ANTHONY v. McMAHON

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Court of Appeal, Fifth District, California.

Shelley ANTHONY, Plaintiff and Appellant, v. Linda S. McMAHON, Defendant and Respondent.

No. F014826.

Decided: July 22, 1991

Judith A. Sanders and Paul Babwin, Fresno, for plaintiff and appellant. Daniel E. Lungren, Atty. Gen., Charlton G. Holland III, Asst. Atty. Gen., Dennis Eckhart and Frank S. Furtek, Deputy Attys. Gen., Sacramento, for defendant and respondent.

OPINION

Plaintiff appeals from the denial of administrative mandamus to compel the restoration of cash benefits under the Aid to Families with Dependent Children (AFDC) program.1

FACTS

A. Factual History.

John Anthony, Sr., and his wife, plaintiff, had two minor children, John, Jr., and Tamara.   Due to John, Sr.'s, absence from the home, plaintiff and the two children received AFDC payments from November 1985 to May 1986.   Plaintiff and the two children constituted an “assistance unit” (AU) and were eligible for the benefits on the basis of absent-parent deprivation.

In May 1986, plaintiff gave birth to Andrew Garza.   Andrew's father, Mario Garza, lived in plaintiff's home.   After Andrew's birth, both Andrew and Mario were voluntarily included in the AU.   In October 1986, the Fresno County Department of Social Services (DSS) conducted an annual review of plaintiff's case and required her to provide information regarding her current circumstances.   The DSS requested work histories of plaintiff and Mario Garza for the five previous years.   Based on the information provided, the DSS determined plaintiff was the primary wage earner (PWE) and the eligibility of the AU was based upon unemployed-parent deprivation.

In October 1987, Mario Garza began working fulltime and plaintiff requested the exclusion of Andrew and Mario from the AU.   From late 1987 until December 1988, plaintiff, John, Jr., and Tamara received aid for three persons.   On December 22, 1988, the DSS notified plaintiff “AS OF JAN 01, 1989, THE COUNTY IS CHANGING YOUR CASH AID FROM $145.00 TO $145.00.”   The DSS subsequently amended that notice to state that cash aid would decrease from $600 per month to $146 per month effective January 1, 1989.   In a statement of position dated January 23, 1989, the DSS agreed Andrew and Mario Garza could be excluded from the AU but determined Mario Garza's income had to be considered in calculating AFDC benefits.   The DSS computed the reduced monthly benefit as follows:

B. Procedural History.

On December 28, 1988, plaintiff contacted the state DSS and made an oral request for a fair hearing to challenge the decrease in benefits (Welf. & Inst.Code, § 10950).

On January 3, 1989, plaintiff authorized Fresno–Merced Counties Legal Services, Inc., to act on her behalf in this matter.

Pursuant to plaintiff's request, the state DSS appointed an administrative law judge and set a hearing for January 27, 1989.

On January 23, 1989, the county DSS prepared a state hearing statement of position which concluded:

“[Simon v. McMahon ] prohibits the consideration of an excluded child['s] income and property to the AU[.]  [H]owever[,] there are no provisions to exempt the income of an eligible excluded parent ․ to the AU and [the DSS Manual of Policies and Procedures, Eligibility and Assistance Standards section] 44–205.42 specifically authorizes [a] county to consider this income in computing the AFDC grant.”

On January 27, 1989, plaintiff's counsel prepared a state hearing statement of position which provided:

“As of December, 1988, the County determined that Mario Garza's income must be considered for purposes of calculating the grant for the AU.   This determination rests upon the conclusions that 1) Mario is the parent of a half-brother of a child for whom aid has been requested;  and 2) Andrew is a potentially eligible child.   Andrew's potential eligibility is based upon a determination that Andrew is deprived under the category of ‘unemployed parent.’   This determination derives from an October, 1986 classification of Shelley as the primary wage earner (‘PWE’).

“․

“․ The October, 1986 [DSS form] upon which a determination as to PWE was made, and upon which the determination of deprivation arises, is outdated․  The County is required to make a redetermination of deprivation every year.   A determination as to PWE, therefore, must be made on an annual basis as well.   The County's failure to make such a redetermination in the present case results in an analysis which is inconsistent with the household's circumstances at the present time, and which is detrimental to the welfare of the aid recipients who reside in this household.”

On January 27, 1989, the state DSS conducted an administrative hearing before the Honorable Leland C. Oelke, Administrative Law Judge.

On March 20, 1989, the administrative law judge issued a proposed decision which granted plaintiff's claim and stated in relevant part:

“As there does not appear to be any direct regulatory prohibition against switching the basis of deprivation between unemployed and/or absent parent, as special participation is available in both, and the regulatory preference towards exploring alternative bases of deprivation with the ability to maximize aid to the AU, it is determined that, as stated by the [plaintiff's authorized representative], the AU's best interests are met if it be deemed that the basis of deprivation in October 1987 switched from the unemployment of Shelley to absent parent for her two children with the basis of deprivation thus switched.   Based thereon, the action in December 1988 of Fresno County's attempting to reduce the grant by a pro rata share of Mario's earnings was incorrect and is not sustained.”

