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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. D.M. v. State, Div. Of Family & Youth Services (1/14/00) sp-5230

D.M. v. State, Div. Of Family & Youth Services (1/14/00) sp-5230

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


D.M.,                         )
                              )    Supreme Court No. S-8294
             Appellant,       )
                              )    Superior Court Nos.
     v.                       )    3PA-86-34 CP, 3PA-86-35 CP,
                              )    3PA-86-36 CP, 3PA-87-37 CP,
STATE OF ALASKA, DIVISION OF  )    3PA-94-43 CP
FAMILY AND YOUTH SERVICES,    )
                              )    O P I N I O N
                              )
             Appellee.        )    [No. 5230 - January 14, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                    Beverly W. Cutler, Judge.


          Appearances:  G. Blair McCune, Deputy Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant.  Richard P. Sullivan, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.  Erica Kracker, Kracker Law Office, Palmer, Guardian ad
Litem.


          Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  


          EASTAUGH, Justice.
          BRYNER, Justice, with whom FABE, Justice,
joins, dissenting.  


I.   INTRODUCTION
          The superior court terminated a mother's parental rights
in 1997.  In doing so, it relied on findings it had made in 1995,
when it adjudicated the mother's children to be in need of aid.  It
had made those adjudication findings under the clear and convincing
evidence standard, rather than the usual preponderance standard, at
the state's request.  Did the superior court's reliance on the
those findings violate the mother's due process rights, where the
state gave no advance notice of its request until the beginning of
the adjudication hearing?  Despite the lack of advance notice, we
reject the mother's claim that her due process rights were
violated.  Because her other challenges to the termination decision
also lack merit, we affirm.
II.  FACTS AND PROCEEDINGS
          This appeal arises from the termination of D.M.'s
parental rights to her four of five minor children. [Fn. 1]  The
family's history is lengthy and complex, but the salient facts may
be stated briefly.  
          D.M. has been in a series of abusive relationships.  She
was diagnosed as suffering from aspects of personality disorders
and post-traumatic stress disorder.  At various times, her children
have been subjected to physical abuse from their father, S.M., and
their older sibling, R.B.  All of the five youngest children are
extremely and severely emotionally damaged.
          D.M. and her children moved to an Alaska community in
1985.  In the following years, D.M.'s troubled family received
various community services.  The Alaska Division of Family and
Youth Services (DFYS) became formally involved with D.M.'s family
in July 1994 when it sought an order to investigate and a writ of
assistance.  Following its investigation, DFYS filed a petition to
adjudicate the children "children in need of aid"(CINA).  After a
period of supervision, DFYS filed an amended petition for
adjudication of CINA status in November 1994.
          The superior court held the adjudication hearing in
September 1995.  At the outset of the hearing, the state asked the
court to make adjudication findings under the clear and convincing
evidence standard.  The state explained that this evidentiary
standard must be met to justify termination.  It had not previously
given notice of its intention to seek findings under this
evidentiary standard.  D.M. objected, arguing that she was prepared
to defend against an adjudication, not a termination.  The superior
court overruled D.M.'s objection, noting that going forward under
a higher standard of proof did not convert the adjudication hearing
into a termination proceeding.  The court also stated that, because
the state's request would require it to go forward under a more
onerous standard of proof, D.M. would not be prejudiced.  Following
the hearing, the court issued a written order, finding by clear and
convincing evidence that D.M.'s children were in need of aid.  The
court listed five statutory jurisdictional grounds for that
finding.
          DFYS filed a petition for termination on December 1,
1995.  After briefing, the superior court decided that it could
rely for purposes of its termination determination on the clear and
convincing findings it had made at the adjudication hearing.  The
court held a termination hearing in June 1997, about eighteen
months after issuing its adjudication findings.  It heard
additional evidence and the arguments of the parties' counsel; it
then entered an order terminating D.M.'s parental rights. [Fn. 2]
The pertinent parts of the termination order are set out in
Appendix A.
          D.M. appeals.
III. DISCUSSION
     A.   Standard of Review
          Whether there was a violation of D.M.'s right to due
process is a question of law. [Fn. 3]  Whether the superior court's
findings comport with the requirements of the CINA statutes and
rules then in effect is also a question of law. [Fn. 4]  We review
questions of law de novo, adopting "the rule of law that is most
persuasive in light of precedent, reason, and policy."[Fn. 5]
          We review the factual findings underlying the superior
court's termination decision for clear error, reversing only if our
review of the record leaves us with the definite and firm
conviction that the superior court has made a mistake. [Fn. 6] 
     B.   The Superior Court Did Not Violate the CINA Rules by
Making Adjudication Findings under the Clear and Convincing
Standard or by Relying on those Findings at the Termination Stage.

          D.M. argues that Child in Need of Aid (CINA) Rule 18(a)
[Fn. 7] did not permit the superior court to rely upon its
adjudication findings to establish her children's CINA status for
purposes of termination. [Fn. 8]  She contends that the rule
required the court to hold a trial de novo on the children's CINA
status in conjunction with the termination proceedings.  We
disagree because we do not read the CINA rules to have prohibited
the court at the termination hearing from relying on its
adjudication findings.  To see why, and to set the stage for the
constitutional issue discussed in Part III.C, we first discuss the
pertinent rules and procedure. 
          The CINA rules then in effect required the state to do
two things if it sought to terminate parental rights: (1) it had to
petition for an adjudication that the minor was a child in need of
aid, and (2) it had to petition for entry of an order terminating
parental rights. [Fn. 9]  As a matter of practice, the state often
filed a termination petition only after the court -- having
conducted the adjudication hearing -- had granted the adjudication
petition.  The rules also permitted the state to file a termination
petition "combined with"the adjudication petition. [Fn. 10]  The
rules also permitted the superior court, "[u]pon a showing of good
cause and with adequate notice to the parties,"to consolidate the
adjudication hearing and the termination hearing. [Fn. 11]  Whether
it considered the petitions in separate or in consolidated
hearings, the court could not terminate parental rights before it
found the child to be in need of aid.  Nothing in our rules
prohibited it from granting both petitions simultaneously in a
single document following a consolidated hearing, but if the court
followed that course, analytically it had to first find the minor
to be in need of aid before it could terminate parental rights.
          The CINA rules specified different standards of proof for
the adjudication and termination hearings.  At the adjudication
hearing, the state was required to prove child-in-need-of-aid
status by a preponderance of the evidence. [Fn. 12]   At the
termination proceeding, the state had to satisfy the clear and
convincing standard. [Fn. 13] 
          In addition to the applicable proof standard, the
prerequisites for granting the two petitions differ in other
respects.  Adjudicating CINA status required a finding that the
child was in need of aid at the time of the adjudication hearing.
[Fn. 14]  It therefore turned on a determination of the child's
then-current status. [Fn. 15]
          In comparison, aside from termination for reasons not
germane here, [Fn. 16] termination required two main findings. 
First, it required a finding that the state "proved by clear and
convincing evidence at the adjudication hearing that the child is
a child in need of aid as a result of conduct of the parent."[Fn.
17]  Second, it required a finding that "the parental conduct that
caused the minor to be adjudicated a child in need of aid is likely
to continue unless parental rights are terminated."[Fn. 18] 
Therefore, termination ultimately turned on a prediction of a
continuation of the parental conduct that resulted in the CINA
adjudication.  The fundamental factual focus at the termination
stage was therefore different.  Relevant to that inquiry was all
evidence of the parent's pre-termination hearing conduct, including
evidence of parental conduct predating the CINA adjudication, that
might shed light on the likelihood the adverse conduct would
continue unless parental rights were terminated.  
          Nothing in the rule prevented a parent at the termination
stage from offering all relevant evidence about parental conduct,
both to challenge misperceptions about pre-adjudication conduct and
to challenge a state assertion that the conduct would continue. 
Thus, in 1997 all evidence of D.M.'s pre-termination hearing
conduct, including her pre-adjudication conduct and her conduct
between 1995 and 1997, would have been relevant to predicting her
future conduct.  The adjudication findings, regardless of the proof
standard, could not foreclose a parent at the termination
proceeding from (1) requiring the court to consider the evidence
offered at the adjudication hearing, (2) offering new evidence
about the parent's conduct at any relevant time, and (3) even
recalling adjudication-stage witnesses to offer evidence not
previously received or possibly even to impeach their prior
testimony for newly revealed reasons.  Therefore, nothing resolved
at the adjudication stage foreclosed a parent from fully litigating
all relevant issues at the termination stage.
          We hold that nothing in the CINA rules or inherent in the
adjudication-termination process precluded the state from seeking
a finding of CINA status under the clear and convincing standard at
an adjudication hearing.  We therefore hold that the court at the
adjudication hearing in this case could apply the clear and
convincing standard in finding CINA status.
          We also hold that because the adjudication findings on
the children's CINA status were made under the clear and convincing
standard, the court at the termination hearing could rely on them. 
The court was not required to make new findings in 1997 on the
issue of the minors' CINA status as of 1995.  But likewise, nothing
prevented D.M. from fully litigating all relevant termination
issues in 1997.
          The propriety of relying at the termination hearing on
the earlier findings is confirmed by considering the alternative:
at the termination proceeding, a court could review the evidence
offered at the adjudication hearing, and, applying the stricter
proof standard, make supplemental findings satisfying the
requirements for termination.  Absent new evidence impeaching or
supplementing the earlier evidence, that alternative would not be
superior to relying on adjudication-stage findings made under the
stricter standard while the evidence was still fresh.  
          Relying on the earlier findings could not resolve all
issues pertinent to termination.  The state was still obliged to
prove that the parental conduct would continue absent termination.
[Fn. 19] It was also required to demonstrate that the conduct that
would continue was the conduct that resulted in CINA status. Those
termination issues normally required evidence concerning post-
adjudication hearing parental conduct. [Fn. 20]  Consequently,
whatever the evidentiary standard, the adjudication findings could
not resolve those issues.
          Appendix A contains the pertinent parts of the superior
court's termination order in this case.  It demonstrates that the
superior court thoroughly considered the critical issues and made
the necessary findings.
     C.   The Superior Court Did Not Violate D.M.'s Due Process
Rights.

