Hypolite v. Carleson

• Decision Date: 18 June 1973
• Citation: 108 Cal.Rptr. 751,32 Cal.App.3d 979
• Court: California Court of Appeals Court of Appeals
• Parties: In re Christina HYPOLITE et al., Minors. Bertha HYPOLITE et al., Plaintiffs and Appellants, v. Robert B. CARLESON, as Director, etc., Defendant and Respondent. Civ. 32095.

Page 751

108 Cal.Rptr. 751

32 Cal.App.3d 979

In re Christina HYPOLITE et al., Minors.

Bertha HYPOLITE et al., Plaintiffs and Appellants, v. Robert B. CARLESON, as Director, etc., Defendant and Respondent.

Civ. 32095.

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

June 18, 1973.

Hearing Denied Aug. 16, 1973.

Yvonne M. Renfrew, Robert Chartoff, Legal Aid Society of Alameda County, Hayward, Ralph Santiago Abascal, Edmund S. Schaffer, Jay-Allen Eisen, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, Christopher E. Hamilton, Stanislaus County Legal Assistance, Inc., Modesto, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen. David J. Bowie, Deputy Atty. Gen., San Francisco, for defendant and respondent.

MOLINARI, Presiding Justice.

This is an appeal by plaintiffs from a judgment denying relief on their complaint for declaratory and injunctive relief and their petition for writ of mandate.

Plaintiffs sought to challenge the exclusion by defendants of certain children from participating in the aid to families with dependent children program (hereinafter 'AFDC') provided for in 42 U.S.C. sections 601--610, and Welfare and Institutions Code sections 11200--11488. ¹

Plaintiff Christina Hypolite (hereinafter 'Christina') is a minor child, 11 years of age, residing with her paternal grandmother and legal guardian Bertha Hypolite, in the County of Alameda. Payments to Bertha Hypolite for the benefit of Christina were discontinued on the authority of Regulation 41--450.12 of the State Department of Social Welfare and Eligibility and Assistance Standards (hereinafter 'the Regulation').

Plaintiff Michael Hallick Jensen (hereinafter 'Michael') is a minor child, 16 years old, residing with his maternal grandfather and legal guardian Rollan Eller, in the County of Stanislaus. Eller's application for AFDC on behalf of Michael has been denied pursuant to the Regulation.

Christina was deserted by her parents at birth and was left with her grandmother. Christina's parents at the present time reside together in New Iberia, Louisiana, with their four other children and never have been, nor by a finding of defendant Carleson, are they now able to financially support Christina. Her grandmother is unable to provide for her.

Christina received AFDC relief through January 21, 1971, on the basis that her father in Louisiana was then unemployed. However, on January 7, 1971, this aid was discontinued effective January 31, 1971, on the basis that the father was now employed. On January 25, 1971, a request for a hearing pursuant to section 10950 was submitted. On March 1, 1971, a hearing was held and on September 28, 1971, the referee denied aid.

Michael has resided with Eller since October 25, 1971, on which date he had gone voluntarily to the home of his grandfather complaining of parental neglect. His parents were contacted and indicated their refusal to accept the child back into their home. This refusal continues to the present time. Eller is now the legal guardian of Michael pursuant to the letters of guardianship issued January 18, 1972. Michael's parents reside together in Auburn, California, and have made no financial contribution to Michael's support since October 25, 1971. Eller is financially unable to provide for the child. On November 12, 1971, Eller, on behalf of Michael, made application for AFDC. On November 26, 1971, he was informed that his application had been denied on the basis of the Regulation.

Petitioners are seeking relief from the application of the Regulation on behalf of themselves individually and on behalf of all other children similarly situated. The issue presented is whether the Regulation is valid and effective.

The Regulation was adopted by defendant Carleson, as Director of the Department of Social Welfare of the State of California, pursuant to his authority to formulate regulations in aid of administering AFDC. (§ 10553, subds. (b) and (d).) Specifically, the Regulation was enacted in implementation of section 11250, which in pertinent part provides: 'Aid, services, or both, shall be granted under the provisions of this chapter, and subject to the regulations of the department, to families with related children under the age of 18 years, except as provided in Section 11253, in need thereof because they have been deprived of parental support or care due to: . . . (b) The divorce, separation or desertion of a parent or parents and resultant Continued absence of a parent from the home for these or other reasons: . . .' (Emphasis added.) ²

The Regulation deals with a definition of the term 'continued absence' as used in section 11250. In pertinent part the Regulation provides as follows:

'AFDC .1 Definition of 'Continued Absence'

"Continued Absence' exists when the natural parent is physically absent from the home and the nature of the absence constitutes dissociation; that is, a substantial severance of marital and family ties which deprives the child of at least one of its natural parents.