On March 28, 1989, the defendant director of the state DSS rejected the proposed decision of the administrative law judge and denied plaintiff's claim, concluding:  “Fresno County correctly determined the claimants' Aid to Families with Dependent Children (AFDC) grant effective January 1, 1989 by deeming income to the Assistance Unit (AU) from the unmarried father where the unmarried father is not in the AU but is still residing in the home.”

On April 21, 1989, plaintiff filed a petition for writ of administrative mandate (§ 1094.5;  Welf. & Inst.Code, § 10962) in Fresno County Superior Court.   Plaintiff prayed for a review of the entire proceeding in this matter on the questions of law involved and for other relief.

On June 5, 1989, the court filed an order for stay of administrative action pursuant to the stipulation of the parties.

On December 12, 1989, defendant director filed an answer to petition for writ of administrative mandate and on April 11, 1990, the court conducted a hearing, denied the petition for writ of administrative mandate, and set aside the stay of administrative action.

On April 25, 1990, the court filed formal findings and order regarding petition for writ of administrative mandate, stating in relevant part:

“1. Andrew Garza was potentially eligible to receive Aid for Families with Dependent Children (AFDC) throughout all relevant periods of this case;

“2. Andrew Garza is a child in common of petitioner and Mario Garza;  Mario Garza is thus a related adult male to the family unit seeking assistance;

“3. The Anthony–Garza household remained a single family unit throughout all relevant periods of this case;

“4. The evidence before the court substantiates the Decision of the Director of the Department of Social Services.”

Plaintiff filed a timely notice of appeal.

DISCUSSION

I. CAN THE DSS USE INCOME AVAILABLE TO ANDREW GARZA TO REDUCE CASH AID TO SHELLEY, JOHN, JR., AND TAMARA ANTHONY?

Plaintiff contends:

“Under ․ federal provisions, the income and resources of the brother or sister of a child for whom aid has been requested shall be used in calculating a grant if the child is deprived of parental support or care by reason of an absent, dead, or incapacitated parent, or if the child is deprived of parental support or care by reason of the unemployment of the child's parent who is the pwe [primary wage earner].

“The term ‘potentially eligible child’ [—] as DSS is applying this term in the present case [—] expands upon the description of a sibling whose income may be counted, by including in that description not only children who are presently deprived of parental support or care, but also children who have been deprived of parental support or care in the past.   In this case, DSS has found that Andrew is a potentially eligible child even though he is not currently deprived of parental support or care;  the deprivation occurred in the past.

“A basis of deprivation, i.e., unemployed parent, had been established for Andrew Garza when all five members of the household received assistance, but once Mario Garza became employed on a full-time basis, Andrew Garza was no longer deprived of parental support or care.   Andrew Garza did not meet the conditions of 42 U.S.C. 606(a) or 42 U.S.C. 607(a), and the income available for Andrew Garza from his father's earnings could not, therefore, be used in determining the amount of cash aid to which the Anthonys were entitled.

“․

“Here ․ the county's determination as to the amount of income available to Andrew Garza is not calculated on the basis of the one child Mr. Garza is legally obligated to support.   Rather, the entire amount of Mr. Garza's monthly gross earnings, less a standard deduction of $75.00, and less a deduction for ‘needs of excluded persons' in the amount of $236.00, is counted, resulting in a ‘net contribution’ to the Anthonys in the amount of $517.00․  There is no legal, enforceable obligation for Mr. Garza to contribute $517.00 each month to [Shelley], John and Tamara Anthony.   In fact, the use by the county of this amount of money to reduce the Anthonys' aid significantly detracts from [Mr.] Garza's ability to support the one person to whom he does owe an obligation of support.”

Welfare and Institutions Code section 10962 states in relevant part:

“The applicant or recipient or the affected county, within one year after receiving notice of the director's final decision, may file a petition with the superior court, under the provisions of Section 1094.5 of the Code of Civil Procedure [review of administrative orders or decisions], praying for a review of the entire proceedings in the matter, upon questions of law involved in the case.   Such review, if granted, shall be the exclusive remedy available to the applicant or recipient or county for review of the director's decision.   The director shall be the sole respondent in such proceedings.   Immediately upon being served the director shall serve a copy of the petition on the other party entitled to judicial review and such party shall have right to intervene in the proceedings.”

Code of Civil Procedure section 1094.5 states in relevant part:

“(a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury․

“(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction;  whether there was a fair trial;  and whether there was any prejudicial abuse of discretion.   Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.

“(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence;  abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.   In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.

