| Matter of Brian L. v Administration for Children's Servs. |
| 2008 NY Slip Op 04381 [51 AD3d 488] |
| May 13, 2008 |
| Appellate Division, First Department |
| In the Matter of Brian L., Also Known as Mariah L.,Respondent, v Administration for Children's Services,Appellant. |
—[*1] Tamara A. Steckler, The Legal Aid Society, New York City (Judith Stern of counsel), LawGuardian for respondent. Palyn Hung, New York City, for American Civil Liberties Union, Gay & Lesbian Advocates& Defenders, National Center for Lesbian Rights, National Center for Transgender Equality,New York Civil Liberties Union and Transgender Law and Policy Institute, amici curiae. Lambda Legal Defense & Education Fund, Inc., New York City (Hayley Gorenberg ofcounsel), for The Association of Gay and Lesbian Psychiatrists, George Brown, M.D., MichaelBrownstein, M.D., Callen-Lorde Community Health Center, Ann Danoff, M.D., Laura Ellis,M.D., Fenway Community Health, James Franicevich, N.P., R. Nick Gorton, M.D., HispanicAids Forum, Housing Works, Inc., Lyon-Martin Women's Health Services, Linette Martinez,M.D., Charles Moser, Ph.D., M.D., Gary Remafedi, M.D., M.P.H., Eugene Schrang, M.D.,Joellen Vormohr, M.D., and The World Professional Association for Transgender Health, Inc., amici curiae. Martha Matthews, Monterey Park, Cal., for Children's Law Center for Los Angeles, TheYouth Law Center, San Francisco, Cal.; Prof. Libby Adler, Northeastern University, Boston,Mass.; Advocates for Children's Services, Legal Aid of North Carolina, Durham, N.C.;Children's Advocacy Institute, San Diego and Sacramento, Cal.; Children's Law Center ofMinnesota, St. Paul, Minn.; Prof. Michael Dale, Ft. Lauderdale, Fla.; Justice for Children Project,Columbus, Ohio; Juvenile Law Center, Philadelphia, Pa.; Lawyers for Children; Legal Servicesfor Children, San Francisco, Cal.; National Association of Counsel for Children; National Centerfor Youth Law, Oakland, Cal.; National Health Law Program, Chapel Hill, N.C.; Pegasus LegalServices for Children, Albuquerque, N.M.; Public Interest Law Project, Oakland, Cal.; PublicJustice Center, Baltimore, Md.; and Suffolk University Law School, Child Advocacy Clinic,Boston, Mass., amici curiae.
Order, Family Court, New York County (Sheldon M. Rand, J.H.O.), entered on or aboutFebruary 21, 2007, which granted the Law Guardian's motion for an order directing theAdministration for Children's Services (ACS) to arrange for petitioner to have sex reassignmentsurgery and denied ACS' cross motion to dismiss the proceeding, unanimously reversed, on thelaw, without costs, the motion denied, the cross motion granted and the proceeding dismissed.
Petitioner was born a biological male but at some point during adolescence was diagnosedwith gender identity disorder (GID), "which the American Psychiatric Association characterizesas a disjunction between an individual's sexual organs and sexual identity" (Smith v [*2]City of Salem, Ohio, 378 F3d 566, 568 [6th Cir 2004], citingAmerican Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, at576-582 [4th ed 2000]).[FN1]Petitioner began receiving mental health and medical care for GID, including psychological andpsychiatric treatment and hormone therapy aimed at developing secondary female sexcharacteristics. ACS was responsible for arranging and paying for petitioner's medical care sinceshe was in foster care between 1995 and April 2006.[FN2]
In December 2005, petitioner, through her former Law Guardian, made a motion in FamilyCourt seeking to compel ACS to provide her with all medical treatment recommended by herdoctors for GID, including sex reassignment surgery, which for male-to-female individuals "'involves the removal of the external male sexual organs and the construction of an artificialvagina by plastic surgery. It is supplemented by hormone treatments that facilitate the change insecondary sex characteristics,' such as breast development" (Ulane v Eastern Airlines,Inc., 742 F2d 1081, 1083 n 4 [7th Cir 1984], cert denied 471 US 1017 [1985],quoting Comment, Transsexualism, Sex Reassignment Surgery, and the Law, 56 CornellL Rev 963, 970 n 37 [1971]).
