       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                              C.S., the father,
                                 Appellant,

                                     v.

             DEPARTMENT OF CHILDREN AND FAMILIES,
                           Appellee.

                              No. 4D15-2097

                           [November 12, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Hope Bristol, Judge; L.T. Case No. 2013-6788DP.

  Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Fort Lauderdale, for appellee Department of
Children and Families.

   David P. Krupski, Sanford, for appellee Guardian ad Litem Program.

WARNER, J.

    A father appeals a final judgment terminating his parental rights to his
child on the grounds of “egregious conduct.” That conduct consisted of
alleged medical neglect of the child who was born HIV positive but
progressed to full-blown AIDS as a result of the failure of the parents to
properly care for the child.       Because of the literal life-and-death
consequences to the child of the failure to provide the proper care, we
conclude that the conduct is “egregious” within the meaning of the statute
and affirm the termination of parental rights.

    The Department petitioned to terminate the father’s parental rights,
alleging that pursuant to section 39.806(1)(f), Florida Statutes (2013), “the
[father] engaged in egregious conduct or had the opportunity and
capability to prevent and knowingly failed to prevent egregious conduct
that threatens the life, safety, or physical, mental or emotional health of
the minor child. . . .” It pointed specifically to the father’s failure to provide
the minor child, born with a blood disorder (HIV), with her medication on
a consistent basis.

    At the final hearing, the testimony showed that the child, Z.S., was born
prematurely in December 2012 and tested positive for the HIV virus at
birth. To prevent the progression of the virus, her treating physician put
her on medications. Because of her prematurity, the baby faced other
complications, including being at risk for lung infections, poor weight gain,
eating issues and developmental delays. As a result, the Child Diagnostic
and Treatment Center (“CDTC”) monitored the progress of the child, both
in the hospital and after discharge.

    The medical professionals stressed to the parents that strict compliance
with the medication regimen and weight gain were critical. The doctors
and social workers gave the parents instructions on how to administer the
medications. According to the treating physicians, the child’s medications,
if given properly, would have reduced the viral load in the child within
weeks or months, and she would have been able to gain sufficient weight.
Instead, the child’s viral load numbers did not go down but would
fluctuate. And while she started gaining some weight (about a pound) in
the first few months, her weight gain slowed such that in the beginning of
September 2013 she was diagnosed with Failure to Thrive. Throughout
the first nine months, the CDTC tried to work with the parents, requiring
that the child be enrolled in medical day care. Yet the parents would not
always take her to the day care, where she would have received her
medication properly. And they did not call for assistance.

   Although the father testified that he was the parent primarily
responsible for administering the child’s medication, he also testified that
his work took him away for periods of time. Further, he did not attend
most of the child’s many doctor appointments. And in September 2013,
the mother had obtained a restraining order against the father for domestic
violence, thus removing him from any day-to-day care of the child.

    By the end of December, the child’s viral load had continued to increase
to the point that the child was diagnosed with full-blown AIDS. The doctor
believed the parents were not giving her the medications as directed, and
the disease became life threatening. The Department filed a shelter
petition for the child.

   After the child was removed from the custody of her parents and placed
with a foster mother, she made a quick turnaround. Within six weeks she
had caught up to developmental milestones that she had not been able to

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achieve in the parents’ custody, and her virus became undetectable. The
child’s growth was adequate in 2014, and she was no longer listed as
having a Failure to Thrive; however, she will have the AIDS diagnosis
forever. Additionally, the doctor said that because the child’s level of virus
was so high during her first year of life, she could have a learning disability
or other cognitive issues. The foster mother, whose care had resulted in
the child’s dramatic improvement, had expressed a desire to adopt Z.S.

    When asked whether the parents could be rehabilitated to be able to
care for the child, the treating physician stated that the parents had been
offered all types of counseling and education regarding the child’s care for
over a year, and the child continued to decline. As the trial court found,
“There was nothing else that they as medical professionals could have
done for them.”

   The court concluded that had the father been giving the medicine
correctly, Z.S. would not have developed full-blown AIDS. Although the
child has a life-threatening illness which could be controlled through
medication, the parents had not shown that they could manage her
medication consistently, which resulted in life-threatening consequences.
On this basis, the court terminated the father’s rights. The court noted
that, despite considerable intervention by medical professionals, the
parents could not be rehabilitated to provide the consistent care the child
needed. Termination was in the child’s manifest best interest and the least
restrictive means to protect the child from harm. The father appeals the
court’s judgment.