“․”

 In general, Code of Civil Procedure section 1094.5 leaves to the courts the establishment of standards to determine which cases require independent judgment review and which cases require substantial evidence review.  (Unterthiner v. Desert Hospital Dist. (1983) 33 Cal.3d 285, 293–295, 188 Cal.Rptr. 590, 656 P.2d 554, cert. den. 464 U.S. 1068, 104 S.Ct. 973, 79 L.Ed.2d 211.)   Under the independent judgment test, the trial court examines the administrative record to see if in its view the weight of the evidence supports the agency's decision.   In contrast, under the substantial evidence test, the superior court reviews the record to see if it contains substantial evidence to support the decision.  (Barrie v. California Coastal Com. (1987) 196 Cal.App.3d 8, 14, 241 Cal.Rptr. 477.)   In administrative mandamus actions to review decisions terminating welfare assistance, the trial court exercises its independent judgment on the evidence.  (Frink v. Prod (1982) 31 Cal.3d 166, 171, 181 Cal.Rptr. 893, 643 P.2d 476;  Harlow v. Carleson (1976) 16 Cal.3d 731, 734–738, 129 Cal.Rptr. 298, 548 P.2d 698.)   If a trial court is authorized to exercise its independent judgment on the evidence, the reviewing court can overturn its factual findings only if the evidence received by the trial court, including the administrative record, is insufficient as a matter of law to sustain the finding.  (Whaler's Village Club v. California Coastal Com. (1985) 173 Cal.App.3d 240, 251, 220 Cal.Rptr. 2, cert. den. and opn. dism. 476 U.S. 1111, 106 S.Ct. 1962, 90 L.Ed.2d 648.)   When the facts, although undisputed, are subject to conflicting inferences with respect to the crucial issue, the trial court may draw its own inferences from the evidence in the record if it is authorized to exercise its independent judgment on the evidence.   If the inferences so drawn are supported by substantial evidence, they are binding upon the reviewing court.   (Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 774, fn. 2, 163 Cal.Rptr. 619, 608 P.2d 707.)   In the instant case, the defendant properly notes the primary question before this court is whether there is substantial evidence in the record to support the trial court's order upholding the reduction of plaintiff's aid.

 AFDC is a federal-state public assistance program originally enacted by Congress as a part of the Social Security Act of 1935.   Participating states provide assistance to certain needy families and the federal government reimburses the state for a certain percentage of the funds expended.   To receive federal reimbursement, the states are required to administer their programs under a state plan in accordance with federal statutory provisions (42 U.S.C. § 601 et seq.) and United States Department of Health and Human Services (HHS) regulations (45 C.F.R. § 201 et seq. (1990)).  The AFDC program is intended to provide assistance only to families that are “needy” and only in the amount that is needed.   The amount of an AFDC family's monthly grant is determined by comparing the “income” of the AFDC family, less certain deductions referred to as “disregards,” with the particular state's “standard of need” for a hypothetical family of that size.   (Note, The Treatment of Mandatory Tax Withholdings in Calculating AFDC Benefits:  Fairness as a Relevant Inference in Ascertaining Congressional Intent (1984) 82 Mich.L.Rev. 1739;  see also Shaw v. McMahon (1987) 197 Cal.App.3d 417, 422–423, 243 Cal.Rptr. 26.)

 Under federal law, 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, or physical or mental incapacity of a parent;  (2) who is living with a statutorily specified relative in a place of residence maintained by one or more of such relatives as his, her or their own home;  and (3) who is under the age of 18 or, at the option of the state, under the age of 19 and a fulltime student in a secondary school.  (42 U.S.C. § 606(a).)   The term “dependent child” also includes a needy child who meets the foregoing requirements and who has been deprived of parental support or care by the unemployment of the parent who is the principal earner.   The “principal earner” is determined in accordance with standards prescribed by the secretary.  (42 U.S.C. § 607(a).)

 A state plan for aid and services to needy families with children must contain certain statutorily mandated elements.  (42 U.S.C. § 602.)   For example, in determining need, the state agency must take into consideration any other income and resources of any child or relative claiming AFDC or of any individual living in the same home as such child and any relative whose needs the state determines should be considered in determining the need of the child or relative claiming such aid.  (42 U.S.C. § 602(a)(7)(A).)   In making this determination, the state agency shall include any parent of such child and any brother or sister of such child if such brother or sister is a “dependent child” within the meaning of 42 U.S.C. § 606(a) or 42 U.S.C. § 607(a).   If such parent, brother, or sister is living in the same home as the dependent child, any income of or available for such parent, brother, or sister shall be included in making such determination with respect to the family.   (42 U.S.C. § 602(a)(38).)

Federal regulations provide in relevant part:

“(a) State plan requirements.   A State plan ․ shall provide that:

“(1) The determination whether a child has been deprived of parental support or care by reason of the ․ continued absence from the home ․ or (if the State plan includes such cases) the unemployment of his or her parent who is the principal earner will be made only in relation to the child's natural or adoptive parent, or in relation to the child's stepparent who is married, under State law, to the child's natural or adoptive parent and is legally obligated to support the child under State law of general applicability which requires stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children.   Under this requirement, the inclusion in the family, or the presence in the home, of a ‘substitute parent’ or ‘man-in-the-house’ or any individual other than one described in this paragraph is not an acceptable basis for a finding of ineligibility or for assuming the availability of income by the State․”  (45 C.F.R. § 233.90(a)(1).)

