IN RE: BRIAN L.

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Supreme Court, Appellate Division, First Department, New York.

IN RE: BRIAN L., also known as Mariah L., Petitioner-Respondent, v. ADMINISTRATION FOR CHILDREN'S SERVICES, Respondent-Appellant. The Child Advocacy Clinic of Morningside Heights Legal Services, Inc., The Association of Gay and Lesbian Psychiatrists, Marci L. Bowers, M.D., Ann Boyer, M.D., George Brown, M.D., Michael Brownstein, M.D., Ann Danoff, M.D., Laura Ellis, M.D., Fenway Community Health, Gay Men's Health Crisis, The Gay and Lesbian Medical Association, R. Nick Gorton, M.D., The Harry Benjamin International Gender Dysphoria Association, Inc., Wylie C. Hembree, M.D., FACP, Hispanic AIDS Forum, Howard Brown Health Center, Housing Works, Inc., Lyon-Martin Women's Health Services, Mazzoni Center, Charles Moser, Ph.D., M.D., Peter Raphael, M.D., Gary Remafedi, M.D., M.P.H., and Eugene Schrang, M.D., Amici Curiae.

Decided: August 24, 2006

BUCKLEY, P.J., ANDRIAS, MARLOW, NARDELLI, CATTERSON, JJ. Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for Administration for Children's Services, appellant. Lawyers for Children, Inc., New York (Betsy Kramer of counsel), Law Guardian, respondent. Jane M. Spinak, New York, for The Child Advocacy Clinic of Morningside Heights Legal Services, Inc., amicus curiae. Morrison & Foerster LLP, New York (Charles E. Tebbe, III of counsel), for remaining amici curiae.

Order, Family Court, New York County (Sheldon M. Rand, J.H.O.), entered on or about January 18, 2006, which granted the Law Guardian's motion for an order directing ACS to arrange for petitioner to have sex reassignment surgery, unanimously reversed, on the law, without costs, and the matter remanded to appellant agency for further proceedings.

This case involves the issue of whether the Family Court properly ordered the Commissioner of Social Services for the City of New York to pay for sex reassignment surgery for a 20-year-old child in foster care.   While the record contains evidence that the operation is the generally recognized successful treatment for gender identity disorder, the record is incomplete, and, therefore, this issue is not yet ripe for determination.

The Commissioner should have provided the Family Court with a clear statement of the reasons for denial of this surgery (see e.g. Matter of Mid-Island Hosp. v. Wyman, 15 N.Y.2d 374, 378, 259 N.Y.S.2d 138, 207 N.E.2d 187 [1965] ), and, consequently, we remand for that purpose (see CPLR 7806 [court may direct specified action by respondent] ).   The appellate arguments supporting the Commissioner's denial are speculative as the record is silent as to any basis or rationale for such denial.   Furthermore, the Family Court should determine whether a fact-finding hearing is warranted once the Commissioner articulates the reasons for denying petitioner's request.