PUBLISHED OPINION
Case No.: 94-0891
Complete
Title
of
Case:TRACY A. BUENING,
Petitioner-Respondent,
v.
WISCONSIN DEPARTMENT OF HEALTH
AND SOCIAL SERVICES,
Respondent-Appellant.
Submitted
on Briefs: January 13, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: September 30, 1996
Opinion
Filed: September
30, 1996
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Moria
Krueger
so
indicate)
JUDGES: Eich,
C.J., Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the respondent-appellant the
cause was submitted on the brief of James E. Doyle, attorney general,
with Donald P. Johns, assistant attorney general.
Respondent
ATTORNEYSFor the petitioner-respondent the
cause was submitted on the brief of Jack Longert of Legal Action of
Wisconsin, Inc. of Madison.
COURT OF
APPEALS DECISION DATED AND
RELEASED September
30, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-0891
STATE OF WISCONSIN IN
COURT OF APPEALS
TRACY
A. BUENING,
Petitioner-Respondent,
v.
WISCONSIN
DEPARTMENT OF
HEALTH
AND SOCIAL SERVICES,
Respondent-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: MORIA KRUEGER, Judge. Affirmed.
Before
Eich, C.J., Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
SUNDBY,
J. This appeal presents the question: Does a child meeting all other eligibility
requirements qualify for Aid for Families with Dependent Children (AFDC) when
her parent becomes unemployed but is paid unemployment compensation exceeding
the state's level of assistance?[1] We reject the argument of the Wisconsin
Department of Health and Social Services ("department") that a child
is per se "dependent" as defined in 42 U.S.C. § 607(a) when the
principal-earner parent becomes unemployed.
We further conclude that because unemployment compensation is not a
social welfare benefit, but under Wisconsin law is temporary substitute income,
it must be considered in determining eligibility for AFDC benefits. Because it is undisputed that the
principal-earner parent's unemployment compensation was sufficient under the
state's standards to support himself and his child, the child was not a
"dependent child," as defined in 42 U.S.C. § 607(a), and was not
eligible for AFDC benefits. Therefore,
the state agency administering the state's AFDC plan, the Dane County
Department of Human Services (DCHS), incorrectly added the child and her father
to petitioner Tracy Buening's assistance unit.
We affirm the trial court's order reversing the department's decision
affirming DCHS's action.
I. Background
Prior
to March 1, 1993, Tracy Buening and her daughter, Azeria, constituted an
assistance unit[2] and received
$440 per month in AFDC benefits.
Buening's partner, Bradley Smith, and their two-year-old child, Caitlin,
live with Buening and her daughter.
Smith has lived with Buening since 1987. Smith is not Azeria's natural or adoptive father. Nor is he her stepfather because he and
Buening have not married. Azeria is eligible
for AFDC benefits because she is a "dependent child," as defined in
42 U.S.C. § 606(a),[3]
by reason of the continued absence of her natural father from her home. Until December 19, 1992, Smith was fully
employed and earned approximately $1,500 per month. He was laid off and in January 1993 began to draw monthly
unemployment compensation of approximately $652. DCHS determined that upon Smith's unemployment, Caitlin became a
"dependent child" "who has been deprived of parental support or
care by reason of the unemployment ... of the parent who is the
principal earner." DCHS added both
Smith and Caitlin to Buening's "filing unit" and concluded that 42
U.S.C. § 607(b)(1)(B)(iv)[4]
required that it deduct Smith's monthly unemployment compensation from the
budgetary requirement of $617 per month for four persons.
Section 49.19(11)(a), Stats. Because Smith's unemployment compensation
exceeded this assistance standard, DCHS terminated Buening's and Azeria's AFDC
grant, effective March 1, 1993. The
department affirmed.
II. Decision
Prior
to Smith's unemployment, the combined monthly income of the Buening/Smith
"family" was $1,940. Upon his
unemployment, Smith's monthly income dropped from $1,500 to approximately
$652. DCHS could not consider Smith's
income while employed because he was merely the "man-in-the-house"
who had no obligation to support Buening and Azeria. 45 C.F.R. § 233.90(a)(1) provides that the determination of
whether a child has been deprived of parental support may be made only in
relation to a parent who has an obligation to support the child. "Under this requirement, the inclusion
in the family, or the presence in the home, of a `substitute parent' or
`man-in-the-house' ... is not an acceptable basis for a finding of
ineligibility or for assuming the availability of income by the State ...."
Id. (emphasis added).
