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Court of Appeal, Second District, Division 1, California.

Bernadette DARCES, Plaintiff and Appellant, v. Marion WOODS, Director of California Department of Social Services, Defendant and Respondent.

Civ. 62723.

Decided: April 29, 1982

Legal Aid Foundation of Los Angeles, Hugh Harrison, Erica Hahn, Los Angeles, and Edward Ortega for plaintiff and appellant. George Deukmejian, Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., Anne S. Pressman and Elizabeth Hong, Deputy Attys. Gen., for defendant and respondent.

Plaintiff Bernadette Darces appeals the trial court's denial of her petition for an injunction and a writ of mandate to prohibit enforcement and reverse a decision of Marion Woods, Director of the California Department of Social Services (hereinafter referred to as DSS), reducing a grant received by plaintiff for the benefit of her children under Aid to Families with Dependent Children (hereinafter referred to as AFDC).


AFDC is a cooperative federal and state welfare program established pursuant to Title IV of the Social Security Act.  (42 U.S.C., § 601 et seq.)   Although participation in the AFDC program is not mandatory upon the individual states, those states which elect to utilize the program are required to administer their programs in compliance with the mandates of federal law as a condition of receiving federal financial grants (Shea v. Vialpando (1974) 416 U.S. 251, 253, 94 S.Ct. 1746, 1750, 40 L.Ed.2d 120).   Pursuant to the Welfare and Institutions Code, California participates in the AFDC program and is bound by the provisions of the Social Security Act and applicable federal regulations (Conover v. Hall (1974) 11 Cal.3d 842, 847, 114 Cal.Rptr. 642, 523 P.2d 682).   Defendant Woods in his position as director of DSS is charged with administration of the AFDC program in California (Welf. & Inst.Code, § 10553).

AFDC is granted to families with dependent children who are needy and eligible for assistance by virtue of the absence, death, unemployment or incapacity of a parent and who lives in the home of one of enumerated relatives (42 U.S.C., § 606(a)(1);  Welf. & Inst.Code, § 11250).   The amount of the AFDC grant is based on the number of persons living in the home who are eligible for assistance (see 42 U.S.C., § 602).   The DSS pursuant to its authority to implement AFDC in California by (Welf. & Inst.Code, § 10553) has promulgated the Manual of Eligibility and Assistance (hereinafter referred to as EAS).   The EAS contains provisions defining the persons included in the Family Budget Unit (hereinafter referred to as the FBU) (see EAS, §§ 44–203 et seq.) and sets forth the method of computing the amount of the monthly grant (see EAS, § 44–133).   The DSS is authorized to reduce the AFDC grant to take into account the amount of any income other than AFDC actually available for the support of the eligible household members (Welf. & Inst.Code, § 11450).

Bernadette Darces, a resident of Los Angeles County and an illegal alien, is the working mother of six minor children.   She receives no monetary aid from the father(s) of these children.   Her three youngest children are recipients of AFDC and presumably citizens.   Her three older children are not eligible for AFDC under state and federal law due to their illegal alien status.  (45 C.F.R., § 233.50);  EAS, § 44–206.15.)

On February 13, 1979, Bernadette Darces was sent formal notice of proposed action advising her that her AFDC grant would be reduced from $356 a month to $154 a month, effective March 1, 1979, as a result of her employment income in the amount of $557.98.   On March 1, 1979, she filed a request for fair hearing with DSS challenging the proposed reduction in the AFDC grant by this computation.  (Welf. & Inst.Code, §§ 10950 et seq.)   She argued that the needs of the other family members were not taken into consideration in the proposed reduction.

Hearing was conducted March 22, 1979.   The hearing officer on May 9, 1979, issued his proposed decision in which he concluded that Los Angeles County as the agent of DSS in the administration of the AFDC program had properly credited Ms. Darces' income against the AFDC monthly grant for the benefit of her children under the edict of EAS section 44–133.3.   The DSS adopted the proposed decision of the hearing officer on May 31, 1979.

