{1} This is an appeal from a decision by the district court to terminate the parental rights of Maria C. (Mother), pursuant to NMSA 1978, § 32A-4-28(B)(2) (2001). Mother argues that the order should be set aside as a matter of due process because she was denied any opportunity to be present at the two permanency hearings that preceded the final termination hearing (TPR hearing). We address two issues: (1) whether the initial and subsequent permanency hearings merit due process protection; and (2) if so, whether the procedures afforded Mother in the neglect and abuse proceedings denied her due process.
FACTS AND PROCEDURES
{2} Maria C. is the natural mother of Roberto C., Alvaro C., Cassandra L., and Anthony M. On August 25, 2000, Mother and the biological father (Father) of Anthony M. were arrested at their home by federal authorities on charges of drug possession and drug trafficking. The children, who ranged in age from nine months to eleven years, were taken into the custody of the Children, Youth and Families Department (CYFD). During the entire abuse and neglect proceedings, Mother and Father were incarcerated as federal prisoners. Although the children are United States citizens, both parents are Mexican Nationals.
{3} Following the arrest, CYFD filed petitions against Mother and Father alleging they had abused and neglected their children. At the custody hearing, the district court found both parents were unable to care for the children due to their incarceration. The district court ordered CYFD to retain legal custody, arrange for regular visitation, explore relative placement, and conduct a psychosocial evaluation of Mother and a paternity test on Father who denied being the natural father of Anthony M.
{4} At the adjudicatory hearing on October 16, 2000, Mother was represented by counsel and appeared by telephone, with the assistance of an interpreter. Mother pleaded no contest to the allegation of neglect based on Mother’s incarceration, under NMSA 1978, Section 32A-4-2(E)(4) (1999), and on concerns about substance abuse. The district court subsequently entered a judgment, finding that the children were neglected and ordering that legal custody remain with CYFD. A disposition order was entered on December 7, 2000; the district court adopted the findings of the predisposition study and treatment plan, but withdrew its previous order allowing Mother to have contact with the children, apparently in response to them wishes.
{5} On February 27, 2001, after the children were placed in relative foster care in Santa Fe, venue was transferred to the First Judicial District Court, and Mother was transferred from the Sandoval County Detention Center to the Santa Fe County Detention
{6} The first permanency hearing was held on August 21, 2001. Once again, Mother was not present, and although Quintana was present, he never spoke on her behalf. Instead, Father’s counsel, Art Michael, represented that he was speaking on behalf of both parents. Michael explained that Quintana had filed a transport order, but because both parents were in federal prison, they needed a writ of habeas corpus for their release to the hearing. He also stated that the social worker had provided him information to contact the federal marshal, and indicated that he would prepare the necessary paperwork so they could attend the next hearing. CYFD informed the court that it intended to change the permanency plan to adoption, since both parents were expected to serve long sentences in federal prison, and CYFD wanted them present for relinquishment counseling. CYFD also alerted the court that telephonic appearances might be necessary if the parents were moved to federal prison. A continuance was granted and the hearing was reset for September 18, 2001, to afford counsel more time to arrange for transporting the parents.
{7} Despite this accommodation, counsel failed to obtain a writ, and as a result, neither parent appeared at the September permanency hearing either. Speaking on behalf of both parents, Michael stated that he talked to the marshal, obtained the writs and instructions on how to prepare them, and that he understood the steps he needed to take to accomplish the task, but he did not do it. The court suggested that the parents could appear by telephone, but Michael rejected this alternative because “they want to be here,” and he assured the court that he would get them transported; “I’ve... just got to get the stuff done____So there is no excuse not to bring him here.” Without admonishing counsel or addressing the issue, the court reset the hearing for November 18, 2001. Although this Court was not provided a transcript of the November hearing, there is no indication that the situation improved: no writ was filed, counsel were not admonished, and the hearing was continued.
{8} Even by the fourth setting on January 8, 2002, nearly nine months after Quintana was appointed, Mother was still not present. In fact, counsel admitted he had never spoken to her and did not even know where she was incarcerated. Nor was Father present. Michael advised the court that Father had recently been sentenced to thirty-two months, had served roughly sixteen months of that sentence, and was incarcerated at La Tuna federal prison in Anthony, New Mexico-Texas. Astoundingly, even though he admitted that he had never talked to her federal defense attorney, Michael also represented that Mother pleaded to the same charges, and, while she was not yet sentenced, it was her second conviction, so she would be serving “a pretty good sentence.” The record indicates that Mother actually pleaded guilty on June 22, 2002, and was later sentenced to five years in federal prison, followed by four years probation, with credit for time served. Father was actually sentenced to thirty-seven months in federal prison.