The motion was supported by the written reports of a psychologist, a psychotherapist and twomedical doctors, each of whom had evaluated petitioner to determine whether she was a suitablecandidate and ready for sex reassignment surgery. The psychologist, Rachlin, who specialized intreating GID, stated that, under the Standards of Care for GID published by the Harry BenjaminInternational Gender Dysphoria Association (the Harry Benjamin standards),[FN3]petitioner was both eligible and ready for sex reassignment surgery. Rachlin also stated that thesurgery was necessary for petitioner's emotional well-being. Wheeler, the psychotherapist, whospecialized in diagnosing and treating GID, also concluded that, based upon the Harry Benjaminstandards, petitioner was eligible and ready for sex reassignment surgery. Wheeler averred thatsex reassignment surgery was medically necessary to alleviate petitioner's depression, anxietydisorder and post-traumatic stress disorder. Kreditor, a medical doctor, determined that sexreassignment surgery was indicated for petitioner because without it her emotional andbehavioral problems, e.g., anxiety, borderline personality disorder, would "deteriorat[e]," thereby"hinder[ing] further relationship, adjustment, personal and professional growth." Lastly, Bartalos,an internist who provided petitioner with medical gender reassignment treatment, i.e., hormones,stated that sex reassignment surgery would provide petitioner with "[a] more perfect alignment ofthe appearance of [her] body and [her] mental gender," and was the "next needed step" in thecourse of her treatment.[*3]
ACS opposed the motion on the ground that it was onlypermitted to pay for medical treatments approved by Medicaid law and that Medicaid lawprohibited payment for sex reassignment surgery. No evidence was submitted in support of theagency's opposition. Family Court granted the motion and directed ACS to arrange for petitionerto have the surgery, and ACS appealed.
A prior panel of this Court reversed the order and remanded the matter to ACS for furtherproceedings (32 AD3d 325 [2006]). The panel stated that "[w]hile the record contains evidencethat 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" (id. at326). The panel directed ACS to provide Family Court "with a clear statement of the reasons fordenial of this surgery" to facilitate meaningful judicial review of ACS' determination(id.).
Upon remand, ACS supplemented the record before Family Court with the affidavit of Pratt,its assistant commissioner in charge of matters related to the provision of medical services tofoster children under ACS' care. Pratt explained that petitioner was a foster child who receivedmedical care pursuant to article 5, title 11 of the Social Services Law, the state Medicaid law, andthat "her [medical] coverage is defined by and limited by the Medicaid statute and regulations."Pratt further explained that state Medicaid law prohibited ACS from paying for sex reassignmentsurgery.
Pratt stated that, even assuming that ACS could legally pay for the surgery, it would not doso as a matter of discretion, because petitioner had not satisfied certain eligibility requirementsfor sex reassignment surgery under the Harry Benjamin standards. Specifically, petitioner did nothave a psychological evaluation and psychotherapy if required or recommended, and she lackeddemonstrable knowledge of costs, procedures, complications of various surgical procedures andan awareness of different competent surgeons. Pratt also stated that petitioner had not evincedthat she was ready for the surgery under the criteria set forth in the Harry Benjamin standards;petitioner, according to Pratt, did not demonstrate that she had a stable, enduring and comfortablegender identity, and she did not show progress in dealing with work, family and interpersonalissues. Pratt averred, based upon multiple conversations with petitioner and information impartedto her by foster care staff, that petitioner "simply has not demonstrated the kind of serious,thoughtful, and committed approach that would, as a matter of basic logic, be expected of anyoneappropriately planning for this type of fundamental and serious surgical process. Rather, she hasbehaved in a manner that is indecisive, unstable, and self-defeating, and has been all butimpossible to engage in meaningful planning on this or any other vital issue."
With respect to the recommendations of the medical professionals submitted by petitionerindicating that she was a suitable candidate for sex reassignment surgery, Pratt stated that none ofthe recommendations "indicate that [petitioner] has either knowledge of the costs, procedures,and complications of various surgical approaches to the surgery . . . , or that she hasgiven any thought or showed any awareness of different competent surgeons."
