                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-10-00264-CV

NORMA SANO                                                             APPELLANT

                                          V.

JIMMY J. GREENLEE                                                        APPELLEE

                                      ------------

          FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                         MEMORANDUM OPINION1
                                      ------------

                                   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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