          D.M. argues that the court violated her right to due
process because she did not have advance notice that the state
would ask the court to make adjudication findings under the clear
and convincing standard.  Before we consider D.M.'s due process
argument, we consider whether the lack of advance notice violated
the CINA rules.
          1.   Notice and the CINA Rules
          The CINA rules do not expressly address the notice issue.
CINA Rule 18(a) required that a termination petition be served, and
CINA Rule 18(b) required that the parties have "adequate notice"
before the court could consolidate the adjudication and termination
hearings.
          The state had not yet filed a termination petition when
it asked the superior court, at the beginning of the adjudication
hearing, to make adjudication findings under the clear and
convincing evidence standard.  The state apparently gave D.M. no
prior notice of its intention to request findings by that standard. 
And it apparently gave D.M. no formal advance notice that it
intended to seek termination. [Fn. 21]  Although the CINA rules did
not expressly make the state's findings request untimely, its
timing arguably violated the spirit of the rules because it
permitted the state to litigate facts relevant to termination
(parental conduct resulting in the CINA adjudication) at the
adjudication hearing with no formal prior notice that any aspect of
termination, as distinct from adjudication, was potentially in
issue.  We do not condone the timing of the state's request.
          But we see no basis for concluding that the untimeliness
of the state's request harmed D.M.  First, at the termination
hearing in 1997, the court could have followed the alternative
discussed above: applying the stricter standard, it could have
reviewed the evidence offered at the 1995 adjudication hearing and
made supplemental findings about the parents' pre-hearing conduct.
There is no reason to think the court's findings on that issue,
based on the same evidence, in 1997 would have differed from its
findings in 1995.
          Second, D.M. has advanced no plausible basis for finding
that she was actually prejudiced.  She claims that if she had been
aware of the state's intention, more experienced counsel would have
been assigned to represent her at the adjudication hearing, that
different witnesses might have been called, and that her trial
preparation might have been different.  And she argues, as does the
dissent, that she was prevented from making a record about
precisely how she was prejudiced.  But nothing prevented her from
making an offer of proof on the issue in the superior court, and
nothing prevents her on appeal from explaining how the outcome
actually might have been affected or demonstrating that there was
any genuine dispute about the material facts.  And, as she
concedes, parties in criminal and CINA proceedings have no right to
"pick and choose among appointed counsel."[Fn. 22]
          The record shows that D.M. appeared through appointed
counsel (the Public Defender Agency) at the adjudication hearing
and vigorously litigated her position.  D.M. called nineteen
witnesses in her defense at the adjudication hearing to dispute the
issue of the children's status.  There is no indication she did not
take the adjudication hearing seriously or that she made a tactical
choice to save her evidence and litigation efforts for any future
termination hearing, or made an unwise tactical choice by disputing
the CINA status issue.  D.M. does not even theorize how the
assignment of more experienced counsel actually might have affected
the outcome of the case, i.e., potentially altered the findings
about D.M.'s parental conduct.  The length of the hearing gave
D.M.'s attorney ample opportunity, if she wished, to consult with
other lawyers at the Public Defender Agency and to locate any
additional witnesses or other evidence that she thought the state's
request might have justified.  She did not request a continuance
and never later argued that her attorney should have asked for one. 
She did not claim that she was unable to offer favorable evidence
or call favorable witnesses, and she does not make that claim now. 
She did not argue then, and does not argue now, that her
examination of the state's witnesses actually suffered.
          The record affirmatively indicates that the lack of
notice did not harm D.M.  Before the termination hearing began, the
superior court, at the state's request, appointed independent
counsel to advise D.M. as to whether she should file a motion to
assert that she had been given ineffective assistance by the
attorney who had represented her at the adjudication hearing.  Such
a motion would have given D.M. the opportunity to explain, through
argument and evidence, how lack of notice prejudiced her.  But
D.M., having consulted independent counsel, did not file such a
motion.  Nor did she otherwise present argument or adduce facts
that permit an inference of actual prejudice.  D.M.'s failure to
file such a motion or explain what she would have done differently
through different counsel tends to confirm the validity of the
superior court's statements praising the quality of her
representation at the adjudication stage:
          [I]t's my finding, after again participating
in the two-week proceeding that we had, that the mother vigorously
contested all the evidence that could possibly support either
adjudication or termination issues, and it doesn't seem to me that
her motives to respond to the evidence and produce evidence of her
own would have been any different if it were in fact true that she
didn't realize that the state was asking for a clear and convincing
finding as well a preponderance of evidence finding on the things
that supported adjudication and termination. 
 
