dissenting.
¶31 I dissent from the majority Opinion.
¶32 The Appellant father had his daughter snatched from him at the hospital following her birth without a prior court order and without any evidence of prior conduct by him which would have endangered the child, but based simply on prior conduct of the child’s mother toward other children. He was prescribed a treatment program which could not have been related to the reasons for which his daughter was taken because his daughter’s abduction had nothing to do with him or his parenting abilities. There was obviously nothing he could have done to recover his child by completing the treatment program when he has never had a prior opportunity to prove his suitability as a parent and his suitability as a parent was never relevant in the first place. This case is simply another example of government bureaucracy run amok and the court turning a blind eye based on some social worker’s perception of a child’s best interests.
¶33 I dissent from the majority’s refusal to consider the constitutionality of § 41-3-301, MCA, as applied to the Appellant, and would conclude that as applied to him, it is unconstitutional. The majority avoids that critical issue by elevating form over substance to conclude that the District Court’s decision regarding the statute’s constitutionality was not part of its final judgment. The majority relies on Rule 4(c), M.R.App.P. However, the majority ignores Rule 2, M.R.App.P., which provides that this Court has jurisdiction to consider the “verdict or decision, and any intermediate order [objected to] ... which involves the merits, or necessarily affects the judgment....” The Appellant did challenge the constitutionality of § 41-3-301, MCA, when he moved for summary judgment. That motion was denied and its denial affected the judgment because it related to the legality of the *21State’s initial intervention in these people’s lives.
¶34 The majority’s construction of Rule 4(c), M.R.App.P., is akin to stating that a simple notice of appeal from a judgment is insufficient to authorize review of evidentiary rulings made during trial. That has never been a rule on appeal and if it was, would fly in the face of “the philosophy of modern appellate practice that technical defects of procedure should not bar a party from access to the courts.” Wilhelm v. Owens Enterprises, Inc. (1990), 242 Mont. 285, 288, 790 P.2d 467, 469 (citing Tefft v. Tefft (Mont. 1981), 192 Mont. 456, 461, 628 P.2d 1094, 1097, 38 St.Rep. 837, 840). If the majority was to review the Appellant’s constitutional challenge, it would have to conclude that as applied in this case, § 41-3-301, MCA, was unconstitutional. However, in doing so, it would avoid future unconstitutional application of the statute and breathe life into the liberty interest that parents have in their right to the custody of their children. See Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551. Because of that fundamental right, children cannot be taken from their parents, without due process of law, except in the event of an emergency. See Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599. Here there was no emergency. The Department of Public Health and Human Services received notice that the mother of K. C. H. was going to deliver a baby on April 4,2000, over two months prior to that delivery. A social worker from the Department interviewed both parents on May 10, 2000, and learned everything which later formed the basis for the Department’s petition. K. C. H. was not born until June 9, 2000. No petition was filed with the court until four days later-two days after she was taken from her parents-and no hearing was held for nearly three weeks until June 29, 2000.
¶35 Section 41-3-301, MCA, was unconstitutional as applied to the Appellant under these circumstances because he was denied the fundamental interest in the custody of his daughter without a minimal effort to provide him due process and no emergency existed because the facts which formed the basis for depriving him of his daughter were well known to the State a month or more prior to the time she was actually snatched from him. This was a blatant violation of his constitutional rights and this Court should say so. The consequence of its refusal to do so is to encourage the State to act similarly in the future. That is a bad result for a court entrusted with enforcing the constitutional rights of individuals, and a bad example at a time when this country sees as its responsibility to bring freedom and justice to *22the rest of the world.
¶36 In addition to the fact that K. C. H. was initially unlawfully taken from her father, there was no legally consistent basis for terminating his rights. The majority concedes that parental rights cannot be terminated in this case unless the child was adjudicated a “youth in need of care” and that that requires a finding that the child has been abused or neglected. The majority then concludes that abuse or neglect need not have actually occurred if there was a prospect that the child would be abused or neglected. With that much, I agree. However, the District Court and this Court then decide that the father’s parental rights could be terminated even though he had never abused nor neglected his daughter because there was a prospect that the child’s mother would abuse or neglect her. Even if that was a sufficient basis for terminating the father’s parental rights, they couldn’t be terminated pursuant to § 41-3-609(l)(f), MCA, without an appropriate treatment plan which has been unsuccessful. Here, the father’s treatment plan related to his own housing situation, employment status, and mental health, when none of those factors were reasons for finding that the child was abused and neglected. In fact, at least one of them was completely inconsistent with the ostensible reason for concluding that the father was vicariously responsible for potential abuse or neglect. To establish abuse and neglect, the State argued, and this Court agrees, that the mother would be the primary caregiver because the father works nights. Yet, to establish that the father had not satisfactorily completed his treatment program, the State argues that the father has been unable to establish employment.
