dissents.
¶22 I dissent from the majority opinion.
¶23 While the District Court and the majority can breath easier tonight having vindicated their sense of morality by the termination of this unfortunate young mother’s rights to her child, it is regrettable that this satisfaction comes at the expense of our Constitution and statutory law.
¶24 We have repeatedly held that a parent has a fundamental liberty interest in the right to parent his or her child. In In re J.L. (1996), 277 Mont. 284, 288, 922 P.2d 459, 461. That expression is not superficial legalese with which we simply predicate each opinion in which we affirm the termination of parental rights. It expresses the principle that few things are as important to a civilized society as the bond between parent and child and that regardless of our own personal morality and beliefs, it cannot be severed absent a compelling state interest. Demonstration of a compelling state interest under our statutory scheme of law requires demonstration that the child has been abandoned, neglected or abused. None were demonstrated before D.T.H. was taken by the government from his mother’s care at a time when he was less than two months old.
¶25 The District Court terminated Cora’s parental right to her son pursuant to § 41-3-609(1)©, MCA, which requires that the child be first adjudicated a youth in need of care. A lawful determination that the child was in fact a youth in need of care was a jurisdictional prerequisite to the termination of Cora’s parental rights. In Matter of J.B. (1996), 278 Mont. 160, 923 P.2d 1096. A “youth in need of care” is someone who has been abused or neglected. Section 41-3-102(23), MCA. “Child abuse or neglect” requires proof of actual harm to a child’s health or welfare or substantial risk of harm to a child’s health or welfare. Section 41-3-102(7)(a)(i)(ii).
*508¶26 Here, there was no evidence at the time that this child was snatched from his mother’s custody nor at the time the district court determined that he was youth in need of care that he had ever been “abused or neglected.” The only evidence that he was at substantial risk of harm was the State’s theory that his mother, herself, had been abused and was untreated for the consequences of that abuse, therefore, her son must be at risk for abuse. That is simply not enough to terminate this mother’s fundamental liberty interest in her parent/child relationship.
¶27 The dangerous precedent being set by the District Court’s actions and the majority’s approval are best illustrated by a closer examination of the record.
¶28 Before the Department of Public Health and Human Services can remove a child from his home, it has an obligation to conduct a thorough investigation of any reported abuse or neglect. A child cannot be removed from his home without independently developed evidence of abuse or neglect. Section 41-3-202(1) and (2), MCA. Following removal of a child from his home, if the Department wishes temporary investigative authority, it must file a petition supported by an affidavit or department report stating in detail the facts upon which the request is based. The report accompanying the Department’s petition in this case relates that the husband of Cora’s mother is the father of Cora’s child and has given her tattoos since the delivery of that child. There are also numerous allegations that Cora had been periodically neglected by her mother and stepfather. Finally, it was reported that as a child, Cora had been sexually abused by her natural father. There was, however, no documentation nor even any allegation that Cora’s son Damian had been abused or neglected. Nevertheless, the District Court, on March 29, 1999, issued its order granting the Department temporary investigative authority and protective services. Cora was ordered to appear on April 13,1999, for the hearing at which the court was to further consider the Department’s petition.
¶29 At the April 13 hearing, Sara Blackburn, a social worker for the Department who authored the Department’s report in support of its petition, was called as a witness. She expressed her legal conclusion that Damian was abused or neglected or in danger of being abused or neglected but offered no evidence in support of that conclusion. She stated that she placed D.T.H. in a foster home on March 17 but that he was in good condition at that time, he was clean and he appeared to be well fed. When asked to explain why she believed Damian was at risk of abuse or neglect if left in the custody of his mother, she answered that “Well, certainly because of the circumstances of his conception. This is of great concern to me, a relationship between a young girl and her stepfather ....” When asked if she had any other relevant information, she mentioned only Cora’s tattoos.
¶30 On cross examination, Blackburn gave the following testimony.
“Q. On March 17 your report says you removed the infant from Cora’s care in order to insure safety during this investigation, correct?
*509A. Yes.
Q. You testified that when you went to the home of Cora and Don and Martha and you took the child - A. No, I didn’t go to the home.
Q. Who went to the home?
A. Nobody did.
Q. How did you get physical possession of the child?
A. I removed the baby from Deering Clinic. They were at an appointment there.
Q. You went to the Deering Clinic and took the child?
A. Yes.
Q. And at that time the baby, according to your prior testimony, was healthy?
A. Yes.
Q. Did not have any marks upon him?
A. No.
Q. Was not in any way abused, the baby?
A. No.
Q. Not neglected?
A. No.
Q. Well cared for?
A. Appeared to be.
Q. What abuse of the baby did you observe prior, or did you know about prior to your placement of the baby in foster care?
A. I did not observe any abuse to the baby at that time.
Q. And any neglect of the baby by Cora?
A. No.
Q. Where Damian is concerned, what evidence exists that the baby was not safe in that home on that date, or before that date?
A. I believe that, given the history of his conception, that that was of grave concern to us and that certainly we needed to look into that in order to insure his safety.
Q. How does conception of a child occurring, I guess at 13 months prior in time to the conception, the act of conception of that child, means this child is being abused or neglected?
A. It didn’t mean that. It meant that I believe Cora was.
Q. Would you agree with me Damian is not abused or neglected? [County Attorney Objects.]
THE COURT: Well, bottom line, I guess this witness has already answered there was no abuse or neglect of the baby, so I guess I’m going to sustain on the basis that it’s been asked and answered.