               It seems abundantly clear to me that she
was aware.  But, even if, for some reason, she really weren't
aware, it's abundantly clear that she fought everything, and was
defended vigorously and competently, and therefore the outcome
wouldn't be any different, and there really wouldn't be any
prejudice is what the court is saying.
          Moreover, D.M. did not ask the superior court to reopen
the issue of the children's 1995 CINA status or make different
findings about D.M.'s pre-adjudication hearing conduct, although
that would have been a logical thing to do if there were additional
or late-discovered evidence that might have supported a different
finding concerning the children's status in 1995.
          Third, the application of the higher standard of proof
did not change the sole issue (the children's CINA status at that
time) to be litigated at the 1995 adjudication hearing; rather, it
only increased the state's burden.  And the state still had to
prove by clear and convincing evidence at the termination hearing
in 1997 that (1) the parental conduct that caused the children to
be adjudicated children in need of aid in 1995 "is likely to
continue"unless parental rights were terminated, and (2) the
predicted parental conduct as of 1997 was the same as the conduct
that caused the children to be adjudicated children in need of aid
in 1995. [Fn. 23]  We therefore conclude that there is no
indication D.M.'s case actually suffered as a result of any failure
to give earlier notice.
          2.   Notice and due process
          We next consider D.M.'s procedural due process argument. 
When determining the requirements of due process, we look to the
test enunciated by the United States Supreme Court in Mathews v.
Eldridge: [Fn. 24]
          [O]ur prior decisions indicate that
identification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the
private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and, finally, the
Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.[ [Fn. 25]]
          The Mathews factors generally weigh in favor of requiring
notice in a proceeding to terminate parental rights.  The private
interest affected is of great importance; parental rights are "of
the highest order."[Fn. 26]  Lack of notice theoretically could
cause an erroneous termination of rights that notice would have
prevented. And the government's interest in not giving advance
notice is small; notice requirements impose little fiscal or
administrative burden upon government agencies.
          But this general assessment is insufficient to decide
whether D.M. was denied due process.  Not every potential
deprivation of protected interests results in a due process
violation.  Because there is no dispute here about the other
prongs, it is necessary to focus on the second prong of the Mathews
test: "the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards."[Fn. 27]
             We recognize that a failure to give advance notice of
a request for CINA status findings under the clear and convincing
standard of proof at the adjudication hearing could theoretically
affect parental rights at a subsequent termination proceeding. 
Parents might not realize the importance of the adjudication
hearing and might appear at that hearing unprepared to litigate
CINA status adequately.  Or they might make tactical litigation
choices, as the dissent suggests, that prove to be prejudicial.
[Fn. 28]
          But a theoretical possibility of prejudice is not enough;
to decide under Mathews whether due process was denied, a court
must assess "the probable value"of timely notice in reducing the
risk that parental rights might be erroneously terminated.  Thus,
a court must consider the likelihood that proper notice might alter
the outcome.  In answering that question, we must assess the ways
which D.M. here claims she might have been prejudiced.  This is not
the same as determining whether any constitutional error was
harmless, but more fundamentally considers whether lack of notice
might deprive a parent of sufficient opportunity to prepare her
case. [Fn. 29]  In deciding whether it might, we consider the
issues presented in a termination proceeding, and a parent's
ability to protect her interests at the adjudication and
termination proceedings.
          First, the substantive issue at the adjudication hearing
-- the children's CINA status -- is unchanged by applying a
stricter proof standard.
          Second, an adjudication hearing is an important
proceeding, and although lack of notice might lull some parents
into complacency, there was absolutely no reason to think that D.M.
was not prepared to litigate vigorously at the adjudication
hearing. Her pre-hearing witness list reflected that she was
prepared to defend her position.
          Third, an extended adjudication hearing, as this one was,
provides ample opportunity to remedy any theoretical prejudice.
Conceding CINA status, for example, would remedy any theoretical
prejudice arising from the tactical choice of litigating CINA
status at the adjudication hearing.  Requesting a continuance would
remedy a lack of preparation or loss of critical evidence.  
          Fourth, proper notice would not alter the issues to be
litigated at the termination stage, or affect parents' ability to
offer evidence about the nature and consequences of the conduct
relevant to termination issues.  The state still had to establish
at the termination stage, to a clear and convincing standard, that
the conduct at issue was likely to continue.  Parents retained the
right to introduce new or additional evidence at the termination
hearing bearing on whether their conduct had changed for the
better; they could even recall the same witnesses to expand or
impeach their testimony.  Any relevant lack of preparation at the
adjudication stage could be remedied through a vigorous defense at
the termination hearing.
          Fifth, the state could have accomplished the same thing
by asking the court at the 1997 termination hearing to consider the
evidence at the 1995 adjudication hearing in making findings under
the clear and convincing standard to satisfy CINA Rules 15(c) and
18(c)(1).
          We therefore conclude that the "probable value"of proper
notice was small and that late notice created little risk of
erroneous termination of D.M.'s rights. 
          Our theoretical analysis of the second Mathews's prong is
confirmed by our review of the record, and by D.M.'s failure to
identify any plausible way that she was prejudiced in the
termination proceedings.  This inquiry imposes no duty on her to
prove prejudice, beyond every appellant's adversarial duty to
identify valid grounds for finding a denial of due process.
          Thus, as noted above, D.M. litigated the status issue
vigorously and competently. [Fn. 30]  She had ample opportunity to
protect her interests.  She could have asked to call additional
witnesses not listed or offer exhibits not previously disclosed. 
She could have asked for a continuance before hearing any evidence
or to allow more preparation.  Our review of the record leaves us
with no impression that D.M.'s adjudication stage attorney was
underprepared; she had represented D.M. at least since February
1995.
          We also decline to hold that the assumed deprivation of
more experienced counsel denied D.M. due process.  We have no
reason to think that more experienced counsel at the adjudication
stage could have done anything to alter the outcome at the
termination stage.  It is always possible to argue that a more
capable attorney might have affected the outcome.  But that is not
the relevant inquiry.  The proper question is whether counsel was
ineffective.  In this case, independent counsel reviewed the
proceedings and D.M. chose not to assert a claim of ineffective
assistance. 
          A parent might protest, as D.M. does, that she did not
come to the hearing "prepared to defend on a termination of
parental rights." But assuming an attorney's lack of preparation
were relevant to the notice issue, this objection overstates the
impact of the practice followed here. 
          "The crux of due process is opportunity to be heard and
the right to adequately represent one's interests."[Fn. 31]  The
provision of adequate notice commonly guarantees these rights. [Fn.
32]  But even if notice is inadequate, "the opportunity to be heard
can still be preserved and protected if a party actually appears
and presents his claim."[Fn. 33] 
          Applying the Mathews analysis, we therefore conclude that 
D.M.'s rights were not violated here.
          We do not condone the practice the state followed here. 
In many cases, late or inadequate notice may require a conclusion
that the parent was denied due process.  If so, the error will
require either an outright reversal of the termination decision or
a remand to determine whether the error was harmless.  The
inevitable result will be a great delay in ultimately resolving the
dispute on the merits.  But that is not the case here.
     D.   The Superior Court Did Not Clearly Err in Finding that
          D.M.'s Conduct Was Likely to Continue.

          D.M. further claims that the superior court erred in
finding clear and convincing evidence that D.M.'s conduct which
caused the children to be adjudicated children in need of aid was
likely to continue.  She argues that the court ignored evidence of
her efforts to remedy her mental health and other problems.  In
doing so, she emphasizes portions of the hearing record which
support her own view of the evidence.
          The state defends the superior court's findings, citing
testimony and evidence presented at the termination hearing.  The
court found that the children were likely to suffer substantial
neglect and to remain at imminent and substantial risk of suffering
substantial physical harm and sexual abuse if it did not terminate
D.M.'s parental rights.  In addition, the court noted:
          That the evidence is clear and convincing that 
[D.M.] has been and continues to be unable to change her basic
parenting behavior.  That this behavior has been and continues to
be highly detrimental to the children['s] welfare.  Based on the
opinions of Dr. Rose and Dr. Holiday, the court believes that the
evidence is clear and convincing in establishing that the mother's
conduct is likely to continue.  
          The applicable standard of review -- clear error --
disposes of this issue.  The record amply supports the superior
court's express findings.  The superior court considered the
evidence D.M. cited, but determined that other evidence in the
record outweighed it.  We will not reweigh the evidence when the
record provides clear support for the trial court's ruling. [Fn.
34]  We therefore find no error in the superior court's finding
that D.M.'s conduct was likely to continue.
     E.   The Superior Court Did Not Err by Applying a
Preponderance of the Evidence Standard in Making Particular
Findings at the Termination Hearing.

