Norma Sano v. Jimmy J. Greenlee ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00264-CV
NORMA SANO APPELLANT
V.
JIMMY J. GREENLEE APPELLEE
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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In two issues, Appellant Norma Sano appeals the trial court’s designation
of Appellee Jimmy J. Greenlee as joint managing conservator with the exclusive
right to establish their child’s primary residence in its divorce decree. We affirm.
II. Factual and Procedural Background
After three years of litigation, the trial court granted the parties’ divorce,
appointed Sano and Greenlee as joint managing conservators of their five-year-
1
See Tex. R. App. P. 47.4.
old son Calvin,2 and awarded to Greenlee the exclusive right to determine
Calvin’s primary residence. The trial court’s findings of fact and conclusions of
law included the following:
FINDINGS OF FACT
1. Jimmy J. Greenlee and Norma Sano were common law
married in April of 2003.
2. There was one child born of this marriage. That child was
[Calvin], a male, born on October 23, 2004, in Tarrant County,
Texas.
....
4. The Court finds that the mother, Norma Sano, is unemployed,
and draws a social security disability check.
5. The Court finds that the father is employed.
6. The Court finds that two social studies have been filed in this
case.
7. The Court finds that the mother did not have a driver’s license
at the time of trial.
....
9. The Court finds that the mother has questionable functioning
and reasoning abilities.
10. The Court finds that the parents should be named joint
managing conservators . . . .
11. [Calvin’s] needs are better met and that it is in the best interest
of the child for the father to be the Joint Managing Conservator with
the exclusive right to establish domicile within Tarrant and
Contiguous counties.
2
We use an alias to protect the child’s identity. See Tex. Fam. Code Ann.
§ 109.002(d) (West 2010).
2
12. The Court finds that the domicile of the child should be
restricted to Tarrant County, Texas and adjoining counties.
....
18. The Court finds that the parties’ families reside in El Paso, and
that Norma Sano desires to move to El Paso with the child.
....
CONCLUSIONS OF LAW
....
5. Based upon the evidence, I conclude as a matter of law that
Common Law Marriage of the parties took place in April of 2003.
6. Based upon the evidence, I conclude as a matter of law that
Jimmy J. Greenlee and Norma Sano should be appointed Joint
Managing Conservators, and that it is in the best interest of the
minor child that the father, Jimmy J. Greenlee, be appointed Joint
Managing Conservator of the child, [Calvin] with the exclusive right
to establish domicile.
7. Based upon the evidence, I conclude as a matter of law that
the child’s residence should be restricted to Tarrant County and
adjoining counties and find that this is in the best interest of the
child.
....
9. The Court considered the following factors in making a
determination of a just and right [community property] division[3]:
a. Norma Sano’s disability;
b. Norma Sano’s inability to be gainfully employed;
c. Norma Sano’s duties as a homemaker during the entire
duration of the relationship between her and Jimmy
Greenlee; and
3
In Finding of Fact #24, the trial court set out its community property
division, including an award of 25% of the community balance of Greenlee’s
retirement fund to Greenlee and 75% of it to Sano.
3
d. Norma Sano’s disparity of earning power and means of
support.
....
11. Based upon the evidence, I conclude that Norma Sano should
not pay any child support at this time because she is unable to do so
because of her disability.
Because Sano complains of the legal and factual sufficiency of the
evidence to support the trial court’s decision to award the right to establish
Calvin’s primary residence to Greenlee and to support Fact Finding #9, we will
address the evidence related to these issues within our analysis below.4
III. Discussion
In her first issue, Sano complains that the trial court abused its discretion
by designating Greenlee as Calvin’s joint managing conservator with the right to
establish Calvin’s primary residence because the evidence was legally and
factually insufficient to support this decision. In her second issue, Sano argues
that the trial court deprived Sano of a fair trial and violated her constitutional
rights by considering Sano as disabled or intellectually impaired when the
evidence was legally and factually insufficient to support this finding.
A. Standard of Review
We review the trial court’s decisions on custody, control, possession, and
visitation matters for an abuse of discretion. In re M.M.M., 307 S.W.3d 846, 849
4
Sano does not appeal the portions of the judgment granting the divorce or
dividing the parties’ community property.
4
(Tex. App.—Fort Worth 2010, no pet.) (citing Gillespie v. Gillespie, 644 S.W.2d
449, 451 (Tex. 1982)). To determine whether a trial court abused its discretion,
we must decide whether the trial court acted without reference to any guiding
rules or principles; in other words, we must decide whether the act was arbitrary
or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.
Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot
conclude that a trial court abused its discretion merely because the appellate
court would have ruled differently in the same circumstances. E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,
221 S.W.3d at 620. And an abuse of discretion does not occur when the trial
court bases its decisions on conflicting evidence and some evidence of
substantive and probative character supports its decision. Unifund CCR Partners
v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d
198, 211 (Tex. 2002).
Findings of fact entered in a case tried to the court have the same force
and dignity as a jury=s answers to jury questions. Anderson v. City of Seven
Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court=s findings of fact are
reviewable for legal and factual sufficiency of the evidence to support them by
the same standards that are applied in reviewing evidence supporting a jury=s
answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994). However, in a review of a child custody ruling,
―legal and factual sufficiency are not independent grounds of error but are
5
relevant factors in deciding whether the trial court abused its discretion.‖ M.M.M.,
307 S.W.3d at 849. We consider whether (1) the trial court had sufficient
information upon which to exercise its discretion and (2) whether it erred in its
application of that discretion. Id. The first question is subject to a traditional
sufficiency review; we determine in the second question whether, based on the
elicited evidence, the trial court made a reasonable decision. Id. A trial court is
given wide latitude when determining the best interest of the child and will only
be reversed if it appears from the record as a whole that the trial court abused its
discretion. Gillespie, 644 S.W.2d at 451.
B. Evidence
1. Jimmy Greenlee’s Testimony
At the time of trial in 2010, Greenlee was a forty-two-year-old high school
graduate who had worked for AT&T for ten years. Prior to working for AT&T, he
spent around nine years in the United States Navy. Greenlee testified that Sano
was disabled when he met her, that they started living together in 1996, along
with Sano’s then-ten-year-old daughter from her prior marriage,5 and that they
were not common law married until April 2003, based on filing their 2004 income
tax return jointly as married. Greenlee said that 2004 was the only time they had
filed jointly as married because Sano wanted to retain her Social Security
5
During trial, Sano described her daughter as a twenty-four-year-old high
school graduate who was married and in college.
6
Insurance (SSI) disability payments.6 The parties lived together for seven years
before Calvin was born.
Greenlee testified that Calvin is delayed in speech and development, and
the trial court admitted into evidence Calvin’s December 2007 speech therapy
evaluation by a speech pathologist. The evaluation reflects that the speech
pathologist diagnosed Calvin with profound articulation disorder, severe-to-
profound receptive and expressive language disorder, and speech delay.
Greenlee stated that Calvin has been improving; that he has been working with
Calvin on his colors, shapes, numbers, and letters at Calvin’s teacher’s request;
and that Calvin needs interaction with other children to help with his speech. At
the time of trial, Calvin attended the Weldon Hafley Development Center, in the
Eagle Mountain School District, for four hours a day; Greenlee said that he would
send Calvin to regular kindergarten the following school year if that is what was
recommended at the end of the school year.
During Greenlee’s testimony, the trial court admitted the following into
evidence:
An April 6, 2007 letter from the Social Security Administration (SSA) to Sano,
stating that effective February 2004, she was no longer eligible to receive SSI
benefits.
A 2009 favorable ruling from the SSA to reinstate Sano’s SSI benefits and the
March 17, 2009 decision by the administrative law judge (ALJ), including the
ALJ’s findings of fact and conclusions of law.
6
Similarly, Sano testified that she had wanted to marry Greenlee but could
not ―because of [her] SSI.‖
7
A photograph of Calvin’s room at Greenlee’s house, and a photograph of
Calvin’s dog at Greenlee’s house.
Greenlee’s certificates of completion for two parenting courses.
Greenlee stated that he wanted Calvin’s domicile to remain in Tarrant
County, where he lives, and that he wants to get Calvin involved in Cub Scouts
and sports. Greenlee has a house and a car; he stated that Sano does not drive.
He requested that Sano be given extended visitation like Greenlee had had
during the pendency of the divorce and said that he made this request in Calvin’s
best interest.
2. Norma Sano’s Testimony
At the time of the trial, Sano was Calvin’s primary caregiver. Sano stated
that she had been receiving SSI disability payments since 1988 and stated that
her disabilities include a Torkildsen shunt in her head and epileptic seizures
controlled through medication. In 1988, she was in a coma for seven months,
and calcification build-up during the prolonged coma led to a loss of range of
motion in her right elbow. Sano said that her last seizure was in 2006 but then
said that it had just been a strong dizzy spell and that she could not recall the last
time she had had a seizure. She had a seizure in 2004 while she was under
observation at the hospital, prior to giving birth to Calvin. Sano did not finish high
school, and she testified that she had never been employed while she and
Greenlee were together.
