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### ***. Cover Page** **IN THE 6th COURT OF APPEALS** ___ Judicial District of Texas **Case No. *-*-*-CVP** **IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS OF:** M.K. and O.K. **AMELIA KENNEDY, Appellant** v. **DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee** --- ### ***. Table of Contents** *. **Statement of the Case** *. **Issues Presented** *. **Statement of Facts** *. **Summary of the Argument** *. **Argument** *. **Insufficient Evidence for Termination of Parental Rights** *. **Failure to Conduct a Proper Home Study** *. **Ineffective Assistance of Counsel** *. **Unreasonable Service Plan** *. **Unjustified Restriction of Visitation Rights** *. **Conclusion** *. **Appendix** --- ### ***. Table of Authorities** - **Cases** - *In re E.C.R., * S.W.3d * (Tex. *)* - *In re C.W., * S.W.3d * (Tex. App. *)* - *In re K.C.M., * S.W.3d * (Tex. App. *)* - *Strickland v. Washington, * U.S. * (*)* - *In re J.F.C., * S.W.3d * (Tex. *)* - *In re C.M.C., * S.W.3d * (Tex. App. *)* - *In re D.S., * S.W.3d * (Tex. *)* - **Statutes** - Texas Family Code § *.* - Texas Family Code § *.* - Texas Family Code § *.* - Texas Family Code § *.* - Texas Family Code § *.* - Texas Family Code § *.* - **Rules** - Texas Rules of Appellate Procedure - **DFPS Policies** - DFPS Handbook, Section *: Service Planning --- ### ***. Statement of the Case** This case arises from the termination of parental rights of Appellant, ****Kennedy, concerning her children, M.K. and O.K. The Department of Family and Protective Services (DFPS) initiated proceedings based on allegations of substance abuse and concerns for the children's safety. Despite ****Kennedy's efforts to comply with the service plan under challenging circumstances, including long travel distances without reliable transportation, the trial court terminated her parental rights. The trial involved disputed evidence regarding a meconium test, frequent interruptions when the appellant tried to speak, and unverified claims by her mother.Furthermore, the children were separated, and O.K. was moved twice during the proceedings. Visitation was severely limited, with only * minutes of video time per week for O.K. and one hour per week for M.K. This appeal challenges the sufficiency of the evidence supporting the termination, procedural failures by DFPS and the court, and the ineffective assistance of counsel provided during the trial. --- ### ***. Issues Presented** *. **Whether the trial court erred in terminating Appellant's parental rights based on insufficient and unreliable evidence, particularly the misrepresented meconium test results.** *. **Whether the trial court erred by failing to ensure DFPS conducted a proper home study and by relying on unverified statements from the appellant’s mother to justify the termination of parental rights.** *. **Whether Appellant was denied effective assistance of counsel in violation of the Texas Family Code and constitutional rights, impacting the fairness of the trial, including the failure to challenge misleading evidence and address the Lewis family's motives.** *. **Whether DFPS’s service plan was unreasonable, violating statutory requirements by failing to accommodate Appellant’s lack of transportation and the distance to services.** *. **Whether the restrictions on Appellant's visitation rights were unjustified and unsupported by evidence of harm to the children.** --- ### ***. Statement of Facts** #### **A. Overview** ****Kennedy, the mother of M.K. and O.K., faced the termination of her parental rights following allegations by DFPS that she engaged in substance abuse, posing a danger to her children. The court's decision relied heavily on a misrepresented meconium test result and ignored the fact that the test was never positive for amphetamines due to insufficient specimen. Additionally, DFPS, Guardian ad Litem and DFPS. failed to conduct a proper home study, relying instead on unverified statements made by the children's maternal grandmother, which were not supported by any independent investigation. Despite ****Kennedy’s compliance with several aspects of the service plan, including counseling, parenting classes, and visitation, psychosocial evaluation and substance abuse counseling under significant hardship, her parental rights were terminated. Throughout the case, the children were separated, with O.K. being moved twice and limited to only * minutes of video visitation per week, while M.K. was allowed only one hour of in-person visitation per week. #### **B. Detailed Facts** *. **DFPS’s Allegations and Removal** On May *,*, DFPS removed M.K. and O.K. from ****Kennedy's care, citing concerns based on an alleged positive meconium test for amphetamines at O.K.'s birth. However, the results of this test were misrepresented in court, as there was insufficient specimen to perform a valid test. Despite this, DFPS proceeded with the termination process, relying on this flawed evidence and other