The state DSS regulations governing the AFDC program are found in the Manual of Policies and Procedures, Eligibility and Assistance Standards (MPP).  (See Welf. & Inst.Code, §§ 10060, 10554.)   MPP section 40–118 states in relevant part:

“.1 The following individuals, if living in the same household as the child for whom aid is requested, shall be included on the appropriate Statement of Facts ( [DSS form] CA 2, CA 8 or CA 20) after an application, redetermination, request to add a person or request for restoration:

“.11 Natural or adoptive brothers and sisters (including half brothers and half sisters) of the child for whom aid is requested who are themselves potentially eligible children.   A potentially eligible child is any child living in the home of his/her caretaker relative ․ who meets the age requirements of Section 42–101, and for whom any basis of deprivation in Section 41–401.1 has been established․

“.111 The Department of Social Services and the counties have been prohibited by court order in Simon v. McMahon from counting the income or property of a child when the family chooses to exclude the child from the assistance unit.   When the family chooses to exclude the child, the child's income and property are not considered available to the assistance unit and the entire case is a nonfederal case.  (See ACL [All Counties Letter] 86–04.)

“.12 Natural or adoptive parent(s) of a child mentioned in .1 above.”

MPP section 41–400 states:  “Deprivation of parental support or care is a separate and specific eligibility factor for AFDC.   A child's deprivation is based on the status of his/her natural or adoptive parent or parents.”

MPP section 41–401 states in relevant part:  “.1 A child is considered deprived of parental support or care if:  ․ [¶] .13 The principal earner is unemployed․”

MPP section 41–440.1(c) states:

“In a home in which both parents of an eligible child are living, the principal earner is whichever parent earned the greater amount of income in the 24–month period, the last month of which immediately precedes the date of application or the month of transfer to federal AFDC–U ․ [.]

“When both parents qualify as the principal earner and have earned an identical amount of income in such 24–month period, the county in consultation with the parents shall designate which parent is the principal earner.   Such designation shall not preclude federal financial participation.   Once the principal earner has been determined correctly, that parent continues to be the principal earner for each consecutive month for which the family receives federal AFDC–U.”

MPP section 43–105 states in relevant part:

“.1 Parents—General.   All parents regardless of their age or their marital status are responsible to the extent of their ability for the support and care of their children whether they are natural or adopted, including minor parents, and children in foster care.   This responsibility continues even though the parent is not living with the child, the marriage of the parents has been legally dissolved, the parents were never married or there has been a court order removing the children from the parent's custody.   For the purpose of the AFDC program, parental responsibility ceases only where a relinquishment for adoption is in effect or where the child is a minor parent who is married and living with his/her spouse.

“․

“.4 Unmarried parents.   The unmarried parent is responsible for the support of his/her child(ren) (including an unborn child).   The unmarried parent is not legally responsible for the support of his/her child's other parent nor of children not his/her own.”

MPP section 44–205 states in relevant part:

“.1 General.   When AFDC is requested for a child or the needy relative(s) of an otherwise eligible child(ren) who is receiving SSI/SSP [supplemental security income/state supplemental program] the determination of who is included in the FBU [family budget unit] is made by the county and the caretaker relative of the child.

“.2 Determining the Caretaker Relative(s).

“․

“.211 Generally, if the child is living with a parent, the parent is the caretaker relative.   If the child is not living with a parent, generally the applicant will be the caretaker relative.   The county must make a determination of what person or persons have responsibility for the care and control of the children for whom aid is requested based on information supplied by the applicant.

“.3 Determining the Number of FBUs in the Home.

“.31 Once the county has determined which person or persons in the home is a caretaker relative, it is possible to establish the FBU.   All of the eligible child(ren) will be in one FBU if there is only one caretaker relative in the home.   If there is more than one caretaker relative in the home, the eligible children of each caretaker will be in separate FBUs, except in the following situations:

“․

“.312 Only one FBU is established where two caretaker relatives in the home have separate children and also have a child in common for whom aid is requested․

“.4 Persons Who are Required to be Included in the FBU.

“.41 Every FBU shall include at least one eligible child or pregnant woman․  The FBU shall also include the following persons living in the home, except as specified under Section 44–205.42:

“․

“.413 Every eligible natural or adoptive brother, half-brother, sister, or half-sister of the child for whom aid is requested, unless the brother or sister is a member of a different FBU per Section 44–205.31.

“.42 When a person who is required to apply for aid under Section 40–118 and who is otherwise eligible to be included in the FBU under .41 above, wishes to decline assistance, that person shall be excluded from the FBU.   However, his/her income and resources shall be considered.

