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June 2, 1982

LORI NAFZIGER, Individually, on behalf of her dependent son, and on behalf of all others similarly situated, Plaintiff,
BARBARA BLUM, Individually and in her capacity as Commissioner of the New York State Department of Social Services; and S. JEAN WAGONER, Individually and in her capacity as Commissioner of the Jefferson County Department of Social Services, Defendants; ANGELA CURRY, on behalf of herself and her minor dependent child and on behalf of all others similarly situated, Plaintiff, v. BARBARA BLUM, Individually and in her official capacity as Commissioner, New York State Department of Social Services; and MICHAEL NASSAR, Individually and in his capacity as Commissioner, Oneida County Department of Social Services, Defendants

The opinion of the court was delivered by: MCCURN



 These consolidated cases present the second chapter in the saga of New York State's efforts to superimpose its family responsibility laws on the federal criteria governing eligibility for benefits under the Aid to Families With Dependent Children (AFDC) program set forth in Title IV of the Social Security Act, 42 U.S.C. §§ 601 et seq.1 At issue here is an informal, unwritten policy adopted by the New York State Department of Social Services which denies AFDC benefits to otherwise eligible minor mothers, and to other caretaker relatives under the age of 21 who refuse to accept what the Department considers to be suitable living arrangements with their parents. Plaintiffs, two teenage mothers who are eligible for AFDC benefits as caretaker relatives of their dependent children, brought these suits under 42 U.S.C. § 1983 on behalf of a class which the Court certified to include: All AFDC caretaker relatives within New York State who are eligible to receive AFDC benefits but have been denied such assistance on the ground that they have a legally responsible relative with whom they choose not to reside. *fn2"

 Plaintiffs seek to have declared invalid and permanently enjoined the enforcement of the New York policy, which treats a legally responsible relative's offer of a home as an available resource to be considered in evaluating a minor caretaker relative's initial and continued eligibility for AFDC benefits. Plaintiffs contend that this policy is inconsistent with the Social Security Act, impermissibly burdens their constitutional right to privacy in family matters and denies equal protection of the laws because caretaker relatives over the age of 21 who refuse to accept living arrangements with legally responsible relatives are not denied AFDC benefits.

 The question for decision on plaintiffs' statutory claim is whether Congress, in establishing the eligibility criteria for AFDC benefits, left States free to exclude from AFDC coverage those minor caretaker relatives who insist on living apart from their legally responsible relatives. This Court holds that because Congress has not authorized such an exclusion, New York's policy of denying AFDC benefits to minor caretaker relatives who decide to live apart from their parents is inconsistent with the Social Security Act, and therefore invalid under the Supremacy Clause of the United States Constitution.


 These matters are before the Court on cross-motions for partial summary judgment. For present purposes, the undisputed facts concerning one of the representative plaintiffs will suffice to illustrate the operation of New York's policy with respect to minor caretaker relatives who refuse to give up their separate residence and move in with their parents.

 A. The Nafziger Case

 In December 1979, the Jefferson County Department of Social Services accepted Lori Nafziger and her two year old dependent son for public assistance in the AFDC category. The Department authorized an AFDC grant totalling $ 250.00 per month for mother and child. At this time, plaintiff was nineteen years old, was living with her son in an apartment in Carthage, New York, and was not receiving any financial support from her parents.

 Section 101 of the New York Social Services Law provides that parents of a person who receives public assistance are responsible for her financial support until she is 21 years old. *fn3" Enforcement of the parental liability established by section 101 is provided for by section 101-a and 102, which permit either the recipient or the appropriate welfare official to bring support proceedings against the parents or other legally responsible relatives, "to compel any such person so responsible to provide for or contribute to such support." N.Y.Soc.Serv.L. § 101-a (McKinney Supp. 1981).

 In accordance with this statutory scheme, the County Social Services Attorney sent plaintiff a letter on December 21, 1979, stating that because she was under the age of 21 and receiving public assistance, the Department would have to determine whether her parents were able to contribute to her support. The letter further advised plaintiff that she should visit the Departmental office and complete a parental support petition. Transcript of Fair Hearing, February 29, 1980, at 18 (hereinafter cited as T. ). In response to this request, plaintiff provided the county officials with the information necessary to complete the support petition, and a petition was filed in state court. T. 34.