          D.M. contends that the superior court applied the
incorrect standard of proof -- preponderance of the evidence --
when it made factual findings at the termination hearing.  She
claims the standard of proof at termination hearings is the clear
and convincing evidence standard. 
          D.M. misinterprets the requirements of former CINA Rule
18(c)(1) and the superior court's actions.  Former CINA Rule
18(c)(1) specifies that the state "must prove by clear and
convincing evidence that . . . the parental conduct that caused the
minor to be adjudicated a child in need of aid is likely to
continue unless parental rights are terminated." Although the
superior court made particular factual findings by a preponderance
of the evidence, it stated that it found by clear and convincing
evidence that the evidence taken as a whole demonstrated that
D.M.'s conduct was likely to continue.
          Unless otherwise specified, the standard of proof in
civil proceedings is by a preponderance of the evidence.  In this
termination proceeding, CINA Rule 18(c)(1) imposed a higher
standard of proof only with respect to the question of whether the
parental conduct that caused the children to be adjudicated
children in need of aid was likely to continue.  The superior court
found that the state met this burden.
IV.  CONCLUSION
          For these reasons, we AFFIRM the superior court's
termination of D.M.'s parental rights.  

BRYNER, Justice, with whom FABE, Justice, joins, dissenting.
I.   INTRODUCTION
          The court today concludes that D.M. had no constitutional
right to advance notice of the state's intent to use her children's
CINA adjudication hearing as a springboard for termination of her
parental rights; and to the extent that a right to prior notice
existed on a sub-constitutional plane, the court holds that its
violation was harmless.  I disagree.  Under the facts of this case,
due process required the state to give D.M. advance notice of its
decision to use the adjudication hearing as the first step toward
termination.  The state failed to give her adequate notice, and I
believe that it now has the burden of showing that this
constitutional error is harmless.  Because it has not had the
opportunity to meet this burden, I would remand for a hearing on
harmless error. 
II.  DISCUSSION
     A.   Due Process
          The court observes that termination is a form of
disposition rather than a separate class of adjudication and, thus,
that "[n]othing in the CINA rules or inherent in the adjudication-
termination process precluded the state from seeking a finding of
CINA status under the clear and convincing standard at an
adjudication hearing."[Fn. 1]  I do not dispute this observation. 
But by itself it resolves very little.  
          Before the superior court enters an order terminating
parental rights, it must find that the state proved the child's
CINA status by clear and convincing evidence. [Fn. 2]  But a lower
burden applies to all other CINA adjudication orders: when parental
rights are not at stake, the superior court need only base its
adjudication order on a preponderance of the evidence. [Fn. 3] 
Thus, unless termination has been properly placed in issue as a
potential disposition, an adjudication order finding CINA status by
clear and convincing evidence is unnecessary to the extent that it
exceeds the requisite standard of proof -- preponderance of the
evidence.  And to the extent that the order incorporates a
determination not essential to the judgment, it does not bar
further litigation of CINA status if a subsequent petition for
termination calls for a CINA adjudication based on clear and
convincing evidence. [Fn. 4]  
          Thus, unless the state properly placed termination at
issue at the adjudication hearing, the superior court's original
adjudicative findings could not have barred D.M. from requiring the
court to redetermine the issue of CINA status, applying the more
stringent standard of proof, after the state filed its termination
petition.  The critical question, then, is not whether the CINA
rules allow the state to obtain an adjudication order based on
clear and convincing evidence before it petitions for termination;
rather, it is whether the manner in which the state did so here was
procedurally proper.  More specifically, the question is whether
the state was required to give D.M. formal notice before the
adjudication hearing that it intended to place termination at
issue.
          The court acknowledges this question, yet hedges on its
answer: while it declines to "condone the timing of the state's
request"for findings by clear and convincing evidence, it rules
only that the timing of the state's request "arguably violated the
spirit of the rules because it permitted the state to litigate
facts relevant to termination (parental conduct resulting in the
CINA adjudication) at the adjudication hearing with no formal prior
notice that any aspect of termination, as distinct from
adjudication, was potentially in issue."[Fn. 5]  But D.M.'s case
squarely raises this question, and I believe that it requires a
direct answer.  
          It might be argued, of course, that the state's petition
for adjudication did give D.M. formal notice that termination might
be at issue during the adjudication hearing.  Upon entering a CINA
adjudication order, the trial court ordinarily has three
dispositional options: it may order the child released, with or
without state supervision, to parents or other guardians; it may
order the child committed to state custody for a period of up to
two years; or, under specified conditions, it may enter an order
terminating parental rights and commit the child to state custody
for permanent placement. [Fn. 6]  Because Alaska's CINA rules do
not require a petition for adjudication to request any specific
disposition, all of these dispositions are arguably at issue if the
petition for adjudication does not expressly exclude a particular
disposition.  
          In theory, then, when the state files a petition for
adjudication that leaves all dispositional options open, it gives
constructive notice to parents that termination will be at issue at
the adjudication hearing -- that if the hearing ends in an order
adjudicating their child a CINA, termination will be one possible
consequence.  
          But this constructive notice theory fails to reflect
procedural reality.  Alaska case law reveals no prior instance in
which the state has actually resorted to the curious procedure that
it followed here -- that is, no case in which it has:
(1) petitioned for CINA adjudication without declaring its intent
to seek termination; (2) obtained an initial CINA adjudication
based on clear and convincing evidence; and (3) petitioned to
terminate parental rights while the child awaited the initial
disposition on the CINA adjudication.  Moreover, the state cites no
prior trial court cases in which it has followed this procedure. 
Thus, although Alaska's CINA rules do not specifically forbid it,
the procedure used in this case appears to be novel.  In reality,
then, the mere filing of the adjudication petition would not have
given D.M. or her counsel fair warning that termination would
actually be at stake during the adjudication hearing. [Fn. 7] 
          Moreover, in this case the state's petition for
adjudication specifically asked the court "[f]or a final
adjudication and disposition committing the minors [D.M.'s
children] to the legal custody of the Department of Health and
Social Services for a period not to exceed two years." By
expressly requesting only one of three permissible dispositions and
failing to mention the others, including termination, the state
implicitly represented that it would not directly seek termination
in the event of a CINA adjudication.  Yet the state suddenly
shifted course at the outset of the adjudication hearing, asking
the trial court to make findings by clear and convincing evidence. 
By adding termination as a newly proposed disposition, the state
effectively obtained a last-minute amendment of its petition.
          I would hold that this bait-and-switch procedure violated 
D.M.'s right to procedural due process because it left her with
virtually no advance notice of a significant matter at issue at the
adjudication hearing.  The due process standard articulated in
Mathews v. Eldridge considers three factors: (1) the private
interest affected by the challenged procedure; (2) the risk that
the procedure will erroneously deprive the claimant of this
interest and the probable value of additional or substitute
safeguards; and (3) the state's interest in following the
challenged procedure and in avoiding burdens that might result from
adopting additional or substitute safeguards. [Fn. 8]  Each factor
favors D.M.
          First, the private interest affected by the state's
unannounced change in strategy -- D.M.'s fundamental right to
maintain her maternal ties to her children -- was one of paramount
importance: "one of the most basic of all civil liberties, the
right to direct the upbringing of one's child."[Fn. 9]
          Second, the state's last-minute shift in strategy created
a significant risk that D.M. might be erroneously deprived of her
parental rights.  By adding termination to the mix without any
advance warning, the state suddenly upped the stakes at the
adjudication hearing and obviously caught D.M. unprepared.  The
current record convincingly indicates that, at the very least, D.M.
would have had the benefit of more experienced counsel had she
received adequate notice.  This is a benefit of incalculable value. 
Moreover, as I explain in greater detail below when I discuss
harmless error, it is quite possible that D.M. suffered additional
prejudice.   
          Third, the state has no discernible interest in the
bizarre and evidently unprecedented procedural course that it took
in this case.  The state fails to explain why its petition for
adjudication expressly omitted termination as a proposed
disposition; and it offers no justification, in light of this
omission, for its precipitous request to add termination back as a
proposed disposition. 
          This court has willingly granted relief to aggrieved
litigants in cases with analogous procedural errors.  For example,
in Cushing v. Painter we found that the trial court violated a
parent's right to due process by entering a permanent child custody
order after conducting a hearing that had been scheduled to
determine interim custody. [Fn. 10]  In concluding that "the
proceeding . . . did not afford basic fairness to the appellant,"
we focused on the truncated nature of the interim hearing and the
limited time that the parties were given to prepare. [Fn. 11]  In
the present case, the concerns are somewhat different than they
were in Cushing.  D.M. faced no comparable restrictions on the time
allotted for her hearing or on the number of allowable witnesses. 
But the consequences of the procedural error in this case were
potentially as deleterious as those occurring in Cushing.  Here,
the state's last-minute request for clear and convincing evidence
findings deprived D.M. of time to prepare an adjudication defense
tailored to avoid termination and left her represented by an
attorney who had never before defended a termination action and who
would not ordinarily have been assigned to such a case. [Fn. 12]
          Donlun v. State provides another useful analogy. [Fn. 13] 
Donlun was indicted for and convicted of burglary in a dwelling
under a statute that provided enhanced penalties for nighttime
burglaries and burglaries of occupied dwellings. [Fn. 14]  Since
the undisputed facts established that Donlun committed the offense
at night in an occupied dwelling, the sentencing court based its
sentence on the premise that the enhanced sentencing range applied.
[Fn. 15]  We reversed, concluding that the enhanced sentencing
provisions could not be applied because Donlun had not been given
prior notice of the aggravating circumstances: 
          The particular range of sentences to be
applied in any given situation thus depends not upon the discretion
of the sentencing court but rather upon the existence of particular
aggravating facts set forth in the statute.  We believe that if a
defendant is to be given a fair opportunity to defend against a
burglary charge involving aggravated circumstances, such
circumstances  must be set forth in the indictment, information, or
complaint and proven at trial.[ [Fn. 16]]