“.43 The Simon v. McMahon court order prohibits the counting of income and property of a child when the family chooses to exclude the child from the assistance unit․”

According to plaintiff, “[t]he state regulations allow the counties to use the income of the sibling of a dependent child to reduce a cash grant if the sibling is a ‘potentially eligible child.’ ”   Plaintiff does not challenge the validity of these regulations on appeal in the instant case.   Rather, she challenges defendant's application of these regulations to the circumstances of her household.   The decision of the DSS director stated in relevant part:

“It was Fresno County's position that since all siblings, including half-siblings, had a basis of deprivation of the unemployment of the claimant, that all were required to be in the filing unit.   Therefore, even though Andrew G. could be excluded, the entitlement to support due Andrew G. from Mario G. made a pro rata portion of Mario G.'s income available to the entire AU [assistance unit] even though Mario G. and Andrew G. were unaided.

“The claimant's authorized representative [AR] contended that the county's action was incorrect.   The AR contended that deprivation is to be redetermined at least annually at the time of the annual redetermination.   Hence, as Mario G. became employed, he could be defined as the PWE.   Based thereon, the AR argued that there would be no basis of deprivation for Andrew.   The AR reasoned that both of Andrew's parents were in the home and that one, Mario G., was employed [fulltime].   Continuing, the AR reasoned that Andrew could not be in the filing unit as he was not potentially eligible, and therefore the deeming income provisions associated with siblings and half-siblings would be inapplicable insofar as whether any portion of Mario G.'s income would be available to the entire AU.

“It is the Department's position that Section 41–440(c) clearly says that once for federal U purposes, the PWE is determined, such parent shall continue to be the PWE for all consecutive months for which the family receives AFDC–U [unemployed parent program] benefits.   Once Shelley was determined to be the PWE and eligibility for the entire household was based upon a U parent, that AFDC–U continues to be the only possible basis of deprivation with Shelley as the PWE.   Thus, even when Mario G. and Andrew G. are discontinued from the household, assistance for Shelley A., Tamara A., and John A., can continue with Shelley being the U parent.   Andrew G. must be considered potentially eligible based upon his mother's unemployment even though his father is employed [fulltime].”

The defendant suggests a recent United States Supreme Court case is controlling, Bowen v. Gilliard (1987) 483 U.S. 587, 107 S.Ct. 3008, 97 L.Ed.2d 485.   There, the named appellant began receiving AFDC from North Carolina in 1962.   In February 1970, after her seventh child was born, the state automatically included him in the filing unit, thereby increasing the family's monthly allotment from $217 to $227.   However, appellant also received approximately $44 each month in child support from the baby's father.   When a formal parental support order was entered in April 1970, the state credited the support payments against appellant's account and reduced her monthly benefit to $184.   Appellant sued, contending she had a statutory right to exclude her seventh child from the unit and thus continue to receive both the $217 AFDC allotment and the $44 support payment.   A three-judge district court agreed and the United States Supreme Court affirmed.  (Gilliard v. Craig (W.D.N.C.1971) 331 F.Supp. 587, affd. (1972) 409 U.S. 807, 93 S.Ct. 39, 34 L.Ed.2d 66.)   Congress subsequently passed the Deficit Reduction Act of 1984 (DEFRA) which amended the statute authorizing the AFDC program.   The amendments required states to take into account, with certain specified exceptions, the income of all parents, brothers, and sisters living in the same home when determining a family's eligibility for AFDC benefits.   After North Carolina adopted regulations to comply with the DEFRA amendments, the appellant and others moved to reopen the earlier decree and obtain further relief.   The district court found the regulations in conformance with DEFRA but concluded the statutory scheme violated both the due process clause and the takings clause of the Fifth Amendment.   The Supreme Court granted certiorari and reversed the judgment, holding the statutory scheme did not violate Fifth Amendment due process and equal protection principles.

 The Supreme Court reasoned the challenged amendment served Congress's goal of decreasing federal expenditures and the government's separate interest in distributing benefits among competing needy families in a fair way.   Congress acted rationally by adjusting the AFDC program to reflect the fact that support money generally provides significant benefits for entire family units.   This conclusion was not undermined by the fact there are undoubtedly many families in which some—or perhaps all—of the support money is spent in a way that does not benefit the rest of the family.   The court further held the amendment did not violate the Fifth Amendment takings clause.   The law does not require any custodial parent to apply for AFDC benefits.   It is reasonable to presume a parent who does make such an application does so because she or he is convinced the family as a whole—as well as each child committed to his or her custody—will be better off with the benefits than without.   In making such a decision, the parent is not taking the child's property without just compensation;  nor is the state doing so when it responds to that decision by supplementing the collections of support money with additional AFDC benefits.   In North Carolina, an applicant for AFDC benefits must assign support payments to the state.   The state then remits the amount collected to the custodial parent to be used for the benefit of the entire family.   The Supreme Court acknowledged that money earmarked for a specific child's “best interest” thus becomes a part of a larger fund available for all of the children.   However, the court concluded the difference between these concepts is more theoretical than practical.2

Plaintiff argues Gilliard is factually distinguishable from the instant case:

“[T]he income at issue in Gilliard was child support payments, and since it must be assumed that the children for whom child support payments were made had absent-parent deprivation, the rule of Gilliard cannot be applied to the present case.   There is no basis of deprivation (absent-parent or otherwise) for Andrew Garza.