The existence of a
joint legal duty of support on behalf of both the beneficiary and
representative payee is crucial when determining the availability of income for
AFDC purposes. The Supreme Court noted
in Heckler v. Turner, 470 U.S. 184, 200, 105 S. Ct. 1138, 1147,
84 L.Ed.2d 138, 150 (1985), that the availability principle serves to prevent
states from "imputing financial support from persons who have no
obligation to furnish it." This
language suggests that the practice of "deeming" or imputing income
to be available to an AFDC recipient is improper only when there is no legal
obligation of support existing between the AFDC recipient and the person whose
income is "deemed" available to the recipient.
Fransen v. Iowa Dep't of Human Servs., 376 N.W.2d 903, 907-08 (Iowa 1985) (footnote
omitted).
45
C.F.R. § 233.20(a)(3)(ii)(D) provides that in determining eligibility for
AFDC benefits, a state plan must provide that:
"Income ... and resources available for current use
shall be considered. To the extent not
inconsistent with any other provision of this chapter, income and resources are
considered available both when actually available and when the applicant or
recipient has a legal interest in a liquidated sum and has the legal ability to
make such sum available for support and maintenance."
See Deel
v. Jackson, 862 F.2d 1079, 1082 (4th Cir. 1988) (quoted source
omitted), cert. denied, 490 U.S. 1092 (1989).
Courts
have construed this language to mean that AFDC eligibility determinations may
be based only on income and resources actually available to the applicant for
assistance. Heckler v. Turner,
470 U.S. 184, 199 (1985). The United
States Supreme Court's decisions applying the availability principle
"clearly reflect that its purpose is to prevent the States from relying on
imputed or unrealizable sources of income artificially to depreciate a
recipient's need." Id.
at 201. For example, in King v.
Smith, 392 U.S. 309, 319-320 & n.16 (1968), the Court held that
Alabama could not deny assistance to otherwise eligible children solely because
their mother cohabited with a "substitute father" without regard to
whether the "father" actually contributed to the children's support.
"Applications
of the availability principle have ... been consistent with the purpose
that the rule seeks to achieve--precluding the fictional imputation of income
to AFDC applicants from relatives and housemates who never actually
contribute to the AFDC assistance unit."
Deel, 862 F.2d at 1084 (emphasis added).
In
Sundberg v. Mansour, 627 F. Supp. 616, 621 (W.D. Mich. 1986), aff'd,
847 F.2d 1210 (6th Cir. 1988), the Secretary argued that the DEFRA amendments
(Deficit Reduction Act of 1984),[5]
which added 42 U.S.C. § 602(a)(38) to the Social Security Act, did not
"deem" sibling income and resources available to Medicaid applicants
or recipients, but merely required that certain siblings be added to the public
assistance filing unit. The court held
that the Secretary argued "a distinction without a difference"
because by requiring that siblings be included in the filing unit, the
Secretary in effect "deemed" their income available to the Medicaid
applicant or recipient. Id.
We
agree that § 602(a)(38) is a "deeming" requirement; however,
income of a sibling is not available to the assistance unit unless that sibling
is a "dependent child."
Further, the sibling's income must be actually available. Caitlin has no income which may be
"deemed" available to support Buening and Azeria. While Caitlin's father has a legally
enforceable obligation to support her, there is no court order requiring him to
pay a certain amount periodically to her, as is the case when a child receives
child support from an absent parent.
The Secretary's regulations bar any state presumption that income of a
nonlegally responsible person in a household is available to support all
dependent children who reside therein. See
Bray v. Dowling, 25 F.3d 135, 144 (2d Cir. 1994), cert. denied,
115 S. Ct. 1431 (1995).
In
Lewis v. Martin, 397 U.S. 552 (1970), the Court said:
In the
absence of proof of actual contribution, [the States] may not consider the child's
"resources" to include either the income of a nonadopting stepfather
who is not legally obligated to support the child as is a natural parent, or
the income of a MARS [man assuming the role of a spouse]--whatever the nature
of his obligation to support.
Id. at 559-60, quoted in Malloy v. Eichler, 628 F.
Supp. 582, 595 (D. Del. 1986), aff'd, 860 F.2d 1179 (3d Cir. 1988). In Malloy, the court
interpreted the DEFRA amendments as not requiring the states to attribute
income of siblings or grandparents, who live in the same assistance unit, to
Medicaid applicants. DEFRA may require
the income of dependent siblings to be attributed to the AFDC assistance unit,
but the language of the amendments does not permit us to assume that Congress
intended to eliminate or modify the availability principle. Congress must be presumed to have been aware
of the Secretary's interpretive regulations and policies that did not permit
the states to attribute income not actually available to the assistance unit.