{9} CYFD moved the district court to find that the presumption for return was rebutted due to incarceration and requested the court to change the plan to adoption, because Father had at least sixteen months to serve and Mother could get more time because she was facing a second conviction. Michael stipulated that the presumption was sufficiently rebutted, but asked that the reunification plan be continued because Father would be out in sixteen months. Quintana, who remained silent during most of the hearing, agreed with Michael’s representations and made no attempt to argue on behalf of his client. Based on counsels’ stipulation, the court found that the presumption was rebutted because both parents were incarcerated and changed the permanency plan to adoption; “[although 16 months is not very long in adult life, it is very long in a child’s life.”
{10} On March 7, 2002, CYFD filed a Motion for TPR. In the interim, a second
{11} A pretrial hearing was held on May 7, 2002. Quintana finally successfully obtained a writ of habeas corpus and Mother appeared at the hearing. Father appeared by telephone. The district court advised the parties of its primary concern that the children have permanency and stability in their lives. Mother informed the district court that she was not yet sentenced; she also requested visitation, submitted documentation of the several programs she had completed in jail, related that she and the children had exchanged cards and letters, and requested the district court to consider placing the baby with Father’s brother. As a result, the district court reinstated written contact between Mother and the children and ordered CYFD to make an individual assessment of whether visitation was appropriate for each child and to determine whether relative placement of the baby was viable.
{12} The TPR hearing for Mother was held on July 22, 24, and August 20, 2002. Mother was present and testified extensively over a three day period. CYFD called two witnesses, both social workers who were assigned to the case. The district court issued its decision, along with findings of fact and conclusions of law on September 13, 2002, finding that the children were abused and neglected as defined in the Children’s Code. The district court further found that efforts to reunite the family were impossible because of Mother’s incarceration as a federal prisoner since August 2000, and that visits were not recommended because of the disruptive effect on the children, as well as their placement.
Considering [Mother’s] history related to drug trafficking, considering the detriment to the relationship between [Mother] and the children resulting from her two incarcerations, considering the circumstances involving deportation which will exist once [Mother] is released from federal prison, considering the exposure to drug culture the children have experienced while in the care of [Mother], and considering the privation demonstrated by the children when they were first placed in petitioner’s legal custody, there is no reason to believe that [Mother] will overcome the causes and conditions of abuse and neglect of the children at any time in the foreseeable future[,] ... [and, under] [t]he circumstances in this case ... any efforts to reunite the children with [Mother] would be futile.
{13} The district court found adoption was in the childrens’ best interest: “[t]he children are currently placed in homes where they are well adjusted, where their needs are being met, and where they are likely to be adopted.” Further, the children “do not wish to return to Mexico,” and the older boys “wish to continue to live with their current foster parents.” Although the girl “desires to live with her siblings, ... she does not believe her mother should have a second chance to have the children placed with her.” The baby, who “has been placed in his current foster home for most of his life, has bonded to his foster mother, [and] does not remember his [Mother].” The district court concluded that termination was in their best interest and terminated Mother’s parental rights to all four children. Mother timely filed a notice of appeal from the final order
PRESERVATION
{14} CYFD urges this Court not to consider Mother’s due process claim because it was not preserved below. Although the argument made by counsel for Mother at the initial permanency hearing was not well articulated, we find the discussion regarding due process was sufficient to alert the district court to a due process claim. At the permanency hearing on January 8, 2001, CYFD requested the district court to find that the presumption of return was rebutted and to change the permanency plan to adoption because Mother and Father were incapable of earing for their children in the foreseeable future due to their incarceration and the expectation that they would serve lengthy sentences of sixteen months or more. CYFD argued that, under New Mexico case law, Mother’s absence from the permanency hearing did not raise any due process concerns, so long as she received due process at the TPR hearing. Michael, who was speaking on behalf of both parents, stipulated that they were in jail but objected to a change in the permanency plan. Michael stated that he did not know about the cases which CYFD referred to regarding due process but he argued that it was “ridiculous” to change the plan because “this guy has had nothing from his lawyer, from the courts, from anything.” Quintana agreed, but chose not to argue the point any further. The district court did not respond to the arguments on the record. While it was advisable for counsel to request a ruling on the issue, their failure to do so is not fatal to Mother’s claim.
