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 “[njoth-ing 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.”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.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.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.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 *216based 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.”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.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 dispo-sitional 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 ease 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.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 ob*217tained 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.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.”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.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.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.12
*218Donlun v. State provides another useful analogy.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.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.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.[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.”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.”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.[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.20 It thus fashioned a flexible due process standard that examines procedural fairness in the context of the particular case at issue.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.”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 *219after-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 Matheios 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.”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.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.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.”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 evi*220dence, in 1997 would have differed from its findings in 1995.”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.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 *221evidence. 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 *222evidence 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 *223on remand. Accordingly, I dissent from the decision affirming the superior court’s termination order.
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.
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8.Additionally, the court makes the following findings based on evidence presented during the termination hearing on June 16, 17,18, 28, 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.
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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.
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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 *224subsequent 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.
. Op. at 209.
. Former AS 47.10.080(c)(3); former CINA Rule 18(c).
. See former AS 47.10.010; CINA Rule 15(c).
. See, e.g., Boyles v. State, 647 P.2d 1113, 1116 (Alaska App.1982) (quoting Restatement of Judgments (Second) § 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”).
. Op. at 210.
. See former AS 47.10.080(c).
. 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.
. 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
. Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).
. 666 P.2d 1044, 1046 (Alaska 1983).
. Id.
. I do not assert, as the court suggests I do, Op. at 210-211, 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 representátion, 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 213. 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 *218for 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.
. 527 P.2d 472 (Alaska 1974).
. Id.
. Id.
. Id. at 474.
. Op. at 212.
. Op. at 213.
. Op. at 214.
. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
. Id.
. Smith v. State, Dep’t of Corrections, 872 P.2d 1218, 1223-24 (Alaska 1994).
. Mathews, 424 U.S. at 334-35, 96 S.Ct. 893.
. 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.
. See First Federal Bank, FSB v. Gallup, 51 Conn.App. 39, 719 A.2d 923, 925 (1998) (quoting State v. Vitale, 197 Conn. 396, 497 A.2d 956 (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 § 709 at 377 (1995) (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (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).
.Op. at 210.
. Id.
. Op. at 210-211. 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 211. 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 211. 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.