If
DCHS had determined after a hearing that Smith actually supported Buening and
Azeria, we would have a different case, but it elected to create a per se rule
that Caitlin became a dependent child merely because her father became
unemployed.
If
Smith had remained employed but his monthly wages were reduced to $652, the
Buening family would have remained eligible for AFDC benefits. Thus, when they needed it most, the state
took away a substantial part of their income on the fiction that Caitlin became
a "deprived" child when her father became unemployed.
The
department acknowledges that this anomalous result may result in suffering or
hardship for a family unit. If this
result was intended by Congress, that intent must clearly appear. It does not appear in Congress's statement
of the purpose of the Aid to Dependent Children legislation, which in 1961
temporarily extended AFDC to needy children who were dependent as the result of
a parent's unemployment. Pub. L. No.
87-31, § 1, 75 Stat. 75 (1961); see Philbrook v. Glodgett,
421 U.S. 707, 710 & n.3 (1975). The
department explains why the AFDC-UF (Unemployed Father), now AFDC-UP
(Unemployed Parent) Program was enacted:
By providing
assistance to families with both parents present, where one was unemployed,
Congress hoped to counteract the incentive for desertion and, in particular,
the incentive for the real or pretended desertion of fathers inherent in a
program where assistance was available in the event of the absence from the
home of a parent. The goal of family
stability evident from the legislative history of § 607 was consistent
with ... one of the stated objectives of the entire program set forth in
§ 601 "to help maintain and strengthen family life."
42
U.S.C. § 601 provides:
For the purpose of
encouraging the care of dependent children in their own homes or in the homes
of relatives by enabling each State to furnish financial assistance and
rehabilitation and other services, as far as practicable under the conditions
in such State, to needy dependent children and the parents or relatives with
whom they are living to help maintain and strengthen family life and to help
such parents or relatives to attain or retain capability for the maximum
self-support and personal independence consistent with the maintenance of
continuing parental care and protection, there is hereby authorized to be
appropriated for each fiscal year a sum sufficient to carry out the purposes of
this part....
In
1968 Congress made the AFDC-UP program permanent; for a general discussion of
the history of this program, see Westcott v. Califano, 460 F.
Supp. 737, 749-50 (D. Mass. 1978), aff'd, 443 U.S. 76 (1979), and Philbrook,
421 U.S. at 710 & n.5.
The
department's administration of the AFDC-UP program, if extended to nontraditional
"families" to include the income and resources of persons who have no
legal responsibility to support the members of the AFDC filing unit, fosters
the incentive for desertion and is contrary to the goal of family stability,
which the department acknowledges was the purpose of the AFDC-UP program. Smith and Caitlin can restore Buening's and
Azeria's eligibility for AFDC benefits by simply moving from the
household. Although Smith would have an
enforceable duty to support Caitlin, he would not have a legal obligation to
support Buening and her child. Thus,
Buening and Azeria would again be eligible for AFDC benefits.
The
department contends that despite the anomaly of denying a needy child
assistance when the "man-in-the-house" becomes unemployed, that
result is required by the DEFRA amendments and the Secretary of the Department
of Health and Human Services (DHHS)'s interpretative regulation, 45 C.F.R.
§ 206.10(a)(1)(vii).
42
U.S.C. § 602(a)(38) provides in part:
[I]n
making the determination under paragraph (7) with respect to a dependent child
and applying paragraph (8), the State agency shall (except as otherwise
provided in this part) include-
(A)
any parent of such child, and
(B)
any brother or sister of such child
if such brother or sister meets the conditions described
in clauses (1) and (2)
of section ... 606(a) ... or in section ... 607(a) ... [and] is
living in the same home as the dependent child, and any income of or available
for such parent, brother, or sister shall be included in making such
determination ....
(Emphasis added).
The
"determination" under subsection (7) is the determination whether a
needy family with children is eligible for AFDC. 42 U.S.C. § 602(7)(B).
45
C.F.R. 206.10(a)(1)(vii) provides:
(a)
State plan requirements. A State plan
under title ... IV-A [Aid To Families With Dependent
Children] ... shall provide that:
(1) ....
(vii) For
AFDC only, in order for the family to be eligible, an application with respect
to a dependent child must also include, if living in the same household and
otherwise eligible for assistance:
(A)
Any natural or adoptive parent, or stepparent (in the case of States with laws
of general applicability); and
(B) Any blood-related or adoptive brother or
sister; ....