On April 24, 1980, Ms. Darces filed an action seeking a peremptory writ of mandate (Code Civ.Proc., § 1094.5) and an injunction against DSS.   The DSS filed an answer on July 9, 1980.   Ms. Darces made a motion for summary judgment and the DSS countered with its own summary judgment motion.   Subsequently the parties filed their respective points and authorities and a stipulation to facts.

The record discloses that during the 12-month period immediately preceding the affected month of March 1979 Ms. Darces received AFDC grants of $356 a month less varying amounts of nonexempt income which were calculated pursuant to the EAS section 44–133.3 regulation.   During this entire period of time she was able to provide necessities for all of her children.   Ms. Darces and her three older children who are ineligible for AFDC are excluded from the FBU for purposes of determining the amount of AFDC grant.   EAS section 44–133.3 sets forth the formula for computing a grant when a parent with earned income is not included in the FBU.

DSS proposed to reduce Ms. Darces' AFDC grant in March 1979 from $356 a month to $154 a month due to employment income received by her in the amount of $557.98.   In computing the grant amount deductions were made from her income for such expenses as taxes ($49.36), child care expenses ($220), transportation expenses ($20) and an amount for her personal needs ($67).   After these allowances and credits, Ms. Darces' remaining nonexempt income was calculated to be $202.   The AFDC grant for the benefit of her children in the amount of $356 was therefore reduced by $202 which represents the amount of her earned income deemed available to the family.

The trial court following hearing concluded that the state is entitled to determine AFDC eligibility.   The court reasoned that if certain family members are ineligible for AFDC, it follows that any welfare payment which does not take into account a parent's or caretaker's income constitutes an aid payment for the ineligible children.   The court accordingly denied Ms. Darces' petition and motion for summary judgment and granted the cross-motion of DSS for summary judgment.   Ms. Darces has appealed.


Bernadette Darces contends on appeal that EAS section 44–133.3 was improperly applied since (1) the purpose of AFDC can be fulfilled only by taking into account the needs of persons who are ineligible for AFDC in calculating aid payments;  and (2) the state's separate treatment of eligible and ineligible children, and of parents (taking into account the obligations of some parents and not those of other parents) constitutes improper classification which violates equal protection laws.



 AFDC is implemented in California by the Welfare and Institutions Code.   The statutes define the maximum aid payable which is dependent on the number of persons in the FBU.  (Welf. & Inst.Code, § 11450.)   The FBU is composed of the caretaker relative, the AFDC-eligible children and certain persons whose presence in the home is deemed essential to the well-being of the children, sometimes referred to as “essential persons” (42 U.S.C., § 602(a)(7);  45 C.F.R., § 233.20(a)(2)(vi)).  California regulations include in the FBU the caretaker relative, the AFDC eligible children and other relatives such as stepparents but it does not include AFDC ineligible siblings.

The amount of AFDC benefits actually paid each month to eligible family members may vary because the FBU receives nonexempt income from time to time and AFDC benefits are reduced by the amount of net income available to the FBU.   However, the total of nonexempt income and AFDC benefits paid will always add up to the applicable maximum aid payable.

Ms. Darces argues that under federal regulations the state must consider in computing benefits the available income of the FBU which consists of both income actually available and income which a parent legally must make available to the FBU.   She refers to 45 Code of Federal Regulations section 233.90(a)(1).   That section, however, refers to the net income of a substitute parent or a “man-in-the-house.”  (See, e.g., North Coast Coalition v. Woods (1980) 110 Cal.App.3d 800, 806, 168 Cal.Rptr. 95.)   The section is not applicable in the case at bench.

Ms. Darces further argues that California treats as available to the FBU income which is neither actually available nor required to be used for the support of the FBU.   The income she claims is neither available nor required to be used is that portion of her employment income which she must use to satisfy the needs of her ineligible children.   She claims that she has no obligation to use for the children who receive AFDC that income she uses to satisfy the needs of her ineligible children and thus it is not available to the AFDC children.   It is her position that California is not authorized under the federal statutory scheme applicable to AFDC to refuse to acknowledge that Ms. Darces has an equal obligation to support all of her minor children, eligible or ineligible.

