dissenting.
I respectfully dissent from the Court’s opinion because I will not be a party to the Court’s continued refusal to require DFS (now DPHHS) to comply with clear legislative mandates. I would reverse the District Court’s termination of P.D.’s parental rights without a court-approved treatment plan because the law permits no other result in this case.
The dispositive issue in this case is simple and to the point. It requires only that we apply the plain language of § 41-3-609(l)(c), MCA, to the record before us. Neither this Court’s refusal to address the statute in discussing issue 4, regarding the absence of a court-approved treatment plan, nor the Court’s repeated efforts to misdirect attention away from clear and mandatory statutory language alter the requirement of a court-approved treatment plan contained in the statute.
Section 41-3-609(l)(c), MCA, authorizes a court to terminate parental rights upon a finding that 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. [Emphasis added.]
A straightforward reading of the statute can result only in a conclusion that the threshold mandate of the remaining criteria in § 41-3-609(1)(c)(i) and (ii), MCA, is the existence of a court-approved appropriate treatment plan. Unless and until such a plan exists, the “no compliance/not successful” and “unlikely to change” criteria never come into play. The legislature’s intent and the rationale underlying that intent are clear: a parent’s conduct in successfully complying can be measured only against an appropriate treatment plan that has been approved by the court.
In this case, the record is equally clear. No appropriate treatment plan approved by the District Court exists. Thus, the law permits only one valid legal conclusion by this Court: that the District Court erred in terminating PD.’s parental rights. In concluding otherwise, this Court violates the statutory responsibility imposed on it by § 1-2-101, *176MCA, by judicially deleting from § 41-3-609(l)(c), MCA, the requirement of a court-approved plan clearly contained therein. In doing so, of course, the Court intrudes into and directly contravenes the legislature’s constitutional authority.
In charting such a course, the Court presents a number of “red herrings,” apparently hoping to draw the reader’s attention away from what the law so clearly requires. First, the Court notes that RD. refused to sign the plan. The problem with this statement is that the statute does not require that the parent do so. Next, the Court observes that the plan was filed with the District Court, but not “officially signed” by that court. By means of this observation, the Court attempts to suggest that the District Court’s “official signing” of the plan is a mere ministerial act and is all that § 41-3-609(l)(c)(i),. MCA, requires or contemplates. Nothing could be farther from the truth.
The legislature’s mandate that the treatment plan filed by DFS be approved by a court is neither ministerial nor nonsubstantive. The legislature recognized throughout the statutes regarding termination of parental rights that, while DFS is the state agency in which initial decisions regarding the protection of children is vested, DFS cannot be permitted to act in these important areas without court involvement. Thus, the treatment plan promulgated by DFS — whether or not agreed to by the parent(s) involved — must be reviewed by a court to determine whether it is appropriate; if so, it must be affirmatively approved by the court. The statutory requirement is a clear statement of legislative intent that the court’s role is not to merely “rubber stamp” agency decision-making by “officially signing” DFS’treatment plan; the court’s role is to ensure that the agency is not given unbridled discretion in areas as important as terminating the most fundamental relationship in the world — that of parent and child.
But this Court does not stop with these two efforts to detract attention from its failure to apply clear statutory language. It goes on at some length to point out that, during some phases of the proceedings, all parties operated under the mistaken belief that a court-approved treatment plan existed and that P.D. “failed to complete the requirements of the treatment plan which she believed governed these proceedings.” These matters are irrelevant here.
What this Court fails to point out is that this case does not involve the parties’ “belief’ regarding existence of a court-approved plan throughout the proceedings in the District Court. In such a case, the parent would have waived any right to later challenge the outcome on that basis; if raised in this Court, we would not address the issue *177because it had not been preserved in the District Court and would not be properly before us. In fact, the record in this case is clear that RD. did object to the absence of a court-approved treatment plan in the District Court.
