Appeal of Fowler

• Citation: 288 A.2d 463,130 Vt. 176
• Decision Date: 03 March 1972
• Docket Number: No. 162-70,162-70
• Parties: In re Appeal of Sally FOWLER.
• Court: United States State Supreme Court of Vermont

Page 463

288 A.2d 463

130 Vt. 176

In re Appeal of Sally FOWLER.

No. 162-70.

Supreme Court of Vermont.

March 3, 1972.

Richard C. Blum, and Joseph Goldberg, Vermont Legal Aid, Inc., Burlington, for plaintiff.

James M. Jeffords, Atty. Gen., and Edward J. Cashman, Asst. Atty. Gen., for defendant.

Before SHANGRAW, BARNEY, SMITH and KEYSER, JJ., and DALEY, Superior judge.

DALEY, Superior Judge.

This appeal arises from the refusal of ANFC benefits under 33 V.S.A. by the Board of Social Welfare.

The appellant is the wife of Orville Fowler, and the mother of six minor children by a previous marriage, which terminated in divorce, and one other child born to her union with Orville Fowler. In the month of May, 1970, the appellant sought ANFC benefits for the six minors by her previous marriage. None were sought for her child by Orville Fowler. Her application was denied by the St. Albans district office, Vermont Department of Social Welfare, on June 15, 1970, because her husband was at home. The decision of the district office was affirmed by the commissioner of Social Welfare, after which appellant was granted 'fair hearing' before the Social Welfare Board which affirmed the refusal of ANFC benefits. The findings of fact of the Social Welfare Board were as follows:

'Petitioner was refused ANFC for the benefit of six minor children in June, 1970, on the grounds that their stepfather was in the same home.

Petitioner's husband (the stepfather) and her children do share the same home and are part of the same family.

The stepfather is employed and contributes support for his stepchildren.'

The questions presented to this Court by the appellant and briefed by the parties are:

'1. Do the findings of fact support the conclusion that Mrs. Fowler's children are not entitled to ANFC benefits?

2. Do the findings of fact support the implicit conclusion that Mr. Fowler stands in loco parentis to Mrs. Fowler's children?'

The appellee contends the decision of the Social Welfare Board (hereinafter referred to as the Board) is correct because the children on whose behalf public assistance was requested were not within the meaning of 'dependent child' as the same is set forth in 33 V.S.A. § 2701. The appellee further contends at the time of application the children were residing with a stepfather legally obligated to contribute support and who was in fact providing for their actual financial needs.

The term ANFC is the Vermont designation of the aid furnished to those entitled to aid under the federal program entitled 'Aid to Needy Families with Dependent Children' in which Vermont has chosen to participate. The program was instituted by Congress as a part of the Social Security Act, 42 U.S.C. § 601 et seq. The basis for eligibility for the program is found, insofar as Vermont is concerned, at 33 V.S.A. § 2701 which is patterned in substance after the provisions of 42 U.S.C. § 606:

'(1) Dependent child; a needy child who: . . . (c) Has been deprived of parental support or care. . . .'

The Commissioner of Social Welfare by virtue of 33 V.S.A. § 2505(c)(2) is granted authority to 'fix standards and issue regulations necessary to administer (those) laws. . . .' assigned to his department. Pursuant to his authority the commissioner issued the following regulation:

'If the grantee relative with whom the child is living is a parent, eligibility ceases upon remarriage of the parent since the child is no longer deprived of parental support. . . .' Family Service Manual § 23314

The State of Vermont, in choosing to participate in the federal ANFC program, cannot administer its state program in conflict with federal laws, statutes or regulations controlling such welfare programs. Borkman v. Commissioner of Social Welfare, 128 Vt. 561, 268 A.2d 790 (1970), citing King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, 1126 (1968). In King v. Smith, supra., 392 U.S. at 327, 88 S.Ct. at 2138, 20 L.Ed.2d at 1131, the United States Supreme Court made it clear that Congress, in passing the ANFC program, intended the term 'parent' to mean only an individual who owed the child a state-imposed legal duty of support. Borkman v. Commissioner of Social Welfare, supra, 268 A.2d at 792.

The Board, in affirming the refusal of ANFC benefits, determined that the stepfather in the home was legally obligated under state law to support the children in question; therefore, they had not been denied parental support. In reaching this conclusion, the appellee argues that the Board found an in loco parentis relationship existing between Orville Fowler and the six minor Paquette children. In its 'reasons for order' the Board stated that the Department of Social Welfare decision to refuse ANFC benefits was consistent with the regulation in the Family Service Manual § 23314, supra, as qualified in Borkman v. Commissioner of Social Welfare, supra, wherein this Court held that ANFC benefits could not be terminated merely because of the presence of a nonadopting stepfather in the home where the children resided because in the absence of any statutory authority to the contrary, the common law imposes no civil duty upon a stepparent to support his stepchildren. The Court, however, pointed out that a stepparent could become legally obligated to support his stepchildren if he took them into his home and they became a part of his family, citing Ormsby v. Rhoades, 59 Vt. 505, 510, 10 A. 722 (1887).

In loco parentis is defined in Black's Law Dictionary 896 (4th ed. 1957): 'In the place of a parent: . . . charged, factitiously, with a parent's rights, duties, and responsibilities.' For such a relationship to come about as between stepparent and stepchild depends upon the intent of the stepparent 'to be determined in the light of the circumstances peculiar to each case.' 59 Am.Jur.2d Parent and Child, § 91 at 189. The intention required to create an in loco parentis relationship 'should not lightly or hastily be inferred.' 67 C.J.S. Parent and Child § 79.

Without the factor of intent to assume parental duties by the stepparent over the stepchild, an in loco parentis relationship does not arise. In Rutkowski v. Wasko, 286 App.Div. 327, 143 N.Y.S.2d 1, 5 (1955) it was stated:

A step-father who furnishes a bed and provides bread...