Dcpp v. M.P. and D.S., in the Matter of the Guardianship of L.J.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0030-23

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

M.P.,

Defendant,

and

D.S.,

Defendant-Appellant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF L.J.P.,
a minor.
__________________________

Submitted April 10, 2024 – Decided April 19, 2024

Before Judges Firko and Vanek.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FG-19-0011-23.

Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Louis W. Skinner, Designated Counsel, on
the briefs).

Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Nicholas Joseph Dolinsky, Deputy
Attorney General, on the brief).

Jennifer Nicole Sellitti, Public Defender, Law
Guardian, attorney for minor (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; Todd S. Wilson,
Designated Counsel, on the brief).

PER CURIAM

Defendant D.S. (David)1 appeals from a judgment of guardianship

terminating his parental rights to his biological son L.J.P. (Luke), born in 2016.2

Defendant M.P. (Mary), Luke's biological mother, surrendered her parental

1
We employ initials and pseudonyms to identify the parties, the child ren, and
others to protect the children's privacy and because records relating to Division
proceedings held pursuant to Rule 5:12 are excluded from public access under
Rule 1:38-3(d)(12).
2
David also has another daughter who lives with her mother and is not part of
this appeal.

A-0030-23
2
rights to Luke, and is not a party to this appeal. 3 Judge Michael Paul Wright

convened the guardianship trial and rendered an oral opinion. David argues the

Division of Child Protection and Permanency (Division) failed to establish by

clear and convincing evidence the statutory four-prong best interests test under

N.J.S.A. 30:4C-15.1(a). David contends the judge erred in failing to correctly

consider and apply the July 2, 2021 statutory amendments to the Kinship Legal

Guardianship (KLG) Act 4 and avers the judge disregarded the Legislature's

intent by giving weight to the resource parents' wishes to adopt and not

protecting his parental rights. David also asserts the judge erred by not

exploring KLG as an alternative to termination of his parental rights.

The Law Guardian seeks affirmance. We conclude, after reviewing the

record in light of David's arguments, that the judge correctly applied the

governing legal principles, and sufficient credible evidence supports the judge's

findings. Therefore, we affirm.

I.

3
Mary has another daughter named "Ida," whose father is "Andy." Ida is not
part of this appeal.
4
On July 2, 2021, the Legislature enacted L. 2021, c. 154, deleting the last
sentence of N.J.S.A. 30:4C-15.1(a)(2), which read "[s]uch harm may include
evidence that separating the child from [their] resource family parents would
cause serious and enduring emotional or psychological harm to the child."
A-0030-23
3
 We begin our discussion with the legal framework governing the

termination of parental rights. Parents have a constitutionally protected right to

the care, custody, and control of their children. Santosky v. Kramer, 455 U.S.

745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That

right is not absolute. N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527,

553 (2014). At times, a parent's interest must yield to the State's obligation to

protect children from harm. N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J.

382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate

these concerns, the Legislature established the standard for determining when

parental rights must be terminated in a child's best interests. N.J.S.A. 30:4C -

15.1(a) requires the Division prove by clear and convincing evidence the

following four prongs:

(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;

(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm;

(3) The [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
outside the home and the [judge] has considered
alternatives to termination of parental rights; and

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4
 (4) Termination of parental rights will not do more
harm than good.

The four prongs are not "discrete and separate," but "relate to and overlap

with one another to provide a comprehensive standard that identifies a child's

best interests." K.H.O., 161 N.J. at 348. "The considerations involved [in

determinations of parental fitness] are extremely fact sensitive and require

particularized evidence that address[es] the specific circumstance[s] in the given

case." R.G., 217 N.J. at 554 (internal quotation marks omitted) (second

alteration in original) (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189

N.J. 261, 280 (2007)).

II.

A. Family History

The pertinent facts and procedural history are fully recounted in Judge

Wright's comprehensive oral opinion and need only be summarized. The

Division first became involved with the family in early 2017 because of

allegations of drug use and domestic violence. The Division found no abuse or

neglect and closed its investigation. David's history includes criminality, mental

health problems, homelessness, and dysfunction. He was in the foster care

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5
system in Russia and came to the United States when he was adopted at the age

of six.

The record shows David was abused as a child by his caretakers in

Russia—putting cigarettes out on him and breaking his bones. David pled guilty

and was convicted of two counts of child endangerment.5 He is a Megan's Law

registrant and part of his sentence included Parole Supervision for Life. The

record shows David violated certain terms of his parole and Megan's Law

restrictions. Mary has a history of homelessness, substance abuse, and mental

health problems.

On December 11, 2017, the police reported that Mary and Luke were at

the police station after she stabbed her boyfriend in what she described as "self -

defense" during a domestic violence incident. Mary was arrested and charged

with aggravated assault and weapons charges. At the same time, David was

incarcerated for the stated sexual assault charges. With both parents in jail, the

Division executed an emergent removal6 of then one-year-old Luke and placed

5
According to David, he went to a party and met two girls who informed him
that they were eighteen years old. He then engaged in sexual relations with
them.
6
"A 'Dodd removal' refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at

A-0030-23
6
him with Greta and Brian, non-relative resource parents.7 The judge granted the

Division's request for the care, supervision, and custody of Luke.

David was granted weekly supervised visitation with Luke while he was

incarcerated, which continued on a monthly basis, until October 2018. Mary

engaged in treatment for her issues and was reunified with Luke in November

2018. David was still incarcerated at that time. The judge ordered that David's

visitation with Luke was subject to Mary's discretion, which she opted not to

continue.

In August 2021, the police called the Division with concerns for Luke and

Ida, his younger half-sister, after Mary called multiple times reporting that

someone was at the door. When the police responded, they found no one but

observed Mary was delusional and malnourished. Mary, Luke, and Ida were

taken to the hospital. Hospital staff members reported to the Division that Luke

was "eating everything put in front of him," had a "red and pink burn mark on

his left hand," and Ida was "very thin" and "pale" and had a healing rib fracture.