EAS section 44–206.15 requires that a person who would otherwise qualify as a member of the FBU is excluded from computation if he or she is unable to verify citizenship or legal alien status.   This is consistent with 45 Code of Federal Regulations, section 233.50 and 42 United States Code section 602(a)(33).   Aid may only be granted to a citizen or a lawfully admitted alien or one who is permanently residing in this country under color of law.  (45 C.F.R., § 233.50.)   In the case at bench Ms. Darces, although caretaker relative, is excluded from the FBU due to her illegal alien status.   The older siblings are excluded from the FBU because they are illegal aliens and they do not fall within the category of essential persons.   California is not required to include the older siblings within the category of “essential persons.”

Title 42 United States Code section 602(a)(8) provides, in relevant part, as follows:  “[T]he state agency 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 ․.”

California has by statute exercised its prerogative pursuant to federal law to limit the definition of “essential persons.” 1  The needs of those deemed to be essential persons are taken into consideration in calculating the amount of the AFDC grant because such persons are within the FBU.  (45 C.F.R., § 233.20(a)(2)(vi).)   Conversely, the needs of persons deemed not to be essential persons are not considered because those persons are not part of the FBU.   This is important with respect to the maximum aid payments since these maximums increase with the FBU size.   The FBU size depends upon the number of eligible children, caretaker relatives and essential persons.   In the present case the FBU is composed solely of the three younger children.   Lacking “essential person” status the older children are not a part of the FBU and their needs are not considered in computing the monthly AFDC grant.   Essential persons are those whose presence in the home is essential to the well-being of the eligible child and those whose needs are accounted for in the calculation of the child's needs.

To require DSS to consider the needs of the AFDC ineligible children is to mandate their inclusion among “essential persons” under the applicable regulations.   This court is bound to carry out the legislative mandate which restricts those who may qualify for inclusion in the FBU as essential persons.   The state has exclusive authority to determine essential persons under federal AFDC laws.  (42 U.S.C., § 602(a)(7);  45 C.F.R., § 233.20(a)(2)(vi).)

Furthermore, federal law specifically prohibits the inclusion of illegal aliens as essential persons.   The Omnibus Budget Reconciliation Act (hereinafter referred to as the Act) (Pub.L. No. 97–35) which became effective on October 1, 1981, modified social welfare programs in this country.   Section 2320(a)(3) of the Act amended section 402(a) of the Social Security Act (42 U.S.C., § 602(a)).   The amendment is contained in new paragraph (33) which reads as follows:  “provide that in order for any individual to be considered a dependent child, a caretaker relative whose needs are to be taken into account in making the determination under paragraph (7), or any other person whose needs should be taken into account in making such a determination with respect to the child or relative, such individual must be either (A) a citizen, or (B) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law (including any alien who is lawfully present in the United States as a result of the application of the provisions of section 207(c) of the Immigration and Nationality Act (or of § 203(a)(7) of such Act prior to April 1, 1980), or as a result of the application of the provisions of section 208 or 212(d)(5) of such Act).”

On this additional ground DSS is prohibited from considering the needs of the three older children.   Federal statutes prohibit the recognition by the states of the needs of an illegal alien for purposes of computing benefit payments such as AFDC.

The federal government contributes only to those state AFDC programs which receive federal approval by compliance with federal regulations.  (42 U.S.C., §§ 601, 604(a)(2);  45 C.F.R., § 201.5;  Shook v. Lavine (1975) 49 A.D.2d 238, 374 N.Y.S.2d 187.)   Approval may be withheld if the state program fails to conform to relevant federal statutes and regulations.   (45 C.F.R., § 201.3(d).)   These laws preclude illegal aliens from receiving aid directly or indirectly.  (42 U.S.C., § 602(a)(33);  45 C.F.R., § 233.50.)   Should this court rule the children of Ms. Darces who are illegal aliens were entitled to consideration in computation of the grant as essential persons in the FBU the federal government would be entitled to refuse to pay its contribution because of the state's failure to comply with federal guidelines and prohibitions against aiding illegal aliens.  (45 C.F.R., § 233.50;  42 U.S.C., § 602(a)(33).)