(Emphasis added).
The
department does not argue that subparagraph (A) required it to include Smith in
Buening's assistance unit. Smith is not
Azeria's natural or adoptive parent or her stepparent because he and Tracy have
not married.
The
department contends, however, that the state's plan was required to include
Caitlin, and through her, Smith, because Caitlin is Azeria's blood-related
sister. It argues that Caitlin became
"otherwise eligible for assistance" when her father became
unemployed, "regardless of any ... need
determination." It asserts: "By definition, Caitlin is a deprived child
because of her father's unemployment ...."
In
determining Congress's intent in adding the DEFRA amendments to the Social
Security Act, we look first, as always, to the language of the statute. Heckler v. Turner, 470 U.S.
184, 193 (1985). Under the plain
language of 42 U.S.C. § 607(a), Caitlin is not "deprived":
The term "dependent child" shall, notwithstanding
section ... 606(a), of this title include a needy child who meets the
requirements of section ... 606(a)(2) of this title, who has been deprived
of parental support or care by reason of the unemployment ... of
the parent who is the principal earner ....
(Emphasis added).
Section
606(a)(2) prescribes age requirements, which are satisfied in this case.
The
department redrafts § 607(a) to read:
"The term `dependent child' shall include a child whose
principal-earner parent becomes unemployed." It is a familiar rule of statutory construction that we give
meaning to every word of a statute. Jauquet Lumber Co. v. Kolbe &
Kolbe Millwork Co., 164 Wis.2d 689, 700, 476 N.W.2d 305, 308 (Ct. App.
1991). In the absence of ambiguity, we
give words in a statute their common meaning and may resort to any standard
dictionary to find that meaning. Girouard
v. Jackson Circuit Court, 155 Wis.2d 148, 156, 454 N.W.2d 792, 796
(1990). According to Webster's New Collegiate Dictionary
305, 768 (1977), "needy" means "being in want";
"deprived" means "marked by deprivation esp. of the necessities
of life ...." DCHS did not
determine whether Caitlin was in fact "needy" or
"deprived."
The
AFDC program was enacted in 1935 to combat the effects of the Great Depression
by "`provid[ing] financial assistance to needy dependent children and the
parents or relatives who live with and care for them.'" Bowen v. Gilliard, 483 U.S.
587, 589 n.1 (1987) (quoting Shea v. Vialpando, 416 U.S. 251, 253
(1974)). That remains the purpose of
the AFDC program. The department's
construction of §§ 602(a)(38) and 607(a), which writes out of the AFDC-UP
program a determination of need, is contrary to what has been the purpose of
the Social Security Act for over sixty years.
The
department's examiner concluded:
"I determine that Caitlin is a deprived child who must be added to
the petitioner's assistance unit, regardless of a need determination." (Emphasis added). The department has not considered the implications of its
decision. Henceforth, every child whose
principal-earner parent becomes unemployed would be "needy" and
eligible for AFDC benefits. If Smith
and Caitlin choose to establish their own household and Smith remains
unemployed, Caitlin becomes "deprived" and she and Smith are eligible
for AFDC benefits, regardless of whether she is "needy." Caitlin is not, in fact, "needy"
because her father has ample unemployment compensation to provide for her. Also, he could have income from other
sources to devote to her care and support.
We
conclude that a child does not automatically become "dependent,"
"needy" or "deprived" when his or her principal-earner
parent becomes unemployed. The plain
language of § 607(a) requires that the "dependent child" must
have been "deprived of parental support or care by reason of the
unemployment ... of the parent who is the principal earner ...."
(Emphasis added). "By reason
of" means "caused by."
There will be many instances in which a child will be deprived because
of a parent's unemployment: the parent may be ineligible for
unemployment compensation or the compensation may be insufficient to support
the child and parent. Neither case is
presented here; Caitlin's father is paid monthly unemployment compensation of
approximately $652. This is well above
the family assistance level prescribed by § 49.19(11)(a)1.a., Stats.
Some
courts have held that § 602(a)(38) requires that all siblings of a
dependent child be included in the child's filing unit regardless of need. Many of these courts have not found
§ 602(a)(38) ambiguous but have implemented what they believe to be
Congress's intent in adding this provision to the Social Security Act. Other courts have found § 602(a)(38)
ambiguous and relied on the legislative history of the DEFRA amendments and the
general purpose of the Act to require that persons receiving benefits under
other social welfare programs be included in the family filing requirement. "Since both AFDC and OASDI [Old Age and
Survivors' Disability Insurance] are social welfare programs, the consideration
of OASDI benefits in determining need under the AFDC program also facilitates
the allocation of scarce public funds to those most in need." Oliver v. Ledbetter, 624 F.
