appropriate, I would agree to the application of the abuse of discretion standard. The statute, however, does not so provide.
Nor is the “remedy” or result here inappropriate or difficult to conceptualize. The DFS petition should be dismissed for failure to comply with § 41-3-301(3), MCA (1991), and the children returned to their home. If and when DFS is prepared to pursue the matter within legal strictures imposed by the legislature to protect the very fundamental and critically important rights of both the mother and the children, it should do so.
The courts of Montana have labored diligently to prevent potential harm to children by countenancing errors by DFS not permitted by applicable statutes. We have done so, as the Court observes, in matters “involving abused and neglected children.” But the operating premise seems to be based on an ex ante conclusion that the children are, indeed, abused and neglected. In other words, we allow DFS to far overstep its bounds presuming from the outset that DFS’ deter*44minations about the children are correct. In addition, none of the many cases cited by the Court for allowing such “procedural errors” involves this most intrusive act by DFS of removing children from their parents and their home in advance of any court proceedings whatsoever; those cases involve procedural occurrences well after the initiation of court proceedings to oversee DFS’ actions.
It is my view that this is the place where we must draw the line. We must recognize that parents have rights, too; that the children’s “best interests” do not automatically coincide with DFS’view of those interests; that permitting DFS to act under an “emergency” statute designed to protect the rights of all cbncerned simply does not square with allowing it to simultaneously disregard the time requirements of that statute. As all of us are held accountable by the law for our actions, so must we hold DFS accountable to legal requirements imposed on its actions by the legislature. To do otherwise is to place an agency of government both above and beyond the law. Notwithstanding the importance of DFS’ mission, I cannot agree with such a result.