Nor is the fact that P.D. failed to complete the requirements of the treatment plan she believed existed during earlier phases of the District Court proceedings pertinent here. As a matter of law, no statutorily-required court-approved treatment plan existed against which her conduct could be measured as to compliance and success.
Finally, by citing to In the Matter of F.H., J.K. and B.K. and In the Matter of the Custody of M.D., the Court seems to herald and celebrate its now nearly two-decade old refusal to apply the law as enacted by the legislature and its concomitant permission to DFS to ignore the law. While it is true that the Court ends its opinion with a tepid shaking of its collective finger at DFS via a “reiteration” of a longstanding “warning” to DFS — and, perhaps, to the district courts of Montana — neither the agency nor attorneys nor district courts are likely to take this “warning” any more seriously than they have taken the previous warnings. And why should they? With the addition of every opinion from this Court in which an agency of the State of Montana is allowed to avoid legal mandates, it becomes harder and harder for the Court to break away from this ill-chosen and insupportable path, because in every “next case” agency lawyers will argue that it is not fair that clear legal requirements should finally be applied as written in their case. And so the Court continues to allow a state agency to blithely ignore the law with impunity.
It is important to look back at the cases in which this Court has “warned” DFS and its predecessor agency that it must comply with legal mandates. As early as 1977, this Court “strongly condemned” DFS’ disregard of the law. In re Gore (1977), 174 Mont. 321, 329, 570 P.2d 1110, 1115. In that case, SRS (DFS’ predecessor agency with regard to protecting children) ignored a legislatively-imposed 48-hour filing requirement for an emergency protective services petition after removing children from a home. We noted that SRS had removed the children under the guise of the law and that it had a duty to “strictly adhere to the requirements of that same law.” In re Gore, 570 P.2d at 1115.
Seventeen years later, in one of the cases to which the Court cites in its opinion here, we said we “sound a stem warning to DFS to strictly follow the statutory procedure in future cases or we will, in no uncertain terms, punish its conduct...” Matter of F.H. (1994), 266 *178Mont. 36, 40, 878 P.2d 890, 893. One can hardly say that DFS has heeded our strong condemnation and stern warning! Of at least equal importance, one can hardly say that in this case the Court is, “in no uncertain terms,” punishing DFS’ continued refusal to comply with the very law under which it operates! I dissented strongly in Matter of F.H. for the same reasons I dissent here: the Court’s actions in these regards are not permitted as a matter of law and serve only to encourage DFS — and others — to ignore both the law and this Court.
Finally, the Court’s reliance on Matter of Custody of M.D., is misplaced. In that case, as in this one, no court-approved treatment plan existed. The incarcerated parent argued that his parental rights could not be terminated. We disagreed, because § 41-3-609(4)(b), MCA, provides that a court-approved treatment plan is not required if the court finds that “the parent is incarcerated for more than 1 year and such treatment plan is not practical considering the incarceration [.]” Matter of Custody of M.D. (1993), 262 Mont. 183, 186, 864 P.2d 783, 786.
In Matter of Custody of M.D., a specific statutory exception to the court-approved treatment plan existed and was properly applied to the facts of record. Here, P.D. was not incarcerated. As a result, neither Matter of Custody of M.D. nor the statutory exception upon which we relied there applies to the present case.
I share the Court’s concern about the children of Montana. Indeed, there is room for concern about returning P.D.’s children to her pending a District Court proceeding in which DFS is required to follow the law. The appropriate resolution of this case is not for this Court to continue to countenance the violation of the law by DFS. The appropriate resolution is to reverse the District Court and order that the status quo regarding the children be maintained pending further proceedings during which legal mandates are met. I would remand for the filing by DFS (now DPHHS), within 30 days, of an appropriate treatment plan for the District Court’s timely consideration and for such other procedures and proceedings as the law requires thereafter.
JUSTICE LEAPHART joins in the foregoing dissent of JUSTICE GRAY.