          Here, as in Donlun, a statute created an aggravated form
of disposition -- termination of parental rights.  The statute also 
demanded certain enhanced showings, including proof of CINA status
by clear and convincing evidence, before the court could impose
that particular disposition.  Thus, under Donlun, D.M. was entitled
to clear, formal notice of the showings to be made at the
adjudication hearing.
          In refusing to acknowledge a due process violation, the
court narrowly focuses on "the ways which D.M. here claims she
might have been prejudiced."[Fn. 17]  Finding no obvious potential
for prejudice on the facts of this case, the court preliminarily
concludes "that the 'probable value' of proper notice was small and
that late notice created little risk of erroneous termination of
D.M.'s rights."[Fn. 18]  The court then proceeds to confirm that
D.M. suffered no actual prejudice, ultimately concluding: 
               We do not condone the practice the state
followed here.  In many cases, late or inadequate notice may
require a conclusion that the parent was denied due process.  If
so, the error will require either an outright reversal of the
termination decision or a remand to determine whether the error was
harmless.  The inevitable result will be a great delay in
ultimately resolving the dispute on the merits.  But that is not
the case here.[ [Fn. 19]]

          But while this approach looks at both the theory and fact
of D.M.'s claim of prejudice, it effectively conflates procedural
due process and harmless error analysis.  The United States Supreme
Court in Mathews emphasized that due process is not a static
concept. [Fn. 20]  It thus fashioned a flexible due process
standard that examines procedural fairness in the context of the
particular case at issue. [Fn. 21]  Following Mathews lead, we have
at times eschewed "abstract"due process analysis, stressing that
"our primary focus is on what happened . . . not what might
happen."[Fn. 22]   
          Yet Mathews's flexible rule of contextual fairness cannot
justify collapsing due process analysis into a harmless error
inquiry -- that is, into an outcome-based search for actual
prejudice.  Were we to view procedural due process as a mere test
of harmless error, virtually any procedural error, no matter how
fundamental, could be excused by an after-the-fact review
establishing that the process ultimately yielded a fair result. 
Applying the Mathews test in this manner, we might justify even the
most extreme and outrageous procedural deprivations -- the denial
of counsel, of compulsory process, of cross-examination, or of a
jury trial -- by simply declaring, no harm, no foul. 
          This is assuredly not how Mathews meant to measure due
process.  While the Mathews test is contextually based and
flexible, it is at bottom an interest analysis, not an outcome
analysis.  It focuses not on whether a procedural error produced an
unfair outcome but rather on whether the error produced an
unjustifiable risk of erroneously denying a protected interest in
the specific procedural setting at hand -- "the risk of an
erroneous deprivation of such interest through the procedures
used."[Fn. 23]
          Here, viewing the error at issue in its specific
procedural context, I would conclude that it posed an intolerable
and unjustifiable risk of prejudicing the fairness of the process
by which the court determined D.M.'s vitally important interest in
retaining maternal ties to her children.  Based on this conclusion,
I would find a violation of procedural due process.  And only then
would I engage in a particularized harmless error analysis.  The
court has the analysis backwards. [Fn. 24]
     B.   Harmless Error
          The court's opinion is no more persuasive as a decision
grounded in harmless error than as one grounded in procedural due
process.  This is not a situation in which judicial error denied
procedural rights in an action between private litigants.  Here the
state denied procedural fairness to a parent against whom it
prosecuted an action for termination of parental rights.  I believe
that when the state brings its power to bear against one of its
citizens by initiating such a proceeding and then commits
fundamental constitutional error, it should bear the burden of
proving that the error was harmless. [Fn. 25]  
          In requiring D.M. to shoulder the burden of establishing
exactly how she was prejudiced by constitutional error, the court
rewards the state's misconduct.  It also effectively shifts to D.M.
a burden that the law originally assigned to the state.  Though
D.M.'s parental rights were determined through a fundamentally
flawed process, the court's harmless error analysis forces D.M. to
bear the burden of proving that her ties to her children should not
have been terminated. 
          Moreover, even assuming that D.M. should be made to bear
the burden of proving prejudice, the record fails to support the
court's decision that she has failed to meet her burden.  The court
sees "no basis for concluding that the untimeliness of the state's
request harmed D.M."[Fn. 26]  But the reasons it advances to
support this finding are unpersuasive.
          The court points primarily to the lack of any solid
record of possible prejudice.  Finding no plausible basis to
support D.M.'s claim of prejudice at the original hearing, the
court notes that if a new adjudication hearing had been held
immediately before D.M.'s 1997 disposition hearing, there is "no
reason to think [that] the [trial] court's findings on [the CINA
status] issue, based on the same evidence, in 1997 would have
differed from its findings in 1995."[Fn. 27]  Extolling the
quality of legal representation that D.M. actually received, the
court faults D.M. for failing to advance "any plausible basis for
finding that she was actually prejudiced"by lack of notice or by
being deprived of a more experienced attorney. [Fn. 28]  
          But the court's perfunctory dismissal of possible
prejudice, and its emphasis on the competence of the representation
D.M. actually received, are unwarranted.  Experience teaches that
skill and experience in lawyering can often yield surprising
successes.  While the court seems to reason from the length of
D.M.'s hearing, the large number of witnesses that her attorney
called, and the strength of the state's case against her that
another attorney would have done little more, the court's reasoning
mistakenly assumes that experienced counsel would simply have
attempted to do more of what D.M.'s original counsel actually did.
          An experienced attorney skilled in defending against
termination might have pursued entirely different strategies for
prehearing motions and negotiations; might have planned a defense
specifically designed to steer toward a CINA adjudication based on
a mere preponderance of the evidence; might have used a different
approach in the selection and preparation of witnesses; might have
channeled limited prehearing resources into alternative,
therapeutic interventions; and might have exercised more effective
client control to ensure the success of those alternative efforts.
          In short, the fact that D.M.'s original counsel provided
zealous and effective representation despite her inexperience
provides no basis for assuming that more experienced counsel would
not have done better and could not have made a difference.  When
error affects the quality of legal representation, we should more
readily presume prejudice than harmlessness from a silent record.
          And in any event, the record convincingly demonstrates
that D.M. lacked a reasonable opportunity to carry the burden that
the court accuses her of ignoring -- the burden of showing specific
prejudice.  
          On the opening day of the adjudication hearing, when the
state first requested findings by clear and convincing evidence and
D.M. objected, the trial court expressed doubt that she would be
prejudiced by this higher standard of proof; but the court did not
squarely rule on the issue, deferring a ruling until the conclusion
of the hearing.  At the end of the adjudication hearing, however,
the court entered findings by clear and convincing evidence and
again deferred ruling on D.M.'s objection, leaving the issue open
pending the state's final decision as to whether it would actually
petition for termination.  D.M. thus had no occasion to make a
record on her claim of error before the adjudication hearing ended.
          Nor was she able to do so after the hearing.  The state
petitioned for termination within days after the trial court
entered its written adjudication findings; its petition relied on
the adjudicative findings that the court had established by clear
and convincing evidence.  D.M. promptly objected to the state's
reliance on these findings and moved for a finding "that there has
been no evidence presented on the termination petition presently
pending before the court."
          The trial court subsequently convened a hearing to
consider this motion and other matters.  At the hearing, D.M.
expected to call witnesses, including the Public Defender Agency's
supervising attorney in Palmer, to establish precisely how the
state's failure to provide adequate notice had prejudiced her case
at adjudication.  But D.M.'s plans ran aground on the state's
objections.  The state's attorney argued that D.M. appeared to be
attempting to establish that she had received ineffective
assistance of counsel.  Insisting that this attempt placed D.M.'s
counsel -- the Public Defender Agency -- in a position of conflict,
the state requested appointment of independent counsel to represent
D.M. 
          D.M.'s public defender vigorously protested that he was
not seeking to show ineffective assistance of counsel. 
Characterizing the state's request for appointment of an
independent attorney as a tactic aimed at depriving D.M. of zealous
representation, D.M.'s attorney insisted that D.M.'s sole purpose
in seeking an evidentiary hearing was to make a record of the
prejudice that she had suffered at the adjudication hearing due to
the state's failure to give adequate notice:
               And again, I would just note that I don't
think it's an ineffective assistance issue.  The issue is brought
down to what kind of resources in terms of experts would have been
hired, and all kinds of other issues involving the amount of
resources that would have been put into a case had the mother and
counsel known that the case was a termination case.  So it's not an
ineffective [assistance of counsel] issue.  It boils down to
notice.  And there's no need, as the court previously addressed,
for the agency to withdraw so that we can put on evidence that we
didn't -- that the mother didn't know, when they walked into the
adjudication hearing, that it was in fact a termination hearing. 
It's not complex.  

