dissenting.
¶23 I respectfully, but strenuously, dissent from the Court’s opinion. The Court concludes, in ¶ 21, that M.C. waived his right to appeal from the termination of his parental rights based on his failure to object “in person or by counsel to the manner in which the District Court conducted the termination hearing.” The sad fact is that no termination hearing occurred. The even sadder fact is that no one seems to care.
¶24 The District Court terminated M.C.’s parental rights based on findings of fact not supported by any testimony or other evidence presented at the so-called termination hearing. Rather than requiring DPHHS and the District Court to meet their statutory obligations prior to terminating parental rights, the Court creates yet another “exception” in what I perceive to be a long line of cases placing DPHHS in a “power” position. See, e.g., In re S.C., 2005 MT 241, ¶¶ 37-52, 328 Mont. 476, ¶¶ 37-52, 121 P.3d 552, ¶¶ 37-52 (Gray, C.J., concurring and dissenting); In re D.A., 2003 MT 109, ¶¶ 34-39, 315 Mont. 340, ¶¶ *16234-39, 68 P.3d 735, ¶¶ 34-39 (Gray, C.J., concurring and dissenting); Inquiry into M.M. (1995), 274 Mont. 166, 175-78, 906 P.2d 675, 680-82 (Gray, J., dissenting); Matter of F.H. (1994), 266 Mont. 36, 41-44, 878 P.2d 890, 894-95 (Gray, J., dissenting). I cannot agree. I would reverse and remand for further proceedings.
¶25 In my view, this case boils down to M.C.’s assertion that the District Court’s findings are clearly erroneous because they are not supported by substantial credible evidence. The Court sets forth the “clearly erroneous” standard for reviewing findings in child abuse and neglect cases in ¶ 12, but does not apply it. Instead, the Court concludes, in ¶ 21, that M.C. waived his right to appeal from “the District Court’s decision to terminate his parental rights without taking evidence[.]” I am unaware of any authority requiring a party to assert at a hearing or trial that the evidence is insufficient to support findings the district court has yet to make. In an “ordinary” civil case, I am convinced this Court would readily review-absent any objection at trial-an assertion that a district court’s findings are clearly erroneous because the trial court did not first receive evidence. Meaningful review of such an error is even more critical in a child abuse and neglect case, where both the parent’s rights and the child’s best interests are at stake.
¶26 A parent’s right to the care and custody of his or her child is a fundamental liberty interest which must be protected by fundamentally fair procedures. In re T.H., 2005 MT 237, ¶ 22, 328 Mont. 428, ¶ 22, 121 P.3d 541, ¶ 22 (citation omitted). Section 41-3-609(1), MCA, generally provides that a district court may terminate a parent-child legal relationship “upon a finding established by clear and convincing evidence” that one of several delineated circumstances exists. (Emphasis added.) The caption of § 41-3-607, MCA, “[p]etition for termination-separate hearing-no jury trial,” illustrates that a hearing on the merits of a petition for termination of parental rights is required.
¶27 Section 41-3-422(5)(a)(iv), MCA, requires that “the person filing the abuse and neglect petition has the burden of presenting evidence required to justify the relief requested” and establishing “clear and convincing evidence for an order terminating the parent-child legal relationship.” (Emphasis added.) “‘Proof is the establishment of a fact by evidence.” Section 26-1-101(4), MCA. “‘Evidence’ is the means of ascertaining in a judicial proceeding the truth respecting a question of fact, including but not limited to witness testimony, writings, physical objects, or other things presented to the senses.” Section 26-1-101(2), MCA. (Emphasis added.)
*163¶28 In my opinion, § 41-3-609(1), MCA, requires a petitioner-here, DPHHS-to meet the requisite burden of proving a circumstance justifying termination at the time of the required hearing. It cannot do so without presenting evidence. Nor could the District Court enter legitimate findings absent clear and convincing evidence upon which to base such findings. Montana statutes require much more. To hold otherwise renders the requirement set forth in In re T.H., ¶ 22, for “fundamentally fair procedures” prior to terminating a parent’s fundamental liberty interest a mockery.
¶29 In this regard, the statement in the District Court’s order that the court made findings “[biased upon the evidence and testimony presented” is, at the very least, an outright misrepresentation. DPHHS presented no evidence or testimony at the hearing. The representations by the attorney for DPHHS-that M.C. had been served by publication and the last contact between M.C. and DPHHS occurred in June-were not evidence. See State v. Stuart, 2001 MT 178, ¶ 22, 306 Mont. 189, ¶ 22, 31 P.3d 353, ¶ 22 (citation omitted). Moreover, while the District Court could take judicial notice of prior proceedings, those proceedings-which generally involve a lesser burden of proof than termination proceedings-simply did not reheve DPHHS of its burden to present evidence at the termination hearing or the District Court of its obligation to base its findings on clear and convincing evidence from the termination hearing.