{15} Quintana raised the due process claim again at the TPR hearing. At closing, he argued that termination was improper because Mother was denied her due process right to participate in the earlier hearings. The court ruled that the claim was precluded by the fact that Mother was present at the TPR hearing to defend against the charges, and because Mother’s absence was based on ineffective assistance of counsel, not due process. Under these facts, we find that the court was sufficiently alerted to the claimed error and that Mother preserved her claim. See Rule 12-216(A) NMRA 2004; Madrid v. Roybal,
DUE PROCESS
{16} As a starting point, we note that Mother does not challenge the sufficiency of the evidence in support of the termination of her parental rights. Mother’s claim is that due process rights attach at the permanency hearing and that proceeding with these hearings in her absence, especially in the face of counsel’s gross incompetence and acknowledged inability to defend her at the permanency hearing, violated her due process right to be heard at a meaningful time and in a meaningful manner, increasing the risk of an erroneous decision at the permanency hearings and the TPR hearing.
STANDARD OF REVIEW
{17} New Mexico parents have a due process right to participate meaningfully in TPR hearings, including the right to present evidence on their behalf and the right to review and challenge the evidence presented against them. State ex rel. Children, Youth & Families Dep’t v. Lorena R.,
STATUTORY RIGHTS IN NEGLECT AND ABUSE PROCEEDINGS
{18} The Abuse and Neglect Act details the procedures and timelines the State must follow when it invokes the jurisdiction of the district court to take physical and/or legal custody of a child whom it alleges to be abandoned, neglected, or abused. NMSA 1978, §§ 32A-4-1 to -33 (1978, as amended through 2003) (Abuse and Neglect Act). To place the permanency hearings in context, we briefly describe the general course of these proceedings. CYFD must file a petition within two days after it takes custody of a child for neglect or abuse by a parent. § 32A-^F-7(D). A custody hearing is held within ten days of filing to determine whether CYFD should retain legal custody pending
{19} Within six months of the judicial review, an initial permanency hearing is held to determine permanent placement of the child. § 32A-4-25.1(A). The district court considers whether the best interest of the child is served to return home, adoption, or other permanent placement. § 32A-4-25.1(D). There is a rebuttable presumption that the child’s interest will be best served by returning the child to the natural home. § 32A-4-25.1(B) (parental presumption). If CYFD fails to rebut the presumption by a preponderance of the evidence, the court may either dismiss the case and return the child home or maintain legal custody of the child with CYFD and continue the reunification plan for up to six months. § 32A-4-25.1(C). If CYFD rebuts the presumption, however, the court must change the permanency plan to adoption or other permanent placement. § 32A-4-25.1(D).
{20} If the plan is not changed or a TPR motion is not filed, a second permanency hearing must be held within three months. § 32A-4-25.1(D), (E). At this stage, the presumption is that adoption or other permanent placement is in the child’s best interest. § 32A-4-25.1(E). If the parents fail to rebut this presumption by a preponderance of the evidence, the district court must enter an order changing the plan to adoption and relieving CYFD of any further efforts to reunite the child and parent. § 32A-4-25.1(F). If the presumption is rebutted, the child can be returned and the case dismissed or the child can remain in CYFD’s custody and the plan for reunification continued for not more than six months. § 32A-4-25.1(G)
{21} Parents do not have an unlimited time to rehabilitate and reunite with their children. Under the federal Adoption and Safe Families Act (ASFA), states receive fifteen months of “time-limited reunification services” and must move quickly to find permanent placement for children. See 42 U.S.C. § 629a(a)(7)(A) (2000); see also State ex rel. Children, Youth & Families Dep’t v. Patricia H.,
{22} Barring exceptional circumstances, the Abuse and Neglect Act requires a termination motion to be filed when the child has been in foster care for fifteen out of twenty-two months. § 32A-4-29(A), (K). Parental rights may be terminated when the court finds that (1) the child has been abandoned, neglected, or abused by his or her parents; (2) those circumstances are unlikely to change in the foreseeable future, despite reasonable efforts by CYFD to assist the family; and (3) further efforts would be futile. § 32A-4-28(B). Because a TPR hearing irrevocably divests parents of all legal rights in them children, we require a more formal hearing, and CYFD carries the burden of proof by clear and convincing evidence. § 32A~4-29(M); see State ex rel. Children, Youth & Families Dep’t v. Vanessa C,