   The father argues that his conduct in failing to medically care for his
child could not be classified as “egregious” under the statute, and therefore
using section 39.806(1)(f), Florida Statutes (2013), was improper. That
statute provides:

      (1) Grounds for the termination of parental rights may be
      established under any of the following circumstances:

                                     ....

      (f) The parent or parents engaged in egregious conduct or had
      the opportunity and capability to prevent and knowingly failed
      to prevent egregious conduct that threatens the life, safety, or
      physical, mental or emotional health of the child . . .

“Egregious conduct” is defined in 39.806(1)(f)2. to mean:


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         [A]buse, abandonment, neglect, or any other conduct
         that is deplorable, flagrant, or outrageous by a normal
         standard of conduct. Egregious conduct may include an
         act or omission that occurred only once but was of such
         intensity, magnitude, or severity as to endanger the life
         of the child.

   The standard of review of the final judgment terminating parental rights
is whether the trial court’s finding that there is clear and convincing
evidence to terminate parental rights is supported by competent,
substantial evidence. This is explained in D.G. v. Department of Children
& Families, 77 So. 3d 201, 206–07 (Fla. 4th DCA 2011):

      [T]he appellate court’s task:

      [I]s not to conduct a de novo proceeding, reweigh the
      testimony and evidence given at the trial court, or substitute
      [its] judgment for that of the trier of fact. Instead, [it] will
      uphold the trial court’s finding “[i]f, upon the pleadings and
      evidence before the trial court, there is any theory or principle
      of law which would support the trial court’s judgment in favor
      of terminating . . . parental rights.”

                                      ....

      Where the trial court’s finding that there is clear and
      convincing evidence to terminate parental rights is supported
      by competent, substantial evidence, the appellate court has
      no choice but to affirm.

    Given this standard, we conclude that the trial court’s finding that the
actions of the father constituted egregious conduct is supported by
competent substantial evidence. Although the father asserts this was not
“deplorable” conduct, the evidence supports that failing to give medication,
to such an extent that the child developed AIDS, is deplorable in this case.

    The father himself claimed that he was the primary parent responsible
for the child’s medical regimen. The Department of Children and Families
and the Guardian Ad Litem point out that the father’s neglect of Z.S.’s
medical care directly led to her developing AIDS. The evidence supported,
and the trial court found, that the father’s conduct qualifies as “egregious,”
because he knew of Z.S.’s illness and if he had given her medication, as
instructed by the doctors, Z.S.’s viral load would have become
undetectable within a few months. The professionals worked with both

                                       4
the father and mother for months trying to get them to administer the
medications properly to protect the life of their baby, and they failed to
heed the medical advice and instruction, knowing the consequences.
Instead, the child ended up in a life-and-death situation. Although the
father contended that he never received instruction or information
concerning her illness, the trial court found his testimony not credible.
Knowing her condition, his minimal and inconsistent efforts to deal with
her medical condition caused her life-threatening harm. This constitutes
egregious conduct.

   As found by the trial court, this damage to the child was completely
preventable had the father heeded the advice of the medical team treating
his daughter. The child will have to live with this diagnosis for the rest of
her life, including ancillary complications, which the doctors testified was
directly related to the failure to properly and consistently administer
medicine. The trial court did not err in terminating the father’s rights
based upon “egregious conduct.”

   The father also contends that termination was not the least restrictive
means to protect the child from harm. In Padgett v. Department of Health
& Rehabilitative Services, 577 So. 2d 565, 571 (Fla. 1991), the court
explained that “least restrictive means” means that HRS [now DCF] must
ordinarily show that it has made a good faith effort to rehabilitate the
parent and reunite the family, such as through a current performance
agreement or other such plan. In cases of egregious conduct toward a
child, however, the concept of least restrictive means does not require that
a parent be given a case plan. In re E.R., 49 So. 3d 846, 854 (Fla. 2d DCA
2010) (finding that in cases involving egregious conduct by the parent, “the
termination of parental rights without the use of plans or agreements is
the least restrictive means”). Moreover, in this case the parents already
had substantial intervention and training by medical professionals and
social workers. As the professionals stated, they had already intervened
as much as they could, and the parents could not be rehabilitated to
prevent further harm to the child.

    The final judgment terminating the father’s parental rights to Z.S. is
affirmed.

LEVINE and KLINGENSMITH, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.


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