Supp. 325, 332 (N.D. Ga. 1985), aff'd, 821 F.2d 1507 (11th Cir.
1987); see also Skidgel v. Maine
Dep't of Human Servs., 994 F.2d 930, 941 (1st Cir. 1993) (Congress and
federal and state agencies are "charged with the difficult task of
allocating limited funds across a range of needy families"); Huber
v. Blinzinger, 626 F. Supp. 30, 33 (N.D. Ind. 1985) (same); Tigner v. Secretary, Cabinet For Human
Resources, 858 S.W.2d 208, 211 (Ky. Ct. App. 1993) (social security
disability benefits).
The
Congress and the legislature do not allocate "scarce public funds,"
at least in this state, when unemployment compensation is paid to a temporarily
unemployed person. Wisconsin's
unemployment compensation program is not a social welfare program. Unemployment compensation is replacement
income. Section 108.01(1), Stats., declares that it is the public
policy of this state that each employing unit "can reasonably be required
to build up a limited reserve for unemployment, out of which benefits shall be
paid to its eligible unemployed workers, as a matter of right, based on
their respective wages and lengths of service." (Emphasis added). Smith earned his unemployment compensation as surely as he earned
his wages while he was employed. The
same rule requiring exclusion of his wages, which is used in determining
Buening's and Azeria's AFDC eligibility, must be applied to his replacement
income.
The
department's error in interpreting Congress's intent in adding the DEFRA
amendments to the Social Security Act lies in failing to understand that
Congress intended to plug the loop-hole where a parent could exclude the income
of a child or relative which was available to support the members of the filing
unit. Smith's income, including his
unemployment compensation replacement income, is not available to support
Buening and Azeria.
We
have not forgotten that 42 U.S.C. § 607(b)(1)(B)(iv) requires that a state
plan provide:
for the reduction of the aid to families with dependent
children otherwise payable to any child or relative specified in subsection (a)
by the amount of any unemployment compensation that such child's parent
described in subparagraph (A)(i) receives under an unemployment compensation
law of a State or of the United States.
(Emphasis added).
"[S]uch
child[]" is Azeria, not Caitlin.
"[S]uch child's parent" is Buening, not Smith. If Buening received unemployment
compensation, § 607(b)(1)(B)(iv) would require the state agency to reduce her
AFDC by the amount of that compensation.
If Caitlin and Smith qualified for AFDC benefits, the state agency would
be required to reduce their assistance by Smith's unemployment
compensation.
The
need determination is a two-step process.
57 Fed. Reg. 30132, 30139 (1992) (Secretary's interpretive
comments). "First, the
composition of the assistance unit must be determined. Second, income is considered in relation to
the determination of need." Id. DCHS should not have reached the second step
of the process because Caitlin and her father were not eligible for AFDC
benefits and could not form an assistance unit or be added to the Buening
family's assistance unit. DCHS and the
department have mistakenly read the DEFRA amendments to repeal the
"man-in-the-house" "deeming" prohibition.
It
is necessary to extend this discussion to dispel the notion that Congress
intended that the DEFRA amendments--the "family filing rule"--require
participating states to include in the family filing unit nondependent persons
and persons not eligible for AFDC benefits who have no legal obligation to
support the members of the "family" who do apply for assistance. We must also dispel the notion that the
Secretary has so construed the DEFRA amendments.
The
report of the Senate Finance Committee which accompanied the Deficit Reduction Act
of 1984 stated:
Present Law
There is no requirement in present law that
parents and all siblings be included in the AFDC filing unit. Families applying for assistance may exclude
from the filing unit certain family members who have income which might reduce
the family benefit. For example, a
family might choose to exclude a child who is receiving social security or
child support payments, if the payments would reduce the family's benefits by
an amount greater than the amount payable on behalf of the child....
Explanation of Provision
The provision approved by the Committee would
require States to include in the filing unit the parents and all dependent
minor siblings (except SSI recipients and any stepbrothers and stepsisters)
living with a child who applies for or receives AFDC....
This change will
end the present practice whereby families exclude members with income in order
to maximize family benefits, and will ensure that the income of the family
members who live together and share expenses is recognized and counted as
available to the family as a whole.
Sen. Print No. 98-169 at 980 (1984) (emphasis added).
