        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
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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 four-
year-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
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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