¶30 DPHHS filed various reports and affidavits throughout the coruse of the case, but did not present these documents in a maimer affording M.C. the opportunity to cross-examine the documents’ authors or register objections based on the Montana Rules of Evidence-an opportunity that, in my view, the statutes governing termination proceedings clearly contemplate. Consequently, I reiterate my previously expressed position with respect to findings made at a different stage of the proceedings, that statements in an affidavit supporting a petition “simply are not evidence upon which a trial court can rely in making findings of fact” when a hearing is required. See In re D.A., ¶ 38 (Gray, C. J., concurring and dissenting). Moreover, in this case, facial inconsistencies and significant delays between the execution and filing of some documents make it especially clear that the documents cannot be considered “evidence.”
¶31 Regarding the Court’s discussion of A.T.’s best interests, I do not believe our recognition of a district court’s obligation to give paramount consideration to the child’s best interests is a legitimate basis for this Court to conclude a parent has waived the right to appeal from findings made without the presentation of evidence. Nor is *164consideration of the child’s best interests appropriately invoked as a post hoc rationalization for a petitioner’s utter failure to present, and a district court’s utter failure to receive, evidence at a termination hearing on any matter-including the child’s best interests.
¶32 I also am very troubled by the reliance of DPHHS and this Court on M.C.’s failure to personally appear at the hearing. The District Court did not enter, nor did DPHHS request, default judgment pursuant to § 41-3-429(4)(b)(vii), MCA, which requires service by publication to include notification of the possibility of default judgment. Indeed, I am unpersuaded that a default judgment could be authorized when, as here, counsel appears on behalf of a parent who does not personally appear.
¶33 In any event, this termination purportedly was based on the merits, and the petitioner-not the parent-has the burden of establishing whether the facts justify termination under § 41-3-609(1), MCA. Thus, contrary to the Court’s statements in ¶ 18, M.C. was not required to “assert” his fundamental constitutional right to parent. Furthermore, neither the statutory definition of abandonment set forth in § 41-3-102(l)(a), MCA, nor the “treatment plan” criteria set forth in § 41-3-609(l)(f), MCA, provides that a parent’s failure to personally appear constitutes a basis for involuntary termination. Those statutes clearly require a petitioner to “present” more than a parent’s failure to personally appear in order to meet the requisite burden of proof.
¶34 I also disagree with the Court’s statement, in ¶ 15, that counsel “did not object to termination.” After the attorneys identified themselves, the entire termination proceeding consisted of the following:
[DPHHS attorney]: Your Honor, just for the record, the mother’s parental rights to this child have been previously terminated by this court. And the state did have to publish notice for [M.C.], and we did publish that. And that was filed with the court.
So at this time we would just ask the court to terminate his parental rights based upon abandonment as well as failure of court ordered treatment. Court had ordered a treatment plan for him.
The state has had no contact with [M.C.] since-the last time the social worker spoke with him was June of 2004. We could not locate him to serve him at the two addresses that he had provided in the past. So that’s why we ended up publishing. We can provide testimony if required.
The Court: Mr. Cushman?
*165[M.C.’s counsel]: You: Honor, we have had no contact with [M.C.] and therefore have no position.
The Court: State’s motion is granted.
[DPHHS attorney]: Thank you, Your Honor.
First, the District Court’s query to M.C.’s counsel did not seek a response to anything concrete. For the reasons stated above, the court’s reply to the statements by the attorney for DPHHS should have been, “Proceed with your case, counsel.” Read in context, M.C.’s counsel’s response to the court is most reasonably construed as precisely what it was-a statement that, due to the lack of instruction on whatever the court’s query was intended to be, he simply had “no position” on that query.
¶35 In any event, the Court advances no authority for the proposition that, absent a parent’s actual relinquishment of parental rights pursuant to § 42-2-402(1), MCA, an attorney may “waive” a client’s parental rights or the statutory requirements that a petitioner present evidence and meet the requisite burden of proof for involuntary termination, as set forth in §§ 41-3-422(5)(a)(iv) and -609(1), MCA. The notion that attorneys have such power is, in my view, inconceivable. ¶36 Finally, I note DPHHS’s argument-in response to M.C.’s request for a hearing complying with statutory requirements-that “[t]he purpose of a remand is to remedy a substantial injustice, not to elevate form over substance.” As I have in the past, I observe again that this type of statement reflects “the untenable attitude which seems to permeate DPHHS, or at least its counsel, in these appeals.” See In re Custody and Parental Rights of D.S., 2005 MT 275, ¶ 50, 329 Mont. 180, ¶ 50, 122 P.3d 1239, ¶ 50 (Gray, C.J., concurring). Importantly, in this case the error at issue is the very lack of any substance in the termination proceeding.
¶37 I would conclude the District Court’s findings are clearly erroneous and M.C. did not waive the right to appeal. I would remand for a termination hearing.
¶38 I dissent.
JUSTICE NELSON joins in the foregoing dissenting opinion of CHIEF JUSTICE GRAY.