We
see nothing in the Committee report suggesting that Congress intended to create
a "household" filing rule where all persons residing together must be
included in an assistance unit.
Congress could easily have made such a requirement explicit. We cannot assume that the Committee misspoke
when it said: "The provision
approved by the Committee would require States to include in the filing unit
the parents and all dependent minor siblings (except SSI recipients and
any stepbrothers and stepsisters) living with a child who applies for or
receives AFDC...." Id.
(emphasis added). Courts which have
made § 602(a)(38) a household filing rule have ignored the Committee's
qualification that the rule only includes "dependent" minor
siblings. They have also read out of
§ 607(a), the plain language that defines a "dependent child" as
a "needy" child "who has been deprived of parental support or
care by reason of the unemployment ... of the parent who is the
principal earner ...."
We
agree with the court in Skidgel, 994 F.2d at 940-41, that
"it is not at all clear that Congress has addressed the precise issue
presented; namely, the application of
these distinct statutory provisions to the particular situation of families
composed of both § 606(a) and § 607(a) children." It is clear, however, that in adding the
family filing rule to the Social Security Act, Congress did not address the
issue of the nontraditional family where the "man-in-the-house"
receives unemployment compensation which is not available to support the
members of an existing assistance unit.
We
also agree with the Skidgel court that § 602(a)(38) "is
anything but elegantly drafted" and that "statutory construction [of
the Act] is made difficult by the patchwork manner in which the AFDC statute
has been enacted." Id.
at 939. The court reluctantly[6]
concluded that it would defer to the Secretary's construction that § 602(a)(38)
and § 607(b)(1)(B)(iv) required the state agency to deduct from AFDC
payments unemployment compensation received by a stepparent in a two-parent
household including at least one child-in-common and one stepchild of the
unemployed principal earner. Id.
at 932.
Skidgel considered only a traditional family including a
stepchild and a stepfather having an enforceable obligation to support his
stepchild. Smith is not Azeria's
stepfather and is not a "parent," as defined in § 602(a)(38). Skidgel is therefore of little
help in considering how § 602(a)(38) affects the Buening/Smith family.
The
department argues that the Secretary's interpretation of the DEFRA amendments
is "`a permissible one,'" quoting Orris v. Sullivan,
974 F.2d 109, 113 (9th Cir. 1992) (quoting Sullivan v. Everhart,
494 U.S. 83, 93 (1990)). But the
department does not refer us to an interpretation by the Secretary that a child
whose principal-earner parent becomes unemployed is per se "needy"
and "deprived." As to
blood-related siblings, the Secretary construes § 602(a)(38) to require that
the assistance unit include "blood-related ... brothers and sisters
(including half brothers and sisters) who are living in the same household as
the dependent child [Azeria] and who meet the eligibility requirements for
AFDC ...." 57 Fed. Reg. 30132,
30136 (1992) (Secretary's interpretive comments) (emphasis added). The Secretary also states the DEFRA
amendments require that an application on behalf of a dependent child must
include brothers and sisters of the dependent child, including half-brothers
and sisters, "who are themselves dependent children ...." Id. at 30135.
These
interpretive comments do not, of course, answer the question who is a
"needy" and thus a "dependent" child. That question is answered by the Secretary's
regulation 45 C.F.R. § 233.90(c)(1)(i) which provides:
The phrase "needy child ...
deprived ... by reason of" requires that both need and
deprivation of parental support or care exist in the individual case. The phrase encompasses the situation of any
child who is in need and otherwise eligible, and whose parent--father or
mother--either has died, has a physical or mental incapacity, or is continually
absent from the home. This
interpretation is equally applicable whether the parent was the chief bread
winner or devoted himself or herself primarily to the care of the child, and
whether or not the parents were married to each other. The determination whether a child has been
deprived of parental support or care is made in relation to the child's natural
parent or, as appropriate, the adoptive parent or stepparent or stepparent
described in paragraph (a) of this section.
This
regulation was adopted before the Tax Reform Act of 1986 amended
§ 607(a) to include as a
"dependent child" a "needy
child ... deprived ... by reason of" the
principal-earner parent's unemployment.
However, the Secretary has always interpreted § 602(a)(38) to apply
to a child eligible under either the AFDC or the AFDC-UP program. See 57 Fed. Reg. 30132, 30138
(Secretary's interpretive comments).
Further, it would an unreasonable construction of the statutes to
conclude that "needy child ... deprived ... by reason
of" means something different in § 607(a) from what it means in
§ 606(a).