N.J.S.A. 9:6-8.21 to -8.82. The Dodd Act was authored by former Senate
President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v.
N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).
7
David requested that his adopted parents be assessed as a placement option,
but they declined.
A-0030-23
7
 The Division conducted a Dodd removal of both children. David was still

incarcerated at the time. The Division placed Luke with Robert, his maternal

grandfather. In September 2021, David was released from prison. However, he

was noncompliant with his terms of parole and failed to appear for a court-

ordered substance abuse evaluation or rescheduled appointments. The judge

ordered that David's visitation with Luke was deferred "until clinically indicated

to commence" because of David's lack of contact and relationship with the child

since 2018. David was placed on "missing status" by the Division and remained

incommunicado for the remainder of 2021 and early 2022. Based on a tip from

Mary, the Division ultimately located David in a Trenton prison on July 13,

2022.

By July 2022, Robert indicated he could not keep the children past

November 2022. The Division transitioned Luke and Ida back to Greta's and

Brian's home, where they remain to this day. In November 2022, Dr. Jessica

Elliot conducted a psychological evaluation of David at the prison, which

included an assessment of the appropriateness of visitation. 8 Dr. Elliot noted in

8
Dr. Elliot reviewed the Division's Court Report dated November 9, 2022, and
the evaluation included a clinical interview, mental status examination,
personality assessment inventory, and adult adolescent parenting inventory.
A-0030-23
8
her report that David was "polite, cooperative, and engaged throughout the

evaluation," and he was incarcerated for violating his parole.

David reported his criminal history to Dr. Elliot and his diagnoses of

"[b]ipolar, depression, anxiety, ADHD (Attention Deficit Hyperactivity

Disorder)," and substance abuse. Dr. Elliot opined that reunification was

possible if David engaged in treatment services and maintained sobriety,

housing, and employment. Upon receipt of Dr. Elliot's report, the Division

realized she did not have all the information about David's criminal history, and

the Division provided the information to her.

After receiving additional information from the Division, Dr. Elliot

prepared an addendum to her report, explaining David did not address the extent

of his two sexual assaults upon minors during the initial evaluation. Dr. Elliot

opined "this new information substantially changes the formulation of [David's]

risk and warrants a more thorough and specialized risk assessment prior to the

commencement of visitation."

On December 7, 2022, the Division filed a complaint for guardianship.

After being served with the complaint while incarcerated, David expressed his

wishes for reunification with Luke. The Division discussed David's plan for

post-release housing, employment, and services. At the February 2, 2023 return

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9
date for the hearing on the order to show cause, the Law Guardian asked the

judge to consider restricting visitation until an updated evaluation of David was

performed. On March 20, 2023, the judge ordered Dr. Barry Katz to conduct a

psychosexual evaluation of David at the prison.

On March 28, 2023, Dr. Katz conducted the following during the evaluation:

a forensic interview; record review; mental status exam; assessment of parenting

skills; the Adult, Adolescent Parenting Inventory, Second Edition (AAPI-2.1); the

Personality Assessment Inventory (PAI); and Sexual Violence Risk-20, Version 2

(SVR-20-V2).

Dr. Katz observed that David had been incarcerated for most of Luke's life

and had not seen him in years. When discussing his sexual offense charges, David

reported to Dr. Katz that he did not agree with the charges and that he was not "going

to sit in class like parole wants and talk about why he is not going to have sex with

kids." David felt both charges were completely false "because [he] would not go out

with them and [he] called them ugly to their face and a week later [he] got a call

from police saying we need to speak to you on this." David declined to report

anything further about his criminal history because he "did not trust the system."

David informed Dr. Katz that he was not taking his medication because he

needed to "get the monkey off [his] back." Although David denied any suicidal

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10
ideations, he reported that "he had thoughts about hurting others, but that he would

not do it." David acknowledged that his depression "has led to lack of motivation

and lack of caring." When further discussing his drug usage, David said he used

marijuana daily, including illegally in jail, denied ever using opiates, but was

prescribed Suboxone at the prison because he claimed, "why not."

David also stated he had been hospitalized twice for mental health issues and

had been prescribed psychiatric medication. He attended counseling in prison but

was discharged due to "budget cuts." David previously underwent counseling for

depression and anxiety. He never completed sex offender therapy and claimed that

he never would.

Dr. Katz noted in his report that David presented as paranoid and inconsistent

in his reporting. He also found David "displayed extensive denial [and]

minimalization with regard to his sexual offending behavior, including blaming the

victims and assert[ing] that his prior admission and conviction was incorrect."

Regarding his future plans, Dr. Katz found David was "not realistic based upon his

pattern of continued antisocial acts, substance abuse and instability." Dr. Katz

opined there was a "high risk to a child placed in [David]'s care or supervision

unsupervised" and a "risk of exploitation of minors in his care or supervision and

pathological hatred of women." He also noted that since David "has a general

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11
understanding of accepted parenting practices, . . . his deficits as a parent are not due

to a lack of education but rather are an extension of [David] putting his needs before

anyone else's, including his children."

Based upon the above findings, Dr. Katz ultimately concluded:

[David] should not have contact with [Luke] due to the
risks involved. The risks to the child would be present
during supervised visitation, albeit much higher if
visitation were unsupervised. In response to the goal of
[David] eventually being a viable placement for [Luke],
the results of this evaluation indicate that [David]
would not be able to be a viable caretaker for [Luke] at
this time or in the foreseeable future. With regard to
the issue of supervised visitation, it is not
recommended for [David] to have contact with [Luke]
at this time or in the foreseeable future.

Dr. Katz also found that David presented a low to moderate risk of direct sexual

harm to Luke, but posed a high risk of impulse control problems, including anger

and exposure to inappropriate sexual stimuli and concluded that the harm could

not be mitigated even under supervision. Dr. Katz did not consider reunification

as a viable option within the foreseeable future.

