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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Adoption of L.E.K.M. (5/30/2003) sp-5695

Adoption of L.E.K.M. (5/30/2003) sp-5695

     Notice:  This opinion is subject to correction before
     publication in the Pacific Reporter.  Readers are
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ADOPTION OF                   )    Supreme Court No. S-10199
L.E.K.M.                      )    Superior Court No.
                              )    3AN-99-1496 PR
A Minor Child Under the Age        )
of 18 Years.                                 )    O P I N I O N
________________________________)  [No. 5695 - May 30, 2003]

          Appeal from the Superior Court of the State
          of Alaska, Third Judicial District,
          Anchorage, John E. Reese, Judge.

          Appearances:  William Grant Callow, Law
          Offices of W. Grant Callow, Anchorage, for
          Appellants.  Vanessa H. White and Lynda A.
          Limon, Anchorage, for Appellees.

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

          CARPENETI, Justice.


          Mona and Jules M.1 and Emma and Rod M. appeal the

superior court's dismissal of their adoption petitions and the

award of primary legal and physical custody of their

granddaughter and niece to Elsa and Dillon C., family friends.

They ask us to apply the relative-placement preference found in

AS 47.14.100(e) to the adoption proceedings and argue that the

superior court made erroneous factual and legal findings.

Because AS 47.14.100(e) has previously been held not to apply to

adoption proceedings, and because we find no clear error or abuse

of discretion, we affirm the decision of the superior court.


          This case is a contested adoption proceeding in which

three different married couples are seeking to adopt Lucy M., an

orphan.  The first couple are Lucy's paternal grandparents,

appellants Jules and Mona M.  The second couple are Lucy's

paternal aunt and uncle, appellants Emma and Rod M.  The third

couple, who have had custody of Lucy since she was orphaned, are

appellees Elsa and Dillon C., Lucy's mother's best friends and

Lucy's day care providers when her parents were alive.  All the

parties live in Anchorage.

          The case arises out of a tragic murder-suicide on July

24, 1999 in Anchorage.  Cole M. shot and killed his girlfriend,

Sally D., and then himself.  Sally's body fell on and smothered

their three-and-a-half-month-old daughter Dolly M.  Only Dolly's

identical twin sister Lucy survived.  Anchorage police placed

Lucy with Elsa C. at the advice of Sally's stepfather.  The

police also filed a Report of Harm with the Division of Family

and Youth Services (DFYS) on July 26, 1999.  DFYS decided to take

legal custody of Lucy, but left her in the home of the C.s,

probably because Elsa C. had been Lucy's full-time day care

provider during the previous month and because Sally D. had left

the twins with Elsa on several overnights, whereas the M.s had

not had similar contacts with Lucy on a daily or overnight basis.

Lucy was adjudicated a child in need of aid (CINA) on August 23,


          After intervening in the CINA case, the C.s filed a

petition for adoption in November 1999.  The elder M.s cross-

petitioned for adoption in January 2000 and filed a Motion for

Order Vacating the CINA Adjudication and Directing that the Child

be Placed with her Relatives.  The younger M.s filed a cross-

petition for adoption in February 2000.

          A hearing was held on February 3, 2000 to determine the

course of the case, and at that time the parties agreed that

because there were three families eager to adopt Lucy, the

involvement of DFYS in her case was not necessary.  The CINA case

was therefore closed.  An interim custody order provided that

Lucy spend five days per week with the C.s and two days with all

of the M.s, which was a continuation of the visitation schedule

that had been designed cooperatively by the parties shortly after

the deaths of Lucy's parents.

          Superior Court Judge John E. Reese heard the adoption

trial over seven days in April 2001.  At the close of trial,

Judge Reese found that all parties would have made fine parents,

making the final decision "as hard as anything I've ever had to

deal with here."  In its findings of fact and conclusions of law,

the superior court found that the C.s were Lucy's "home base" but

that Lucy also had a vital relationship with the M.s and must not

be prevented from seeing them.  Accordingly, the court found,

pursuant to AS 25.23.120(d),2 that it was in Lucy's best interest

to dismiss the adoption petitions and enter an order granting

primary legal and physical custody to the C.s and weekly

visitation to the M.s as a group.  This appeal of the adoption

case followed.