{23} The express purpose of the Abuse and Neglect Act is to: (1) make the best interest of the child paramount; (2) preserve the unity of family, to the maximum extent possible; and (3) to assure that “the parties [receive] a fair hearing and their constitutional and other legal rights are recognized
PARENTS ARE ENTITLED TO DUE PROCESS AT THE PERMANENCY HEARINGS
{24} Although we give substantial weight to the judgment of our legislators that the procedures they have provided assure fundamental fairness, see Mathews v. Eldridge,
{25} The statutory scheme which our legislature enacted to protect children and adjudicate parental rights represents a continuum of proceedings which begins with the filing of a petition for neglect or abuse and culminates in the termination of parental rights. Watson v. Div. of Family Servs.,
{26} The essence of due process is notice and “an opportunity to be heard at a meaningful time and in a meaningful manner.” Mafin M.,
{27} To be heard at a “meaningful time” in the context of a multi-stage criminal proceeding, both the United States Supreme Court and the New Mexico Supreme Court have recognized that due process attaches at critical stages in the proceedings. See, e.g., Rushen v. Spain,
{28} Because the process due reflects the nature of the proceeding and the interests involved, we have no doubt that a parent, like a criminal defendant, has a constitutional right to fair notice and an opportunity to participate in all critical stages of abuse and neglect proceedings. Critical stages in abuse and neglect cases, as in criminal cases, include proceedings that threaten a parent’s liberty interest in raising their child or provide an early opportunity to prepare and mount a defense or affect vital statutory rights. See Santosky,
{29} Permanency hearings can represent a critical stage in all three regards. The permanency hearings are a crucial juncture in abuse and neglect proceedings that might very well lead to profound consequences for' the parent-child relationship. Even though parental rights are not irrevocably decided at a permanency hearing, the general purpose of these hearings “is to compel a resolution of the case so the child does not remain indefinitely in the system.” New Mexico Child Welfare Handbook, supra § 19.1 (internal quotation marks omitted). As a result of these hearings, the district court adopts a permanency plan with a goal of reunification, adoption, or other permanent placement. Id. § 19.8.2. If the court does not adopt a permanency plan or make the reasonable efforts determination at the first hearing, a second hearing is held to decide which permanency plan is in the child’s best interest and whether further efforts to reunite the family are required. Id. §§ 19.9.1, 20.1. Once the plan is changed to adoption or other permanent placement outside the home, however, a motion for termination of parental rights is inevitable. See id. § 19.8.2.
{30} Permanency hearings not only threaten substantial prejudice to parental rights, they bear a direct relation to the TPR hearing. The motion to terminate is based largely on conduct between the petition and the permanency hearing. Watson,
{31} Permanency hearings might also impact vital statutory rights. At the first hearing, there is a parental presumption; the presumption shifts to adoption at the second hearing. Depending on their compliance with the treatment plan, a parent might avoid the loss of parental rights at either hearing by having the case dismissed and the child returned to them. If an immediate return home is not recommended, parents can invoke the discretion of the district court to continue the reunification plan, so long as the child can be returned home in the near future. Parents can also request additional services or contact with the child to improve their chances for reunification. On the downside, parents risk the loss of any further assistance from CYFD and loss of their child if the plan is changed to adoption. A loss of services and a change of plans from reunification without an opportunity to hold the State to its burden or defend at this early stage is likely to be prejudicial to a parent.
{32} We emphasize that unlike a criminal case, the parents and the State share an interest in informed decisions regarding the parent-child relationship. Santosky,
{33} Nonetheless, we are mindful that the “privilege of presence is not guaranteed when presence would be useless, or the benefit but a shadow.” Stincer,
{34} These opportunities can be particularly important because termination proceedings are largely based on the parent’s conduct from the time the child is taken into custody until the court decides further assistance to the parent is futile. Watson,
{35} Nonetheless, we are mindful that the TPR hearing is the final checkpoint for parental rights in these proceedings. In Vanessa C., we held that the failure to take formal testimony from witnesses at the judicial review stage did not deprive the mother of a fair trial.