unverified claims. *. **Separation of Siblings and Frequent Moves** The children were separated and placed in different homes, which is contrary to the principle that siblings should be kept together whenever possible. O.K. was moved twice, causing further instability and emotional distress. The separation and frequent moves indicate a lack of consideration for the children’s best interests, particularly their need for continuity and stability in their living arrangements. *. **Service Plan Issues** ****Kennedy was required to comply with an extensive service plan, including psychosocial evaluation, counseling, parenting classes, and anger management. All required services were located at least * minutes to an hour away from her residence, and she did not have reliable transportation. These circumstances made compliance extraordinarily difficult, yet DFPS made no accommodations for her situation, thereby setting her up for failure. *. **Legal Representation** Throughout the trial, ****Kennedy’s court-appointed attorney failed to adequately represent her interests. The attorney did not challenge the misrepresented meconium test results, did not advocate for adjustments to the service plan considering Amelia’s lack of transportation, and did not address the inappropriate influence of the Lewis family, who had previously expressed a desire to adopt O.K. and allegedly attempted to "buy" the child before DFPS involvement This ineffective assistance contributed to the unfavorable outcome. *. **Visitation Rights** The trial court imposed severe restrictions on ****Kennedy’s visitation rights without sufficient evidence that such visits would endanger the children. The lack of any incidents during supervised visits further undermines the justification for these restrictions, highlighting the arbitrary nature of the court's decision. O.K. was limited to * minutes of video visitation per week, while M.K. was allowed only one hour of in-person visitation per week. These restrictions were not based on evidence of harm and further alienated the children from their mother. *. **Interruptions and Misrepresentations During Trial and other hearings throughout the case** ****Kennedy was frequently interrupted when attempting to present her side of the story during the trial and other hearings. The court did not give her a fair opportunity to address the false claims made by her mother regarding the drug use but disregarded the positive efforts made . This procedural unfairness further supports the argument that the trial was conducted in a manner that violated her right to due process. --- ### ***. Summary of the Argument** The trial court's decision to terminate ****Kennedy’s parental rights was based on insufficient and unreliable evidence, including a misrepresented meconium test result that was never positive for amphetamines due to insufficient specimen. Additionally, DFPS failed to conduct a proper home study, relying instead on unverified statements, and did not accommodate the unreasonable service plan given Amelia’s lack of transportation. Furthermore, ****was denied effective assistance of counsel, as her attorney failed to challenge misleading evidence, address the inappropriate influence of the Lewis family, and advocate for her rights during the trial. The restrictions on her visitation rights were unjustified, and the frequent interruptions during the trial prevented her from presenting a full defense. The separation of the children and the frequent moves of O.K. further exacerbated the harm to the children and were not in their best interests. These errors and procedural violations require the reversal of the termination of parental rights or, at the very least, a new trial to ensure a fair and just outcome. --- ### ***. Argument** #### **A. Insufficient Evidence for Termination of Parental Rights** ##### **Legal Standard** Under Texas Family Code § *.*, a court may terminate parental rights only if it finds by clear and convincing evidence that the parent engaged in conduct that endangered the child’s well-being and that termination is in the child’s best interest. The evidence presented in this case, particularly the misrepresented meconium test result, fails to meet this standard. The test result, which was never positive due to insufficientspecimen**, was improperly relied upon by the trial court as a key piece of evidence for terminating ****Kennedy's parental rights. The lack of a valid test result undermines the credibility of the Department of Family and Protective Services' (DFPS) case and demonstrates that the decision to terminate was not supported by clear and convincing evidence. Furthermore, other allegations made by DFPS, including the unverified statements from the children's maternal grandmother, were accepted without the necessary scrutiny or independent investigation. These uncorroborated claims further erode the reliability of the evidence used to justify the termination. ##### **Application to the Case** The termination of parental rights is a drastic measure that should only be taken when there is indisputable evidence of parental unfitness. In this case, the reliance on a misrepresented test result and unverified statements does not satisfy the legal standard required for termination under Texas law. ****Kennedy's parental rights were terminated based on insufficient evidence, and this court should reverse the trial court’s decision. --- #### **B. Failure to Conduct a Proper Home Study** ##### **Legal Standard** Texas Family Code § *.