          An adoptive placement determination should be reversed

only when "the record as a whole reveals an abuse of discretion

or if controlling factual findings are clearly erroneous."3  The

trial court abuses its discretion if it considers improper

factors, fails to consider relevant statutory factors, or assigns

disproportionate weight to some factors while ignoring others.4

In an adoption case, the court's factual findings are reviewed

under the "clearly erroneous" standard.5  A finding is clearly

erroneous when "a review of the entire record leaves us firmly

convinced that a mistake has been made."6

          We do not review issues not raised at trial except for

plain error, that is, " `where an obvious mistake has been made

which creates a high likelihood that injustice has resulted.' "7

          We apply our independent judgment to questions of law

and "adopt the rule of law most persuasive in light of precedent,

reason, and policy."8


A.             Alaska Statute 47.14.100(e)(1) Cannot Be Imported
          into AS 25.23.120.
          The M.s contend that we should develop Alaska law by

holding that AS 47.14.100(e)(1),9  (1) makes a determination,

supported by clear and convincing evidence, that placement of the

child with the relative will result in physical or mental injury

. . . . which generally prohibits the foster placement of a child

who has relatives (by blood or marriage) who are willing to care

for the child, must be applied to AS 25.23, which governs

adoption procedures.  On this basis, they request that we reverse

the trial court's determination and instead grant adoption of

Lucy to them.10  This argument is frequently made in adoption

proceedings regarding children in need of aid, and we have

repeatedly found that "there is no . . . blood-relative

preference in adoption cases."11  Alaska Statute 47.14.100(e) is

limited by AS 47.14.100(f), which states in part, "[n]othing in

this subsection or in (e) of this section applies to child

placement for adoptive purposes."   Subsection 100(e) allows

blood relatives to petition for initial placement of a child in

need of aid, and in W.E.G. we held that grandparents wishing to

exercise this preference should petition DFYS for custody or ask

for de novo review of DFYS's decision if their request is denied.12

Subsection 100(e) binds only DFYS; we have held that the

interests of the child in need of aid require the application of

different statutory standards from those in other family law

situations.13  Just as children in need of aid may have

relationships with foster parents that may need to be protected

by the state in adoption proceedings, we have also held that a

non-relative with a significant relationship to a child may have

equal standing with the child's own parent to request custody of

the child before the court.14  In a private adoption case, such as

this one became after the CINA case was dismissed, there are many

reasons why the court may perceive adoption by a non-relative to

be in the best interest of the child,15 and we see no basis on

which to interfere with the statutory scheme as it exists.

          The M.s also contend that because it was never shown

clearly and convincingly that placement of Lucy with them, her

blood relatives, would result in physical or mental injury to her

under AS 47.14.100(e), the superior court erred in awarding

custody to the C.s, who are not relatives.  However, as explained

above, AS 47.14.100(e) does not apply to this case, and therefore

the "clear and convincing" showing of "physical or mental injury"

is not applicable.  In an adoption case, the relevant factors are

the consent of the parents and the best interests of the child.16

          Finally, the M.s argue that the failure to enter an

adoption order in the case has resulted in a foster care

situation, that the C.s are not licensed foster parents, and that

they do not meet any of the exceptions established in AS

47.35.015(b) for unlicensed day care providers.  Foster care

arrangements are created by DFYS pursuant to AS 47.14.100, not by

judges in adoption cases pursuant to AS 25.23.120(d).  The

superior court's order did not violate any foster care statute.

B.             The Superior Court Did Not Clearly Err in Its
          Factual Findings.
          The M.s challenge two of the superior court's factual

findings as clearly erroneous.  Because a review of the entire

record does not leave us firmly convinced that a mistake has been

made in either instance, we reject the challenge.

1.                       Dillon C.'s teenage mental health

          The M.s argue that the superior court was clearly

erroneous in its finding that aspects of Dillon C.'s mental

health history, which involved in- and out-patient treatment for

post-traumatic stress disorder in 1990, were "treated and no

longer an issue" at the time of trial.  The M.s argue that, based

on later incidents in which Dillon C. shouted at co-workers

(incidents for which he was dismissed from his job but later re-

hired by the same employer), it was error for the court to find

that Dillon C.'s mental health poses no obstacle to the custody

order that the court entered.  The superior court's finding was

supported by the testimony of a psychologist, Dr. Harper, who

evaluated Dillon C. and testified that Dillon did not suffer from

a personality disorder or any other condition affecting his

ability to be a parent.  The finding was not clearly erroneous.