On April 19, 2023, Dr. Gregory Gambone conducted a psychological

evaluation of David on behalf of the defense. Dr. Gambone found that David

exhibited "thought and behavior patterns that may affect his decision making,

his ability to control substance abuse, his ability to maintain an independent pro-

A-0030-23
12
social life, and his ability to benefit from psychotherapy." With regard to his

ability to parent, Dr. Gambone opined that "when stable, substance-free,

conflict-free, crime-free, symptom-free, and stress-free, [David] may exhibit

adequate executive functioning in learning, problem solving, contingency

planning, and social decision-making."

Dr. Gambone's report also noted that David has "a superficial

understanding of the physical, emotional, intellectual, and social needs of his

son" and has a reported history of "disregarding his responsibility for his

children's health, safety, and stability." Based upon the above findings, Dr.

Gambone recommended that David engage in various services, including

therapy, parenting skills training, and sex offender treatment. Dr. Gambone

concluded:

[David] should not currently be considered to present
an imminent risk of impulsive harm to himself, his son
[Luke], or any other person. However, it is also
recommended that [David] should not currently be
considered capable of adequately parenting any
children on an independent basis. Areas of continued
concern include [David]'s current incarceration, his
subsequent societal re-entry stressors, and his lack of
regular or consistent contact with his son [Luke] in the
past [four] years. Accordingly, it is recommended that
[David] be currently considered appropriate for
supervised contact with his son [Luke] during his
incarceration and subsequent release, contingent on
documented compliance with all court-ordered services

A-0030-23
13
 and Megan's Law supervision. As a means of
maximizing his personal stability, interpersonal
stability, parenting skills, and coping skills, [David] is
strongly encouraged to comply with all of the
aforementioned recommendations.

B. The Guardianship Trial

The judge held a three-day trial. Caseworker Ashley Markferding and Dr.

Katz testified on behalf of the Division. Dr. Gambone testified on behalf of

David.

Markferding testified about the Division's efforts to explore Luke's

placement with relatives. Robert was ruled out because he had asked for Luke

to be removed from his home. Robert's mother, who lived in the Dominican

Republic, was ruled out because neither Mary nor David wanted the children

placed out of the country. Mary's aunt was ruled out based on an Interstate

Compact of the Placement of Children's denial from New York due to her failure

to provide the requisite documentation. David's adoptive parents declined to be

placement resources. Mary's uncle declined to be considered due to housing

issues, and Ida's mother refused to get involved in a case involving David.

Markferding stated that Luke is a "loving boy, it makes you smile," he's

"affectionate," and "loves his [half-]sister." Markferding observed that Luke

"remembered [Greta] and . . . loved being in [her] care. And even currently she

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14
had lots of kiddos that he thoroughly enjoys playing with and being around."

Markferding testified that she explained the difference between KLG and

adoption to Greta, and she preferred adoption over KLG but would be open to

facilitating a relationship between Luke and David even if she adopted Luke.

According to Markferding, Luke did not recall visiting David at a "locked

facility." When Markferding asked Luke if he knew who his "biological father"

was, he named the resource father. Markferding testified that she asked Luke if

he knew an individual named "David," and he responded "no."

Dr. Katz was qualified as an expert in psychology, parental fitness,

forensic psychology, and sex offenders. When asked about David's childhood

trauma and its impact, if any, on the case, Dr. Katz responded, "traumatized

people traumatize people." Dr. Katz noted that David fell into a group referred

to as the "antisocial or psychopathic sex offender," and for those people, "all

individuals are viewed as fair game. And what will happen is that if they're able

to commit a crime or offense against an individual they're entitled to do it and

it's the person's fault for being in a vulnerable position by the offender's view."

Dr. Katz opined that "if they're vulnerable and [David's] able to take advantage

of them then he will." Dr. Katz stated that David's parole violations also speak

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15
to antisocial psychopathic behavior, because he was willing to risk further

incarceration even though he knew he was being monitored.

Dr. Katz also noted that David was an inconsistent reporter. He testified

that "at one point [David] says he has an addiction to opiates and at another point

he says he's never used opiates except for a short time, and he has no addiction

to it." And when asked why he was taking Suboxone for treatment if he really

was not addicted, David responded, "for the hell of it, for the thrill of it." Dr.

Katz opined these inconsistent statements stem from the fact that "[David]

presents whatever information he feels is going to help him or blurts out at that

moment because it's going to be something exciting or thrilling or enthralling ,"

and "that [David] is committed to continuing this antisocial lifestyle, committing

additional offenses . . . and plays into very much this attention seeking/thrill

seeking behavior where he's going to exploit anyone he wishes as part of that

process."

Dr. Katz also found that David's lack of contact with the Division during

the time he wasn't incarcerated was significant and demonstrated the antisocial

psychopathic dynamic as "the focus of the individual is themselves, not on

others, not of meeting others needs just their own needs." Dr. Katz further noted

that individuals with antisocial psychopathic have a very poor history of

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16
compliance, and "even if they do comply, they don't benefit from therapy,

because their goal is to again meet their own needs and to get the therapy to

meet their needs there."

Dr. Katz also went on to discuss David's potential empathy for Luke. The

test results administered indicated that David understands "what's expected of a

parent in terms of how to be empathic. He chooses not to. And the indication

is he's not going to." Dr. Katz reasoned:

Because first of all he doesn't describe empathy towards
multiple individuals. The victims of his sexual offenses
he—on empathy towards. In fact he says demeaning
things about those victims. Saying that they're—that he
just thought that they were ugly and that they were—
you know, liars and et cetera. And so there's a total lack
of empathy even for those that he's victimized in these
very serious ways. And towards other victims, again
with domestic violence et cetera, lack of empathy
towards anyone expressed as a willful intent not as a
lack of understanding.