MOTHER WAS NOT DENIED DUE PROCESS UNDER THE MATHEWS TEST
{36} Although we have determined that there generally exists a due process
{37} Due process is not an abstract or static principle “unrelated to time, place and circumstances[;]” it is a flexible right that “calls for such procedural protections as the particular situation demands.” Mathews,
{38} The crux of Mother’s claim is that her absence from both hearings and her inability to consult with counsel prior to the second hearing, increased the risk of an erroneous decision at the permanency hearing, and also increased the risk at the TPR hearing by interfering with her ability to avoid termination and improve her chances of reunification early on in the proceedings. More specifically, she argues that the risk of error was increased by her inability to: (1) present and cross examine witnesses or otherwise mount a defense at the permanency hearings, (2) invoke the court’s discretion to obtain services and reinstate visitation or contact with the children to improve her chances of reunification, (3) demonstrate her efforts to fulfill her parental obligations while she was incarcerated, and (4) give the court an opportunity to evaluate her sincerity. Mother argues that her window of opportunity to avoid termination was effectively lost by the time of the pretrial conference when termination was imminent. She urges that the risk could have been reduced if the court had disciplined or removed counsel when it became apparent that he could not secure her presence at the first permanency hearing. The question for this Court then is whether Mother’s absence from the permanency hearings substantially increased the risk of an erroneous deprivation through the decision to change the plan to adoption or, ultimately, terminate parental rights, and whether disciplining or removing counsel from the ease to ensure her presence at an earlier time might have changed these decisions.
{39} As we have stated, there is a substantial relation between the permanency hearings and the TPR hearing. The critical decision at the permanency stage is the proposed permanent placement of the child.
{40} Mother theorizes that the risk of an erroneous decision increased because she did not have the opportunity to present evidence or cross examine witnesses at the permanen'ey hearing. Yet, she has not identified any witnesses or substantive evidence to support her claim that the adoption plan or TPR might have been avoided had these additional procedures been available. Most critically, Mother had a full opportunity to present evidence and cross examine witnesses at the TPR hearing; she testified extensively over three days and cross examined the two social workers who testified on behalf of CYFD, and she concedes that there was evidence to support each of the court’s findings. Yet, these findings are substantially the same facts that were in the record at the permanency hearings, and we fail to see how she could have defended against them differently then.
{41} It is also unlikely that the risk of error increased because she was unable to obtain additional services. Although this may be true in the abstract, the district court here was effectively powerless to order any treatment programs or services for Mother, even if she was present to request them. The record indicates that services are not available to federal prisoners until they are transferred to a federal facility. Mother was in federal custody at the Sandoval County and Santa Fe County jails during these entire proceedings. So far as’ we can determine, she was unable to participate in any programs that could have been initiated, regardless of what the district court ordered.
{42} Moreover, Mother did avail herself of services in jail and the district court was aware of her efforts to rehabilitate well before the first setting in August 2001. The social worker’s report which was submitted for the judicial review hearing on July 24, 2001, indicates that as of March 2001 Mother had completed her GED, learned computer skills, and was studying English. Counsel also informed the district court of Mother’s efforts at the second permanency hearing in April 2002 and Mother supplemented and documented this information at the pretrial conference in May. Mother also testified extensively about her accomplishments and goals at the TPR hearing. While her efforts are admirable, unfortunately, all the efforts and sincerity in the world could not alter the harsh reality of- her long-term incarceration and inability to care for her children within the required time period.
{43} We also find it unlikely that the outcome would have been different if Mother had been present to request visitation. The district court’s standing order was to allow supervised visitation at CYFD’s discretion. The record reflects that Mother had one visit with the children in jail but that visitation was rescinded because the children did not want to see her. Mother also had supervised telephone contact with the children between February and March 2001, but that was discontinued because of the increasingly negative effect it had on the two children who participated and because the oldest child did not want to speak with her.