8
Sano admitted that the ALJ had made a finding that she had borderline
intellectual functioning.7 She also admitted telling the SSA that she was unable
to sit, stand, or walk for long periods of time due to pain, headaches, weakness,
and side effects from her medication—which included fatigue and sleepiness—
and that she also suffered from depression and chronic right elbow pain. Sano
stated that she could take care of Calvin because she was on medication. With
regard to Sano’s disabilities, the following dialogue occurred between Sano and
her attorney during Sano’s testimony:
Q. One real quick concerning your disability status. You have
been—it has been determined by the government that you are not
capable of maintaining full-time employment, correct?
A. Yes.
Q. It has not been established by the government that you’re not
capable of taking care of your son, correct?
A. Yes.
Q. You touched on it a little earlier that at work, if you get tired, you
just can’t expect a boss to let you go sit down and find a quiet place
to sit down, correct?
A. Yes.
Q. But while you’re taking care of your son, if you get tired or you
need to sit down, nobody is there to boss you around to say you
can’t do that, correct?
7
When asked by Greenlee’s attorney about the borderline intellectual
functioning, Sano asked the trial court if she could respond to that, and the trial
court told her, ―Your attorney will take care of that.‖ Then Greenlee’s attorney
asked, ―That’s what the Social Security Board found for you though, right?‖ and
Sano replied, ―Yes.‖
9
A. Yes.
Q. Is that what you’re saying?
A. Yes.
Q. Is that what you want the Court to understand?
A. Yes.
Sano noted that the issue of her child-raising ability was not discussed with the
SSA in determining her eligibility for disability benefits. The SSA had Sano
undergo a psychological evaluation, and she admitted that she had discussed a
cognitive adjustment disorder with the psychologist.
With regard to Calvin’s speech and development delays, Sano testified
that her son is fine and just ―a little bit behind‖ in his speech, but she admitted
that Calvin did not finish potty-training until age four. Sano said that she wanted
Calvin to be around other children but that it was just her and Greenlee living in
the area.
Sano testified that she does not like to drive but that she knows how to
drive. In response to Greenlee’s attorney’s question, ―You don’t have a driver’s
license?‖ Sano replied, ―No, I don’t like to drive.‖ Sano said that she could take
Calvin places by calling friends who are willing to drive her.
Sano testified that she would like to move with Calvin to El Paso to be
closer to both parties’ relatives. Specifically, the following dialogue occurred
between Sano and her attorney during Sano’s testimony:
10
Q. Listen to my question. Why do you want the restriction from
Tarrant County taken off so that you can move?
A. To El Paso.
Q. You want to move to El Paso?
A. Yes . . . Because both families for [Calvin] are over there, both
grandmas.
Sano clarified that she meant that Greenlee’s mother and Sano’s mother were
both in El Paso. Sano stated that if the geographic restriction were removed, she
would be willing to pay for one plane ticket a month so that Calvin could visit his
father, and she proposed that Greenlee pay for any additional plane tickets per
month.
At the close of Sano’s testimony during Greenlee’s case-in-chief, the trial
court asked her some questions, including whether she was on Medicaid and
whether she went to Mental Health Mental Retardation (MHMR), whether her
daughter also had developmental problems, and what kind of extracurricular or
organized activities Calvin was involved in that would allow him to interact with
other children. Sano said that she was on Medicaid, said ―yes‖ to MHMR, and
said that her daughter did not have developmental problems and made As and
Bs in high school. Sano stated that Calvin played ―a lot in the house,‖ that he did
not have any friends, and that she did not yet have him in any group activities,
although she was thinking of putting him in extra time at the YMCA. Finally, the
trial court asked her about driving:
11
THE COURT: Well, let me go into this. You say you don’t care to
drive, right? You don’t like to drive?
[SANO]: No, I don’t like to drive.
THE COURT: But you could drive?
[SANO]: Yes.
THE COURT: You could have a driver’s license right now, right?
[SANO]: Yes.
THE COURT: I don’t care to cook, but there are some things that I
think for the betterment of other members of the family you have to
do regardless. Do you consider driving a necessity in today’s world?
[SANO]: Well, it’s because I --
THE COURT: No. You don’t consider it a necessity?
[SANO]: No.
