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In re Souder

Decided: March 20, 1984.

IN THE MATTER OF KIMBERLY SOUDER, APPELLANT


On appeal from a Decision of the Division of Public Welfare, Department of Human Services.

Furman and Deighan.

Per Curiam

This is an appeal from a final administrative decision of the Division of Public Welfare, Department of Human Services (Department), which affirmed the action of the Gloucester County Welfare Board (Board) in terminating appellant's benefits under the Aid to Families with Dependent Children (AFDC) program. Termination of the grant was based upon a determination by the Board that no parental deprivation such as required by N.J.A.C. 10:81-2.7(d) existed.

Appellant, Kimberly Souder, an unwed mother, and her son reside with her family. She received AFDC because the child was financially needy and deprived within the meaning of that program. She had been receiving $278 per month under AFDC-C. Appellant's benefits were terminated because in a telephone conversation with a representative of the Board on April 6, 1982 she told him that the child was visited by his father every day.

On April 7, 1982, appellant was notified by the Board that her monthly AFDC benefits of $278 would be terminated because "your child is visited by his father every day . . . [so] that there is no absent parent [within the meaning of N.J.A.C. 10:81-2.7(d)]." In its termination letter it advised appellant that she could qualify for other types of public assistance if she married the father and lived with him or took up a joint residence with him as unmarried parents of the child.

Appellant requested a fair hearing and the matter was heard by an Administrative Law Judge (ALJ). At the hearing the Board took the position that because of the substantial contact by the father with the child, who was 13 months old at the time of redetermination, the child was "no longer deprived of parental support." Prior to the hearing appellant told the Board that she was engaged to the child's father but would not marry him until he obtained a better job. Subsequent to the hearing she advised the Board that she and the father were no longer engaged.

At the time of the hearing the father was paying support of $15 per week pursuant to a court order. He was earning $3.50 an hour as a truck driver working seasonally only. The Board explained that married and unmarried parents were treated alike under AFDC and at the hearing suggested that appellant and the father reside together as a family unit so that they might qualify for assistance as a family. The Board assumed that because of the visitation the father was functioning as a parent. This was concluded even though the Board representative admitted that since the support was under a court order the father would be given the right of visitation.

At the hearing appellant stated that the father, who lived two blocks away from where she resided, visited the child for an hour each day to play with him. She denied that he had any control or say over the child's upbringing. She stated that she could not move in and live with the father because it would be against the father's religion. Appellant's family also was opposed to a "live in" relationship. This "live in" suggestion by the Board upset appellant's relationship with her family and interfered with the relationship with the child's father.

Based on this testimony the ALJ concluded that appellant's benefits were properly terminated. The ALJ found that: (1) the father paid $15 per week in support and these payments were current; (2) the father visited the child daily; and (3) the father and the appellant were having a "continuing relationship." He concluded that termination was proper because the child was "not deprived of parental support and care."

On this appeal we are required to determine whether, under the facts and circumstances of this case, appellant's AFDC benefits were properly terminated. For reasons set forth below we hold that the benefits were improperly terminated.

Appellant states that "[i]t has been well established that eligibility under the AFDC must be measured by federal standards." This, of course, is axiomatic. If a state AFDC regulation conflicts with a federal standard, that regulation is invalid

under the supremacy clause. Carleson v. Remillard, 406 U.S. 598, 600-603, 92 S. Ct. 1932, 1934-1935, 32 L. Ed. 2d 352 (1972). If New Jersey disagrees with the manner in which the federal government has established eligibility criteria for AFDC and the manner in which these standards are applied, it must take its grievances to Congress, not apply those regulations in conformity with its own policy. King v. Smith, 392 U.S. 309, 333, 88 S. Ct. 2128, 2141, 20 L. Ed. 2d 1118 (1968). This State must conform its AFDC program to the federal scheme. Essex Cty. Welfare Bd. v. Dept. of Inst. and Agencies, 139 N.J. Super. 47, 50 (App.Div.1976); see 42 U.S.C. ยง 601, et seq.

Appellant contends that the Department interprets and applies the State regulations so as to undermine the purpose and intent of the Social Security Act. She charges that the Department's test for determining whether there is continued absence of a parent is based merely on whether the opportunity to exercise parental responsibility exists.

This court has recently held, contrary to the Department's contention, that Eligibility for AFDC Benefits, N.J.A.C. 10:81-2.7(d), is not determined on the basis of whether an absent parent has the opportunity to exercise parental responsibility irrespective of the parent's physical presence in the home. Simone v. State, 191 N.J. Super. 228, 233 (App.Div.1983). The regulation expressly directs that continued absence of the parent from the home constitutes deprivation of parental support or care, without any qualification respecting the opportunity of the parent to exercise responsibility regardless of the absence. Ibid.

The Department contends that the narrow issue is whether the child is "deprived" within the meaning of the AFDC legislation. It concludes that this court's review is limited to ascertaining whether the agency decision is based upon sufficient credible evidence in the record as a whole. "Since the father lives nearby and visits frequently to play with the child," it maintains that "he can be counted upon should she or the child

need his assistance for any reason." The father's "daily presence in the home coupled with the care and support he has shown to the child . . . negate a finding either that his absence interrupts his role as a provider of 'maintenance, physical care, or guidance' for the ...


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