specially concurring.
I concur in the Court’s opinion. Although I agree that § 40-8-108, MCA, does not require agency placement as a prerequisite to adoption, I have concerns as to the implications of our decision. We have held that Nicole Will could file a petition to adopt M.L.M., and that the court had jurisdiction to review her petition despite the fact that the agency had not placed the child with Will for adoption. Although Will had significant connections with the child in question, Will was *515neither a relative nor a foster parent of M.L.M. The question thus arises, are there any restrictions as to who can file a petition for adoption and thereby invoke the court’s jurisdiction to review an agency denial of that petition? Is there any reason that a complete stranger could not obtain information about children in the custody of DFS and then file a petition to adopt one or more of those children? If DFS refuses consent, the petitioner could then seek judicial review. Likewise, there appears to be no restriction on the number of couples that could petition to adopt the same child. Given the number of couples seeking to adopt children, it is certainly not hard to envision a situation where three or more deserving couples file petitions to adopt the same child thus creating a “bidding war” as to who will provide the biggest house, best education, health care, etc. Since there are no legal criteria to determine which of several meritorious petitions should be granted, any decision by DFS to choose one couple over another would be subject to being challenged as “arbitrary and capricious.” Those petitioners who are unsuccessful in their bid at the agency level would then be off to district court to take their chances with the judge. Although I do not see anything in the law which would prevent the above scenario, I doubt that such a “competitive,” litigious adoption procedure is any more in the child’s best interests than the prior procedure under which agency consent was absolute and beyond judicial review.
CHIEF JUSTICE TURNAGE and JUSTICE GRAY join in the specially concurring opinion of JUSTICE LEAPHART.