
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-03-350-CV
  
   
IN 
THE INTEREST OF T.N.
AND 
M.N., CHILDREN
  
  
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FROM 
THE 211TH DISTRICT COURT OF DENTON COUNTY
 
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OPINION
 
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        After 
a jury trial, the trial court ordered that the parental rights of J.N. 
(“Mother”) and S.N. (“Father”) to the children T.N. and M.N. be 
terminated, based on the jury findings that the termination was in the 
children’s best interest, that the parents had knowingly placed or allowed the 
children to remain in conditions or surroundings which endanger the physical or 
emotional well-being of the children, and that the parents had knowingly engaged 
in conduct or knowingly placed the children with persons who engaged in conduct 
which endangers the physical or emotional well-being of the children.1  The parents appeal from the trial court’s 
order.  Because we hold that the trial court did not err and that the 
evidence is factually sufficient to support the termination of Father’s 
parental rights, we affirm the trial court’s order of termination.
I.  
Mother’s Issues
        Mother 
does not challenge the jury findings on the endangerment grounds or best 
interest. Instead, she raises two issues complaining of the children’s 
attorney’s performance and one issue complaining about the trial court’s 
rulings on her challenges for cause.
A. Standing to 
Complain of Children’s Attorney
        In 
her first issue, Mother complains that the children’s attorney ad litem’s 
failure to perform statutorily mandated duties violated her due process and 
equal protection rights under the state and federal constitutions. In her second 
issue, she complains that the children’s attorney ad litem’s ineffective 
assistance violated Father’s and her due process rights. Mother does not point 
to any evidence in the record demonstrating how her constitutional rights were 
violated. A party may not complain of errors which do not injuriously affect her 
or which only affect the rights of others.2  An 
exception exists when the appellant is deemed to be a party under the doctrine 
of virtual representation, which requires among other elements that the 
appellant and, in this case, Father and the children, have identical interests.3  The record does not show that Mother, Father, and 
the children have identical interests, nor does Mother claim that they do. 
Instead, without presenting any evidence that she suffered harm therefrom, 
Mother seeks to exploit the alleged deficiencies of the children’s counsel for 
her own use on appeal.
        The 
record demonstrates that the children’s attorney ad litem did not meet with 
his clients until three days after trial began. It also demonstrates no evidence 
of the children’s desires about termination. While we do not reach the 
substance of Mother’s complaint, we are appalled that any attorney, much less 
one appointed to represent the interests of vulnerable children, could fail to 
meet with his clients, not to mention fail to ascertain his clients’ trial 
objectives, until such trial was well underway.
        Nevertheless, 
Mother does not have standing on appeal, nor did she at trial, to complain about 
the performance of the children’s attorney on the children’s behalf. At the 
time of trial, CPS had temporary managing conservatorship, including the right 
to represent the child in legal action and to make other decisions of 
substantial legal significance concerning the child. Mother did not have that 
right then, nor does she now. Further, Mother has no standing to complain about 
the children’s lawyer on her own behalf.4  
Even though no party’s trial counsel elicited any evidence about the 
children’s desires, we note that Mother does not challenge her own trial 
counsel’s effectiveness.5  Additionally, 
Mother does not have standing on appeal to complain about a violation of 
Father’s due process rights.6  We overrule 
Mother’s first two issues.
B. Unpreserved 
Challenges for Cause
        In 
Mother’s third issue, she contends that the trial court erred in denying her 
challenges for cause to panel members who admitted a bias against her. At trial, 
Mother did not specifically identify an objectionable juror who would serve on 
the jury because of the trial court’s failure to grant the challenges for 
cause or to allow her additional peremptories.  She did not object to the 
jury as seated.  Because Mother did not identify a specific, objectionable 
juror, she failed to preserve this issue for appeal.7  
We overrule Mother’s third issue.
II. Father’s 
Issues
        Father 
raises four issues, complaining that the evidence is factually insufficient to 
support the jury findings on endangerment and best interests’, that the trial 
court abused its discretion in admitting the testimony of a witness who was 
disqualified as an expert, and that the trial court erred in denying his 
challenges for cause.
A. Unpreserved 
Challenges for Cause
        In 
Father’s first issue, he contends that the trial court erred in denying his 
challenges for cause to panel members who admitted bias in favor of CPS. 
Because, like Mother, Father failed to preserve his complaint by identifying a 
specific, objectionable juror who would be on the jury because of the trial 
court’s failure to grant the challenges for cause or to allow Father 
additional peremptories and did not object to the jury as seated,8 we overrule Father’s first issue.
B. Expert’s 
Lay Testimony
        In 
Father’s fourth issue, he contends that the trial court abused its discretion 
in admitting expert opinion testimony regarding his and Mother’s fitness as 
parents from a witness the court wholly failed to qualify as an expert. Our 
review of the record reveals that the trial court ruled that Shelly Butler, a 
licensed professional counselor, could not give any expert opinions, but she 
could testify as to what she observed, heard, or was told. That is, the trial 