'A substantial severance of marital and family ties means that the absence is accompanied by a definite interruption of or marked reduction in marital and family responsibilities compared to previously existing conditions.

"Continued absence' does not exist: . . .

'.12 When both parents are maintaining a home together but the child lives elsewhere. It is immaterial whether the child lives with a relative or in foster care as a result of placement by the parents, by an agency on behalf of the parents, or by another authoritative agency.

'.2 Circumstances That Meet the Definition of 'Continued Absence' . . .

'.26 Both parents are physically out of the home and their whereabouts are not known. . . .'

Plaintiffs contend that section 11250 clearly provides for aid to be given to a child whose parent or parents have deserted him without regard to whether or not the deserting parents reside together. Defendants, in turn, urge that the Regulation correctly limits 'continued absence' to situations where the family structure has suffered severe dissociation and that such a dissociation does not exist when the child's parents are in fact maintaining a home.

In determining the proper interpretation of section 11250 we first observe that administrative regulations must conform to the legislative will and that if such regulations violate acts of the Legislature they are void. (California Welfare Rights Organization v. Carleson, 4 Cal.3d 445, 455, 93 Cal.Rptr. 758, 482 P.2d 670; Morris v. Williams, 67 Cal.2d 733, 737, 63 Cal.Rptr. 689, 433 P.2d 697.) Accordingly, in ascertaining the intent articulated in section 11250, we should first turn to the words of the statute to determine the will of the Legislature and to give effect to the statute according to the usual, ordinary import of the language employed in framing it. (Noroian v. Department of Administration, 11 Cal.App.3d 651, 654--655, 89 Cal.Rptr. 889; Kimball v. County of Santa Clara, 24 Cal.App.3d 780, 784, 101 Cal.Rptr. 353.)

We advert to the pertinent provisions of section 11250. These provisions provide that aid is to be granted to children who have been deprived of parental support or care due to the divorce, separation or a desertion of a parent or parents where such divorce, separation or desertion results in the 'continued absence of a parent from the home for these or other reasons; . . .' The reference point of the statute is the deprived child. Accordingly, the statute is most fairly construed in terms of Absence from the child's home. A child is just as effectively deprived of parental support and care when he has been abandoned and excluded from a home which his parents are maintaining together as when he remains in a home with one natural parent where the other natural parent is physically absent from the home by reason of a substantial severance of the marital and family ties.

We observe that section 606(a) of title 42 United States Code, in pertinent part, defines the term 'dependent child' as 'a needy child (1) who has been deprived of parental support or care by reason of the . . . continued absence from the home . . . and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother . . . in a place of residence maintained by one or more of such relatives as his or their own home, . . .' This statute clearly indicates that the term 'home' has reference to the home in which the dependent child is living.

It is well settled that eligibility under the AFDC program must be measured by federal standards. (Carleson v. Remillard, 406 U.S. 598, 600, 92 S.Ct. 1932, 1934, 32 L.Ed.2d 352; Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448; King v. Smith, 392 U.S. 309, 333--334, 88 S.Ct. 2128, 20 L.Ed.2d 1118.) In Remillard it was specifically pointed out that under the AFDC program Congress intended to provide programs for the economic security and protection of all children and that it did not arbitrarily intend to leave one class of destitute children entirely without meaningful protection. (Carleson v. Remillard, supra, 406 U.S. at p. 602, 92 S.Ct. at p. 1936; see King v. Smith, supra, 392 U.S. at p. 330, 88 S.Ct. 2128.)

Considerable stress is placed by defendants on the administrative interpretation of the meaning of section 11250 and section 606(a) of title 42 United States Code, and they urge upon us the rule of interpretation that continuous, consistent application of an administrative interpretation is of great persuasive force in helping a court to determine legislative intent. (See City of Los Angeles v. Rancho Homes, Inc., 40 Cal.2d 764, 770--771, 256 P.2d 305; Pearson v. State Social Welfare Board, 54 Cal.2d 184, 210, 5 Cal.Rptr. 553, 353 P.2d 33.) In this connection we here note that the Regulation has been applied continuously over the past few years without comment or change of ...