Sano complained during Greenlee’s case-in-chief and in her own case that
Greenlee did not take Calvin to the doctor or dentist when she asked him to, that
he did not keep her adequately informed about Calvin’s health when Calvin
stayed with him, and that Calvin was always sick when Greenlee returned him to
her. Specifically, Greenlee dropped Calvin off wearing a cast after Calvin broke
a bone at McDonald’s instead of notifying her when it happened; Sano’s brother
took Calvin to the doctor when Calvin had pneumonia; Greenlee did not tell her
when Calvin had asthma but instead just returned the child on a Monday morning
with his medication; and almost once a month, Greenlee would return Calvin
home sick and then she would have to take him to the doctor. Sano said that
12
she does not contact Greenlee when she takes Calvin to the doctor because
Greenlee does not call her when he takes Calvin to the doctor and because
Greenlee already knows that the child is sick when he drops Calvin off. Sano
also complained that Calvin had to go to school tired when Greenlee would
return Calvin to her at 6:30 a.m. so that Greenlee could get to work at 7 a.m.
3. Additional Testimony
After Sano finished her case-in-chief, the trial court asked Greenlee why
he failed to notify Sano about Calvin’s broken bone when he was at the hospital
getting it fixed. Greenlee stated that the accident happened on a Sunday, and he
brought Calvin to Sano in a temporary cast. Sano told him that he would have to
take Calvin to the follow-up appointment—when the fracture was discovered and
permanent cast put on—―since he got hurt during your time.‖ The trial court then
asked Sano additional questions, including whether she took pain medication.
Sano said that she took Arthiotec once a day for pain in her back caused by
arthritis.
4. Additional Evidence
Petitioner’s Exhibit 15, the SSA’s decision to reinstate Sano’s SSI benefits,
which set out the ALJ’s findings and conclusions, was admitted in evidence
without objection. The ALJ’s findings included the following:
4. The claimant has the residual functional capacity to perform
sedentary work . . . except that she cannot sit, stand, or walk for long
periods of time and is unable to work 8 hours a day, 40 hours a
week, secondary to fatigue, pain, and weakness.
13
....
The record reflects that the claimant has been diagnosed with
seizures controlled with medications, shunt placement in brain to
control pressure, loss of range of motion and strength of right elbow,
depressed mood and anxiety, back pain, and borderline intellectual
functioning. To further develop the case the Administration sent the
claimant to Enrique Porras, M.D. on May 15, 2007 for internist
consultative examination. The claimant presented with seizures,
high blood pressure, and arthritis. The claimant report[ed] being
involved in a motor vehicle accident in 2004 which resulted in
arthralgias affecting the right side and tailbone. X-rays indicated
arthritis and evidence of trauma. She is able to sit for no more than
one hour without pain from hip and tail bone. . . . Dr. Porras
diagnosed the claimant with right elbow arthralgia due to
degenerative joint disease, coccygeal pain, seizure disorder, clinical
depression decompensated, arterial hypertension, hyperlipidemia,
hypothyroidism, and chronic headaches.
The Administration also sent the claimant to Randall Rattan, Ph.D.
for a psychological evaluation. Based on his examination, Dr.
Rat[t]an diagnosed the claimant with cognitive disorder, NOS,
adjustment disorder with mixed depressed mood and anxiety, and
borderline intellectual functioning. . . .
The sealed record in this case contains a social study report dated June
12, 2007, that is based on interviews with Sano, Greenlee, and Calvin’s
babysitter and home visits with each parent when Calvin was with them, and a
follow-up social study report covering interviews in September 2007. 8 The trial
court took judicial notice that both reports were in its file, took judicial notice of its
8
A social study is an ―evaluative process through which information and
recommendations regarding . . . conservatorship of a child, or possession of or
access to a child may be made to a court, the parties, and the parties’ attorneys.‖
Tex. Fam. Code Ann. § 107.0501(1) (West 2010). Under section 107.054, the
agency or person making the social study shall file with the court a report
containing findings and conclusions, and the report shall be made a part of the
record of the suit. Id. § 107.054 (West 2010).
14
file, and stated that it had already reviewed them; it also took notice of Sano’s
objections to the social studies in her interrogatories and her request for
production. However, Sano’s interrogatories and her request for production were
not included in the record on appeal, and she never secured a ruling on these
objections. Neither party called the authors of the social study reports to testify,
and many of the statements in the social study reports were cumulative of the
evidence adduced at trial and set out above.