court did not prohibit the witness from giving the same testimony that a lay 
witness would be allowed to give.9  Butler 
testified, over objection, that Mother reported past separations from Father, 
that the parents’ behavior was “childlike, argumentative, and verbally 
abusive,” and that the parents used “humiliating words” toward each other. 
We hold that these opinions were admissible as lay testimony, and the trial 
court did not abuse its discretion by admitting them.  We overrule 
Father’s fourth issue.
C. Findings on 
Endangerment
        In 
Father’s second issue, he contends that the evidence is factually insufficient 
to support the jury’s findings that he knowingly placed or allowed his 
daughters to remain in conditions or surroundings that endangered their physical 
or emotional well-being or that he engaged in conduct or knowingly placed the 
children with persons who engaged in conduct that endangered their physical or 
emotional well-being. The evidence shows that Father repeatedly left the 
children with their paternal grandmother, even though he knew she abused alcohol 
and other substances while the children were under her care and had had two 
wrecks while she was driving under the influence of alcohol or drugs with the 
children in the car. The children were repeatedly observed unsupervised outside 
their grandmother’s home, once at night, when the older child struggled to 
keep her toddler sister out of the street. Father continued to leave his 
children with his mother even after the police, and later CPS, warned him that 
his mother was not an appropriate caregiver for the children because of her 
substance abuse problems.
        The 
evidence also shows that Father repeatedly left the children with Mother, even 
though he knew that she had abused alcohol while the children were under her 
care; had driven to his workplace while intoxicated, with the children in the 
car, and had left one of the children in the car with the windows up and the 
engine off on a summer afternoon; and, on a separate occasion, had been in a car 
wreck while under the influence of alcohol with the children unrestrained in the 
back seat.
        The 
evidence also shows that Father was emotionally and physically abusive to the 
grandmother in front of the children and that he and Mother physically fought in 
front of the children. Applying the appropriate principles and standard of 
review,10 we hold that the evidence is factually 
sufficient to support the jury findings on endangerment by conduct.11  We overrule Father’s second issue.
D. Best 
Interest Findings
        In 
his third issue, Father contends that the evidence is factually insufficient to 
support the jury’s findings that termination of his parental rights is in the 
children’s best interest. In addition to the evidence of endangerment recited 
above, the evidence also shows that Father lacks stability in many other ways. 
He did not have a stable employment history and was unemployed at the time of 
trial. The evidence shows that the couple’s parents had provided much of the 
family’s financial support throughout the marriage. Father also did not have a 
stable housing history.  At the time of trial, he had been evicted from his 
apartment, was staying with Mother, but had a fight resulting in her arrest on 
the evening before the last day of trial. The evidence also shows that Father 
did not have a stable relationship with Mother. Testimony showed that they had 
separated four or five times, and even the maternal grandmother testified that 
she was concerned about the couple’s stability and the environment they 
provided for the children. Additionally, while Father testified that he would 
leave Mother if her rights were terminated and his were not, he also testified 
that he loved her and wanted their marriage to work. Similarly, while he claimed 
that he would not leave the children with his mother anymore, he also indicated 
his belief that she was no longer a danger to the children, and his history 
shows that he repeatedly left the children with her even when he knew she was a 
danger.
        Father’s 
participation in CPS-recommended programs was less than stellar. He completed 
parenting classes but did not complete counseling. He missed some visits with 
the children, and he refused to take at least one drug test.
        Disturbingly, 
there was no evidence about the children’s desires nor any specific evidence 
about particular persons who CPS believed were qualified to offer the children a 
permanent placement or adoption. There was no evidence showing a commitment to 
place the children together in the future, or, at the very least, to maintain 
their relationship through letters, telephone calls, and visits. At the time of 
trial, the children were thriving in a foster home with a couple who were more 
like surrogate grandparents.
        But 
Father also had no concrete plans for the children. He had no apartment at the 
time of trial and had been recently evicted, but he claimed that he would get 
his own apartment within the week if he regained custody of the girls, courtesy 
of the financial support of his mother, his mother-in-law, and his uncle. He 
also said that he and the girls could stay with his uncle, who did not testify. 
Regarding daycare, he planned for his uncle and the maternal grandmother to 
watch the girls, or he had heard of subsidized daycares. He also testified that 
he would provide for the girls’ basic needs from the financial support of 
relatives. The maternal grandmother testified that the children did not need to 
be with their parents “right now” because “they are still living the way 
they always have.”
        Based 
on the appropriate standard of review,12 and 
considering the Holley factors,13  we 
hold that the evidence is factually sufficient to support the jury’s findings 
that the termination of Father’s parental rights was in the best interest of 
the children. We overrule Father’s third issue.
III. Conclusion
        Having 
overruled all of the parents’ issues, we affirm the trial court’s order of 
termination.
 
