SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1060 

CAF 11-01093 

PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ. 

 

IN THE MATTER OF KENDALL L. DANNER, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

CHAD NEPAGE, RESPONDENT-RESPONDENT.

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

THEODORE W. STENUF, ESQ., ATTORNEY

FOR THE CHILD, APPELLANT.

(APPEAL NO. 3.) 

 

LINDA M. CAMPBELL, SYRACUSE (H. DANA VAN HEE OF COUNSEL), FOR

PETITIONER-APPELLANT. 

THEODORE W. STENUF, ATTORNEY FOR THE CHILD, MINOA, APPELLANT PRO SE. 

SHIRLEY A. GORMAN, BROCKPORT, FOR RESPONDENT-RESPONDENT.

 

Appeals from an order of the Family Court, Oswego County

(Kimberly M. Seager, J.), entered March 24, 2011 in a proceeding

pursuant to Family Court Act article 6. The order dismissed the

petition. 

It is hereby ORDERED that the order so appealed from is 

unanimously affirmed without costs.

Memorandum: In these appeals, petitioner mother and the Attorney

for the Child appeal from an order dismissing each petition that she

filed against respondent father, her ex-husband, with respect to the

custody of the parties’ daughter. We note at the outset that,

although the mother and the Attorney for the Child each filed notices

of appeal with respect to the dismissal of all three petitions, in

their briefs on appeal they raise issues only concerning the order in

appeal No. 3. They therefore are deemed to have abandoned any issues

concerning the orders in appeal Nos. 1 and 2 (see Ciesinski v Town of

Aurora, 202 AD2d 984, 984). 

By the petition in appeal No. 3, the mother sought to modify a

prior custody order pursuant to which she had primary physical custody

and the father had visitation, based upon allegations that the father

had sexually abused the child. The mother requested an award of sole

custody to her, with supervised visitation to the father. Following a

fact-finding hearing on all three petitions, Family Court, as relevant

to appeal No. 3, determined that the mother failed to establish a
-2- 1060 

CAF 11-01093 

change of circumstances sufficient to warrant an inquiry into whether

it is in the best interests of the child to modify the existing

custody order, and dismissed the petition. 

The mother and the Attorney for the Child contend that the mother

proved at the hearing that the father had sexually abused the child,

and that the court therefore erred in determining that she failed to

establish the requisite change of circumstances. We reject that

contention. Although several witnesses testified that the then fouryear-old child reported to them that the father had touched her

private parts, to which she referred as her “poo” and “pee,” the

police investigated the incident and determined that criminal charges

were not warranted due to a “lack of credible evidence.” A police

investigator testified that, when he interviewed the child outside the

presence of the mother, the child said that the touching of her

“privates” occurred when the father wiped her after she used the

toilet. The investigator then spoke to the mother, who acknowledged

that the child needed help wiping herself. Similarly, the mother’s

14-year-old daughter testified at the hearing that the child needed

help wiping herself and that both she and the mother assisted the

child in this regard. There was also evidence at the hearing that the

allegations of sexual abuse against the father had been investigated

by the Department of Social Services and were determined to be

unfounded. 

“Generally, a court’s determination regarding custody and

visitation issues, based upon a first-hand assessment of the

credibility of the witnesses after an evidentiary hearing, is entitled

to great weight and will not be set aside unless it lacks an

evidentiary basis in the record” (Matter of Stilson v Stilson, 93 AD3d

1222, 1223 [internal quotation marks omitted]). Here, based on the

evidence presented at the hearing, as well as the child’s statements

at the Lincoln hearing (see Matter of Lincoln v Lincoln, 24 NY2d 270,

272-274), we perceive no basis to disturb the court’s implicit finding

that the mother failed to prove that the father sexually abused the

child. Aside from the unproven allegations of sexual abuse, there was

no basis to award sole custody to the mother or to limit the father to

supervised visitation. We thus conclude that the court properly

dismissed the petition seeking a change in custody “inasmuch as [the

mother] failed to establish a change in circumstances which reflects a

real need for change to ensure the best interest[s] of the child”

(Matter of James D. v Tammy W., 45 AD3d 1358, 1358 [internal quotation

marks omitted]). 

We reject the further contentions of the mother and the Attorney

for the Child that the court should have drawn an adverse inference

against the father based on his failure to deny the allegations of

sexual abuse at the hearing. “A trier of fact may draw the strongest

inference that the opposing evidence permits against a witness who

fails to testify in a civil proceeding” (Matter of Nassau County Dept.

of Social Servs. v Denise J., 87 NY2d 73, 79 [emphasis added]). Here,

although the father testified at the hearing, he was not questioned by

anyone concerning the allegations of sexual abuse. Under the

circumstances, the court did not abuse its discretion in failing to
-3- 1060 

CAF 11-01093 

draw an adverse inference against the father. 

Based on our review of the record, we reject the further

contention of the mother that the child was deprived of effective

assistance of counsel (see generally Matter of Sharyn PP. v Richard

QQ., 83 AD3d 1140, 1143). 

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court