 Notwithstanding plaintiff's cooperation in commencing a support proceeding, the County chose not to pursue that route. Instead, in late December or early January, the Department Attorney contacted the parents' attorney and reportedly learned that they were willing to have Lori and her son live with them and, in that manner, to meet plaintiff's needs for shelter, food and other necessaries. Based solely on this parental offer of a home, and without speaking to plaintiff about her reasons for maintaining a separate residence, the Department Attorney, "instructed the agency to discontinue support inasmuch as an asset was available to her, if she chose; that it was not this agency's policy to give money to a young person, either male or female, just so they could live their lifestyle that (sic) they chose." T. 18.

 In accordance with those instructions, the County agency notified plaintiff that effective March 1, 1980, her family's two-person grant would be cut in half, reflecting the agency's decision to eliminate plaintiff's needs from the grant and to prorate her son's grant. *fn4" Plaintiff then requested a fair hearing to contest the proposed reduction of her grant. The only witnesses at the hearing were plaintiff, a County Welfare employee who apparently contacted plaintiff's parents and learned of their willingness to provide a home for plaintiff, and the Department Attorney, who related the gist of his conversation with the parents' attorney concerning the offer of a home.

 At the hearing, plaintiff gave the following, uncontroverted testimony concerning her decision to leave her parents' home and to establish a separate residence in December 1979. Plaintiff explained that while she had a fairly good relationship with her father, she and her mother did not get along at all during the two year period when she and her son lived in her parents' house. Basically, plaintiff pointed to daily disagreements with her mother concerning most aspects of childrearing, including the issues of bedtime, diet, feeding schedules and discipline. T. 22, 26. Plaintiff explained that her mother would end up telling the child what to do. These persistent arguments were upsetting to plaintiff and her son, who appeared confused as to which person was his mother. Id. While plaintiff believed that her mother was genuinely concerned about plaintiff and her son, this underlying friendship and concern would not alter her decision to live apart from her parents because: (1) based on past experience, her return would trigger a resumption of their arguments and (2) while living apart from her parents, plaintiff was able to get closer to her son. T. 33. Plaintiff also stated that her parents would permit her to go out but once a week and that if she failed to return home on time, she would be grounded. According to the Department Attorney's testimony, plaintiff's parents were willing to permit plaintiff the "normal freedoms of any eighteen or nineteen-year-old girl . . . (but) they would not tolerate her bringing a man in the house to live with her . . ." T. 17.

 The decision after the administrative hearing affirmed the county agency's reduction in plaintiff's AFDC grant. The decision was based on the following reasoning. Because plaintiff's parents are legally responsible for her support until she is 21, and since they are willing to have plaintiff reside in their home and at their expense, plaintiff has resources available to her which, if accepted, would prove suitable and sufficient to eliminate her need for AFDC benefits. In light of this outstanding offer of a suitable home, *fn5" plaintiff's decision to live apart from her parents is properly treated as a failure to pursue available resources. Plaintiff's Ex. B.

 Plaintiff then commenced this action for declaratory and injunctive relief against Barbara Blum, Commissioner of the New York State Department of Social Services, and Jean Wagoner, Commissioner of the Jefferson County Department of Social Services. On September 10, 1980, Chief Judge Munson entered a stipulation-Order in which the defendants agreed to maintain the status quo by furnishing plaintiff with a full AFDC grant during the pendency of this action, without prejudice, however, to whatever right defendants may have to recoup benefits granted under the stipulation in the event that the Department's resource policy is upheld by the judgment of this Court. In August 1981 plaintiff became 21 years old, and the question arose whether she was a proper class representative. In order to avoid the possibility of mootness, this case was consolidated with the companion case entitled Curry v. Blum, et al., 80-CV-678. However, in light of the defendants' express reservation of their right to seek recoupment of any benefits paid to Nafziger under the stipulation, this Court has concluded that she has a live controversy with the defendants and is a proper class representative.