          The M.s attack Dr. Harper's involvement with the case

on several grounds:  that he gave Dillon C. the MCMI-III

personality test instead of the MMPI-II test, that he read only a

small part of Dillon's 500-page file from his treatment at

Charter North, that he did not disclose that he was briefly

involved with  Dillon's treatment there, and that he was added to

the witness list late.  However, there was evidence that tended

to show that the MCMI-III test was the more appropriate test

because of Dillon's prior medical history and that Dr. Harper

read the most important parts of a file that spanned five months

of ongoing treatment and would have included any reports on art

therapy and blood medication level checks.  Moreover, the

superior court denied the M.s' motion to preclude Dr. Harper from

testifying at trial, finding that all parties had submitted their

witness lists late, that they had known of Dr. Harper's

involvement in the case for months, that the failure to disclose

Dr. Harper's involvement in Dillon's 1990 treatment revealed no

ethical breach but rather a memory lapse, and that the M.s'

objections went to the weight of his testimony rather than its

admissibility.  We find no error in the superior court's

treatment of the issues surrounding Dr. Harper's testimony.

                    2.   Adequate income

          The M.s allege that the court's finding that the C.s

were financially able to care for Lucy was clearly erroneous.

They contend (1) that the custody investigator did not fully

analyze the C.s' financial status, (2) that the C.s generally had

low balances in their checking account, and (3) that their

adoption home study was not current and it thereby failed to

provide adequate financial information.  We reject their claim of


          First, while the custody investigator merely stated her

conclusion that all the competing families could meet Lucy's

material needs, the author of the adoption home study devoted

sufficient attention to the financial issues.  She reported that

both Elsa and Dillon were employed, found that they provided a

clean and comfortable home on their present resources, and noted

that they had been referred to the local WIC (Women, Infants, and

Children) program that provided assistance in meeting children's

nutritional needs.  The adoption home study similarly concluded

that the C.s provided a suitable home.  The court had adequate

information on this issue.

          Second, that the balances in the C.s' bank accounts at

any one time were low is not indicative of their ability to

provide for Lucy.  What is important is that they did provide for

the child's needs.  Based on the evidence before it, the superior

court did not clearly err in finding that they did provide for

the child's needs.  The law requires no more than that the

proposed parents be able to meet the child's basic needs.17  At

the time of trial, Elsa C. had a home day care business, and

Dillon C. made about $18.50 per hour at his full-time job.

          Finally, the M.s misinterpret the relevant law

regarding home studies.  Alaska Statute 25.23.100(e), which the

M.s rely upon in arguing that the home study was not current,

requires only that a home study be performed within thirty days

of the selection of the person who will perform the study, not

within thirty days of the final adoption hearing.  The M.s have

made no showing that this requirement was not met.18

          The M.s have not shown that the superior court clearly

erred with regard to any finding that concerned the adequacy of

the C.s' income.

     C.   The Superior Court Did Not Abuse Its Discretion in
          Making the Custody Determination.
          The M.s argue that the superior court abused its

discretion in several respects.  We consider each argument in


          1.   The importance of a child's "kinship circle"

          The M.s argue that in not granting their adoption

petition, Judge Reese did not place enough importance upon the

evidence presented by their experts that adopted children fare

best among their "kinship circle," where they may develop a

stronger sense of family history, genetics, and identity


          The superior court took the kinship circle argument

seriously, and cited its importance in the opinion.  However, the

superior court also found that "[Sally D.] is as important to

[Lucy] as [Cole M.]."  The evidence tended to show that the M.s

knew little about Lucy's mother and maternal family, whereas Elsa

C. had grown up with Sally D. as children, still kept in contact

with her family, and had been close to Lucy's parents when they

were alive.  The superior court heeded the family circle

argument, but recognized that Lucy had two family circles.  By

necessity, her kinship relationship with one of those families

will have to be met through visitation rather than primary

custody.  We do not find an abuse of discretion on this point.