Dr. Katz also found David's lack of a relationship with his older child to

be significant and "a general parenting deficit." He explained that its "a part of

[a] pattern of—about meeting the needs of another child that he has and

abandoning that child, in the same similar pattern as we have with [Luke], "

showing the chronicity of the behavior across situations. Dr. Katz also found

that David's mistrust in the system and his belief that Luke was going to be

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adopted no matter what stemmed from the fact that he "at one level clearly

understands he's not complied, he's not had any contact with child. He has

another child he's not seen. He's engaged in criminal behavior. He's repeatedly

incarcerated in state prison, and that his case looks, you know, very poor."

Overall, Dr. Katz testified that David's risk to Luke "in terms of specific

sexual offending" is "low to moderate," and found:

His impulsiveness, his seeking behaviors, lack of
empathy, his lack of care, his lack of responsiveness to
[Luke]'s needs at any point in the history of the case,
speaks—well combined with the psychopathic
antisocial acting out behaviors shows any child,
especially a young vulnerable child, would be at risk
for a multitude of types of neglect, abuse, et cetera in
[David]'s care or presence. And that these dynamics
can occur even under supervision - even therapeutic
supervision.

Dr. Katz opined that David harmed and posed a risk of harm to Luke, "in

the form of abuse or neglect." And, Dr. Katz stated that therapy would not

improve the situation due to David's "lack of compliance with services" and his

unwillingness to engage in means to alleviate the harm. Dr. Katz criticized Dr.

Gambone's conclusions because he did not perform any sex offender assessment

on David and that he used the "Mini Mental State Examination," which is "very

limited" and "not a comprehensive psychological personality test that would

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cover things like validity, patterns of behavior, et cetera." 9 Dr. Katz disagreed

with Dr. Gambone's recommendation that David engage in therapeutic visitation

with Luke because his behavior would "likely be impulsive, irreverent, harmful,

[and] emotionally harmful to Luke." Dr. Katz concluded that maintaining a

parental relationship between David and Luke was not in the child's best interest.

Dr. Gambone testified on behalf of David as an expert in forensic

psychology, parental fitness, and psychology as it related to sexual offenses and

harm to children. Dr. Gambone described David as "a person who just does not

like authority, does not like to be told what to do, does not like to be monitored."

Regarding a parenting plan for Luke, Dr. Gambone testified:

the biggest issue with [David] and the concept of
parenting is he's kind of saying, you know if I get my
kid back I'd like to give it a try. If I don't get my kid
back I'm not sure I want to give it a try. You know, and
again, that's the antisocial. Again that's the . . .
manipulation.

Dr. Gambone added that "[David] has provided neither primary nor supportive

care for his son [Luke] for more than four years. He has had only minimal

contact with his son during the same time."

9
Dr. Gambone attempted to administer a more comprehensive assessment
known as the Minnesota Multiphasic Personality Inventory 2, but David refused
to take it.
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 Dr. Gambone recommended a medication review, discontinuing

Suboxone treatment, parenting skills classes, short-term individual therapy, sex

offender specific treatment, and therapeutic visitation with Luke. Dr. Gambone

stated, "with [David] I kind of think the decision would be to let him take the

challenge that he said he's up to, or in another way put up or shut up. Call his

bluff. I think—I think that's the only way to do it." When asked if that would

put the child at risk, Dr. Gambone opined that "visits in a visit hall at South

Woods State Prison . . . would not put any child at risk."

Dr. Gambone also testified, "it's recommended that [David] should not

currently be considered to present an imminent risk of impulsive harm to

himself, his son [Luke] or any other person. However, it is also recommended

that [David] should not currently be considered capable of adequately

[parenting] any child on an independent basis." Dr. Gambone recommended,

"[David] be currently considered appropriate for supervised contact with his son,

[Luke], during his incarceration and subsequent release contingent on

documented compliance will all court ordered services and Megan's Law

supervision."

On cross-examination, Dr. Gambone conceded that David had antisocial

personality disorder and "a general disregard for the rights or welfare of others."

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20
He further agreed that David was "irresponsible now," "untrustworthy," and

"unstable," but attributed these traits to his difficult upbringing. Dr. Gambone

also noted that the prognosis for treating someone like David—who has

antisocial personality disorder—is that "it's not impossible to treat [but] usually

not good, meaning that if someone's antisocial . . . it will go on."

Dr. Gambone opined that, "when stable, substance free, conflict free,

crime free, symptom free, and stress free [David] may exhibit adequate

executive function and learning, problem solving, contingency planning, and

social decision making." However, Dr. Gambone indicated that it would take

about three months to determine if David could successfully be rehabilitated,

and if so, another six months for him to parent Luke. Dr. Gambone noted he did

not know Luke and never interviewed him.

David did not testify. The Law Guardian did not present any evidence but

joined in the Division's request to terminate David's parental rights to Luke.

III.

Subsequent to the presentation of the evidence and closing arguments of

counsel, the judge rendered an oral decision summarizing the matter's

procedural history and making factual findings as to each of the required

elements of the best-interests-of-the-child standard set forth in N.J.S.A. 30:4C-

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21
15.1(a). Based on those findings, the judge determined the Division sustained

its burden of proving by clear and convincing evidence it was in Luke's best

interests to terminate David's parental rights.

In his opinion, the judge found Markferding's testimony "very credible,"

and "clear, concise, and consistent under direct and cross-examination." He

found her "recollection of facts was impressive and its accuracy was unrebutted

by any evidence in the case," and deemed her "the hallmark of credibility."

The judge also credited Dr. Katz's testimony noting him to be "credible"

and "unrefuted in any way by the [d]efense expert's opinion, and honest

assessment," and "more dire and pessimistic" than Dr. Gambone.

The first prong of the best interests test requires the Division demonstrate

that the "child's safety, health, or development has been or will continue to be

endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1); see

K.H.O., 161 N.J. at 352. The concern is not only with actual harm to the child

but also the risk of harm. In re Guardianship of D.M.H., 161 N.J. 365, 383

(1999) (citing N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 616 n.14

(1986)). The focus is not on a single or isolated event, but rather "on the effect

of harms arising from the parent-child relationship over time on the child's

health and development." K.H.O., 161 N.J. at 348.

