Archibald v. Whaland

• Decision Date: 20 May 1977
• Docket Number: No. 76-1440,76-1440
• Citation: 555 F.2d 1061
• Parties: Ruth M. ARCHIBALD et al., Plaintiffs, Appellees, v. Frank WHALAND et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1061

555 F.2d 1061

Ruth M. ARCHIBALD et al., Plaintiffs, Appellees, v. Frank WHALAND et al., Defendants, Appellants.

No. 76-1440.

United States Court of Appeals First Circuit.

Argued Dec. 7, 1976.

Decided May 20, 1977.

Wilbur A. Glahn, III, Asst. Atty. Gen., Concord, N. H., with whom David H. Souter, Atty. Gen., Concord, N. H., was on brief, for appellants.

Richard A. Cohen, Manchester, N. H., with whom Raymond J. Kelly, Keene, N. H., was on brief, for appellees.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

The defendant New Hampshire Department of Health and Welfare (Department) terminated AFDC assistance to plaintiff's children ¹ on the ground that they were no longer "deprived of parental support", see 42 U.S.C. § 606(a), plaintiff's remarriage having brought a legal stepfather into the home. Plaintiff contends that this determination of ineligibility was inconsistent with federal standards as set forth in a regulation of the Department of Health, Education and Welfare, which administers the AFDC program nationally. The regulation requires that

"the determination whether a child has been deprived of parental support or care . . . be made only in relation to the child's natural or adoptive parent, or in relation to the child's stepparent who is ceremonially married 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 extend (sic) that natural or adoptive parents are required to support their children." 45 C.F.R. § 233.90(a). (Emphasis supplied.)

The predecessor to this regulation has been upheld as a valid interpretation of the Social Security Act by the agency charged with administering it Lewis v. Martin, 397 U.S. 552, 558-59, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970). Thus the legal issue before us is whether the support obligation imposed on stepparents under New Hampshire law meets the regulatory standard.

The Department relies primarily on New Hampshire's version of the Uniform Civil Liability for Support Act, RSA 546 A (Supp.1973), which provides in part:

"546 A:1 Definitions. As used in this chapter:

IV. 'Child' means either a natural or adopted child or a stepchild.

'V. 'Father' or 'mother' means either a natural or adopted father or mother or a stepfather or stepmother.

546 A:2 Liability. Every person whose income or other resources are more than sufficient to provide for his or her reasonable subsistence compatible with decency or health owes a duty to support or contribute to the support of his or her wife, husband, child, father or mother when in need."

In November of 1970 HEW's regional office surveyed what it considered to be the applicable New Hampshire law and found that the obligation imposed by RSA 546 A was "precisely the same for the stepparent as for the natural parent", and further that no other statute or case law imposed a greater duty on natural parents. It therefore concluded that "the obligation of support arising under New Hampshire law is sufficiently similar in duration and scope with respect to a natural parent and a stepparent as not to prevent compatibility with the Federal regulation (then 45 C.F.R. § 203.1)."

The district court, recognizing the near absence of pertinent case authority interpreting the regulation, took as its starting point the criteria proffered by HEW in its amicus curiae brief filed in Lewis v. Martin, supra, 397 U.S. at 552, 90 S.Ct. 1282. That brief described a qualifying state support obligation on the part of a stepparent as "(1) a duty of general applicability (2) which he could be compelled by court order to fulfill even after he has deserted or abandoned the household and (3) regardless of whether the children would otherwise receive AFDC payments." The court then excised the second requirement on the basis of the Supreme Court's summary dismissal of the appeal in Kelley v. Iowa Department of Social Services, 197 N.W.2d 192 (Iowa 1972), for want of a substantial federal question, 409 U.S. 813, 93 S.Ct. 170, 34 L.Ed.2d 69. ²

After an exhaustive analysis of state statutes and case law, the district court concluded that the basic civil support statute, RSA 546 A, did not create a stepparent support obligation of "general applicability" since the "obligation arises only when stepchildren are 'in need,' which is closely analogous to the welfare situation." ³ The court further concluded that stepchildren were not protected "to the same extent" as natural children because they are excluded from the coverage of the state domestic relations laws, RSA ch. 458, which provide for support without regard to need when parents are living apart, RSA 458:35, and pending and after divorce, RSA 458:16-17. It also attached some, though not conclusive, significance to the fact that only a natural father is criminally liable for non-support of his neglected needy children under RSA 460:23.

