Juelle G. v. William C. , 949 N.Y.S.2d 13 ( 2012 )

Order, Family Court, New York County (Carol J. Goldstein, Ref.), entered on or about February 17, 2011, which granted respondent father’s motion to dismiss the petition to modify a prior order of the same court (Susan R. Larabee, J.), entered on or about May 15, 2007, which awarded custody of the parties’ daughter to respondent, unanimously affirmed, without costs.

Viewing the evidence in the light most favorable to petitioner, we find that petitioner failed to make a prima facie showing that modification of the custody order is warranted on any of the grounds alleged in the petition (see Matter of Patricia C. v Bruce L., 46 AD3d 399, 399 [2007]; David W. v Julia W., 158 AD2d 1, 6-7 [1990]). The record contains no evidence, or even an allegation, that the child was neglected or otherwise inadequately cared for during the relevant time period of May 2007 to May 2008. There is no evidence either that the child was diagnosed with depression or that there is any other basis for concluding that she required therapy during the relevant time period. There is no evidence that respondent thwarted efforts by the supervising agency to arrange for the child to join in visits by petitioner’s other children. The record does not establish verbal abuse warranting a modification of custody. Given the court order forbidding petitioner to telephone the child during the relevant time period, respondent’s refusal to permit the child to call petitioner using his cell phone does not constitute a substantial change of circumstances. Concur — Andrias, J.P., Friedman, Sweeny, Manzanet-Daniels and Román, JJ.