decided: April 25, 1979.
JOANNE SWIFT, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, MICHELLE SWIFT, AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES, LYLIA ROE, PLAINTIFF-INTERVENOR,
BARBARA BLUM, INDIVIDUALLY AND AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, PHILIP L. TOIA, CHARLES W. BATES, INDIVDUALLY AND AS COMMISSIONER OF THE WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES, JOHN BATTISTONI, INDIVIDUALLY AND AS ACTING COMMISSIONER OF THE DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES, AND GABRIEL T. RUSSO, INDIVIDUALLY AND AS COMMISSIONER OF THE MONROE COUNTY DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS, BARBARA BLUM, INDIVIDUALLY AND AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, PHILIP L. TOIA, AND GABRIEL T. RUSSO, INDIVIDUALLY AND AS COMMISSIONER OF THE MONROE COUNTY DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS-APPELLANTS
Appeal from a judgment of the United States District Court for the Southern District of New York, Henry F. Werker, District Judge. The district court enjoined officials of the New York State Department of Social Services from pursuing their policy of pro-rating grants under the program for Aid to Families with Dependent Children when a child receiving support from outside sources sufficient for his own needs resides with an AFDC assistance unit. Also called up for review were interlocutory orders certifying a plaintiff class and denying defendants' motion for judgment on the pleadings. Affirmed on the opinions of the district court, reported at 461 F. Supp. 578 and 450 F. Supp. 983.
Before Kaufman, Chief Judge, Smith, Circuit Judge, Owen, District Judge.*fn**
Author: Per Curiam
We affirm on Judge Werker's opinions for the district court, reported at 450 F. Supp. 983 and 461 F. Supp. 578.
The only issue requiring additional comment is the State's contention that it does not in fact automatically pro-rate AFDC benefits when a child whose needs are met by non-welfare sources (and thus is not eligible for benefits) resides with the assistance unit. We conclude that Judge Werker correctly determined that there was not a genuine issue as to the existence of this policy. The state did not make an individual determination as to either named plaintiff that her child's income was applied to shared household expenses. Rather, in both cases proration was based solely on a finding that the payments were sufficient to meet the child's portion of those costs. This, in effect, presumed contributions to the household from the mere existence of income, thereby contravening Van Lare v. Hurley, 421 U.S. 338, 95 S. Ct. 1741, 44 L. Ed. 2d 208 (1975), and its implementing regulations, 45 C.F.R. §§ 233.20(a)(2) (viii), 233.90(a).
* Appellant Russo defaulted on the appellate scheduling order, and his appeal was dismissed by order dated March 9, 1979.