In re of Inquiry into M.M.

JUSTICE ERDMANN

specially concurring.

While I have joined the majority opinion, it was with some reluctance. Justice Gray, in her dissent, reviews the statutory requirements of § 41-3-609(l)(c), MCA, and the obvious fact that those requirements were not met in this case since there was no court approved treatment plan. In determining that this error does not warrant reversal, the majority relies on In the Matter of F.H. (1994), 266 Mont. 36, 878 P.2d 890, in which this Court held that a district court may protect the children’s best interests despite procedural errors. Justice Gray dissented in In the Matter of F.H. on the same basis that she does here, noting that repeated “signals” from this Court had gone unheeded by DFS (now DFHHS). I share those concerns.

The Legislature has established certain procedures that must be followed in terminating parental rights. Although the Legislature did not adopt an exception allowing district courts to disregard procedural requirements if the best interests of the children are involved, this Court has done so. The existence of this Court-created exception to the statutory requirements has the effect of tolerating if not condoning improper procedures.

I have joined with the majority only because the actions taken by DFS in this case occurred prior to the issuance of In the Matter of F.H. on July 12, 1994. DFS did not have the benefit of reviewing the cautions contained in Justice Gray’s dissent and Justice Nelson’s concurring opinion in that case prior to filing the petition in this matter.

The difficulty in this area, and no doubt the reason for the creation of the exception in In the Matter of F.H., is that the very children DFHHS is charged to protect are endangered when these cases are reversed or remanded. With the continuation of this judicially-created exception, however, there is little incentive for DFHHS to comply with the statutory requirements.

*175DFHHS should heed the warning contained in both the majority and dissenting opinions or risk reversal on the basis of procedural errors in the future.