 Ms. Darces further contends that she is deprived of equal protection because the state has created two classes of children, those it requires the parents to support and those it does not require them to support.   She also argues that the state has improperly created two classes of parents, namely, those whose other obligations are taken account as required by 45 Code of Federal Regulations section 233.20(a)(3)(vi) versus those parents whose other obligations the state refuses to take into account.

However, the state's regulations applicable to the AFDC program establish only the categories of those eligible and those who are ineligible.   For example, the regulations make repeated reference to the “needy, dependent child” as being eligible for benefits barring the applicability of certain exceptions.   The Secretary of Human and Health Services also has extensive regulations on coverage and conditions of eligibility.  (45 C.F.R., §§ 233.10 et seq.)   Welfare programs are generally predicated upon the assumption that it is permissible to classify persons as either eligible or ineligible on the basis of express conditions.   Children are therefore classified into eligible or ineligible classes on objective criteria and not, as Ms. Darces argues, into classes which the state expects parents to support and those it does not expect parents to support.

Ms. Darces similarly argues that by application of the challenged regulations (EAS, § 44–133.3) DSS is putting Ms. Darces in a situation of possible noncompliance with the California parental support statutes.   However, pursuant to the DSS calculation, the application of EAS section 44–133.3 does not lessen the total amount of resources available monthly to the FBU.   Only the source of the resources has changed because Ms. Darces' employment income was taken into consideration.   Since she was presumably able to support her children previously without outside or employment income, she can not reasonably claim that with this source of income she will be in danger of being charged with nonsupport.

Finally, Ms. Darces misconstrues the law with regard to the “classes of parents” she alleges are incorporated under Title 45 Code of Federal Regulations section 233.20(a)(3)(vi) and Welfare and Institutions Code section 11350.

The two classes of parents in the AFDC program consist of custodial and noncustodial parents which are described and defined by the relevant statutes and regulations.  (42 U.S.C., §§ 601 et seq.)   The rights, benefits and obligations of each class of parent relative to the aided child are defined under various circumstances.   The rights, benefits and obligations of each class toward the unaided child are not treated in these provisions and DSS is neither directed nor authorized to respond to their needs.

Ms. Darces' younger children are AFDC-eligible.   Her older children are within the class of AFDC-ineligibles because they are illegal aliens who may not be categorized as essential persons.   Ms. Darces in effect challenges the federal prohibition against providing AFDC or other welfare benefits to illegal aliens (45 C.F.R., § 233.50;  42 U.S.C., § 602(a)(33)) which is not an appropriate issue for determination in this forum.

There is no merit in Ms. Darces' further argument that there is no reasonable basis for creating the two classes of parents and that the different treatment accorded them violates equal protection of laws.   A noncustodial parent, who does not have custody of the children receiving aid, is required to support his aided children to his “reasonable ability to pay.”  (Welf. & Inst.Code, § 11350.)   Appellant referring to this provision argues that the state in ascertaining a noncustodial parent's “reasonable ability to pay,” must recognize the noncustodial parent's obligation to support children who do not receive benefits.  (Civ.Code, § 246;  Welf. & Inst.Code, § 11476.)   It is her position that the failure of DSS to recognize and make allowance for her obligation to support her ineligible children results in unequal treatment of similarly situated parents.

Clearly it is reasonable to differentiate between custodial and noncustodial parents on the basis of numerous factors.   To begin with the custodial parent is usually a member of the FBU while the noncustodial parent is not a member.   The custodial parent receives the benefit of numerous exemptions and work related deductions from income as did Ms. Darces in the case at bench.   The noncustodial parent's income is not so fully protected where it is ascertainable and collectible.   The custodial parent has custody and the benefits of the child-parent relationship while the noncustodial parent is subject to enforcement proceedings for failing to provide for the child with whom the parent is not living.  (Welf. & Inst.Code, § 11350.)   There is no violation of constitutional equal protection rights by statutes and regulations which do not require that DSS recognize the obligation of either custodial or noncustodial parents to children who are ineligible for aid or in ascertaining “reasonable ability to pay” for the support of eligible children.