Petitioner moved for summary judgment directing ACS to arrange for her sex reassignmentsurgery, and ACS cross-moved for summary judgment declaring that it had no such obligation.Family Court granted the motion, denied the cross motion and directed ACS to makearrangements for petitioner to have the surgery. This appeal by ACS ensued.
Contrary to petitioner's contention, ACS is not barred from pressing its claim that, pursuantto Medicaid law, it is precluded from paying for sex reassignment surgery. ACS did [*4]raise this argument before Family Court in opposition to petitioner'sinitial motion and before this Court on ACS' appeal from the order deciding that motion. Inreversing that order and remanding for further proceedings, however, we did not expressly orimplicitly pass on the merits of that argument. Rather, we concluded that ACS "should haveprovided the Family Court with a clear statement of the reasons for denial of this surgery, and,consequently, we remand[ed] for that purpose" (32 AD3d at 326 [citation omitted]). Thus, thelaw of the case doctrine does not bar ACS from asserting on this appeal that it is precluded underMedicaid law from paying for sex reassignment surgery (see Metropolitan Package StoreAssn. v Koch, 89 AD2d 317, 321-322 [1982] [law of the case doctrine "is not inflexible, andapplies only to issues decided, directly or by implication, at an earlier stage of the action"(citation omitted)], appeal dismissed 58 NY2d 1112 [1983], appeal dismissed464 US 802 [1983]; see also People v Evans, 94 NY2d 499, 503-504 [2000]).
With respect to the substance of that assertion, petitioner and ACS agree that ACS wasobligated to provide petitioner with medical and surgical care under Social Services Law §398 (6) (c). That provision requires local governmental officials responsible for certain classes ofchildren to: "Provide necessary medical or surgical care in a suitable hospital, sanatorium,preventorium or other institution or in his [or her] own home for any child needing such care andpay for such care from public funds, if necessary. However, in the case of a child or minor who iseligible to receive care as medical assistance for needy persons pursuant to title eleven of articlefive of this chapter, such care shall be provided pursuant to the provisions of that title."(Id.)
In essence, ACS asserts that Social Services Law § 398 (6) (c) creates two tiers ofhealth care for children under ACS' care—one tier for children who, like petitioner, areentitled to receive medical assistance for needy persons pursuant to title 11 of article 5 of theSocial Services Law, the state Medicaid law, and another tier for all other children under ACS'care. Pointing to the second sentence of Social Services Law § 398 (6) (c), ACS maintainsthat the scope of the medical and surgical care available to children in the former tier is limited tothe care that is authorized by state Medicaid law, which precludes payment "for care, services,drugs, or supplies rendered for the purpose of gender reassignment . . . or any care,services, drugs, or supplies intended to promote such treatment" (18 NYCRR 505.2 [l];see NY Reg, July 16, 1997, at 26; NY Reg, Mar. 25, 1998, at 5). Children in the othertier, i.e., all those children in ACS' care who are not entitled to receive medical assistance underMedicaid law, receive the health care authorized in the first sentence of Social Services Law§ 398 (6) (c)—"[all] necessary medical or surgical care in a suitable hospital,sanatorium, preventorium or other institution or in his [or her] own home."
Petitioner argues that Social Services Law § 398 (6) (c) does not create separate healthcare schemes for children in ACS' care based on the children's eligibility for Medicaid benefits.Rather, petitioner asserts that ACS is required under Social Services Law § 398 (6) (c) toprovide all children under its care with all necessary medical and surgical treatment. The secondsentence of section 398 (6) (c), in petitioner's view, merely stipulates that when a child is eligiblefor Medicaid and the treatment needed by the child is covered by that program, Medicaid fundsmust be used to pay for the treatment. Thus, when Medicaid will not cover the costs of anecessary treatment for a child eligible for Medicaid, ACS must pay for the treatment.