* mandates that a home study must be conducted when a child is removed from their parent’s care. The purpose of a home study is to assess the environment in which the child will be placed and to ensure it meets the child’s needs. ##### **Application to the Case** In this case, DFPS failed to conduct a proper home study, instead relying on unverified statements from the children's maternal grandmother. This failure deprived the trial court of critical information necessary to make an informed decision regarding the best interests of the children. The absence of a thorough and independent home study meant that the trial court did not have a complete picture of the potential placement options or the suitability of returning the children to ****Kennedy’s care. This procedural failure requires reversal or, at the very least, a remand for a proper home study to be conducted. --- #### **C. Ineffective Assistance of Counsel** ##### **Legal Standard** Under Texas law, parents facing the termination of their parental rights are entitled to effective assistance of counsel. The standard for determining ineffective assistance of counsel is derived from *Strickland v. Washington*, * U.S. * (*), which requires showing that counsel's performance was deficient and that this deficiency prejudiced the parent’s defense. ##### **Application to the Case** ****Kennedy’s attorney failed to effectively challenge critical pieces of evidence, including the misrepresented meconium test and the unverified statements made by her mother. Additionally, the attorney did not adequately advocate for accommodations in the service plan that would account for Amelia’s lack of transportation. This failure to provide effective legal representation directly impacted the outcome of the case, resulting in an unjust termination of parental rights. The deficient performance of Amelia's counsel necessitates a reversal of the trial court’s decision or, alternatively, a remand for a new trial with competent representation. --- #### **D. Unreasonable Service Plan** ##### **Legal Standard** Under Texas Family Code § *.*, a service plan must be reasonable, taking into account the parent's circumstances and providing them with a realistic opportunity to comply. ##### **Application to the Case** The service plan imposed on ****Kennedy was unreasonable and failed to accommodate her lack of reliable transportation. Required services were located far from her home, making compliance extraordinarily difficult. DFPS did not offer any alternative arrangements or assistance to help ****fulfill the service plan, effectively setting her up for failure. The trial court’s reliance on her non-compliance with this unreasonable plan as a basis for termination was improper, and this court should reverse the termination decision on these grounds. --- #### **E. Unjustified Restriction of Visitation Rights** ##### **Legal Standard** Texas Family Code § *.* prescribes that visitation rights should only be restricted if clear and convincing evidence shows that such visitation would endanger the child’s physical or emotional well-being. ##### **Application to the Case** The trial court imposed severe restrictions on ****Kennedy’s visitation rights without sufficient evidence to justify these restrictions. The limited visitation of * minutes of video time per week for O.K. and one hour per week for M.K. was not supported by any documented incidents of harm or danger during visits. This excessive restriction further alienated the children from their mother and was not in their best interests. The court’s decision to impose these restrictions without proper justification violated Amelia's rights and should be reversed. --- ### ***. Conclusion** For the reasons stated above, the trial court's decision to terminate ****Kennedy’s parental rights should be reversed. The evidence presented at trial was insufficient to support the termination, and the numerous procedural and legal errors deprived ****of a fair trial. Alternatively, this court should remand the case for a new trial to ensure that ****is provided with effective legal representation and that a proper assessment of her ability to care for her children is conducted. --- ### ***. Appendix** *. **Trial Court’s Judgment** *. **Findings of Fact and Conclusions of Law** *. **Relevant Statutes and Rules** *. **Relevant Portions of the DFPS Handbook** *. **Excerpts from the Trials Court.

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