 It is well settled that where, as here, a statute or policy is challenged on both statutory and constitutional grounds, a federal court must consider the statutory challenge before engaging in constitutional adjudication. See e.g., Harris v. McRae, 448 U.S. 297, 306-07, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980); Rosado v. Wyman, 397 U.S. 397, 402, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970); Shirley v. Lavine, 365 F. Supp. 818, 821 (N.D.N.Y. 1973) (3-judge court), aff'd., 420 U.S. 730, 95 S. Ct. 1190, 43 L. Ed. 2d 583 (1975) (per curiam). In our view, plaintiffs' statutory claim -- that New York's policy is inconsistent with the Social Security Act -- is dispositive of the case.

 The AFDC program is a state-administered, public assistance program which was established under the Social Security Act and funded in part by federal grants. Those States which elect to participate in AFDC remain free "to set the level of benefits and the standard of need." King v. Smith, 392 U.S. 309, 334, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968) (dictum); see also Dandridge v. Williams, 397 U.S. 471, 478, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970); however, a participating State may not impose eligibility criteria which are inconsistent with those set out in the Social Security Act, King v. Smith, supra; Carleson v. Remillard, 406 U.S. 598, 32 L. Ed. 2d 352, 92 S. Ct. 1932 (1972). Should a State adopt conditions or criteria which exclude otherwise eligible AFDC beneficiaries, any substantial conflict must be resolved in favor of the federal standard. See Van Lare v. Hurley, 421 U.S. 338, 44 L. Ed. 2d 208, 95 S. Ct. 1741 (1975); New York State Department of Social Services v. Dublino, 413 U.S. 405, 37 L. Ed. 2d 688, 93 S. Ct. 2507 (1973); Rush v. Smith, 573 F.2d 110, 115 (2d Cir. 1978). As the Supreme Court explained in Townsend v. Swank, 404 U.S. 282, 286, 30 L. Ed. 2d 448, 92 S. Ct. 502 (1971):


"In the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause."

 The question facing this Court is whether the New York State Department of Social Services has attempted to "narrow the federal standards that define the categories of people eligible for aid" by denying aid to minor caretaker relatives who decide not to accept an offer to move in with a legally responsible relative.

 We begin by examining the Social Security Act itself, which requires each participating State to adopt a plan which "provides that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 602(a)(10). There is no doubt that plaintiffs and their children qualify as dependent children and caretaker relatives respectively. It is equally clear that there are no exclusionary provisions in the present Act which apply by their terms to minor mothers or other caretaker relatives under 21 years of age who live apart from their parents. Indeed, as Judge Pettine observed in a similar context: "The fact that the mother, also a minor, and the dependent child are not living with the child's grandparent is not set forth in the Act as a statutory bar." Lund v. Affleck, 388 F. Supp. 137, 141 (D.RI. 1975). Judge Pettine further concluded that "the needy mother and her child stand independent under the Social Security Act and cannot be denied the same benefits paid to adult mothers." Id. at 142. This conclusion finds ample support in the express Congressional purposes which underlie the AFDC program, including the design to help such parents or other caretaker relatives or dependent children "to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection, . . . ." 42 U.S.C. § 601. *fn6"

 Defendants contend that the Department's policy of treating a parental offer of a home as a resource available to minor caretaker relatives is not inconsistent with federal law since the Social Security Act itself requires a State agency "in determining need, (to) take into consideration any other income and resources of any child or relative claiming (AFDC) . . ." 42 U.S.C. § 602(a)(7). The initial difficulty with this argument is that the statute does not define the term "resources." *fn7" Instead, we must turn to the regulations promulgated by the Secretary, which provide, in pertinent part:


"(A) In determining need, all remaining income and resources shall be considered in relation to the State's need standard.


* * * *


"(D) Net income available for current use and currently available resources shall be considered; income and resources are considered available when actually available and when the applicant or recipient has the legal ability to make such sum available for support and maintenance.


"(E) Income and resources will be reasonably evaluated. Resources will be evaluated according to their equity value . . . Equity value means fair market value minus encumbrances (legal debts); Fair market value means the price an item of particular make, model, size or condition will sell for on the open market in the geographic area involved.