"A court must consider a statute as a whole, reading and construing all parts of an act [*5]together to determine legislative intent, and, where possible, shouldharmonize all parts of a statute with each other and give effect and meaning to the entire statuteand every part and word thereof" (Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105, 115[2007] [internal quotation marks, citation, ellipses and brackets omitted]). Moreover, clear andunambiguous statutory language should be construed so as to give effect to the plain meaning ofthe words used (see People v Finnegan, 85 NY2d 53, 58 [1995], cert denied 516US 919 [1995]).
The first sentence of Social Services Law § 398 (6) (c), in clear and unambiguousterms, states that ACS must "[p]rovide necessary medical or surgical care in a suitable hospital,sanatorium, preventorium or other institution or in his [or her] own home for any childneeding such care and pay for such care from public funds, if necessary" (emphasis added).The plain meaning of that sentence—and the one that gives it effect—is that ACShas a duty to provide necessary medical and surgical care to all of the children in its careand must, if necessary, pay for that care. The second sentence of that section, read in a mannerthat gives it effect and places it in harmony with the first, identifies the source from which certainmedical expenditures must be paid; that sentence does not mean that children in ACS' care whoare eligible for Medicaid are limited to the medical and surgical care covered by that program.
While ACS has a duty to provide necessary medical and surgical care to all of the children inits care and must, if necessary, pay for that care, the question remains whether ACS can bejudicially compelled to pay for petitioner's sex reassignment surgery. ACS' position is thatFamily Court does not have the power to order ACS to arrange for the surgery and that FamilyCourt's order encroaches upon ACS' authority to provide medical and surgical care to childrenunder ACS' care. Thus, ACS asserts that it has discretion to determine whether a particularmedical treatment is necessary and that this determination may not be disturbed unless it lacks arational basis. Citing Pratt's affidavit, ACS urges that its decision not to arrange for petitioner'ssex reassignment surgery has a rational basis. Petitioner argues that ACS has an obligation underSocial Services Law § 398 (6) (c) to arrange for her to have the surgery, that ACS failed toarticulate a reasonable basis for its decision not to arrange it, and, thus, Family Court had theauthority to order ACS to do so.[FN4][*6]
Petitioner identifies two provisions of the Family CourtAct that authorize Family Court to direct ACS to provide services to a person in foster care,Family Court Act §§ 255 and 1015-a. Family Court Act § 255 states, inpertinent part, that: "It is hereby made the duty of, and the family court or a judge thereof mayorder, any state, county, municipal and school district officer and employee to render suchassistance and cooperation as shall be within his [or her] legal authority, as may be required, tofurther the objects of this act . . . . It is hereby made the duty of and the family courtor judge thereof may order, any agency or other institution to render such information, assistanceand cooperation as shall be within its legal authority concerning a child who is or shall be underits care, treatment, supervision or custody as may be required to further the objects of this act."
In Matter of Lorie C. (49 NY2d 161 [1980]), the Court of Appeals discussed thescope of Family Court's authority to direct governmental agencies to act under Family Court Act§ 255. The petitioner in Lorie C. was adjudged a person in need of supervision, andplaced in the custody of the St. Lawrence County Department of Social Services and under thesupervision of that county's probation department. While the petitioner was to be placed in fostercare, the probation department insisted that she be placed in a home within a school district inwhich the department of social services had exhausted its resources. Thus, the department ofsocial services wanted to place the petitioner in another district. At an informal hearing to resolvethe issue of the petitioner's placement, Family Court inquired whether a program for reservefoster home accommodations that the department of social services had previously been directedto establish had in fact been implemented. After the petitioner was placed in a foster home,Family Court continued the proceeding and held hearings regarding whether the department ofsocial services should be ordered to maintain a reserve of potential foster homes to eliminatedelay in placing children such as the petitioner. Family Court ultimately entered an order, overthe department of social services' objection, approving a plan that allocated responsibilitiesbetween that department and the probation department with respect to the placement of childrenin foster homes. The plan also established standards and procedures for such placements, andrequired that the plan be implemented and followed by the department of social services and theprobation department.