In the June 2007 report, the social worker found that Calvin seemed
bonded with both parents, reported that Sano said she was not allowed to drive a
car due to her seizures, and reported that Sano told her that Greenlee would not
agree to change his visits with Calvin when she had to go to El Paso, so she
went anyway. In her report, the social worker stated that she tried to explain to
Sano that Sano ―could not just do what she wanted‖ and stated that Sano did not
seem to understand that Greenlee was entitled to his time and that it was
improper for Sano to prevent him from having his access period just because she
needed or wanted to do something else. Sano revealed to the social worker that
she had called in a report to Child Protective Services (CPS) alleging neglectful
supervision of Calvin by Greenlee, which CPS ruled out. The social worker
concluded that Greenlee appeared to be the more stable of the two parents and
recommended that the parents have joint managing conservatorship with
Greenlee having primary custody with a geographical restriction to Tarrant
County and Sano having standard access.
15
In September 2007, another social worker reported that during her home
visits, Calvin appeared more verbal, compliant, and calm with Greenlee than with
Sano. She noted that Calvin was in Greenlee’s primary care and that Calvin
appeared to be doing very well there. In both reports, the social workers
observed that Sano appeared to have concerns about normal childhood injuries
that did not warrant seeking medical attention.
C. Analysis
In her first issue, Sano complains that the evidence is legally and factually
insufficient to support the trial court’s decision to designate Greenlee as the joint
managing conservator with the right to establish Calvin’s primary residence,
arguing that the trial court improperly focused on her lack of a driver’s license
and drew inferences from her epilepsy and that the trial court ―arbitrarily
concluded that Sano was a person with a disability without proof that her
impairment met the legal definition‖ under the Americans with Disabilities Act
(ADA). In her second issue, Sano argues that the trial court deprived her of a fair
trial and violated her constitutional due process rights by considering her as
disabled or intellectually impaired when the evidence is legally and factually
insufficient to support that finding. She claims that ―[b]randing Sano as physically
disabled and mentally diminished without affording her the opportunity to rebut
such inferences amounts to an arbitrary and wrongful action by the court and a
denial of fairness, as well as running the risk of erroneously depriving a parent of
a protected right.‖
16
When determining issues of conservatorship, possession, and access to a
child, the best interest of the child shall always be the primary consideration of
the court. Tex. Fam. Code Ann. § 153.002 (West 2008); In re C.A.P., Jr., 233
S.W.3d 896, 901 (Tex. App.—Fort Worth 2007, no pet.) (―Section 153.002
requires the court to always put the child’s best interest first in matters of
possession and access to the child.‖). If it is in the best interests of the child, the
court may appoint both parents as joint managing conservators, but it must
designate to one of them the exclusive right to determine the child’s primary
residence, with or without geographical restrictions. Tex. Fam. Code Ann.
§ 153.134(a), (b)(1) (West 2008). In determining which conservator will have the
exclusive right to establish primary residence under section 153.134(b), the trial
court is vested with broad discretion. In re K.L.W., 301 S.W.3d 423, 428 (Tex.
App.—Dallas 2009, no pet.). The trial court is in a better position than a
reviewing court to determine what will be in the child’s best interest because it
observed the parties and witnesses and their demeanors and had the opportunity
to assess each parent’s claims. Rubinett v. Rubinett, No. 02-08-00021-CV, 2009
WL 1372936, at *2 (Tex. App.—Fort Worth May 14, 2009, pet. denied) (mem.
op.).
We conclude that the trial court had sufficient evidence upon which to
exercise its discretion in determining which parent should receive the exclusive
right to determine Calvin’s primary residence. Each parent testified at the trial,
and although Sano complains that the trial court improperly focused on her lack
17
of driver’s license, her epilepsy, and ―what the trial court inferred to be an
intellectual failing,‖ there was sufficient additional evidence presented at trial and
in the two social study reports for the trial court to make its decision, including
testimony and evidence regarding each party’s parental abilities, their plans for
the child, and the child’s needs. See Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976) (setting out nonexclusive list of best interest factors); In re J.A.R.,
No. 02-04-00123-CV, 2005 WL 2839107, at *8–9 (Tex. App.—Fort Worth Oct.
27, 2005, no pet.) (mem. op.) (applying Holley factors in suit to modify divorce
decree to appoint mother as primary managing conservator).