¶37 What it boils down to in this case is that a father had his parental rights terminated because the mother of his child had previously mistreated other children and he does not live a lifestyle which is acceptable to the assigned social worker and this Court. It is mind boggling to think that a person can have something as precious as parental rights terminated on the basis of another’s conduct and his economic status in spite of the fact that he has never had an opportunity to care for the child. When asked, the State’s social worker testified as follows:
Q. Okay, has my client ever physically abused K?
A. No.
Q. Has my client ever sexually abused K.?
A. No.
Q. Would you consider or describe my client’s action as trying to abandon K?
*23A. No.
Q. Has he neglected her?
A. He had never had-he has never cared for her.
Q. So, again, that is a no, H.A. hasn’t neglected her?
A. No.
¶38 Section 41-3-443, MCA, requires that treatment plans identify the problems or conditions that resulted in abuse or neglect. Presumably, therefore, the treatment plan must be addressed to those problems or conditions. How could the father’s treatment plan address problems that the mother had or the condition of the mother’s health? Specifically, how could the father spend more time caring for the child when one of the conditions of the treatment plan was that he obtain regular employment? The answer is obvious. The father’s parental rights were terminated because of the mother’s prior history of abuse and neglect. There is nothing that he could possibly have accomplished by way of a treatment plan which would ever have changed that fact and his rights as a parent were doomed regardless of how successfully he participated and completed the treatment plan.
¶39 Finally, the father was denied due process for a second time when the District Court, on the day of his hearing, took judicial notice of prior proceedings involving the mother. He did not participate in those proceedings. He had no reason to investigate those proceedings prior to the date of his hearing. And, assuming he had investigated those proceedings, there is no indication that all the evidence given to the District Court was part of any record that he could have reviewed.
¶40 The majority’s solution to the fact that the State’s case was proven in part by evidence to which the father had no opportunity to respond is to suggest that the problem was solved by a “report to the court” attached to the State’s petition which detailed prior contacts with the child’s mother. However, there is no indication that the information in the reports represents all of the information of which the District Court took judicial notice or is even representative. It should be assumed that the mother was represented in the prior proceeding and that arguments were made or evidence presented on her behalf. However, that certainly would not be concluded in the Department’s report to the Court.
¶41 The majority criticizes the father for making no prior effort to access the prior proceedings pursuant to § 41-3-205(2), MCA. However, there is no indication in the record that he had any reason to access that information. The State did not ask the court to take judicial notice of the information in the prior case until the day of the hearing.
*24¶42 The Court relies on Rule 201(b)(6), M.R.Evid., as authority for the District Court to take judicial notice of law, including the “[r]ecords of any court of the state.” However, there is no indication in this record that the court’s judicial notice was limited to records. The County attorney asked the court to take judicial notice of “previous proceedings” in which the mother’s rights to three other children were terminated. He was not even able to refer the court to the previous cause number. The court simply ruled that it would “take judicial notice of all prior proceedings that this court handled personally in this matter.” It defies imagination how the father was supposed to respond to that kind of amorphous “evidence” without even having prior notice that it would be offered.
¶43 This process was tainted from beginning to end. This father had his daughter taken from him without prior notice or an opportunity to be heard before he ever had a chance to care for her based on another person’s conduct which had occurred years earlier and was unrelated to the care or treatment of this child. He was then compelled to participate in a treatment program which was doomed to failure because, no matter how successful, it could not affect the primary reason for which his daughter was taken from him. Then the State was allowed to prove its case in part by reference to evidence presented in another case in which he had not participated, about which he had no prior information, and which he was in no position to disprove. The fact that the majority would condone this process is simply the most recent example of the judiciary’s blind eye toward the whole termination process, and its abuses. Although I have no doubt that the majority of this Court and everyone involved are motivated by good intentions and of legitimate concern for the best interests of this child, our laws and procedures are designed to assure that children are not taken from parents based simply on their economic status or their lifestyle. After considering the arguments of the State and the Court’s rationale for affirming the District Court, I conclude that the precautions built into our system have not worked as intended in this case. Therefore, I dissent from the majority Opinion.