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 Our Court has explained a parent's withdrawal of nurture and care for an

extended period is a harm that endangers the health of a child. D.M.H., 161 N.J.

at 379 (citing K.H.O., 161 N.J. at 352-54). When children "languish in foster

care" without a permanent home, their parents' "failure to provide a permanent

home" may itself constitute harm. Id. at 383 (second quotation citing N.J. Div.

of Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 582, 591-93 (App. Div.

1996)). The judge need not wait until children are "irreparably impaired" by

parental abuse or neglect. D.M.H., 161 N.J. at 383. "The State has a parens

patriae responsibility to protect children from the probability of serious physical,

emotional, or psychological harm resulting from the action or inaction of their

parents." N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 110

(App. Div. 2004).

Under prong one, the judge found Luke's safety, health, and welfare will

be endangered by a continued relationship with David due to his prolonged

absence from Luke's life and "[t]he almost complete absence of solicitude,

protection, and nurture by [David] has endangered the health and development

of [Luke]." The judge further concluded the harm would continue due to David's

"psychological and substance misuse." There was substantial credible evidence

in the record to support the judge's finding under prong one.

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 Regarding prong two, which overlaps with prong one, the judge found

David has a "true desire" to reunify with Luke but emphasized "the record is

clear that he is unable, at this time, to eliminate the harm now or in the

foreseeable future." The judge highlighted that the expert testimony and

evidence demonstrated that David was unlikely to remedy the harm that his

absence caused Luke, and noted that "Dr. Gambone would not downplay the

current danger that [David] poses [Luke.]"

The judge concluded David's problem in parenting "has persisted for many

years. And there are no indications that any change has taken place for [David]

at this time." While Dr. Gambone postulated a course of treatment that would

allow David to rehabilitate himself, the judge found it was unlikely to happen in

the foreseeable future "especially given the factual finding that there has been

no true engagement in services." There is substantial credible evidence in the

record to support the judge's finding under prong two.

The third prong requires evidence that "[t]he [D]ivision has made

reasonable efforts to provide services to help the parent correct the

circumstances which led to the child's placement outside the home and the

[judge] has considered alternatives to termination of parental rights." N.J.S.A.

30:4C-15.1(a)(3). "Reasonable efforts may include consultation with the parent,

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developing a plan for reunification, providing services essential to the

realization of the reunification plan, informing the family of the child's progress,

and facilitating visitation." M.M., 189 N.J. at 281 (internal quotation marks

omitted) (citation omitted).

Under the first part of prong three, the judge found the Division made

reasonable efforts to provide services to David by scheduling substance abuse

and psychological evaluations, however, he failed to maintain contact with the

Division and vanished. The judge highlighted that the Division searched for

David for months but could not provide services in absentia. Therefore, the

judge concluded that any lack of services during that period was the result of

David's own actions. The judge observed that the Division did not arrange for

visitation while David was incarcerated, but found visitation would not be safe

at the prison, and therefore there was no prejudice to David.

Under the second part of prong three, the judge found that the Division

had explored, without success, alternatives to termination, and assessed

numerous relatives and KLG, but all were eventually ruled out. The judge

reasoned that the Division initially placed Luke with a relative, but that

placement fell through.

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 Finding Greta well-informed of the difference between KLG and

adoption, the judge emphasized Greta "unequivocally" expressed her preference

and commitment to adopting Luke. The judge determined that based on

Greta's—and Brian's—commitment to adoption, that KLG was not in Luke's

best interests. The judge highlighted that the "Division was able to []place

[Luke] and his [half-]sister with the same unrelated resource family that took

them in during the first removal case." The judge reiterated that the Division

assessed the maternal grandfather, the maternal great-grandmother, a paternal

aunt, a maternal uncle, and the mother of David's daughter but ruled them out.

The record supports the judge's determination under prong three.

Finally, the judge concluded under prong four that the termination of

Luke's parental rights would not do more harm than good. The judge found the

uncontroverted testimony of both experts demonstrated that David was unable

to safely parent Luke now, and Dr. Katz opined that David would not be able to

parent in the reasonably foreseeable future. In addition, the judge determined

that since Luke's recollection of David was vague due to his incarceration for

the majority of the litigation, there would be little to no harm to Luke if David's

parental rights were terminated. The judge ultimately concluded that Luke "is

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in a loving, caring pre-adoptive home," which is "the only time Luke's needs

have been met to any degree."

The judge stressed that Luke has waited long enough for a permanent

home, and David's "criminal, antisocial lifestyle has resulted in his being absent

for most of [Luke's] life." The judge explained that "[Luke] had or has a vague

recollection of . . . his father" and didn't know David's name. The judge

recounted the "physical and emotional trauma" David suffered while in an

orphanage in Russia stating, "[u]nfortunately, he's been unable to overcome

that[,]" and "not engaging in any services to try." Further, the resource home is

"loving and caring" based on the judge's consideration of the evidence, and Luke

is engaging in play therapy and has an Individualized Education Program for his

communication impairment. A memorializing order was entered. This appeal

followed.

IV.

Before us, David argues the Division failed to prove by clear and

convincing evidence all four prongs of the best interests of the child test and that

Dr. Katz rendered a net opinion. We are unpersuaded.

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 Prong One

David contends that the judge erred in finding that the Division satisfied

the first prong of the "best interest" test by clear and convincing evidence. In

particular, David argues because Luke was not harmed by any act that can be

attributed to him, this prong of the test has not been sufficiently met to warrant

termination of his parental rights.