“In addition to the above distinction between the Gilliard case and the present case, there is an equally significant distinction between the income regarded by DSS as countable against the Anthonys' grant, and the child support payments which were at issue in Gilliard. ․

“․ There is no legal, enforceable obligation for Mr. Garza to contribute $517 each month to Shelley, John and Tamara Anthony.   In fact, the use by the county of this amount of money to reduce the Anthonys' aid significantly detracts from [Mr.] Garza's ability to support the one person to whom he does owe an obligation of support.”

 Plaintiff's argument ignores the applicable standard of review.   The role of the appellate court begins and ends with the determination of whether substantial evidence, contradicted or uncontradicted, supports the trial court's findings.  (Interstate Brands v. Unemployment Ins. Appeals Bd., supra, 26 Cal.3d 770, 774, fn. 2, 163 Cal.Rptr. 619, 608 P.2d 707.)   In the instant case, the trial court concluded (1) Andrew Garza was potentially eligible to receive AFDC throughout all relevant periods of the case;  (2) Andrew Garza was a child in common of plaintiff and Mario Garza;  (3) Mario Garza was a related adult male to the family unit seeking assistance;  (4) the Anthony–Garza household remained a single family unit throughout all relevant periods of the case;  and (5) the evidence before the court substantiated the decision of the DSS director.   In our view the evidence received by the lower court, including the administrative record, is sufficient as a matter of law to sustain the challenged findings.

 As noted above, the state agency administering an AFDC plan

“shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or of any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid․”  (42 U.S.C. § 602(a)(7)(A).)

The following individuals, if living in the same household as the child for whom aid is requested, shall be included as filing unit applicants:  (1) natural or adoptive brothers and sisters (including half brothers and half sisters) of the child for whom aid is requested who are themselves potentially eligible children, and (2) natural or adoptive parents of such natural or adoptive brothers and sisters.  (MPP § 40–118.1.)   Only one family budget unit (FBU) is established where two caretaker relatives in the home have separate children and also have a child in common for whom aid is requested.   (MPP § 44–205.312.)   The FBU shall include the natural or adoptive parent who is the caretaker relative of a child.  (MPP § 44–205.411.)   A person required to apply for aid under MPP section 40–118 and who is otherwise eligible to be included in the family budget unit under MPP section 44–205.41 may wish to decline public assistance.   In that case, the person shall be excluded from the family budget unit.   However, the excluded person's income and resources shall be considered, with one exception not applicable here.  (MPP § 44–205.42.)

 At the time plaintiff requested inclusion of Andrew and Mario in the filing unit, plaintiff was the PWE for the household consisting of herself, Tamara, John, Jr., Andrew and Mario.   The basis for deprivation of the filing unit was plaintiff's unemployment.   Andrew was a potentially eligible child within the assistance unit because he was the half brother of Tamara and John, Jr., children for whom aid was requested.   Since Andrew was included in the unit as required by MPP section 40–118.11, his natural parent, Mario, also had to be included in the unit.  (MPP § 40–118.12.)   Andrew and Mario eventually sought exclusion from the family budget unit.   MPP section 44–205.43 prohibits the counting of income and property of a child when the family chooses to exclude that child from the FBU.   MPP section 44–205.42 specifically states other persons who wish to decline assistance shall be excluded from the FBU.   However, the other person's income and resources shall be considered in computing the AFDC grant.   Thus, the Fresno County DSS properly considered Mario's income in determining the total aid to be paid to the AU.3

II. CAN THE DSS CONSIDER MARIO GARZA'S INCOME IN COMPUTING AN AFDC GRANT FOR INDIVIDUALS WHOM GARZA HAS NO LEGAL OBLIGATION TO SUPPORT?

Plaintiff contends:

“In the present case, [DSS's] reduction of cash aid for Shelly, John and Tamara Anthony, based upon income earned by Mario Garza, has as its effect the imputation of income to the AFDC recipient from an unrelated man living in the house who has no legal obligation to support these individuals.   With no legal obligation of support by Mario Garza to the Anthonys, there is no basis for assuming that his income is actually available for support of the Anthonys.

“Given the well established rule that the states are ‘barred from assuming that nonlegally responsible persons will apply their resources to aid the welfare child’ (Van Lare v. Hurley [ (1975) ] 421 U.S. 338, 339 [95 S.Ct. 1741, 1743, 44 L.Ed.2d 208] ․) DSS is precluded from reading that language at 42 U.S.C. section 602(a)(38) permitting consideration of all income available for the sibling of a child receiving AFDC, as requiring the County, in the present case, to consider Mario Garza's income in calculating the amount of cash assistance to which the Anthonys are entitled.”