Further, although Sano appears to argue that the trial court had to find that
her impairment met the legal definition of ―disability‖ under the ADA to consider
it,9 nothing in the record would suggest that the ADA applies here. See 42
U.S.C.A. § 12101(a)(1), (3)–(4) (West 2008) (acknowledging discrimination ―in
such critical areas as employment, housing, public accommodations, education,
transportation, communication, recreation, institutionalization, health services,
voting, and access to public services‖ against persons with physical or mental
9
The trial court only mentions ―disability‖ three times: In Finding of Fact #4,
the trial court states that Sano ―draws a social security disability check,‖ which is
supported by the record as set out above. In Conclusion of Law #9(a), the trial
court states that it considered Sano’s disability as a factor in making a
determination of a just and right division of the parties’ community property.
Sano does not appeal the portion of the judgment dividing the parties’ community
property. And in Conclusion of Law #11, the trial court found that Sano should
not pay any child support ―because she is unable to do so because of her
disability,‖ and Sano does not appeal the portion of the judgment addressing
child support.
18
disabilities and implementing the ADA to provide such persons a means of legal
recourse to redress such discrimination). But even assuming that the trial court
had to find that Sano met the legal definition of ―disability‖ under the ADA, it had
sufficient evidence, based on Sano’s own testimony recounted above, to do so.
See id. § 12102(1)(A), (2)(A) (West 2008) (defining ―disability‖ as ―a physical or
mental impairment that substantially limits one or more major life activities,‖ and
defining ―major life activities‖ as including, but not being limited to, ―caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working‖ (emphasis added)). And while Sano
argues that a parent’s disability should not affect an award of custody, she
supports this argument with citations to cases from other jurisdictions that do not
control, apply, or favor her case on the facts here.10 We cannot say, on the
10
Sano cites In re Marriage of Stopher, in which the appellate court upheld
a grant of permanent custody to the child’s developmentally disabled mother, but
the record in that case reflected that the mother, whose IQ was 67, had
substantial support in caring for the child and handled some situations better than
the child’s father. 767 N.E.2d 925, 926–33 (Ill. App. Ct. 2002). Sano also cites
Lieurance-Ross v. Ross, but Ross involved a specific Idaho statute requiring the
court to make specific findings concerning a parent’s disability and what effect, if
any, the disability had on the child’s best interest in any case where the court
finds a parent’s disability to be relevant to a child custody award. 129 P.3d 1285,
1290 (Idaho Ct. App. 2006). Texas has no such statutory requirement. And
Sano cites Curry v. McDaniel, but in Curry, the court stated, ―At the outset, we
find no persuasive authority which supports the proposition that the ADA applies
or was intended to apply to child-custody determinations,‖ before noting that the
physical and mental health of the parents is one of the factors that courts are to
consider when determining whose custody would serve the child’s best interest.
37 So. 3d 1225, 1233 (Miss. Ct. App. 2010) (emphasis added).
19
record presented here, that the trial court abused its discretion by designating
Greenlee as the joint managing conservator with the right to establish the child’s
primary residence, and we overrule this portion of Sano’s first issue.
And, although Sano argues in her second issue and in part of her first
issue that her due process rights were violated by the trial court’s ―[b]randing‖ her
as physically disabled and mentally diminished when it did not order
assessments of her physical and mental disabilities or expert testimony to
determine the extent of any disability and how it would affect her and the child, or
afford her the opportunity to rebut such inferences, nothing in the record shows
that Sano ever raised this complaint in the trial court. Therefore, she has failed
to preserve her due process complaint for our review. See Tex. R. App. P. 33.1;
Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (rejecting due process
complaint when party failed to raise it at trial). We overrule Sano’s second issue.
Additionally, the record is clear that the trial court did not ―brand‖ Sano as
physically disabled and mentally diminished; rather, in Finding of Fact #9, it found
that she had ―questionable functioning and reasoning abilities,‖ which it could
have determined based on her admission that the SSA had found that she had
borderline intellectual functioning, as well as based on her testimony and
demeanor at the hearing, the social study reports, and her conduct during the
three years of divorce proceedings, and it could have also considered her
physical disabilities—which she admitted to at the trial—with regard to her ability
to care for Calvin. See Tex. Fam. Code Ann. § 153.134(a)(7) (stating that in
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determining whether to appoint parents as joint managing conservators, the trial
court may consider ―any other relevant factor‖). And Sano had the opportunity
during her case-in-chief to present witnesses or other evidence to rebut the
SSA’s findings—which were admitted in evidence without objection by Sano—
and to demonstrate that her physical and intellectual issues had no effect on her
parental abilities. We overrule the remainder of Sano’s first issue.
IV. Conclusion
Having overruled both of Sano’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: June 16, 2011
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