{44} Further, as early as the September 18, 2001, permanency hearing, the social worker who personally met with Mother in jail advised the district court that Mother wanted to visit her children, but that visits were logistically difficult and potentially adverse to their best interest at that time. The children were in three separate foster homes: one in Taos, two in Santa Fe, and one in Moriarty. The two older boys did not want to visit Mother and displayed significant behavioral problems. The ten year-old girl, who did want to visit Mother, was in treatment foster care because of sexual abuse
{45} In balancing the interests and assessing the risks, we are also mindful of the child’s interest in a timely and permanent placement. See Mafin M.,
{46} Consequently, no matter what her defense, or what services she received, or efforts she made, or sincerity she had, the overwhelming obstacle in this case for Mother was that the children would be in foster care for well over five years until she could be available to care for them, with no guarantees that placement with Mother after her release would be in their best interest. This impediment, compounded by the poor parenting history, a four year absence due to a past incarceration, the marked privation of the children when they were taken into CYFD custody, and the prospect of deportation after her release, made the risk of error due to her absence minimal. The fact is Mother could not take the children in August 2001 or even in July 2002, and she would not be able to take them at any time in the near future.
{47} For all of the reasons indicated above, we conclude that there would be little, if any, value in disciplining or even removing counsel as Mother advocates. The facts in this case sealed the family’s fate, not Mother’s presence or absence at the permanency hearings. Accordingly, we find no due process violation under the circumstances of this case.
{48} Nevertheless, we have grave concerns over the conduct of counsel in the proceedings below. Due process encompasses a parent’s Sixth Amendment right to effective assistance of counsel at abuse and neglect proceedings. See Vanessa C.,
{49} Both counsel for Mother and Father knew by August 2001 that the only way to
{50} It is also incumbent on the State to ensure that scrupulously fair procedures are followed when it interferes with a parent’s right to raise their children. Lorena R,
{51} Although CYFD did provide notice to counsel, they were well aware that counsel was not relaying that information to Mother and that counsel was having difficulty in even locating her. The record indicates that CYFD knew where Mother was at most relevant times and met with her in jail at least twice, yet there is no indication that CYFD made any effort to notify her directly of the hearings, disclose her whereabouts to counsel, or assist in securing her presence at the hearing, beyond the mere disclosure of a telephone number and contact person. A constitutional duty does not end simply because notice is given to opposing counsel, where the party charged with giving that notice has reason to believe that the notice is effectively inadequate. CYFD had an affirmative duty to make reasonable efforts to ensure that parents have actual notice of the hearings and an opportunity to attend. While we do not expect CYFD to act as Mother’s counsel, we remind counsel that their role as an attorney for CYFD is analogous to the role of prosecuting attorneys. The prosecutor’s “obligation is to protect not only the public interest but also the rights of the accused.” Id. (internal quotation marks and citation omitted). Similarly, CYFD “must seek not only to protect the children involved; they must see to it also that the parents are dealt with in scrupulous fairness.” Id.
{52} In the final analysis, however, it is the district court that is charged with protecting a parent’s due process rights. Id. The district court has an affirmative duty to ensure the parents due process rights are protected from the initiation of abuse and neglect proceedings, not just at the end. See Rosa R,
SUFFICIENCY OF EVIDENCE AT THE INITIAL PERMANENCY HEARING
{53} Lastly, to the extent Mother argues that the district court improperly found the parental presumption was sufficiently rebutted by CYFD at the first permanency hearing based solely on the judicial notice it took of her incarceration, we disagree. Mother correctly points out that incarceration by itself is an insufficient reason to terminate custody. Joe R.,
{54} Even at the initial permanency hearing in January 2002 the district court noted and counsel stipulated that neither parent could receive their children. Father was expected to be incarcerated for another sixteen months, and Mother, in fact received a nine year sentence — five years in prison and four years of probation. At that time, the children were already in foster homes for seventeen months, well beyond the statutory time limit to file for termination of parental rights, and they would be in foster care for at least three years before they could be returned to their parents, barring deportation and assuming they were fit. § 32A-4-29(K). Moreover, the biological fathers of the three older children could not be located, and the only suitable relative placement was unsuccessful. The bare fact was that the district court had no option but to change the permanency plan to adoption because no one was available to care for the children.
{55} In light of the foregoing, we affirm the decision of the district court below and find no due process violation.
{56} IT IS SO ORDERED.
Notes
. Although California has a somewhat different procedure for TPR hearings than New Mexico, we suspect the court’s observation is effectively the same for many parents facing a termination of parental rights hearings in New Mexico.
. In this regard, our analysis is different from a harmless error analysis which is an "outcome-based search for actual prejudice,” rather than an interest analysis under Mathews that looks to whether the error produced an unjustifiable risk of an erroneous decision. D.M. v. Div. of Family & Youth Servs.,