The director responds:

“Appellant's position presupposes that two FBU's have been created:  the Garza unit, consisting of Mario and Andrew, and the Anthony unit, consisting of Shelly, Tamara and John.   If this were the case, then appellant's position may be sound.   However, based on the facts here, the only conclusion that can be reached is that there is only one FBU, the Anthony–Garza unit.

“․

“․ Here, in 1986, when AFDC was requested for the Anthony–Garza unit, the children were deemed eligible based on AFDC–U deprivation.   Even if Andrew chose to be excluded from the family budget unit, as was the case, he would continue to be a potentially eligible child for the Anthony–Garza unit based on the AFDC–U deprivation status.

“․

“Pursuant to [section] 44–205.312, the Anthony–Garza unit was properly classified as one family budget unit, since aid was requested for the unit, and eligibility was determined based on AFDC–U deprivation.

“․

“Once a family budget unit is determined, Mario cannot be classified as an unrelated adult male, since he is the father of Andrew, who remains a potentially eligible child to the Anthony–Garza family budget unit.”

Plaintiff contends in reply:

“Respondent's argument ․ ignores the following language at MPP section 44–205.312:  [‘]Only one FBU is established where two caretaker relatives in the home have separate children and also have a child-in-common for whom aid is requested.[’]  (Emphasis added.)   Aid is not requested for Andrew Garza.   Andrew Garza was voluntarily excluded from assistance.

“By this voluntary exclusion of the Garzas from aid, the Garzas separated themselves from the Anthony AU, and Mr. Garza's status as an adult male, unrelated to the children for whom assistance is sought, was reestablished.   Respondent cannot impose a duty of obligation upon Mr. Garza for the Anthony children when Mr. Garza has declined to voluntarily assume that obligation by adopting the Anthony children, or by requesting aid for himself and his child as a member of the Anthony–Garza household.”

 Plaintiff's contentions are simply another challenge to the application of the DSS regulations in the instant case.   As noted above, plaintiff has clearly acknowledged the validity of these regulations.   Moreover, plaintiff previously acknowledged the superior court was authorized to exercise its independent judgment on the evidence in this case.   The trial court may draw its own inferences from the record evidence where the court is authorized to exercise its independent judgment and undisputed facts are subject to conflicting inferences with respect to the crucial issue.   If those inferences are supported by substantial evidence, they are binding on the appellate court.  (Cal.Administrative Mandamus (Cont.Ed.Bar 2d ed. 1989) § 14.24, pp. 460–461, citing Interstate Brands v. Unemployment Ins. Appeals Bd., supra, 26 Cal.3d 770, 774, fn. 2, 163 Cal.Rptr. 619, 608 P.2d 707.)   Substantial evidence is evidence that is reasonable, credible, and of solid value.  (Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 414, 210 Cal.Rptr. 509.)

 An AFDC filing unit must include the following individuals if they live in the same household as a child for whom aid is requested:  (1) natural or adoptive brothers and sisters (including half brothers and sisters) who are themselves potentially eligible children and (2) natural or adoptive parents of such potentially eligible children.  (MPP § 40–118.1.)   Generally speaking, if there is more than one caretaker relative in the home, the eligible children of each caretaker will be in separate FBUs for AFDC purposes.   However, only one FBU is established where two caretaker relatives in the home have separate children and also have a child in common for whom aid is requested.  (MPP § 44–205.31.)   A person required to apply for aid under section 40–118 and who is otherwise eligible to be included in the FBU may wish to decline assistance.   In that case, the person shall be excluded from the FBU.  (MPP § 44–205.42.)   However, as we have repeatedly reminded plaintiff, the income and resources of other excluded persons shall be considered in that computation.  (MPP § 44.205.42.)   In the instant case, plaintiff requested aid for Andrew and Mario Garza in October 1986 and requested their exclusion from the case in October 1987.   The relevant regulations precluded the Fresno County DSS from considering Andrew's income and property, if any, in calculating plaintiff's AFDC grant.   Nevertheless, the regulations allowed Fresno County DSS to properly consider Mario Garza's income in calculating the grant, despite the exclusion of Garza and Andrew, from the FBU.

Plaintiff cites to a number of cases for the proposition that “the state may not reduce assistance payments on the basis of income from a UAM [unrelated adult male] regardless of whether a contribution from the UAM is assumed or proven.” 4  In contrast to the cited cases, the instant case involves a child in common to plaintiff and Mario Garza.   Thus, the director reasonably concludes Mario Garza is a related adult male with respect to Anthony–Garza filing unit.   Plaintiff concedes the relevant federal statute permits consideration of all income available for the sibling of a child receiving AFDC.  (42 U.S.C. § 602(a)(38).)   However, at the same time plaintiff maintains the county DSS cannot consider Mario Garza's income in calculating the amount of cash assistance to which the Anthonys are entitled.   Plaintiff's contention is merely another attack on admittedly valid DSS regulations and, as in the previous instances, must be rejected.