We
would needlessly extend this opinion if we discussed the numerous cases we have
considered construing the DEFRA amendments.[7] In the main, most of these decisions involve
traditional families where a child to whom both parents owe a duty of support
receives income directly available to the child from sources such as child
support or Social Security benefits.
None of the decisions we reviewed have discussed the Secretary's Interpretive
Comments of July 8, 1992. Nor have they
considered how the amendments impact a nontraditional family in which the
"man-in-the-house" has no duty to support the members of the
assistance unit. We conclude, however,
that the Iowa Supreme Court reached the correct result in a case very similar
to the case before us, Phipps v. Iowa Department of Human Services,
409 N.W.2d 174 (Iowa 1987).
The
AFDC recipient, Betty Phipps, had four minor children, three of whom were born
during a marriage long since terminated.
Id. at 175. Her
fourth child, Gregg, was the son of Roscoe Phipps, with whom she and her other
children lived. Although Betty took
Roscoe's name, they did not marry.
Roscoe worked and supported Gregg but did not support Betty or her other
children. Following an injury, in September
1985, Roscoe began receiving worker's compensation benefits. The state agency terminated Betty's AFDC
benefits because the household income, including Roscoe's worker's compensation
benefits, exceeded the family standard of need under the state's program. The Iowa court concluded that
"[n]owhere is it suggested ... in the statutes or regulations
involved that a non-dependent child had to be included in the calculation"
of available income. Id.
at 178. The court said:
To be
sure, Congress expressed a clear intent [in DEFRA] to "deem" income
received by one member of an AFDC household available to all members of the
household. Nevertheless the DEFRA
amendments strictly limited their application to include only siblings who
qualify as "dependent children" otherwise eligible for
assistance. Only if the minor siblings
of an AFDC applicant meet the conditions of "dependency" set forth in
42 U.S.C. section 606(a)(1) and (2) did Congress intend for them to be included
in the applicant's filing unit.
Gregg [their son] is not a "dependent
child" because he has not been deprived of the care or support of his
father....
... To
"deem" Roscoe Phipps' income available, through Gregg, to the entire
household would violate the express terms and provisions of 42 U.S.C. section
602(a)(38) and 45 C.F.R. section 206.10(a)(1)(vii)(B).
Id. at 178.
We
agree with this reasoning.
The
department concluded below that limiting the DEFRA amendments to
"dependent" children "would render the enactment of 42 USC
§ 607(a)(38) meaningless--nothing would have been accomplished by its
passage." We may not disregard the
clear and unambiguous language of a statute even if we conclude that the
language may not accomplish the legislature's purpose. National Amusement
Co. v. Wisconsin Dep't of Taxation, 41 Wis.2d 261, 266, 163 N.W.2d 625,
628 (1969). It would be very dangerous
for a court to assume that the legislative body did not mean what it clearly
said. Both in the text of
§ 602(a)(38) and the explanation of the provision, Congress has
unambiguously said that the DEFRA amendments
require states to include in the filing unit all "dependent"
minor siblings living with a child who applies for or receives AFDC. Perhaps the language of § 602(a)(38)
can be construed to require the state plan to include in the filing unit a
child receiving Social Security or child support payments where that child
would otherwise be dependent without such direct assistance. However, we do not see how the amendments
can be stretched to include unemployment compensation benefits which are not
paid to the child of the unemployed parent and are not directly available to
such child.
Whatever
may be the result in other cases where the facts are different, we conclude
that in this case where the principal earner had no duty to support the members
of the existing assistance unit and the state agency did not determine that his
unemployment compensation was available to the members of the assistance unit,
the DEFRA amendments do not require that the child of the unemployed principal
earner and the principal earner to be included in the existing assistance unit.
By
the Court.—Judgment affirmed.
[1] The Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-193, 110 Stat. 2105 (Aug. 1996), terminated entitlement to AFDC benefits
under any state plan approved under part A of title IV of the Social Security
Act, effective October 1, 1996.
[2] An "[a]ssistance [u]nit is the group of
individuals whose income, resources and needs are considered as a unit for the
purposes of determining eligibility [for AFDC benefits] and the amount of
payment." 45 C.F.R. §
206.10(b)(5).