2.                       Primary caregiver preference
          The M.s contend that Judge Reese gave custody to the

C.s "simply because they have been her primary caregivers since

the death of her parents and [she] might experience some

emotional trauma if transitioned into the care of the [M.]

Family."  They point out that although "the length of time the

child has lived in a stable, satisfactory environment and the

desirability of maintaining continuity"19 is one of the statutory

best-interest factors in determining child custody, nonetheless

we have held that the trial court cannot simply assume that the

current primary caregiver is automatically the best caregiver for

the child.20  However, the issue was not merely primary

caregiving, but whether removing Lucy from the primary custody of

the people with whom she had spent twenty-one of her twenty-four

months would be unnecessarily traumatic for her, especially since

she had already lost one set of parents.  The record shows that

the superior court carefully questioned in voir dire each expert

who testified on child psychology about the possible effects on

Lucy of being separated from the C.s, and overruled objections to

such questions when asked.21        In contrast, this is an

adoption contest being adjudicated under child custody

principles, and the parties are free to prove "the length of time

the child has lived in a stable, satisfactory environment and the

desirability of maintaining continuity" in any way they see fit,

which need not necessarily include experts.  There were several

witnesses in this case who testified from personal experience to

Lucy's attachment to the C.s, including the custody investigator,

and Dr. Edney claimed only to testify as an expert regarding

child psychology principles in general.  Expert witnesses are

entitled to testify from facts made known to them at the hearing.

Alaska Rule of Evidence 703.  See also J.A. v. State, DFYS, 50

P.3d 395, 400 (Alaska 2002) (emphasizing that even in ICWA case,

lack of pretrial interview not determinative of whether experts'

testimony sufficient to support finding of harm).  There was

evidence in the record to support a conclusion that the transfer

of custody could be risky, and such trauma is properly considered

during a custody determination under AS 25.24.150(c)(5).22  We

find no abuse of discretion on this point.

3.                       Overreliance on custody investigator's
          The M.s contend that it was an abuse of discretion for

Judge Reese to rely on and "effectively adopt[]" the custody

investigator's recommendation on custody.  The M.s allege that

the report of Pamela Montgomery, A.C.S.W., the custody

investigator, was "improperly biased and fundamentally

unreliable" because she was not qualified to assess whether Lucy

would be harmed by a gradual removal from the custody of the C.s.

However, Montgomery was properly qualified under Alaska Rule of

Civil Procedure 90.6 governing child custody investigators, and

two of the three expert witnesses testified that removal from

primary parental bonds puts children at risk for developmental

and attachment difficulties.  There is no evidence showing that

the superior court relied on Ms. Montgomery alone in making its

determination on this point.23

          The M.s also allege that Montgomery was biased against

them because the C.s' former lawyer mailed Montgomery a copy of

the W.E.G. case.24  They suggest that Montgomery, after reading

W.E.G., became  overly concerned that the C.s would have no

standing to ask for visitation if the M.s' adoption petition were

granted, and that Montgomery's participation in this ex parte

communication was unethical.  However, Montgomery's written

report states that her primary concern in recommending that Lucy

be placed with the C.s was that she did not want Lucy to suffer

yet another loss of attachment with a primary caregiver.

Moreover, Alaska Rules of Civil Procedure 90.6(d)(3)25 and

90.6(g)(1)26 suggest that ex parte communication between the

custody investigator, the parties, and their attorneys is not per

se unethical.  Civil Rule 90.6(b)(1)(E)27 also requires a

qualified custody investigator to have knowledge of relevant

Alaska statutes and rules relating to custody determinations.  We

find no abuse of discretion here.

          The M.s also contend that Montgomery's report was

inaccurate and suffered from deficiencies on several points,

including whether Lucy shared a bedroom in the C.s' home.  The

allege that the report failed to include Dillon C.'s full

criminal history, failed to contain interviews with prior

domestic partners, and contained errors made by a private

investigator about the M.s.  None of this information was

dispositive for Montgomery or any of the experts who testified,

and there is no support in the record for the proposition that

the superior court abused its discretion in considering

Montgomery's report.  The record shows that the court shared the

custody investigator's concern that a third family placement for

a two-year-old could be damaging to her emotional health, and

consulted all the experts available to him at trial while

deciding not to take that risk.  We find no abuse of discretion

on this point.