The Court of Appeals affirmed an order of the Third Department reversing the order. Notingthat Social Services Law § 398 (6) (h) provided commissioners of public welfare with theresponsibility to supervise certain classes of children until they become 21 years old, aredischarged or are adopted, the Court concluded that the plan set forth in Family Court's orderimpermissibly treaded upon the department of social services' statutory authority. Thus, the Courtstated that while "section 255 authorizes an order requiring the doing of an act within the legalauthority of the official to whom the order is directed the power to order 'assistance andcooperation' cannot be read as permitting an order which denigrates from that officer's statutoryauthority, any more than it can be read as expanding such an official's authority into areas notgranted by statute" (49 NY2d at 171). Relatedly, the Court observed that "courts do not normallyhave overview of the lawful acts of appointive and elective officials involving questions ofjudgment, discretion, allocation of resources and priorities," and that "it is a fundamental of thedoctrine of distribution of powers that each department should be free from interference"(id. [internal quotation marks omitted]; see Matter of Ronald W., 25 AD3d 4 [2005]).
Like the authority to supervise certain classes of children, the authority to provide [*7]necessary medical and surgical care to such children is conferred inclear and unambiguous language upon commissioners of public welfare and city public welfareofficers, such as the Commissioner of ACS, by Social Services Law § 398 (6) (seeMatter of Arlene L., 187 Misc 2d 356, 357 [Fam Ct, NY County 2001] ["the Commissioner(of ACS) has a nondelegable statutory duty to provide all necessary medical care and treatmentfor children placed in the care of (ACS)"]).[FN5]Thus, Family Court Act § 255 cannot be read as permitting Family Court to order ACS toarrange for a child in its care to receive specific medical or surgical care, since such an orderwould denigrate from ACS' statutory authority (see Matter of Lorie C., 49 NY2d at 171;see also Matter of Ronald W., supra [Family Ct Act § 255 does not giveFamily Court power to order New York State Office of Mental Retardation and DevelopmentalDisabilities, which has statutory responsibility for providing services for the mentally retardedand developmentally disabled, to reevaluate person for eligibility for services provided by theOffice]; Matter of Enrique R., 126 AD2d 169 [1987] [Family Court Act § 255 doesnot authorize Family Court to direct Commissioner of Social Services to commence specialproceeding against New York City Housing Authority on behalf of foster child and hisgrandmother]).
Petitioner's assertion that 18 NYCRR 441.22, when read in conjunction with Social ServicesLaw § 398 (6) (c), imposes upon ACS "an unqualified and nondiscretionary obligation" toarrange for her to have sex reassignment surgery, such that Family Court had the authority underFamily Court Act § 255 to order ACS to arrange for the surgery, is without merit.
Subdivision (a) of section 441.22 states that "[e]ach authorized agency[, such as ACS,] isresponsible for providing comprehensive medical and health services for every foster child in itscare." Subdivision (f) (1) of that section directs that children in foster care must have "periodicindividualized medical examinations" and sets forth the intervals at which such examinationsmust take place. Paragraph (2) of subdivision (f) states that the examinations must include:
"(i) a comprehensive health and developmental history;
"(ii) a comprehensive unclothed physical examination;
"(iii) an assessment of immunization status and provision of immunizations as necessary;
"(iv) each periodic medical examination of a child[*8] thatoccurs after the initial assessment of the child for risk factors related to HIV infection inaccordance with subdivision (b) of this section, must include an assessment by designated agencystaff of whether HIV-related testing of the child is recommended . . . ;
"(v) an appropriate vision assessment;
"(vi) an appropriate hearing assessment;
"(vii) laboratory tests as appropriate for specific age groups or because the child presents ahistory or symptoms indicating such tests are necessary;
"(viii) dental care screening and/or referral . . . . ; and
"(ix) observation for child abuse and maltreatment which, if suspected, must be reported tothe State Central Register of Child Abuse and Maltreatment as mandated by section 413 of theSocial Services Law."
Subdivision (g) of section 441.22, the linchpin of petitioner's argument, provides that"[w]hen the medical examination indicates a condition requiring follow-up care as determined bythe child's physician, the agency responsible for the child's care must provide or arrange for suchfollow-up care as recommended by the child's physician."