  
                                                                  LEE 
ANN DAUPHINOT
                                                                  JUSTICE
  
  
PANEL B:   DAUPHINOT, 
HOLMAN, and GARDNER, JJ.
DELIVERED: 
July 22, 2004


NOTES
1.  
See Tex. Fam. Code Ann. § 
161.001(1)(D), (E), (2) (Vernon 2002).
2.  
Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 988 S.W.2d 750, 752 (Tex. 
1999); Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex. 
1982); Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 92 
(Tex. 1973).
3.  
See, e.g., Gunn v. Cavanaugh, 391 S.W.2d 723, 725 (Tex. 
1965); Jernigan v. Jernigan, 677 S.W.2d 137, 140 (Tex. App.—Dallas 
1984, no writ).
4.  
See Mandlbauer, 988 S.W.2d at 752; Glaser, 632 S.W.2d at 
150; Jackson, 499 S.W.2d at 92; see also In re Frank L., 97 Cal. 
Rptr. 2d 88, 81 Cal. App. 4th 700, 703 (Cal. Ct. App. 2000) (holding that 
parents must actually make a showing that ineffective assistance of the 
children’s attorney affected the parents’ interest to have standing to raise 
the claim).
5.  
See In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (parents in 
termination cases are entitled to effective assistance of counsel).
6.  
See Mandlbauer, 988 S.W.2d at 752; Glaser, 632 S.W.2d at 150; Jackson, 
499 S.W.2d at 92.
7.  
See Hallett v. Houston N.W. Med. Ctr., 689 S.W.2d 888, 890 (Tex. 
1985); Pharo v. Chambers County, 893 S.W.2d 264, 268 (Tex. App.—Houston 
[1st Dist.] 1995), aff’d, 922 S.W.2d 945 (Tex. 1996).
8.  
See Hallett, 689 S.W.2d at 890; Pharo, 893 S.W.2d at 268.
9.  
See Tex. R. Evid. 701.
10.  
See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 
(1982); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Tex. Dep’t of 
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Holick v. Smith, 
685 S.W.2d 18, 20 (Tex. 1985); Richardson v. Green, 677 S.W.2d 497, 499 
(Tex. 1984); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).
11.  
See Tex. Fam. Code Ann. § 
161.001(E); In re A.R.R., 61 S.W.3d 691, 698 (Tex. App.—Fort 
Worth 2001, pet. denied) (holding that sufficient evidence of one conduct 
ground, coupled with sufficient proof of best interest, is enough for 
termination), disapproved of on other grounds by C.H., 89 S.W.3d 
at 26.
12.  
See Santosky, 455 U.S. at 758-59, 102 S. Ct. at 1397; C.H., 89 
S.W.3d at 25; Boyd, 727 S.W.2d at 533; Holick, 685 S.W.2d at 20; Richardson, 
677 S.W.2d at 499; G.M., 596 S.W.2d at 847.
13.  
See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