 45 C.F.R. § 233.20(a)(3)(ii)(1980).

 Whether this administrative explication of the "available resource" concept can be read to encompass an outstanding offer of living arrangements with the caretaker relative's parents is rendered more doubtful by consideration of the caselaw. In Green v. Barnes, 485 F.2d 242, 244 (10th Cir. 1973), for example, the Court stated, "that to qualify as 'available' resources, they must be in hand, readily liquidated, or under the control of the individual." See also, Wilczynski v. Harder, 323 F. Supp. 509 (D.Conn. 1971) (3-judge court). If a minor caretaker relative accepts her parents' offer and chooses to live with them, it would appear reasonable for the State agency to consider the applicant's receipt of such in-kind support as "in hand" and therefore "available" within the meaning of the regulations. However, since Nafziger and the members of the class she represents have not accepted and are not receiving such in-kind support, the mere offer to reside in the parental home cannot be considered "in hand" as that term is normally understood. Plainly, the offer cannot be readily liquidated; nor is it, in that sense, under the control of the minor caretaker relative.

 Defendants seek to bridge the gap between the federal statutory eligibility criteria and the challenged policy by reference to state law concerning parental support obligations. Defendants rely primarily on section 101 of the New York Social Services Law. See n. 3, supra. This section, however, does not impose any duty on children under the age of 21 to live with their parents or forego federally-funded AFDC benefits for which they are otherwise eligible. Rather, section 101 partially abrogates the common law rule relieving parents of their support obligation upon the child's emancipation by providing that parents remain responsible for the support of any of their children under the age of 21 who apply for, or receive public assistance. New York law further provides for enforcement of the parental liability provision by authorizing either the minor or the appropriate welfare official to commence support proceedings against the parents. N.Y. Soc. Serv. L. §§ 101-a, 102. Under this statutory scheme, New York welfare officials may be able to reduce or eliminate a caretaker relative's need for public assistance by securing a support judgment against the caretaker relative's parents. *fn8" Defendants concede that if the unwritten policy of denying benefits to minor caretaker relatives who refuse an offer to live in their parents' home is held invalid under the Supremacy Clause, the State would remain free to seek reimbursement from legally responsible parents by means of a petition brought under this statutory scheme. *fn9" In fact, the current compatibility between the federal AFDC criteria and New York's statutory scheme for securing reimbursement from legally responsible relatives results from direct Congressional authorization in response to the earlier litigation in Shirley v. Lavine, 365 F. Supp. 818 (N.D.N.Y. 1973) (3-judge court), aff'd, sub nom., Lascaris v. Shirley, 420 U.S. 730, 43 L. Ed. 2d 583, 95 S. Ct. 1190 (1975).

 Prior to 1975, States were not free to impose, as a condition for receipt of AFDC benefits, any requirement that a caretaker relative pursue support from legally responsible relatives under State law. Those courts which addressed challenges to such State-imposed conditions rested this limitation on the absence of Congressional authorization for the imposition of additional eligibility criteria. Thus, in Shirley v. Lavine, this Court declared invalid and enjoined the enforcement of section 101-a of the New York Social Services Law, which provided for a discontinuance of AFDC benefits to a caretaker relative who failed to cooperate with welfare officials in prosecuting a support proceeding against the absent parent. By the time this ruling reached the Supreme Court, however, Congress had enacted the Social Services Amendments of 1974 which explicitly sanctioned New York's statutory policy of requiring AFDC recipients to assist the State in its pursuit of financial support from legally responsible relatives. *fn10" As we noted in Part I of this opinion, plaintiff Nafziger did cooperate with the County agency by providing the information necessary to commence a support proceeding against her parents. Thus, while New York has received express Congressional authorization for its statutory scheme for enforcing its family responsibility laws, the defendants are unable to point to any similar Congressional approval for the State's decision to forego that route and instead to read section 101 as imposing the additional requirement for AFDC eligibility that a minor caretaker relative continue to reside with his or her parents so long as such living arrangements do not pose a significant threat to the caretaker's health, welfare or safety.