          Ultimately, the hearing adjourned for unrelated reasons
without any testimony being presented.  The independent counsel
issue remained unresolved when the hearing ended. 
          After the hearing adjourned, the state filed a motion for
appointment of independent counsel, advancing the same theory it
had raised at the hearing.  The superior court accepted the state's
conflict of interest argument and appointed independent counsel to
consult with D.M.  This appointment threw the status of D.M.'s
representation into procedural limbo.  Nine months after the
hearing, when the court next convened for a status conference,
D.M.'s independent counsel appeared but expressed uncertainty
concerning her role.  Meanwhile, the public defenders who
originally represented D.M. were replaced by a public defender who
seemed unfamiliar with the background of the case.
          D.M.'s new public defender asked for a ruling on the
still-pending motion to decide the effect of the court's original
adjudication findings, professing uncertainty as to whether a
hearing would be needed to resolve the issue:
          [W]e need to know, as we go into a termination
hearing, whether -- or how the court's going to rule on the issue
of whether the clear and convincing standard which was applied at
adjudication is going to be incorporated into the disposition -- or
into the termination hearing.  We probably also need a resolution
of the question of ineffective assistance of counsel, though I'm
not quite sure how that works.  But, in a -- we do need to know
what issues are going to be litigated, and if clear and convincing
standards are -- findings are going to be used by reference, then
we need to know that.  I don't know whether a hearing is required
on that or not.  Whether the briefing is complete or not might be
a question that Your Honor could best answer.

          The trial court -- its own memory of the case evidently
fading after the nine-month hiatus -- resolved these uncertainties
by mistakenly informing the parties that the only issue left to be
decided was whether the state's late request for clear and
convincing evidence findings had deprived D.M. of effective
representation.  The court erroneously stated that the Public
Defender Agency had "wanted independent counsel, and everybody
thought it was a good idea, for independent counsel to advise
[D.M.] as to whether she really wanted to move for the PD to
withdraw and claim that they'd been incompetent in representing
her, that they didn't adequately advise her about the termination
issues." According to the court, independent counsel's sole
purpose was to consult with D.M. and assist her in raising such a
claim if D.M. wished to pursue it.  The court explained that unless
D.M. claimed ineffective assistance of counsel, the matter was
closed, "we just keep going"with a disposition hearing.
          At the next scheduled hearing, D.M.'s independent counsel
notified the court that D.M. would not be filing a motion
requesting withdrawal of the Public Defender Agency.  After
discharging independent counsel, the court indicated that it was
prepared to set the case for disposition.  The state reminded the
court that D.M.'s motion objecting to the adjudication findings had
not yet been decided; the state asked if it "would be possible to
address that issue." The court, turning to D.M.'s public defender
responded: "Mr. Davenport, unless you have any objection, I'm going
to go ahead and address it."
          D.M.'s counsel told the court that he understood that
this issue had already been briefed, but said that he was not
prepared to argue it:  "I'm not -- I guess I'm not on notice that
we were going to be arguing it today.  That's the only problem I
have." The court replied by declaring that there was no need "to
invite oral argument on every motion . . . I'm ready to rule
without any oral argument unless any party objects to the court
going ahead and ruling.  Then I'm going to go ahead and deny the
mother's motion[.]" Hearing no objection, the court proceeded to
find, "It seems abundantly clear to me that [D.M.] was aware that
[termination] was in issue.  But, even if, for some reason, she
really weren't aware, it[']s abundantly clear that she fought
everything, and was defended vigorously and competently, and
therefore the outcome wouldn't be any different, and there really
wouldn't be any prejudice is what the court is saying."
          These circumstances hardly support a finding that D.M.
received a fair opportunity to show prejudice.  The trial court
effectively derailed D.M.'s initial attempt to show prejudice by
characterizing D.M.'s attempt as an effort to claim ineffective
representation and, on that basis, appointing independent counsel
-- a characterization that D.M.'s public defender adamantly
opposed.  Later, after sua sponte declaring ineffective assistance
of counsel to be the only remaining issue and after learning  --
predictably -- that no claim of ineffective assistance would be
raised, the court announced that it was "ready to rule . . . unless
any party objects."
          Admittedly, D.M.'s new public defender failed to object. 
But consider the situation:  He was unfamiliar with the background
of the notice issue; the court had earlier misinformed the parties
that the public defender was the party that originally "wanted
independent counsel, and everybody thought it was a good idea";
D.M.'s public defender had just finished telling the court that he
was unprepared to address the issue of notice because he had been
given no warning that it would be heard; and to this the court had
responded that it saw no need to invite oral argument on every
issue, that the matter had already been fully briefed, and that the
court was ready to rule.  
          Obviously bent on ruling immediately, the trial court had
clearly signaled D.M.'s new attorney that there was no good reason
to object.  It hardly seems surprising, then, that D.M.'s attorney
declined to press the issue.  On these facts, I would conclude that
D.M. did not receive a fair chance to establish prejudice. 
III. CONCLUSION
          For the foregoing reasons, I would hold that the trial
court violated D.M.'s right to due process by relying on its
adjudicative findings to terminate D.M.'s parental rights.  Because
neither party has had an adequate opportunity to demonstrate
whether this error resulted in prejudice, I would remand for a
hearing on harmless error and would require that the state bear the
burden of proof on remand.  Accordingly, I dissent from the
decision affirming the superior court's termination order.



                            FOOTNOTES


Footnote 1:

     The children were born in 1983, 1984, 1985, 1987, and  1988. 
D.M. is also the mother of R.B. (born in 1979), although her
parental rights with respect to him are not at issue here.  Our
references to "the children"do not include R.B.  We have altered
the first initials of D.M., S.M., and R.B. to prevent their
identification.


