On appeal from New Jersey Department of Human Services, Division of Public Welfare.
Fritz, Joelson and Petrella. Fritz, P.J.A.D.
This is an appeal by Arlene Simone, a recipient of benefits under the Aid to Families with Dependent Children (AFDC) Program, following a reduction of those benefits by the Bergen County Welfare Board (Board) upon its determination "that there is no lack of parental support as Mr. Simone [appellant's husband] lives in the same house." At appellant's request a "fair hearing" followed, before an administrative law judge. Appellant testified at length as did a friend of hers. The Bergen County Welfare Board was actively present and participated but, significantly enough, produced no witnesses or evidence other than to undertake examination of Mrs. Simone. The case for the Board was succinctly and forthrightly stated by counsel for the Board at the conclusion of Mrs. Simone's testimony. He said:
Mr. Simone lives at 438 Grove Street. That is what we're basing our case on. The lack of parental deprivation. Continued absence of the parent from the home constitutes deprivation of parental support or care. Judge, our case is ipso facto the fact that he lives in the same building with her is by its very nature, uh, a lack of deprivation.
The uncontroverted testimony of Mrs. Simone reported that she and Mr. Simone were separated, but not divorced because "I don't have any time," and "He has no money"; that "He left
me"; that "we don't live together"; that while Mr. Simone lives "in the same building," he never sees the children and never visits the home; that this "building" is in reality a five-family house, and that Mr. Simone lives with his mother and father on a floor above that on which she lives with the children. It would also appear without contradiction that after the separation, Mr. Simone left the premises entirely, "living with a friend someplace," and that when he returned to the premises he did not move back in with appellant nor has he lived there at any time "since the first time he left." None of his clothes remain in Mrs. Simone's apartment, he never takes the children to school, he furnishes neither Mrs. Simone nor any of the children "clothing or shoes or food or candy or pocket money." There is evidence from which it can be most reasonably inferred that an attempt at reconciliation by Mrs. Simone on an earlier separation failed, in part at least, because Mrs. Simone did not "want a beating every time."
Inquiry of Mrs. Simone by counsel for the Board (Mr. Williams) appears instructive:
Q Have you asked Mr. Simone to pay attention to the children?
MR. SEMEL [counsel for Mrs. Simone]: I object. That's not part of the case.
MR. WILLIAMS: All right. He asked the question has he paid any attention to the children.
Q Mrs. Simone, have you asked him to pay attention ...