Ms. Darces further contends that pursuant to applicable federal regulations DSS is required to take into account her obligation to support her unaided children in determining the amount of the grant awarded to her aided children when she receives other income.  (45 C.F.R., § 233.20(a)(3)(vi).) 2

The section to which she refers gives states the option to hold certain relatives responsible for the support of applicants and recipients.   States must consider the income and resources of the caretaker relative because that person is also considered in determining the grant amount (42 United States Code section 602(a)(7)).   In this case Ms. Darces is not a member of the FBU due to her illegal alien status.   Nonetheless, the California regulations provide credits for her needs, and therefore this factor has no relevance in the case at bench.   States are required to take all essential steps to ensure that all parents support and maintain their children who receive AFDC benefits.  (See title 42 U.S.C., §§ 602(a)(17) and (22).)   Read in the context of these regulations it appears that the section in question permits the state to hold other relatives responsible and “if” it does so, the obligations of such other relatives will be recognized.  (45 C.F.R., § 233.20(a)(3)(vi).)

Ms. Darces further argues, citing 45 Code of Federal Regulations, subparagraph (a)(3)(vi)(b) that DSS must consider her income to be available to all of her children.   The import of recent legal authority is to the contrary.   In a recent federal case the father of AFDC supported children challenged the inclusion of his Veteran Administration pension in income available to the family.  (Sturgell v. Creasy (6th Cir. 1981) 640 F.2d 843.)   The court in holding that his pension was available and should be considered in the grant computation concluded that 45 Code of Federal Regulations section 233.20(a)(3)(vi)(b) is an “exception to the general rule that all income attributable to the natural parent who lives in the home is available to the family and should be considered available ․.”  (Sturgell v. Creasy, supra, 640 F.2d 843, 847.)   It is therefore clear that the provision specified does not require that Ms. Darces' income be considered available to her unaided children.

Ms. Darces claims that she has a fundamental interest and right to use her income to support her unaided children which cannot be abridged in the absence of a compelling state interest.   However, the goal of the entire system of AFDC law, as implemented by EAS section 44–133.3, is to provide aid to eligible children and criteria of eligibility may be limited even to exclude some previously eligible under federal law.  (See the Act, Pub.L. No. 97–35.)   The equal protection clause is not violated by excluding from AFDC participation family members that have never been considered eligible for AFDC benefits.

The United States Supreme Court has upheld against equal protection arguments a state's practice of limiting aid payments to $250 regardless of family size although it resulted in actual inequities since AFDC-eligible children in larger families received less per capita than equally needy children in smaller families.  (Dandridge v. Williams (1970) 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491.)   By a parity of reasoning, DSS is not required to meet the needs of Ms. Darces' older ineligible children by taking them into account in respect to Ms. Darces' income.   Since it does not constitute a denial of equal protection to fail to insure that recipients receive an equal amount per capita, as in Dandridge where all the children were AFDC-eligibles, it does not contravene equal protection principles for children to receive less per capita due to the presence of AFDC-ineligibles in the household.

Ms. Darces argues that her income is not actually available to her aided children because it must be diverted to care for the unaided children.   She fails to demonstrate that her aided children are suffering due to this alleged unavailability of her income;  they are presumably in the same financial position they were prior to their mother's employment.

Ms. Darces' reliance upon Thiboutot v. State (1979), Me., 405 A.2d 230, in support of her position is misplaced since the appellate court was not there required to address the merits but dealt with the propriety of retroactive benefits and attorney's fees.   Furthermore, although the abbreviated facts appear similar, there is nothing to suggest that the ineligible children were thus categorized due to illegal alien status.   The cases of Lewis v. Martin (1970) 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561, which dealt with income of a man in the house, and Cooper v. Swoap (1974) 11 Cal.3d 856, 115 Cal.Rptr. 1, 524 P.2d 97, in which the grant was reduced where the recipient shared housing with another receiving “adult aid,” are inapposite.