Footnote 2:

     The superior court consolidated adjudication and termination
issues with respect to the children's father, S.M. Finding by clear
and convincing evidence that the minors were children in need of
aid, and that his conduct was likely to continue, the court
terminated S.M.'s parental rights.  S.M. is not appealing that
decision.


Footnote 3:

     See A.M. v. State (A.M. II), 945 P.2d 296, 302 (Alaska 1997);
DeVaney v. State, Dep't of Revenue, 928 P.2d 1198, 1200 (Alaska
1996).


Footnote 4:

     See E.M. v. State, Dep't of Health & Soc. Servs., 959 P.2d
766, 768 (Alaska 1998).


Footnote 5:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 6:

     See E.J.S. v. State, Dep't of Health & Soc. Servs., 754 P.2d
749, 750 n.2 (Alaska 1988).


Footnote 7:

     Supreme Court Order 1355 amended CINA Rules 15 and 18,
effective July 15, 1999.  Because we affirm the superior court's
1997 termination of D.M.'s parental rights, these amendments do not
apply here.  It is not necessary to discuss the procedures the
amended rules require.  


Footnote 8:

     CINA Rule 18(a) (1998) provided:

          Petition.  The Department may file a petition
seeking termination of parental rights combined with or after the
filing of a petition for adjudication for that child as a child in
need of aid.  The title of the petition must clearly state that
termination of parental rights is sought.  A petition for
termination of parental rights must be served as provided by CINA
Rule 7(d).


Footnote 9:

     See CINA Rule 18(a), (c) (1998).


Footnote 10:

     See CINA Rule 18(a) (1998).


Footnote 11:

     See CINA Rule 18(b) (1998).  See, e.g., O.R. v. State, Dep't
of Health & Soc. Servs., 932 P.2d 1303, 1306-07 (Alaska 1997)
(discussing stages occurring separately), appeal after remand, 968
P.2d 93 (Alaska 1998).


Footnote 12:

     See CINA Rule 15(c) (1998).


Footnote 13:

     See CINA Rule 15(c), 18(c)(1) (1998).  Per CINA Rule 18(c)(1)
(1998), before parental rights could be terminated, DFYS was
required to prove "by clear and convincing evidence that either the
parental conduct that caused the minor to be adjudicated a child in
need of aid is likely to continue unless parental rights are
terminated, or the requirements of AS 25.23.180(c)(2) or (3) have
been met . . . ."


Footnote 14:

     See V.D. v. State, Dep't of Health & Soc. Servs., __ P.2d __,
Op. No. 5206 at 5 (Alaska, Nov. 12, 1999) ("[T]he relevant question
at adjudication should be whether the child is presently at risk,
not whether a risk existed some months earlier.").


Footnote 15:

     See CINA Rule 15(c) (1998).


Footnote 16:

     See AS 25.23.180(c)(2) or (3) (1999); CINA Rule 18(c)(1)
(1998).


Footnote 17:

     CINA Rule 15(c) (1998).  Although CINA Rule 15(c) (1998)
stated that the preponderance standard applied when CINA status was
adjudicated, that rule also provided that the court "may not
terminate parental rights under CINA Rule 18"absent proof by clear
and convincing evidence at the adjudication hearing that the child
was CINA as a result of parental conduct.


Footnote 18:

     See CINA Rule 18(a)(1) (1998).


Footnote 19:

     See CINA Rule 18(c)(1) (1998).


Footnote 20:

     See CINA Rule 18(c)(1)(A)(ii) (1998).  


Footnote 21:

     We note, however, that D.M.'s counsel asserted at the
termination hearing that the department's intent to terminate
parental rights had been a "matter of record." And in her reply
brief, D.M. stated that she "certainly suspected that [DFYS] was
contemplating pursuing termination of parental rights at some time
in the future."

          The guardian ad litem contended in her appellate brief
that D.M. had acknowledged awareness of the state's intent to
terminate by writing comments on a case plan.  The record does not
contain a copy of the case plan showing D.M.'s receipt, nor would
it be appropriate for us to take judicial notice of that document. 


Footnote 22:

     She cites V.F. v. State, 666 P.2d 42, 46-47 n.5 (Alaska 1983). 
See also Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App. 1993)
(holding that a criminal defendant does not have a right to
appointed counsel of her choice).


Footnote 23:

     See CINA Rule 18(c)(1) (1998).


Footnote 24:

     424 U.S. 319 (1976).  See also City of Homer v. State, Dep't
of Natural Resources, 566 P.2d 1314, 1319 (Alaska 1977) (looking to
Mathews v. Eldridge to determine whether administrative procedure
met requirements of due process).


Footnote 25:

     Mathews v. Eldridge, 424 U.S. at 334-35 (citations omitted).


Footnote 26:

     In re J.L.F. & K.W.F., 828 P.2d 166, 170 (Alaska 1992),
overruled on other grounds by In re S.A., 912 P.2d 1235 (Alaska
1996).


Footnote 27:

     424 U.S. at 335.


Footnote 28:

     See Dissent at 38.


Footnote 29:

     See, e.g., North State Tel. Co. v. Alaska Pub. Utils. Comm'n,
522 P.2d 711, 714 (Alaska 1974).  See also Smith v. State, Dep't of
Corrections, 872 P.2d 1218, 1223-24 (Alaska 1994) (reviewing
prisoner's due process arguments in "context of what happened to
Bynum, not what might happen"and holding that under circumstances
Bynum's due process rights were not violated); In re K.L.J., 813
P.2d 276, 282 (Alaska 1991) (involving parent without counsel in
termination proceeding); In re J.H.B., 578 P.2d 146, 148 (Alaska
1978) (finding no due process violation in part because minor in
juvenile waiver hearing did not indicate how parents' absence might
have prejudiced him).


Footnote 30:

     See North State Tel., 522 P.2d at 715 ("We conclude that, in
the circumstances of this case, the notice was adequate to apprise
North State of the nature of the case it would have to meet.").  


Footnote 31:

     Matanuska Maid, Inc. v. State, 620 P.2d 182, 192 (Alaska
1980).


Footnote 32:

     See id. at 193.


Footnote 33:

     Id. (holding that, because appellants actually availed
themselves of right to challenge investigative demand, appellants
were not prejudiced by lack of notice and hence were not denied due
process); see also Kerr v. Kerr, 779 P.2d 341, 342 (Alaska 1989);
cf. Lankford v. Idaho, 500 U.S. 110, 119-28 (1991) (finding due
process violation where defendant had no knowledge that judge was
considering imposing death penalty).


Footnote 34:

     See A.M. v. State (A.M. I), 891 P.2d 815, 825 (Alaska 1995);
see also In re H.C., 956 P.2d 477, 484 (Alaska 1998) (affirming
superior court's determination that parent's recent efforts to
address mental health issues were outweighed by other testimony in
record and, thus, that parent's neglectful behavior was likely to
continue).




                      FOOTNOTES   (Dissent)


Footnote 1:

     Op. at 9.


Footnote 2:

     Former AS 47.10.080(c)(3); former CINA Rule 18(c).


Footnote 3:

     See former AS 47.10.010; CINA Rule 15(c).


Footnote 4:

     See, e.g., Boyles v. State, 647 P.2d 1113, 1116 (Alaska 1982)
(quoting Restatement of Judgments (Second) sec. 68 (Tent. Draft No.
1,
1973)) (defining collateral estoppel to apply only "[w]hen an issue
of fact or law is actually litigated and determined by a final and
valid judgment and the determination is essential to the
judgment").


Footnote 5:

     Op. at 11-12.   


Footnote 6:

     See former AS 47.10.080(c).


Footnote 7:

     The record does indicate that D.M. was aware early on that the
state had adopted termination as its ultimate goal in the CINA
proceedings.  But nothing in the record suggests that the state
gave her any advance notice of its plan to use the adjudication
hearing as the first stage of its termination effort.  The crucial
issue with respect to notice is not whether D.M. was aware of the
state's ultimate goal, but whether she knew that the state would
actually start trying to reach that goal at the adjudication
hearing.  


