D.M. v. State, Division of Family & Youth Services

OPINION

EASTAUGH, Justice.

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 heating? 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 *207minor children.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.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.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.4 We review questions of law de novo, adopting “the rule of law that is most persuasive in light of precedent, reason, and policy.”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 defi*208nite and firm conviction that the superior court has made a mistake.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)7 did not permit the superior court to rely upon its adjudication findings to establish her children’s CINA status for purposes of termination.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.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.10 The rules also permitted the superior court, “[ujpon a showing of good cause and with adequate notice to the parties,” to consolidate the adjudication hearing and the termination hearing.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.12 At the termination proceeding, the state had to satisfy the clear and convincing standard.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.14 It therefore turned *209on a determination of the child’s then-current status.15

In comparison, aside from termination for reasons not germane here,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.”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.”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.19 It was also required to demonstrate that the conduct that would continue *210was the conduct that resulted in CINA status. Those termination issues normally required evidence concerning post-adjudication hearing parental conduct.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 ease. 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. 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.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 healing 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 *211appointed counsel.”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 *212caused the children to be adjudicated children in need of aid in 1995.23 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: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.[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.”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.” 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.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.29 In deciding whether it *213might, 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 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.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 *214represent one’s interests.”31 The provision of adequate notice commonly guarantees these rights.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.”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 superi- or 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.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 CIÑA Rule 18(c)(1) and the superior court’s actions. Former CIÑA 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 adju*215dicated 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.

. The children were bom in 1983, 1984, 1985, 1987, and 1988. D.M. is also the mother of R.B. (bom 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.

. 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.

. 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).

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

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

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

. 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.

. 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).

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

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

. 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).

. See CINA Rule 15(c) (1998).

. 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.. ."

. See V.D. v. State, Dep’t of Health & Soc. Servs., 991 P.2d 214, 216 (Alaska 1999) ("[T]he relevant question at adjudication should be whether the child is presently at risk, not whether a risk existed some months earlier.”).

. See CINA Rule 15(c) (1998).

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

. 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.

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

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

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

. 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.

. 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).

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

. 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (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).

. Mathews v. Eldridge, 424 U.S. at 334-35, 96 S.Ct. 893 (citations omitted).

. 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).

. 424 U.S. at 335, 96 S.Ct. 893.

. See Dissent at 220.

. 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 By-num'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).

. 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.”).

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

. See id. at 193.

. 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 Kerry. Kerr, 779 P.2d 341, 342 (Alaska 1989); cf. Lankford v. Idaho, 500 U.S. 110, 119-28, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991) (finding due process violation where defendant had no knowledge that judge was considering imposing death penalty).

. 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).