[3] 42 U.S.C. § 606(a) provides:
The term "dependent child" means a needy child
(1) who has been deprived of parental support or care by reason of the death,
continued absence from the home (other than absence occasioned solely by reason
of the performance of active duty in the uniformed services of the United
States), or physical or mental incapacity of a parent, and who is living with
his father, mother, grandfather, grandmother, brother, sister, stepfather,
stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or
niece, in a place of residence maintained by one or more of such relatives as
his or their own home, and (2) who is (A) under the age of eighteen,
or (B) at the option of the State, under the age of nineteen and a
full-time student in a secondary school (or in the equivalent level of
vocational or technical training), if, before he attains age nineteen, he may
reasonably be expected to complete the program of such secondary school (or
such training).
[4] 42 U.S.C. § 607(b)(1)(B)(iv) provides:
(1) In
providing for the provision of aid to families with dependent children under
the State's plan ... in the case of families that include dependent children
within the meaning of subsection (a) of this section, ... the State's plan--
....
(B) shall provide--
....
(iv) for the
reduction of the aid to families with dependent children otherwise payable to any
child or relative specified in subsection (a) by the amount of any
unemployment compensation that such child's parent described in subparagraph
(A)(i) receives under an unemployment compensation law of a State or of the
United States.
(Emphasis added).
[5] Pub. L. No. 98-369, § 2640(a), 98 Stat. 494,
1145 (1984) (codified in part at 42 U.S.C. § 602(a)(38)).
[6] The court "recognize[d] the hardship
visited on families in the plaintiff class, whose life circumstances changed
dramatically following the unemployment of the principal earner. The income going to the family unit was
reduced by the onset of unemployment, and then was further diminished by
reduction of the AFDC payment in the amount of unemployment
received." Skidgel v. Maine
Dep't of Human Servs., 994 F.2d 930, 941 (1st Cir. 1993). The court concluded that "[i]n the end,
we must acknowledge that the Congress, HHS and DHS are charged with the
difficult task of allocating limited funds across a range of needy
families." Id.
[7] Bowen v. Gilliard, 483 U.S.
587, 608-09 (1987) (requirement that family wishing to receive AFDC benefits
include child receiving child support not unconstitutional); Heckler v.
Turner, 470 U.S. 184, 211 (1985) (in calculating household's need,
state must treat mandatory tax withholdings as work expenses); Bray v.
Dowling, 25 F.3d 135, 143 (2d Cir. 1994) (state could require all
children living with caretaker, including those for whom she was not legally
responsible, to be included in assistance unit), cert. denied, 115 S.
Ct. 1431 (1995); Minnesota v. Heckler, 718 F.2d 852, 860
(8th Cir. 1983) (language of Congress is conclusive in the absence of clearly
expressed legislative intent to the contrary); Maryland Dep't of Human
Resources v. United States, 648 F. Supp. 1017, 1024 (D. Md. 1986)
(child support payment received by children of AFDC recipient must be counted
in determining eligibility); Gibson v. Sallee, 648 F. Supp. 54,
60 (M.D. Tenn. 1986) (AFDC applicants granted preliminary injunction to
restrain agency from including income of non-needy children in determining AFDC
eligibility); Sherrod v. Hegstrom, 629 F. Supp. 150, 153 (D. Or.
1985) (42 U.S.C. § 602(a)(38) requires family applying for AFDC benefits to
include income available to all siblings and half-siblings), aff'd, 828
F.2d 23 (9th Cir. 1987); Shonkwiler v. Heckler, 628 F. Supp.
1013, 1017 (S.D. Ind. 1985) (42 U.S.C. § 602(a)(38) requires that child
support, Medicaid benefits, military allotment, and social security benefits
payable to AFDC recipient's child be included in determining AFDC eligibility);
Huber v. Blinzinger, 626 F. Supp. 30, 33 (N.D. Ind. 1985) (OASDI
benefits received by representative of child to be counted as income to parent
applying for AFDC);
Oliver v. Ledbetter, 624 F. Supp. 325, 332 (N.D. Ga. 1985), (DEFRA amendment requires
consideration of OASDI survivors' benefit in determining AFDC eligibility), aff'd
821 F.2d 1507 (11th Cir. 1987); Gorrie v. Heckler, 606 F. Supp.
368, 372 (D. Minn. 1985) (Secretary's rule requiring application for AFDC to
include unavailable income of nondependent siblings void); La Beaux v.
Department of Human Servs., 465 N.W.2d 541, 544 (Iowa 1991)
(availability principle prevents denial of AFDC benefits on the basis of income
never really available for applicant's use); Lopez v. Ohio Dep't of Human
Servs., 623 N.E.2d 689, 691 (Ohio Ct. App. 1993) (fact that father of
half-sibling is unemployed sufficient to conclude that she is dependent child).