To satisfy the first prong, the Division must clearly and convincingly

demonstrate harm "that threatens the child[ren]'s health and will likely have

deleterious effects on the child[ren]." K.H.O., 161 N.J. at 352. This harm need

not be actual because "[c]ourts need not wait to act until a child is actually

irreparably impaired by parental inattention or neglect." D.M.H., 161 N.J. at

383. Rather, courts consider whether the children's safety, health, or

development will be endangered in the future. N.J. Div. of Youth & Fam. Servs.

v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001). As such, the prong may be

satisfied by the mere risk of harm if supported by sufficient evidence. See

D.M.H., 161 N.J. at 383; A.G., 344 N.J. Super. at 435-36.

Our Court has stressed harm includes the denial of "the attention and

concern of a caring family" which it considers "the most precious of all

resources." D.M.H., 161 N.J. at 379. "A parent's withdrawal of that solicitude,

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nurture, and care for an extended period of time is in itself a harm that endangers

the health and development of a child." Id. at 379, 383. Such a withdrawal is

not "inadequate parenting;" rather, it is a "failure to provide even minimal

parenting." Id. at 379 (quoting A.W., 103 N.J. at 606-07). A parent's failure to

provide a "permanent, safe, and stable home" engenders significant harm to the

children. Id. at 383.

In the matter under review, Judge Wright appropriately concluded that

Luke's safety, health or development has been or will continue to be endangered

by a parental relationship with David. Pertinently, the judge found that

"[David]'s long absence from [Luke]'s life is a clear cognizable harm," and

specifically noted that David's "unfortunate own antisocial behaviors" were to

blame. The judge reasoned that the "complete absence of solicitude, protection,

and nurture by [David]" is ultimately what endangers the health and

development of Luke. The record supports that determination.

David maintains that the judge erred because incarceration alone is

insufficient to meet the first prong of the statutory test. We are unpersuaded.

The record clearly establishes that the judge's decision did not solely rely on

David's incarceration, and, in fact, the judge found David's behavior when he

was at liberty equally significant. Judge Wright noted that "sadly, even during

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the short periods of young [Luke]'s life where his father . . . was at liberty, there's

no evidence that [David] exercised parenting time or visitation with [Luke]."

Moreover, the judge noted that David "could have availed himself of the legal

system to prosecute his right to visit with his son" but failed to do s o.

Furthermore, the judge also appropriately found that the danger to Luke

would persist into the future due to David's "psychological and substance misuse

presentation as discussed by both experts in this case." The judge credited Dr.

Katz's testimony that David's psychopathic personality disorder and lack of

responsiveness to Luke's needs put the child at risk for a multitude of different

types of neglect and abuse if he were placed in David's care. The judge's

decision under prong one is amply supported by the credible evidence in the

record.

Prong Two

Regarding prong two, David argues the judge erred by speculating about

his willingness and ability to eliminate any alleged harm to Luke. The Division

and Law Guardian counter that David is not only unable but also unwilling to

provide a safe, stable, and permanent home for Luke.

The second prong of the best interest determination, "in many ways,

addresses considerations touched on in prong one." N.J. Div. of Youth & Fam.

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Servs. v. F.M., 211 N.J. 420, 451 (2012). Evidence supporting the first prong

may also support the second prong "as part of the comprehensive basis for

determining the best interests of the child[ren]." D.M.H., 161 N.J. at 379. This

prong "relates to parental unfitness," K.H.O., 161 N.J. at 352, and "the inquiry

centers on whether the parent is able to remove the danger facing the child."

F.M., 211 N.J. at 451.

The Division can satisfy this inquiry by showing the parent or parents

cannot provide a safe and stable home and that the child or children will suffer

substantially from a lack of stability and permanent placement. M.M., 189 N.J.

at 281. Because the Legislature placed "limits on the time for a birth parent to

correct conditions in anticipation of reuniting with the child[ren]," "the

emphasis has shifted from protracted efforts for reunification with . . . birth

parent[s] to an expeditious, permanent placement to promote the child[ren]'s

well-being." C.S., 367 N.J. Super. at 111 (citing N.J.S.A. 30:4C-11.1; D.M.H.,

161 N.J. at 385; K.H.O., 161 N.J. at 357-59).

Here, the judge concluded the second prong was satisfied. Although the

judge found that David had a "true desire" to reunify with Luke, he determined

the record clearly established David was "unable, at this time, to eliminate the

harm now or in a foreseeable future." Moreover, the judge aptly found

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significant that David's own expert witness, Dr. Gambone, did not downplay the

current danger that David poses to Luke, and cited Dr. Gambone's testimony

that "the problem is [David]'s failure to date to engage with any offered

services."

Based upon our review of the record, the judge did not rely upon

speculation but rather upon substantial credible evidence in the record in

concluding the Division met its burden under prong two. The record supports

the determination that David failed to appear for court-ordered substance abuse

evaluations and indicated he will never attend sex offender therapy. Therefore,

the judge properly found under prong two that David will not rehabilitate

himself to a degree necessary to cure the harm he caused Luke.

Under prong two, the judge also correctly found that David is completely

unable to provide Luke "with any symbol of a home, much less any stable

home," and a delay in permanency would add to the harm, especially in light of

the fact the resource parents wish to adopt. The judge's determination under

prong two was based upon substantial credible evidence in the record.

Prong Three

David contends the judge erred in concluding that the Division exercised

reasonable efforts to provide services to help him to correct the circumstances

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that lead to placement outside the home. David also asserts the judge failed to

consider alternatives to termination of his parental rights, such as KLG.

KLG allows a relative to become the child's legal guardian and commit to

care for the child until adulthood, without terminating parental rights. N.J. Div.

of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 508 (2004). The Legislature

created this arrangement because it found "that an increasing number of children

who cannot safely reside with their parents are in the care of a relative or family

friend who does not wish to adopt the child or children." N.J. Div. of Youth &

Fam. Servs. v. L.L., 201 N.J. 210, 222-23 (2010).