Subdivision (g) does not apply to petitioner's situation. That subdivision applies "[w]henthe medical examination indicates a condition requiring follow-up care as determined bythe child's physician" (emphasis added). "[T]he medical examination" is a reference to one of theperiodic medical examinations required by subdivision (f). Concomitantly, under the language ofsubdivision (g), an agency responsible for a child's medical care must provide follow-up care asrecommended by the child's physician for conditions detected or diagnosed during periodicmedical examinations. Here, however, a periodic medical examination did not indicate acondition requiring follow-up care. Rather, in 2004 ACS arranged for petitioner to be evaluatedby Rachlin, a psychologist, because petitioner had expressed an interest in having sexreassignment surgery; petitioner was subsequently evaluated by Wheeler, a psychotherapist, andDrs. Kreditor and Bartalos.
Even assuming that section 441.22 (g) is applicable (i.e., a periodic medical examinationindicated that petitioner required follow-up care and petitioner's physician recommended aspecific course of action), it could not be given the effect petitioner urges. As discussed above,the Legislature conferred upon commissioners of public welfare and city public welfare officers,including the Commissioner of ACS, the authority and responsibility to provide necessarymedical and surgical care to children under their care (Social Services Law § 398 [6] [c];see Arlene L., 187 Misc 2d at 357). Thus, a regulation cannot restrict or impair thoseofficers' authority (see Weiss v City of New York, 95 NY2d 1, 4-5 [2000] ["It is afundamental principle of [*9]administrative law that an agencycannot promulgate rules or regulations that contravene the will of the Legislature"]; FingerLakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 480 [1978]["Of course, the Board is without power to promulgate rules in contravention of the will of theLegislature. Administrative agencies can only promulgate rules to further the implementation ofthe law as it exists; they have no authority to create a rule out of harmony with the statute"(internal quotation marks omitted)]). As section 441.22 (g) would be "out of harmony" withSocial Services Law § 398 (6) (c) to the extent the regulation purported to substitute thediscretion of a foster child's physician for that of the public officer charged with responsibility forensuring that the child receives necessary medical and surgical care, the statute prevails and theregulation does not require the public officer to provide or arrange for whatever follow-up caremay be recommended by the child's physician (see Weiss, 95 NY2d at 5).
Petitioner, with a brief reference to the statute, also asserts that Family Court had the powerto order ACS to arrange for her sex reassignment surgery under Family Court Act §1015-a. That section states that: "In any proceeding under . . . article [10 of theFamily Court Act], the court may order a social services official to provide or arrange for theprovision of services or assistance to the child and his or her family to facilitate the protection ofthe child, the rehabilitation of the family and, as appropriate, the discharge of the child fromfoster care. Such order shall not include the provision of any service or assistance to the child andhis or her family which is not authorized or required to be made available pursuant to thecomprehensive annual services program plan then in effect." Thus, in limited and definedcircumstances, Family Court has discretion to order a social services official to provide orarrange for services for a child. Family Court cannot order a social services official to provide aservice or assistance that "is not authorized or required to be made available pursuant to thecomprehensive annual services program plan then in effect" (id.; see Besharov,Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act §1015-a [1999 ed] ["(Section 1015-a) authorizes the court to order social services officials toprovide or arrange for needed services—but only if the services are 'authorized orrequired to be made available pursuant to a comprehensive annual services program plan then ineffect' " (emphasis added)]).
In its memorandum of law submitted to Family Court (and again on appeal), ACS assertedthat medical services are not part of the effective comprehensive annual services program plan;rather, medical services are provided to foster children by ACS in accordance with a "localmedical plan" (18 NYCRR 501.1). Thus, a surgical procedure falls outside the scope of thecomprehensive annual services program plan and Family Court cannot order ACS under FamilyCourt Act § 1015-a to arrange for petitioner to have sex reassignment surgery. Inopposition to ACS' prima facie showing that Family Court did not have the power under FamilyCourt Act § 1015-a to direct ACS to arrange for petitioner's surgery, petitioner failed toraise a triable issue of fact. Neither before Family Court nor in her brief on this appeal didpetitioner cite to any provision or section of the effective comprehensive annual services programplan authorizing or requiring ACS to arrange for her sex reassignment surgery. In fact, petitionerhas not even asserted that the effective comprehensive annual services program plan authorizesor requires sex assignment surgery to be made available to her. We therefore conclude that no[*10]triable issue of fact exists as to whether Family Court hadthe power under Family Court Act § 1015-a to direct ACS to arrange for petitioner'ssurgery.