Footnote 8:

     424 U.S. 319, 334-35 (1976).


Footnote 9:

     Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).


Footnote 10:

     666 P.2d 1044, 1046 (Alaska 1983).


Footnote 11:

     Id. 


Footnote 12:

     I do not assert, as the court suggests I do, Op. at 12-13,
that D.M. had a right to "pick and choose among appointed counsel"
or that she was entitled to appointment of a more experienced
counsel.  But D.M. asserted without challenge that the policy of
her counsel's employer, the Public Defender Agency, was to assign
termination cases to senior attorneys who had experience in
handling such matters; thus, had prior notice been given, D.M.
evidently would have received more seasoned counsel.  While D.M.'s
counsel unquestionably provided her with competent representation,
it would be hard to gainsay that a more experienced, specifically
trained attorney might have done better.  In this regard, it is
particularly disturbing that the court dismisses this aspect of
prejudice as legally irrelevant, declaring, without citing any
authority, that "[t]he proper question is whether counsel was
ineffective." Op. at 20.  This declaration effectively announces
that the state, in its capacity as an opposing litigant, is free to
interfere with the Public Defender Agency's case-specific
strategies for matching counsel and clients -- subject only to the
bottom-line requirement that its interference not result in a
client's receiving ineffective assistance of counsel.  I know of no
support for such a proposition. 


Footnote 13:

     527 P.2d 472 (Alaska 1974).


Footnote 14:

     Id.


Footnote 15:

     Id.


Footnote 16:

     Id. at 474.


Footnote 17:

     Op. at 17.


Footnote 18:

     Op. at 19.


Footnote 19:

     Op. at 21.


Footnote 20:

     Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).


Footnote 21:

     Id.


Footnote 22:

     Smith v. State, Dep't of Corrections, 872 P.2d 1218, 1223-24
(Alaska 1994). 


Footnote 23:

     Mathews, 424 U.S. at 334-35.


Footnote 24:

     In attaching as an appendix to its opinion the superior
court's termination findings, the court tacitly acknowledges a view
that a parent's right to procedural due process declines in direct
proportion to the strength of the state's case -- that the more
evidence of bad parenting there is, the less process the parent is
due. 


Footnote 25:

     See First Federal Bank, FSB v. Gallup, 719 A.2d 923, 925
(Conn. App. 1998) (quoting State v. Vitale, 497 A.2d 956 (Conn.
1985) ("It is a fundamental rule of appellate review of evidentiary
rulings that if error is not of constitutional dimensions, an
appellant has the burden of establishing that there has been an
erroneous ruling that was probably harmful to him.") (emphasis
added)); 5 Am. Jur. 2d sec. 709 at 377 (1995) (citing Kotteokos v.
United States, 328 U.S. 750 (1946) for the proposition that in
federal civil cases, "[i]f an error is of such a character . . .
that its natural effect is to prejudice a litigant's substantial
rights, the burden of sustaining the verdict is on the appellee"). 
Cf. Bostic v. State, 805 P.2d 344, 346-47 (Alaska 1991) (shifting
to the state the burden of disproving prejudice for non-
constitutional discovery violations in criminal cases).   


Footnote 26:

     Op. at 12.


Footnote 27:

     Id.


Footnote 28:

     Op. at 12-15.  The court also suggests that D.M. somehow
remained free to resurrect the issue of CINA status at the
disposition hearing, faulting her for failing to "ask the superior
court to reopen the issue of the children's 1995 CINA status or
make different findings about D.M.'s pre-adjudication hearing
conduct, although that would have been a logical thing to do if
there were additional or late-discovered evidence." Op. at 15. 
But the court's perception of "the logical thing to do"utterly
ignores the state's central reason for requesting reliance on the
original CINA findings -- a reason that the trial court implicitly
accepted in granting the state's request: that the doctrine of
collateral estoppel would bar D.M. from relitigating any aspect of
the CINA adjudication.  The court further suggests that D.M. could
somehow have raised the issue of CINA status at the disposition
hearing while litigating the question of whether the conduct
causing the children to be adjudicated CINA was likely to continue. 
Op. at 15.  But this seems akin to suggesting that a convicted
offender can mitigate prejudice resulting from an unfair conviction
by arguing innocence in support of a lighter sentence. 
Predictably, such arguments are rarely successful.  The point of
D.M.'s claim is not that she was foreclosed from admitting evidence
of her pre-adjudication conduct at the termination hearing; the
point is that she was precluded from admitting it on the issue she
wanted to litigate -- her children's CINA status.







                             APPENDIX
 
                         EXCERPTS FROM
               "FINDINGS, CONCLUSIONS, AND ORDER
       TERMINATING PARENTAL RIGHTS AND RESPONSIBILITIES"
                                

          6.   The minors, who are under eighteen (18) years of
age, were shown to be children in need of aid pursuant to AS
47.10.010(a)(2)(a), (b), (c), (d), and (f) with respect to the
mother, [D.M.], by clear and convincing evidence on September 9,
1995.  
          . . . .
          8.   Additionally, the court makes the following findings
based on evidence presented during the termination hearing on June
16, 17, 18, 23, and 24:  
               a.   That the Division of Family and Youth Services
has been involved with [D.M.'s] family formally and informally
since 1986.  
               b.   That the mother, [D.M.], suffers from post
traumatic stress disorder and personality disorder. 
               c.   That neither the mother nor the father are able
to provide safe, stable living environments for the children. 
               d.   That despite years of recommended individual
mental health counseling from all mental health professionals
involved with the mother, [D.M.] has made no positive fundamental
changes in her behaviors and has experienced only limited progress
in therapy.  
               e.   That throughout 1997 numerous teenagers have
consistently spent weekends at [D.M.]'s house.  [D.M.] has allowed
these teenagers, including minors, to regularly engage in risky
behaviors including drinking, drug use, and sexual activity while
in her home.  
               f.   That [D.M.] has been participating in regular
alcohol use since the winter of 1995, including instances of
drinking and driving with teenagers in her vehicle.  
               g.   That [D.M.] has used alcohol and marijuana with
teenagers in her home.  That [D.M.] has demonstrated as recently as
June of 1997 conduct constituting failure to protect when [D.M.]
acting in an adult caretaker role with respect to a minor, failed
to prevent or curtain physical and/or emotional harm to the minor. 
          9.   Accordingly, the court further finds based on the
evidence presented that the evidence clearly and convincingly
establishes that all five children continue to be severely
emotionally disturbed and the mother continues to demonstrate an
inability to adequately care for their special needs.  
          10.  That the evidence is clear and convincing in
establishing that the mother continues to demonstrate a lack of
understanding regarding the physical, emotional, mental and social
needs of her children so that it is likely that all five children
would continue to suffer substantial neglect if the mother's
parental rights were not terminated.  
          11.  That the evidence demonstrates clearly and
convincingly that all children would remain at imminent and
substantial risk of suffering substantial physical harm due to
conditions created by [D.M.] and [S.M.] if their parental rights
were not terminated.  
          12.  That there is clear and convincing evidence that the
children would be at imminent and substantial risk of being
sexually abused due to conditions created by [D.M.] and [S.M.] if
their parental rights were not terminated.  
          . . . .
          14.  That the evidence is clear and convincing that
[D.M.] has been and continues to be unable to change her basic
parenting behavior.  That this behavior has been and continues to
be highly detrimental to the childrens' welfare.  Based on the
opinions of Dr. Rose and Dr. Holiday, the court believes that the
evidence is clear and convincing in establishing that the mother's
conduct is likely to continue.  
          . . . .
          17.  That the evidence is clear and convincing in
demonstrating that the childrens' underlying psychological damage
is not a result of their removal from the home of the mother or
lack of visitation with the mother subsequent to removal but rather
the damage results from conditions existing in the home prior to
their removal.  That there is evidence beyond a reasonable doubt
that return of the children to the custody of the mother is likely
to result in serious emotional or physical damage to the children.