Prior to July 2, 2021, KLG was considered "a more permanent option than

foster care when adoption '[was] neither feasible nor likely.'" P.P., 180 N.J. at

512 (emphasis added) (quoting N.J.S.A. 3B:12A-6(d)(3) to (4)). As such, "when

a caregiver . . . unequivocally assert[ed] a desire to adopt," the standard to

impose a KLG was not satisfied because the party seeking a KLG arrangement

would not be able to show that adoption was neither feasible nor likely. N.J.

Div. of Youth & Fam. Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011).

In other words, when permanency through adoption was available to a child,

KLG could not be used as a defense to the termination of parental rights. N.J.

Div. of Youth & Fam. Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008).

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 On July 2, 2021, however, the Legislature amended N.J.S.A. 3B:12A-

6(d)(3) and removed the statutory requirement that adoption be "neither feasible

nor likely," making KLG an equally available permanency plan for children in

the Division's custody. However, the Legislature did not delete paragraph (d)(4)

of the KLG statute, which requires a court to find "awarding [KLG] is in the

child's best interest," N.J.S.A. 3B:12A-6(d)(4), before it can order KLG. Thus,

the amended KLG statute simply ensures a resource parent's willingness to adopt

and no longer forecloses KLG. But the amendment to N.J.S.A. 3B:12A-6(d)(3)

does not affect the trial court's application of the best interests test for parental

termination cases as codified under N.J.S.A. 30:4C-15.1(a)(1) to (4).

Substantial credible evidence in this record supports the judge's findings

that the Division thoroughly explored alternatives to termination of parental

rights. N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008).

David's assertion that L. 2021, c. 145 ("2021 amendments") compels KLG is

unsupported by the overriding purpose of child protection laws. See N.J. Div.

of Child Prot. & Permanency v. D.C.A., 474 N.J. Super. 11, 27-28 (App. Div.

2022), aff'd, 256 N.J. 4 (2023). The children's best interests are the polestar of

any termination decision. D.H., 398 N.J. Super. at 338.

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 The third prong of the best interests test requires evidence that "the

Division has made reasonable efforts to provide services to help the parent

correct the circumstances which led to the child's placement outside the home

and the [judge] has considered alternatives to termination of parental rights."

N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts may include consultation with

the parent, developing a plan for reunification, providing services essential to

the realization of the reunification plan, informing the family of the child's

progress, and facilitating visitation." M.M., 189 N.J. at 281 (internal quotation

marks omitted).

"An evaluation of the efforts undertaken by [the Division] to reunite a

particular family must be done on an individualized basis." D.M.H., 161 N.J. at

390. The evaluating court must also consider "the parent's active participation

in the reunification effort." Ibid. In any situation, "[t]he services provided to

meet the child's need for permanency and the parent's right to reunification must

be 'coordinated' and must have a 'realistic potential' to succeed." N.J. Div. of

Youth & Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 488 (App. Div. 2012)

(quoting N.J. Div. of Youth & Fam. Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10

(App. Div. 2002)).

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 This requires the Division to "encourage, foster and maintain the parent -

child bond, promote and assist in visitation, inform the parent of the child's

progress in foster care and inform the parent of the appropriate measures [they]

should pursue . . . to . . . strengthen their relationship." R.G., 217 N.J. at 557

(alterations in original) (internal quotation marks omitted) (quoting D.M.H., 161

N.J. at 390). What constitutes reasonable efforts varies with the circumstances

of each case. D.M.H., 161 N.J. at 390-91.

Here, the record is clear that the Division did not ignore David and

expended reasonable efforts to work with him. From the beginning of the

guardianship litigation, the Division implemented supervised visitation at the

prison between David and Luke, and regularly met with David in person and

sent letters to provide status updates of his case. Contrary to David's assertions,

the Division did attempt to re-schedule missed visits when Luke was sick. The

"inexplicable five-month gap" between visits when David was transferred to a

different prison was justifiable because the Division had to evaluate the new

prison setting first, and visits were reduced to once a month because the Division

had valid concerns about the impact of a six-hour trip on Luke.

We are satisfied the judge's finding that Greta and Brian were advised

about KLG, but preferred adoption, is supported by the substantial credible

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evidence in the record. The 2021 amendments do not make KLG a bar to

termination of parental rights followed by adoption because the court must still

apply the best interests factors. Moreover, a caregiver must petition a court for

a KLG appointment under N.J.S.A. 3B:12A-5(a), which was not done here.

The record shows Greta and Brian clearly rejected KLG because they

wanted to give Luke a permanent and stable home. The record shows that when

David was at liberty and placed on missing status for failing to maintain contact

with the Division, the judge aptly noted "the court can find no fault with the

Division's failing to provide services during this period, as it is clearly and

convincingly due to [David]'s own actions." In sum, it is clear that the judge's

determination rested on Luke's best interests. Moreover, there was no prejudice

to David because of the delay because the final clinical recommendation was

that visitation was not safe.

Under the second part of prong three, the judge appropriately considered

and determined that the record contained unrebutted evidence that the Division

initially placed Luke with numerous relatives, but none proved to be permanent.

On appeal, David contends the preamble to the 2021 changes to Title 30 and the

KLG Act support his argument that the judge did not adequately consider KLG

as an alternative and that KLG is the preferred resolution for children who

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cannot return to their parents, and the judge failed to consider the importance of

retaining the parent-child relationship between Luke and his father. David also

takes issue with the judge's focus on the Division's position that Greta and Brian

wish to adopt, which is a consideration he posits to be "no longer determinative

in eliminating the alternative to termination of kinship care or KLG."10

In the matter under review, Markferding testified about her discussions

with the resource parents regarding KLG. The Division clearly investigated

KLG alternative options, but the record demonstrates no family members were

interested or qualified. It is also undisputed that Ida is in the care of the resource

parents. Thus, the judge correctly concluded no KLG opportunities existed.

Prong Four

We are also satisfied with the judge's finding that the termination of

David's parental rights under prong four "will not do more harm than good,"

N.J.S.A. 30:4C-15.1(a)(4), as it is supported by substantial credible evidence.