 This Court agrees with plaintiffs' contention that because Congress has specifically addressed the interplay between New York's family responsibility laws and the federal criteria for AFDC eligibility, New York is not free to enforce its family responsibility laws in a manner which differs substantially from the Congressional judgment. Put differently, this Court holds that a minor caretaker's obligation to pursue support from his or her parents is delimited by the terms of the 1974 amendments to the Social Security Act, and New York's addition of a requirement that a minor caretaker relative accept any reasonable offer of free living arrangements as a condition of initial or continued eligibility for AFDC benefits is without Congressional support and therefore invalid. *fn11"

 This conclusion is strengthened by the decisions from other federal courts which have struck down state efforts to deny AFDC benefits to minor caretaker relatives. In Martinez v. Trainor, 435 F. Supp. 440 (N.D.Ill. 1976), the court invalidated an Illinois policy of refusing to permit persons under 18 years of age to serve as caretaker relatives absent special administrative approval, as inconsistent with federal eligibility criteria. Defendants assert that Martinez was concerned only with State efforts to impose age limits on the recipients of AFDC and is therefore inapposite to this case because New York's policy is not based upon the caretaker relative's age but rather on the State's view of the parental support obligation as an available resource to the caretaker relative. This argument is wide of the mark, for in Martinez the court held certain Illinois regulations concerning caretaker relatives between the ages of 18 and 20, "to be violative of the Social Security Act until amended to show clearly that mothers and other caretaker relative applicants may not be denied AFDC grants on account of their age and consequent status as the objects of their parents' legal duty of support." 435 F. Supp. at 446-47 (emphasis supplied). This Court reads Martinez for the proposition that a State may not point to its family responsibility laws as support for an eligibility exclusion that it may not accomplish directly by imposing blanket age limitation on persons who apply for AFDC as caretaker relatives.

 In Lund v. Affleck, 388 F. Supp. 137 (D.R.I. 1975), a class of minor caretaker relatives challenged the validity of a Rhode Island policy which denied AFDC benefits to otherwise eligible applicants if they were under 18 years of age. Judge Pettine summarized the case as follows:


"However, under the present policy, if the grandparent for whatever reason refuses to apply, or if the minor child chooses to live outside that household, no 'AFDC' benefits will be available to the minor child or her offspring. The thrust of the policy is to pressure minor mothers to live in the household of a related adult who in the Department's view would be a more responsible and emotionally stable person.


"Such position finds no support in the (Social Security Act) nor can it be logically analogized from controlling decisional law.

 Id. 338 F. Supp. at 141. After canvassing the social reasons which counsel in favor of the Congressional decision to formulate AFDC eligibility criteria without regard to the applicant's age, Judge Pettine concluded with language which bears repeating here:


"It appears to me it is inescapable the needy mother and her child stand independent under the Social Security Act and cannot be denied the same benefits paid to adult mothers.

 Id. at 142. This Court agrees, and concludes that New York may not deny minor caretaker relatives the AFDC benefits which would be paid to them if they were over the age of 21 and therefore no longer the objects of their parents' legal duty of support. *fn12"


 For all of the foregoing reasons, plaintiffs' motion for partial summary judgment is granted to the extent that it seeks a judgment declaring invalid and enjoining the enforcement of New York's policy of denying AFDC benefits to otherwise eligible, minor caretaker relatives who insist on living apart from their parents. Defendants' cross-motion for summary judgment is denied in its entirety.

 The New York policy is hereby declared inconsistent with the Social Security Act and therefore invalid under the Supremacy Clause.

 The defendants, their successors, employees, agents, subordinates, and all other persons acting in concert therewith are permanently enjoined from enforcing that policy against any member of the plaintiff class and from denying AFDC benefits to any minor caretaker relative on the ground that the minor caretaker relative refuses to reside with his or her parents.

 Defendant Blum is further ordered to notify all county and local social services agencies of the terms of this Memorandum-Decision and Order.

 Plaintiffs are directed to submit their request for attorneys fees, together with sufficient documentation of hourly rates and time spent on this case, within twenty days of the entry of this Order, and the defendants shall file their response, if any, within fifteen days thereafter.


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