On appeal from a decision of the Director, Division of Public Welfare, Department of Human Services.
Fritz, Furman and Deighan. The opinion of the court was delivered by Deighan, J.A.D.
[194 NJSuper Page 61] Appellant, Margaret Burrus, a single parent, received assistance under the Aid to Families with Dependent Children (AFDC) because her child was needy and deprived within the meaning of that program. She and her child resided with her mother who helped care for the infant while appellant attended school. Appellant had been receiving $273 per month from AFDC-C based on the absence of the father from the home.
On June 24, 1982 the Essex County Welfare Board (Board) terminated appellant's assistance payments under AFDC-C because the absent father visited the child "at least three times a week" and because appellant indicated that she and the father were considering the possibility of living together.
Appellant requested a fair hearing and the matter was heard by an Administrative Law Judge (ALJ). An initial decision was issued reversing termination of payments. This determination was rejected by the Director of the Division of Public Welfare (Director) in his final decision affirming the Board's termination of appellant's AFDC-C benefits.
The child's father, a pre-medical student from Nigeria, attends Kean College. Under the terms of his student visa, he is not permitted to work in this country. He is supported by his parents in Nigeria who forward money through the college to pay for his educational and living expenses. The flow of currency out of Nigeria is restricted. The father indicated that when his parents were informed that he was a father, they offered to provide financial assistance; however, because of Nigeria's currency control policies, a court order is necessary before funds can be remitted and then they must be collected through the college.
The termination issue arose when appellant indicated that she was contemplating moving. The father had been visiting the child regularly, and he suggested that the three try living together at his housing facility. Appellant called the Board and asked whether this living arrangement would affect her eligibility since the continued support was necessary to pay for at least half of the rent which was then being paid by the father's roommates. According to the Board, appellant indicated that "she wanted to live with him on the basis of sort of a trial marriage type situation."
In addition to the reasons initially given for termination of the AFDC-C benefits, the Board also concluded that there was no absence nor deprivation of parental support or care within
the meaning of AFDC requirements. The ALJ disagreed. She reasoned:
In rejecting this initial determination, the Director concluded that the father was not continuously absent within the requirements of AFDC because he maintained "a continuing relationship with the child."
Appellant argues that a mere showing of a continuing relationship between an absent parent and his child is insufficient to negate a finding that the parent is continuously absent for AFDC purposes. She contends that the Director has introduced a standard based on a presumption contrary to the statutory intent "because [the standard] equates any evidence of a continuing relationship between the parent and child with the assumption of parental responsibility."
Initially, it is necessary to review the applicable statutes and regulations. 42 U.S.C.A. § 606(a) defines a dependent child as a needy child "who has been deprived of parental support or care by reason of the . . . continued absence from the home . . . of a parent." In the present case, the need of appellant's child is not disputed. 45 C.F.R. § 233.90(c)(1)(iii)(1982) states that "continued absence . . . constitutes the reason for deprivation of parental support or care when the parent is out of the home." (Emphasis supplied.) The absence must, however, "interrupt or terminate the parent's functioning as a provider of maintenance, physical care or guidance for the child." (Emphasis supplied.) Finally, "the ...