The district court therefore held that New Hampshire's stepparent support obligation did not meet the federal regulatory standard, and that the state's policy of denying AFDC benefits to children living with a natural parent and a legally married stepparent contravened federal law. It then issued an injunction against the state prohibiting the denial of AFDC benefits to the class pending appeal. Both it and we denied a stay.

In determining whether the district court was correct in concluding that the New Hampshire statute was not "of general applicability" and that stepchildren were not protected "to the same extent" as natural children, we look first to the Supreme Court's interpretations of the statutory and regulatory provisions on "parental support".

Congress, in passing the original social security legislation, provided for the support of children in two ways. One was the effort to provide employment and unemployment compensation, the underlying assumption being that " 'breadwinners' who secured employment would support their children. This congressional expectation is most reasonably explained on the basis that the kind of breadwinner Congress had in mind was one who was legally obligated to support his children." King v. Smith, 392 U.S. 309, 329, 88 S.Ct. 2128, 2139, 20 L.Ed.2d 1118 (1970). The other means of providing support for children, AFDC, "was intended to provide economic security for children whom Congress would not reasonably expect would be provided for by simply securing employment for family breadwinners." Id. at 329-30, 88 S.Ct. at 2140. Such an illusory "breadwinner" was the Alabama "substitute father" in King who was "under no legal duty to support a child" and whose employment, therefore, "would in (no) way provide meaningful economic security for that child." Id. at 330, 88 S.Ct. at 2140. The only kind of "parent" whose presence in a home could be a substitute for direct AFDC assistance, i. e., one who "would provide adequate economic protection for a dependent child is one who is legally obligated to support him." Id. at 332, 88 S.Ct. at 2141.

HEW's regulation in substantially the form of present 45 C.F.R. § 233.90 was promulgated shortly thereafter and was at issue in Lewis v. Martin, supra, 397 U.S. at 552, 90 S.Ct. 1282. In that case HEW had determined that a California statute reducing or eliminating AFDC benefits, by assuming as available to a child income from "a man assuming the role of a spouse" (MARS), was inconsistent with the federal regulation. The obligation of the MARS was to support his wife's children if, without his support, they would be eligible for AFDC. There was no means of enforcing this obligation: the law merely required that his income be considered in calculating eligibility and benefits. A three-judge court dismissed a complaint attacking the validity of the California statute, holding that the federal regulation was invalid. The Court, in upholding the federal regulation, discussed "general applicability" in these terms:

"We only add that HEW might reasonably conclude that only he who is as near as a real or adoptive father would be has that consensual relation to the family which makes it reliably certain that his income is actually available for support of the children in the household. HEW may, in other words, reasonably conclude that an obligation to support under state law must be of 'general applicability' to make that obligation in reality a solid assumption on which estimates of funds actually available to children on a regular basis may be calculated.

Any lesser duty of support might merely be a device for lowering welfare benefits without guaranteeing that the child would regularly receive the income on which the reduction is based, that is to say, it would not approximate the obligation to support placed on and normally assumed by natural or adoptive parents." Lewis v. Martin, 397 U.S. 558-59, 90 S.Ct. 1285.

While this discussion is not exhaustive, it does indicate that any law of "special applicability", i. e., requiring stepparent support only if and so long as a child without that support would be eligible for AFDC, does not provide the solid assurance of regular, continued support which would underlie the kind of assumption made in the case of a natural father-breadwinner. Not only might eligibility and thus a support obligation fluctuate from month to month, but children not eligible for AFDC because of their age would have no protection whatsoever. Moreover, there is an element in the Court's discussion of disapproval of a "device" calculated only to lower welfare benefits without giving a child a guarantee which "approximate(s) the obligation to support placed on and normally assumed by natural or adoptive parents." 397 U.S. at 559, 90 S.Ct. at 1285.

With this background in mind, we examine New Hampshire's Uniform Civil Liability for Support Act, RSA 546 A, to see if it is law of "general applicability". The...