Lastly, while the parties devote extensive attention to the question of whether ACS' refusal toarrange for the surgery was arbitrary and capricious, i.e., did not have a rational basis, thatquestion is not a proper subject of this proceeding. To obtain review of the determination of anadministrative agency made in the absence of a hearing required by law, a party must commencea CPLR article 78 proceeding seeking mandamus to review (see CPLR 7801; Alexander,Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7801:3, at 32 [1994ed]). An article 78 proceeding must be commenced in Supreme Court (CPLR 7804 [b];Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7804:2, at647); it cannot be prosecuted in Family Court (Matter of Bowers v Bowers, 266 AD2d741, 742-743 [1999]; Matter of Leonora M., 104 AD2d 755, 756 [1984]; Matter ofNaima C., 39 AD2d 964, 965 [1972]). Thus, Family Court does not have subject matterjurisdiction to review ACS' refusal to arrange for petitioner to have sex reassignmentsurgery.[FN6]Rather, this proceeding involves the question of whether Family Court has the power to orderACS to arrange for petitioner to have the surgery, a question that is separate and distinct fromwhether that court has the jurisdiction to review an administrative determination of ACS.
Accordingly, we reverse the order directing ACS to arrange for petitioner to have sexreassignment surgery, deny petitioner's motion, grant ACS' cross motion and dismiss theproceeding. Concur—Andrias, J.P., Friedman, Sweeny and McGuire, JJ.
Footnote 1: In accordance with petitioner'spreference, we refer to her using feminine pronouns.
Footnote 2: In April 2006, after shecommenced this proceeding, petitioner turned 21 years old and was discharged from foster care.ACS does not contend, however, that this proceeding has been rendered moot by those events.
Footnote 3: Both the medical professionalsand ACS Assistant Commissioner Pratt rely upon and discuss the Harry Benjamin standards,which articulate standards regarding the psychiatric, psychological, medical and surgicalmanagement of GID.
Footnote 4: Petitioner, by way of a motion tosupplement her 66-page brief made one day before oral argument, attempts to assert the argumentthat ACS was required under federal Medicaid law to arrange for her sex reassignment surgery.This argument was never previously raised in this proceeding, and we decline to consider it.Moreover, petitioner does not assert that ACS was required to arrange for the surgery pursuant toSocial Services Law § 365-a (state Medicaid law). To the contrary, petitioner waived anysuch argument in both her papers submitted to Family Court and her brief in this Court ("ACS iscorrect that [Social Services Law § 365-a] is limited to procedures covered by Medicaidand therefore is not applicable here"). Similarly, no argument has been advanced that FamilyCourt was authorized to order the surgery under Family Court Act § 233 ("Whenever achild within the jurisdiction of the court appears to the court to be in need of medical, surgical,therapeutic, or hospital care or treatment, a suitable order may be made therefor").
Footnote 5: While reference to the relevantstatutory headings is not necessary since Social Services Law § 398 (6) is unambiguous(see McKinney's Cons Laws of NY, Book 1, Statutes § 123 [b] [headings may beconsidered where statute ambiguous]), the headings of both the title of the article within whichsection 398 falls ("Powers and Duties of Public Welfare Officials") and of section 398 itself("Additional powers and duties of commissioners of public welfare and certain city publicwelfare officers in relation to children") buttress the conclusion that the Legislature conferredupon ACS the authority to provide necessary medical and surgical care to children under its care.
Footnote 6: While neither of the parties raisethe issue of whether Family Court lacked subject matter jurisdiction to review the administrativedetermination of ACS, we may reach it on our own volition (Matter of Fry v Village ofTarrytown, 89 NY2d 714, 718 [1997] ["a court's lack of subject matter jurisdiction is notwaivable, but may be raised at any stage of the action, and the court may, ex mero motu(on its own motion), at any time, when its attention is called to the facts, refuse to proceed furtherand dismiss the action" (internal quotation marks omitted)]).