Finally, Ms. Darces misconstrues the import and application of 45 Code of Federal Regulations, section 233.90(a)(1) 3 which she claims requires the actual availability of her income for her AFDC-eligible children for a reduction of AFDC benefits to be made on that basis.

Read in the appropriate context, that part of 45 Code of Federal Regulations section 233.90(a)(1) regarding actual availability pertained to the net income of a “substitute parent” or “man-in-the-house.”  (North Coast Coalition v. Woods, supra, 110 Cal.App.3d 800, 806, 168 Cal.Rptr. 95.)   Since Ms. Darces was not a “substitute parent,” the “actual availability” requirement of the above regulation was inapplicable to her.   The legal availability of her income she does not challenge.


In the case at bench a single working parent seeks to have her nonexempt income considered unavailable to reduce her children's AFDC grant.   The reason given is that her nonexempt income is unavailable for her aided children because it must be used to support her unaided children who are illegal aliens.   She has made no showing that her aided children are suffering due to the AFDC reduction.   Clearly, the state wishes to encourage persons in the position of Ms. Darces to seek employment and there is no intent to penalize them for so doing.   This court is nonetheless bound by the applicable law, both state and federal, which specifically prohibits the expenditure of moneys, raised by governmental entities from the imposition of income and other taxes on its citizens and residents, from being paid out in welfare benefits to those with illegal alien status.   To do so would substantially increase the fiscal burdens on taxpayers, particularly in border states such as California.


The judgment is affirmed.


1.   Welf. & Inst.Code, § 11203 provides:  “During such times as the federal government provides funds for the care of a needy relative with whom a needy child or needy children are living, aid to the child or children for any month includes aid to meet the needs of such relative, if money payments are made with respect to the child or children for that month, and if the relative is not receiving aid under Chapters 3 (commencing with Section 12000) or 5 (commencing with Section 13000) of this part or Part A of Title XVI of the Social Security Act for that month.   Needy relatives under this chapter include only natural or adoptive parents, the spouse of a natural or adoptive parent, and other needy caretaker relatives.”  (Welf. & Inst.Code, § 11203, as amended by Stats.1981, ch. 69, § 6, pp. 182–183, eff. Aug. 1, 1981.)  (Amendment italicized.)

2.   Title 45 C.F.R., § 233.20(a)(3)(vi) provides as follows:  “Except for child support obligations assigned pursuant to § 232.11 of this chapter, if the State agency holds relatives responsible for the support of applicants and recipients, (a) include an income scale for use in determining whether responsible relatives have sufficient income to warrant expectation that they can contribute to the support of applicants or recipients, which income scale exceeds a minimum level of living and at least represents a minimum level of adequacy that takes account of the needs and other obligations of the relatives;  and (b) provide that no request will be made for contributions from relatives whose net cash income is below the income scale.   In family groups living together, income of the spouse is considered available for his spouse and income of a parent is considered available for children under 21, except that, under the AFDC plan, if a spouse or parent is receiving SSI benefits under title XVI, then, for the period for which such benefits are received, his income and resources shall not be counted as income and resources available to the AFDC unit.   For purposes of this exception, ‘a spouse or parent receiving SSI benefits' includes a spouse or parent receiving mandatory or optional State supplementary payments under section 1616(a) of the Act or under section 212 of Pub.L. 93–66.”  (Italics added.)

3.   Title 45 C.F.R., § 233.90(a)(1) at the time of trial provided in pertinent part as follows:  “233.90 Factors specific to AFDC.  [¶]  (a) State plan requirements.   A State plan under title IV–A of the Social Security Act shall provide that:  [¶]  (1) The determination whether a child 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, ․  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 ; ․”

L. THAXTON HANSON, Associate Judge.

SPENCER, P. J., and BULGRIN, J.*, concur.

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