¶31 No other evidence was presented at the conclusion of the hearing. Damian’s guardian ad litem recommended that he and his mother be together. She said that based on her observations of the child and mother together, Cora cared for him well. Her only concern was that there be a sex offender evaluation of the father. She made the *510following relevant observation:
As I started to say, I spent several hours with them yesterday at their residence. I saw no significant problems at the residence they are currently renting. They have adequate transportation as well. Obviously Cora has put some time and thought and effort in for providing for this little guy. He has his own room, own crib, everything nicely taken care of. Nicely decorated. It really breaks my heart to see she is not with him at this time, but yet I really think that placement needs to be in foster care with her.
¶32 Cora’s guardian ad litem, who had also done some investigation, made the following comments to the court:
I also understand that Cora has, for a 16 year old girl, has some good parenting skills. No concerns have been voiced by any of the people who has watched her. She has indicated that she - that Damian is central to her life. She wants to be with Damian.
I also think that Damian and Cora being together would also be in Cora’s best interest. I know Cora intimated that she will do everything the Department wants of her.
Based on that, I would recommend that there be some involvement regarding Cora. Obviously there hasn’t been any abuse or neglect voiced today regarding Damian.
¶33 The Department’s failure to prove that Damian was abused or neglected and therefore, in need of care, was evident to the District Court at the conclusion of the April 13 hearing. While the District Court expressed concerns with regard to the natural father’s behavior toward Cora, it also recognized the following: ■
The concern with the case is that there is no evidence that Damian has been abused or neglected, and, in fact, there is evidence that he is well-cared for, so what I’m going to do is not grant the petition as to Damian, and order that Damian be taken on this proceeding, and it be dismissed as to Damian. I have looked at the law. I don’t think there is any alternative. I don’t think there has been proof in front of me Damian has been abused or neglected.
In other words, I think there is proof in front of me [Cora] has been abused or neglected ....
So, unfortunately, I just don’t think, under the law, that I can keep Damian in this case. I think there has to be a preponderance of the evidence of abuse or neglect - danger, abuse or neglect. Doesn’t seem to be any here.
¶34 However, after protestations by Damian’s guardian ad litem over the court’s refusal to place Cora in foster care, the district court agreed to allow further briefing followed by an additional hearing one week from that date. Then, even though no additional briefing was provided, the district court decided, contrary to everything that had been demonstrated at the previous hearing, that Damian was in danger of abuse or neglect. Therefore, on April 20, 1999, the District Court *511continued the order of temporary investigative authority.
¶35 The District Court was correct in its original decision on April 13, 1999. It erred when it reversed itself on April 20, 1999, and it erred when it terminated Cora’s parental rights based on her failure to complete a treatment program which had never been proven necessary by any evidence of abuse, neglect or substantial risk of abuse or neglect. The District Court’s lengthy discussion of Cora’s failure to satisfactorily complete her treatment plan misses the point. The State had no authority to impose a treatment plan. A treatment plan can only be required of parents whose children are in need of care. There was no evidence that Damian was in need of care.
¶36 The only remote suggestion of any threat to Damian is the fact that his mother was abused by a person with whom she was still living. However, when that person was evaluated for the potential threat he might pose to Cora’s son, the evaluator concluded there did not appear to be any sexual attraction to young male children. Although the evaluator considered his relationship with Cora inappropriate, he concluded that “Mr. Howard does not appear to pose a significant risk to sexually abuse his male child,....” All of Sullivan’s added advice about boundaries within the family is interesting from a family counseling point of view but did nothing to establish a risk of abuse or neglect of Damian. In spite of this evaluation, however, the District Court refused to return the child to his mother and terminate temporary investigative authority.
¶37 In its findings which served as the basis for its termination of Cora’s parental right, the District Court demonstrated no abuse nor neglect of Damian. The essence of its opinion was that Cora had been abused her by father and stepfather and lived in an unhealthy, dysfunctional lifestyle which was no place for a helpless infant. Basing its decision on morality rather than law, the District Court stated:
The parents here, lacking a necessary moral environment are not in a position to provide proper guidance for this infant’s necessary moral and emotional well-being.
¶38 Nowhere in our laws regarding termination of parental rights does it provide for termination based upon some district judge’s determination that the child’s parents are not in a position to provide proper guidance for what the district court determines is the child’s necessary moral well-being. Up until now, we have never had morality police in Montana.
¶39 The rationale of the District Court and the majority is that because Cora was abused by her stepfather and her father and is untreated for that abuse, her child is at risk for abuse or neglect. While the record is replete with evidence of Cora’s victimization, that is not the issue. Until now, the law has never provided that if you have been a victim of abuse, you cannot have children. Think of the opportunities this case creates for the Department and foster homes of this state. A whole generation of victims could lose children because of the previous generation’s offenses. The District Court’s decision and the majority’s approval of that decision are based on unfounded speculation. As long *512as gross speculation is the order of the day, my speculation is that there are many untreated victims of abuse in this state who are raising children without any problem. They should be left alone by the State to do so. However, as a result of this decision, the sanctity of their parent-child relationships are a little less certain. This case expands greatly the circumstances under which the State can interject itself into private lives. Parental rights can now be terminated based on the Department’s and some district judges’ notions of immorality. Let’s hope they never differ from our own.
¶40 Cora was victimized by her father and stepfather. She has now been victimized by social workers and courts.
¶41 For these reasons, I dissent from the majority opinion.