4.                       Dillon C.'s relationships with his other
          The M.s contend that because Dillon C. has ceased to

have meaningful contact with one of his three biological

children, it was an abuse of discretion for the superior court to

grant Elsa and Dillon C. custody of Lucy.  Dillon C.'s

relationship with Lucy is the one that is relevant for the

purpose of determining her adoption and custody, and evidence

supported the contention that their relationship was active and

appropriate.  We find no abuse of discretion.

5.                       Health insurance
          The M.s claim that it was an abuse of discretion for

the superior court to grant the C.s custody instead of adoption,

claiming that only if Lucy had been adopted would she have been

eligible for coverage by the C.s' health insurance under AS

21.36.095.  However, the M.s introduce no evidence that Lucy has

in fact been denied health insurance coverage under any policy

held by the C.s.  Although 7 Alaska Administrative Code (AAC)

56.660(b)(15)28 does state that insurance is a factor to be

considered in an adoption home study, there is nothing to

indicate that health insurance should be the overriding factor in

the best-interests determination for the judge.  We find no abuse

of discretion on this score.V.     CONCLUSION

          Because the superior court's factual findings were not
shown to be clearly erroneous, because the superior court did not
abuse its discretion in its placement decision, and because the
superior court correctly applied the applicable law, we AFFIRM
the decision of the superior court in all respects.
1    Pseudonyms have been used throughout this opinion for the
2    AS 25.23.120(d) provides: "If the requirements for a decree
under (c) of this section have not been met, the court shall
dismiss the petition and determine, in the best interests of the
minor, the person including the petitioner to have custody of the
minor."  AS 25.23.120(c) states that the judge may grant the
petition for adoption if all necessary parties consent and if it
is in the best interest of the child.
3    L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946,
950 (Alaska 2000).
4    West v. West, 21 P.3d 838, 841 (Alaska 2001).
5    In re J.J.J., 718 P.2d 948, 957 (Alaska 1986).
6    West, 21 P.3d at 841.
7    D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001) (quoting
Sosa v. State, 4 P.3d 951, 953 (Alaska 2000)).
8    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
9    AS 47.14.100(e)(1) provides:

          A child may not be placed in a foster home or
          in the care of an agency or institution
          providing care for children if a relative by
          blood or marriage requests placement of the
          child in the relative's home.  However, the
          department may retain custody of the child
          and provide for its placement in the same
          manner as for other children if the
10    The M.s did not make this argument at trial, apparently
recognizing that Title 47 of the Alaska Statutes, dealing in
relevant part with children in need of aid, is very different
from Title 25, dealing in relevant part with adoption.  This
court does not review issues not raised at trial except for plain
error.  D.J., 36 P.3d at 667-68  (explaining that plain error
exists " `where an obvious mistake has been made which creates a
high likelihood that injustice has resulted' " (quoting Sosa, 4
P.3d at 953)).  The failure of the trial court to import an
unrelated statute into the adoption proceedings cannot be plain
11    In re W.E.G., 710 P.2d 410, 413 (Alaska 1985) (specifically
declining to give grandparents of children in need of aid
preference over foster parents for adoptive purposes, instead
remanding to trial court to consider best interest of child).
See also P.M. v. State, Dep't of Health & Soc. Servs., Div. of
Family & Youth Servs., 42 P.3d 1127, 1136-37 (Alaska 2002);
S.S.M. v. State, Dep't of Health & Soc. Servs., Div. of Family &
Youth Servs., 3 P.3d 342, 345-46 (Alaska 2000).
12    710 P.2d at 413.  The M.s also argue that AS 47.14.100(f)
should not be applied to Lucy's case because they claim her
placement by DFYS was not a properly adoptive one.  However,
W.E.G. makes clear that any errors made by DFYS are properly
appealed from the CINA case, not this adoption case: "the
grandparents did not request de novo review of the Division's
original inaction on their request to become the boys' foster
parents.  That issue is therefore not before us."  Id.  The M.s
stipulated to the dismissal of the CINA case; any appeal of
DFYS's decision should have occurred at that time.
13    See In re Adoption of B.S.L., 779 P.2d 1222, 1226-27 (Alaska
1989) (observing that adoption and child-in-need-of-aid
proceedings serve different purposes justifying use of different
statutory standards for termination of parental rights).
14    Buness v. Gillen, 781 P.2d 985, 988 (Alaska 1989).
15    See, e.g., W.E.G., 710 P.2d at 412-13 (explaining that
parent of child in need of aid consented to foster parents'
petition for adoption, but refused consent to, and contested,
grandparents' petition for adoption).
16    AS 25.23.120(c).  The superior court in this case informed
the parties, and the parties apparently had no objection, that it
intended to adjudicate the best interests of the child according
to the child custody factors listed in AS 25.24.150(c), which do
not include a blood relative placement.
17    AS 25.24.150(c)(1) and (2).
18    To the extent that the M.s' argument may be construed as a
claim that a second home study should have been prepared, 7
Alaska Administrative Code 56.660(j) requires a second home study
only if the child has not actually begun living with the
petitioners within a year of their first home study.
19    AS 25.24.150(c)(5).
20    I.J.D. v. D.R.D., 961 P.2d 425, 430 (Alaska 1998) (citing
Evans v. Evans, 869 P.2d 478, 483 n.4 (Alaska 1994)).
21    One expert, Dr. Carey Edney, testified solely on the issue
of whether children under three years of age are likely to suffer
from "reactive attachment disorder" when placed in too many
primary caregiver situations.  The M.s urge that her testimony be
stricken because she did not meet with any of the parties or read
any materials that were specific to Lucy, and rely on C.J. v.
State, Department of Health & Social Services, 18 P.3d 1214, 1218
(Alaska 2001).  We find C.J. inapposite because different legal
and factual standards were involved.  The  problem in C.J. was
that in order to terminate the parent's rights, the state was
required by the Indian Child Welfare Act (ICWA), 25 U.S.C.
1912(f) (West 2002), to present testimony by a qualified expert
that return of the children in that case to their parent would
likely result in serious damage to those children; the sole
expert in that case had never assessed the children or parent
personally, but had only read the DFYS reports about the
children. C.J., 18 P.3d at 1218.
22    Moreover, in W.E.G.  we ruled that the length and quality of
time that foster children had spent with their foster parents
were relevant in determining whether the foster parents or the
biological grandparents should ultimately be allowed to adopt.
In re W.E.G., 710 P.2d 410, 417 (Alaska 1985).
23    The superior court might well have benefitted from the
appointment of a guardian ad litem for Lucy.  Because the CINA
case was dismissed, the state was not present to represent the
child's best interests.  Because no guardianship proceeding was
filed under AS 13.26, a guardian was not available.  Although the
Alaska Statutes do not appear to address the issue directly, we
doubt that the legislature envisioned allowing an adoption battle
between three sets of competing, would-be adoptive parents to be
visited upon an orphaned infant with no neutral legal custodian
to speak for her and protect her best interests.  Because the
parties elected (and the state evidently consented) to dismiss
the CINA proceeding, because current Alaska law does not appear
to require appointment of a guardian in this situation, and
because the parties did not request appointment of a guardian or
guardian ad litem below or raise the issue on appeal, we conclude
that the superior court did not abuse its discretion in its
ruling on the case as it was presented.  Our affirmance should
not be taken as approving a model for future similar cases.
24    W.E.G., 710 P.2d at 417.
25    Alaska R. Civ. P. 90.6(d)(3) provides:  "The custody
investigator may meet with the parties jointly or separately at
any time to discuss the investigation and the investigator's
conclusions in order to facilitate a voluntary resolution of the
26    Alaska R. Civ. P. 90.6(g)(1) provides:  "Unless otherwise
ordered, a custody investigator may communicate with a party who
is represented by an attorney without prior notice to the
27    Alaska R. Civ. P. 90.6(b)(1)(E) states in relevant part:
"Specifically, the custody investigator should have an
understanding of the following as appropriate to the case:
. . . . Alaska statutes and rules relating to custody
28    7 AAC 56.660(b) provides:  "The agency shall obtain all
available information about each adoptive applicant regarding the
following: . . . (15) financial status and ability to support a
child, including income, financial resources, debts, expenses,
employment history, insurance coverage, and the family's ability
to address possible ongoing needs of the child."