dissent">JUSTICE HUNT

dissenting:

I dissent. Today the decision by the Court effectively sanctions a violation of an individual’s due process rights by the State. It is flatly wrong for the District Court to incorporate judicial notice of temporary custody hearings, where counsel is not present or mandatory, into its final order terminating parental custody rights. To do so, and prevent the parents from having the right to counsel, is to create the grave risk of an erroneous decision. In reaching its conclusion, the majority sadly forsakes a fair adjudication of the rights of all the persons, both parents and children. A parental termination case merits the utmost protection of the parents’ rights to be adequately represented. The court should not use the evidence against the parents to judge the legitimacy of their interest based on hearing without counsel. In attempting to justify what appears to be a proper and just conclusion, the majority is led into unconstitutional methods to reach its ends.

The majority contends the violation of due process is negligible in its effect because the evidence supports its conclusion, and is thus permissible. The violation of the Streckerts’ right to counsel should not be swept under the analysis of the evidence, nor should it be dismissed as negligible. Substantiality of evidence has never been an adequate reason to sustain a violation of an individual’s right to counsel. The majority writes, “[njormally the taking of such judicial notice would violate the due process rights of the parties.” The use of the word “normally” makes the right to due process appear arbitrary and contingent on social norms proscribed only by the majority today. This has never been the case. The review of a due process violation should be an unequivocal constant which is not subject to erratic determination based on norms. At times, the Court has committed itself to a balance test, concluding, for example, that a violation may be outweighed by compelling state interests. The Court’s discretion to forego that analysis today goes beyond permissible limits. Even in *491the shadow of evidence supporting the majority’s conclusion, a violation of the due process rights of an individual should never be sanctioned.

I would remand this case to the District Court for findings of fact, conclusions of law, and order based on procedures that afford the parents due process so that there is no sanction of a violation of an individual’s due process rights by the State.

JUSTICES GRAY and TRIEWEILER concur in the foregoing dissent.

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