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Shannon v. Department of Human Services

Decided: March 13, 1978.

ADELE SHANNON, INDIVIDUALLY ON BEHALF OF HERSELF AND ON BEHALF OF HER CHILDREN, APPELLANT,
v.
DEPARTMENT OF HUMAN SERVICES, ANN KLEIN, COMMISSIONER: DIVISION OF PUBLIC WELFARE, G. THOMAS RITI, DIRECTOR, RESPONDENTS



Allcorn, Morgan and Horn.

Per Curiam

This is an appeal from a determination of the Department of Human Services, Division of Public Welfare, reducing appellant's AFDC grant from $310 a month which she had been receiving to $178 a month. Originally, the Department sought to reduce her grant on the ground that the "father [of one of her children] Morris Taggart is living in your home thus causing a change in the eligible unit [per] 111.2 ASH * * *." The foregoing language is taken from the notice of November 12, 1976 which advised appellant of the proposed reduction and the reason therefor. Appellant responded with a request for a fair hearing on the issue raised and one was held on December 20, 1976. At the hearing the agency's proofs all related to the matter in issue, Morris Taggart's alleged residence with appellant and her children. They were:

(1) all of Taggart's mail is received at Ms. Shannon's home;

(2) the utilities were billed in Taggart's name;

(3) the lease upon Ms. Shannon's home was taken out in Taggart's name;

(4) Taggart's driver's license and automobile registration listed Ms. Shannon's address as Taggart's;

(5) a letter sent to Taggart's supposed East Orange address was returned with no forwarding address.

Appellant countered this evidence with an explanation that the utility bills were in Taggart's name because she had outstanding

and unpaid bills in her name; her address was on Taggart's automobile registration because insurance rates in Perth Amboy were lower than they were in East Orange where Taggart lived with his sister. Appellant testified that although Taggart visited her often, he did not live with her but with his sister from whom he rented a room. Although his residence with his sister was confirmed by one of appellant's friends, the hearing officer recommended that the reduction be confirmed, finding that Taggart did live with appellant.

In exceptions to the hearing officer's conclusions contained in a letter of January 21, 1977, other evidence was referred to, including letters from appellant's landlord and a rent receipt from Taggart's sister showing that he did rent a room from her. A letter from the East Orange Post Office also tended to demonstrate that Taggart lived in that municipality and not with appellant.

The Director of the New Jersey Division of Public Welfare concluded on the basis of all evidence submitted that Taggart did not live with appellant. Nonetheless, in light of appellant's testimony during the hearing that "Mr. T. visits frequently, his child cannot be considered as deprived of parental care [and] support" by reason of the "continued absence" of a parent "in accord with the provisions of Public Assistance Manual 2533." Appellant's grant was, accordingly, reduced to "$207 based on a household of three and an eligible unit of two persons [excluding Mr. T.'s child]."

Appellant raises several substantive points of argument, all of which, in our view, lack merit. First, appellant contends that the agency's interpretation of the term "continued absence" as excluding frequent visitation by a purportedly "absent" parent raised an irrebuttable and improper presumption that the child is being supported by the visiting parent. In making this argument appellant discloses a ...


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