Cheryl A. B. v. Michael Anthony D.

Balio, J. P., and Doerr, J. (dissenting).

We agree that respondent’s failure to testify concerning acts of sexual intercourse permitted the trier of fact to draw an unfavorable inference (see, Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141). The record does not reveal that the court elected to draw that inference. Indeed, the absence of findings of fact frustrates meaningful appellate review (see, Matter of Gray v Rose, 32 AD2d 994, 995). In any event, that inference would support a finding only that respondent engaged in sexual intercourse with petitioner, not that…