States are not required to participate in the AFDC program.   However, once a state chooses to join and take advantage of the substantial federal resources available, the state must comply with the mandatory requirements established by the Social Security Act, as interpreted and implemented by regulations promulgated by the United States Department of Health and Human Services.   (Carleson v. Superior Court (1972) 27 Cal.App.3d 1, 5, 103 Cal.Rptr. 824.)   In the instant case, the regulations challenged are consistent with the relevant federal laws and regulations.   Thus, substantial evidence supports the trial court's order denying plaintiff's petition for writ of administrative mandate.

The order denying petition for writ of administrative mandate is affirmed.   Each party to bear its own costs of appeal.

FOOTNOTES

1.   An order granting or denying a petition for writ of administrative mandamus is an appealable order.  (Code Civ.Proc., §§ 904.1, subd. (a), 1094.5, subds. (g), (h);  Carroll v. Civil Service Commission (1970) 11 Cal.App.3d 727, 733, 90 Cal.Rptr. 128.)All statutory references are to the Code of Civil Procedure unless otherwise indicated.

2.   After the Supreme Court decided Bowen v. Gilliard, supra, a federal district court held DEFRA permits the consideration of a child's Social Security benefits in determining the eligibility of and grant amount for an AFDC family unit.  (Rosado v. Bowen (D.N.J.1987) 698 F.Supp. 1191, 1198, affd. sub nom. Malloy v. Eichler (3d Cir.1988) 860 F.2d 1179.)

3.   Assuming arguendo income available for Andrew can be considered in calculating monthly cash aid, plaintiff contends the following questions remain:  “1) to what extent can Mario Garza's earnings be regarded as income available for Andrew;  and 2) even if all or a portion of Mario Garza's earnings were regarded as income available for Andrew Garza, is DSS permitted to consider it available to support children whom Mr. Garza has no obligation to support?”   Plaintiff's questions are simply another challenge to the regulations governing the AFDC program.   Plaintiff has acknowledged the validity of those regulations and, therefore, no further discussion is required.

4.   Van Lare v. Hurley (1975) 421 U.S. 338, 95 S.Ct. 1741, 44 L.Ed.2d 208 (New York regulations reduced pro rata the shelter allowance provided to AFDC recipients to the extent there were nonpaying lodgers in the household.   Supreme Court held the state regulations conflicted with the Social Security Act and federal regulations.   State regulations were based on the assumption a nonpaying lodger was contributing to the welfare of the household, without inquiry into whether he in fact did so.);   Lewis v. Martin (1970) 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561 (California law and regulations conclusively presumed the income of a nonadoptive stepfather or a man assuming the role of a spouse (MARS) was available to needy children in computing their AFDC assistance payments.   Supreme Court held in the absence of proof of actual contribution, California could not consider the child's resources to include either the income of a nonadopting stepfather who was not legally obligated to support the child or the income of MARS—whatever the nature of his obligation to support.);  King v. Smith (1968) 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (Alabama's “substitute father” regulation denied AFDC payments to the children of a mother who cohabited in or outside her home with any single or married able-bodied man.   Supreme Court held state regulation invalid because it defined “parent” in a manner inconsistent with 42 U.S.C. section 606(a).   The term “parent,” as used in that statute, referred to an individual who owed the child a state-imposed duty of support.   Alabama could not disqualify a child from AFDC aid on the basis of a substitute father who had no such duty.);  Deel v. Jackson (4th Cir.1988) 862 F.2d 1079 (1989), certiorari denied 490 U.S. 1092, 109 S.Ct. 2434, 104 L.Ed.2d 991 (Virginia transfer of assets rule denied AFDC eligibility to persons who transferred real or personal property for less than adequate compensation within two years of their application for benefits.   Court of Appeals upheld the rule as a permissible state anti-fraud measure.   Court noted the “availability principle” prevents states from denying AFDC benefits on the basis of income or resources imputed to an applicant but never really available for the applicant's use.   In contrast, the transfer of assets rule deals with an applicant who did have property but chose to give it away to qualify for undeserved benefits.);  North Coast Coalition v. Woods (1980) 110 Cal.App.3d 800, 168 Cal.Rptr. 95 (Mendocino DSS notified AFDC recipients their grants would be reduced due to receipt of income from unrelated adult males (UAMs) residing in their households.   Superior Court granted a preliminary injunction forbidding enforcement of the relevant regulations and the First District Court of Appeal affirmed.   The challenged regulations were invalid because they operated to assume reduction of need as a result of the presence of a UAM in the AFDC household and treat noncash economic benefits as income.).

MARTIN, Acting Presiding Justice.

STONE (Wm. A.) and BUCKLEY, JJ., concur.

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