N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 363, 368 (App.

10
David also inappropriately cites State v. Gomes, 253 N.J. 6 (2023). This
reliance is inappropriate because Gomes dealt with a complete statutory
overhaul whereas the KLG amendment made a discrete change. See id. at 35
(cautioning the decision was not "an invitation to disregard statutory language
that has been unaltered by new laws").

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Div. 2015). The judge acknowledged under prong four, after balancing and

considering the relationships between the child and the natural parent and

caregivers, the child "will suffer a greater harm from the termination of ties with

[their] relationship with the[] foster parent[]," citing N.J. Div. of Youth & Fam.

Servs. v. I.S., 202 N.J. 145, 181 (2010) (quoting In re Guardianship of J.N.H.,

172 N.J. 440, 478 (2002)).

Here, the judge stressed that both experts testified that David "did not

present as being able to parent [Luke] safely now." Moreover, the judge gave

great weight to Dr. Katz's testimony that David will not be able to safely parent

"in the reasonably foreseeable future" either. The judge found Luke "had or has

a vague recollection of his . . . father" because he "stayed six years and [eight]

months and spent [thirty-four] months of his life in Division custody with little

interaction with his father."

It was well within the judge's discretion to afford significant weight to

Markferding and Dr. Katz's testimony. The Division's proofs showed Luke is

"in a loving, caring pre-adoptive home" and David is unable to provide the

necessary safe and stable home and emotional support Luke needs. See N.J.

Div. of Youth & Fam. Servs. v. J.S., 433 N.J. Super. 60, 93 (2013); see also

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Cnty. of Middlesex v. Clearwater Vill., Inc., 163 N.J. Super. 166, 173-74 (App.

Div. 1978).

We are also satisfied by the judge's finding of Luke's need for permanency

and stability, and his determination that David would not be able to provide

either in the foreseeable future. Moreover, David did not present a viable plan

to make the changes necessary to provide Luke with the loving, safe, and stable

home he needs and deserves.

V.

Finally, David asserts that Dr. Katz rendered a net opinion because he

relied on data that the Division "cherry-picked and sent to him," conducted a

short interview of him, did not conduct a bonding evaluation, and never spoke

to Luke. Again, we disagree.

Two rules of evidence frame the analysis for determining the admissibility

of expert testimony. N.J.R.E. 702 identifies when expert testimony is

permissible and requires the experts to be qualified in their respective fields.

N.J.R.E. 703 addresses the foundation for expert testimony. Expert opinions

must "be grounded in facts or data derived from[:] (1) the expert's personal

observations, or (2) evidence admitted at the trial, or (3) data relied upon by the

expert, which is not necessarily admissible in evidence, but which is the type of

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data normally relied upon by experts." Townsend v. Pierre, 221 N.J. 36, 53

(2015) (quoting Polzo v. Cnty. of Essex (Polzo I), 196 N.J. 569, 583 (2008)).

"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids

the admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data.'" Id. at 53-54 (alteration in original) (quoting

Polzo I, 196 N.J. at 583). Therefore, an expert is required to "'give the why and

wherefore' that supports the opinion, 'rather than a mere conclusion.'" Id. at 54

(quoting Borough of Saddle River v. 66 E. Allendale, L.L.C., 216 N.J. 115, 144

(2013)).

The net opinion rule directs that experts "be able to identify the factual

bases for their conclusions, explain their methodology, and demonstrate that

both the factual bases and the methodology are reliable." Id. at 55 (quoting

Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). In short, the net opinion

rule is "a prohibition against speculative testimony." Harte v. Hand, 433 N.J.

Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super.

563, 580 (App. Div. 1997)).

However, "[t]he net opinion rule is not a standard of perfection."

Townsend, 221 N.J. at 54. "An expert's proposed testimony should not be

excluded merely 'because it fails to account for some particular condition or fact

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which the adversary considers relevant.'" Ibid. (quoting State v. Freeman, 223

N.J. Super. 92, 116 (App. Div. 1988)). An expert's failure "'to give weight to a

factor thought important by an adverse party does not reduce his testimony to

an inadmissible net opinion if he otherwise offers sufficient reasons which

logically support his opinion.'" Ibid. (quoting Rosenberg v. Tavorath, 352 N.J.

Super. 385, 402 (App. Div. 2002)).

Generally, the Division's proofs should include testimony by an expert

who has had an opportunity to make a "comprehensive, objective, and informed

evaluation of the child's relationship with the foster parent," N.J. Div. of Youth

& Fam. Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009) (quoting J.C.,

129 N.J. at 19), and the court must also consider "parallel proof of the child's

relationship with his or her natural parents in assessing the existence, nature,

and extent of the harm facing the child," Id. at 440 (quoting J.C., 129 N.J. at

19). However, where the termination is "not predicated upon bonding, but rather

reflect[s] [the child's] need for permanency and [the biological parent's] inability

to care for [the child] in the foreseeable future," a lack of a bonding evaluation

is not fatal to the Division's case. See B.G.S., 291 N.J. Super. at 593-94.

We observe that while David argues Dr. Katz rendered a net opinion, he

fails to point to a single example to support his assertion. David also avers that

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Dr. Katz did not speak to Luke when his own expert, Dr. Gambone, testified that

he could not speak to Luke's best interests as he did not know the child and had

not interviewed him. After David's failure to participate in a plethora of services

offered by the Division, and the judge's sound finding that Dr. Katz's opinions

were fully supported and explained by the overwhelming evidence in the record,

David cannot credibly argue Dr. Katz gave a net opinion. Judge Wright did not

abuse his discretion in affording great weight to Dr. Katz's opinion.

At bottom, we are satisfied the judge correctly determined the Division

presented clear and convincing evidence establishing all four prongs of the best

interests of the child standard under N.J.S.A. 30:4C-15.1(a). To the extent we

have not specifically addressed any of David's arguments, we conclude they are

of insufficient merit to warrant extended discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

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