Primack v. Adult and Family Services Div., 2-3501-BA9811
| Decision Date | 24 December 1997 |
| Docket Number | No. 2-3501-BA9811,2-3501-BA9811 |
| Citation | 151 Or.App. 765,951 P.2d 1097 |
| Parties | Gary PRIMACK, Petitioner, v. ADULT AND FAMILY SERVICES DIVISION, Respondent. Agency; CA A87535. |
| Court | Oregon Court of Appeals |
Lorey H. Freeman, Multnomah County Legal Aid Service, argued the cause and filed the briefs for petitioner.
Jas. Adams, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.
Claimant seeks judicial review of an order of the Adult and Family Services Division (AFSD) that terminated his and his daughter's eligibility for an Aid to Families with Dependent Children (ADC) grant. 1 We reverse and remand for reconsideration.
Claimant has legal custody of his daughter. The child's mother does not live with claimant and has not done so since their divorce in 1990. Following the divorce, claimant had physical custody of the child, and he and the child applied for and received an ADC grant. The ADC grant program is a joint federal-state program that provides financial assistance and other services to needy dependent children and the parents or relatives with whom they live. 42 U.S.C. § 601. Oregon participates in the program, which is run on the state level by AFSD. ORS 418.100. According to federal law, to qualify for assistance, the family applying must have a needy child who (1) is deprived of parental support or care due to a parent's death, continued absence from the home or physical or mental incapacity, (2) is living with a specified relative, and (3) is under a certain age. 42 U.S.C. § 606(a). 2 When claimant initially applied for the grant, AFSD determined that claimant and the child were eligible for an ADC grant because the child was a needy minor who lived with claimant and "had been deprived of parental support and care by the continued absence of her mother."
In 1994, mother began having increased visitation with her daughter. Pursuant to a court visitation order, the child began spending "12 nights in the home of her mother each calendar month." 3 Claimant remained the sole legal custodian of the child. After receiving a copy of the court order modifying visitation, AFSD determined that, as a result of the increased visitation, claimant and the child were no longer eligible for an ADC grant.
Claimant requested a hearing on the division's decision to terminate his ADC grant. He argued that ORS 418.149 directed the agency to assume that his daughter was deprived of parental support or care due to the continued absence of a parent. ORS 418.149 provides:
(Emphasis supplied.) Claimant argued that, because the mother did not visit the child more than 12 hours per week or four times per week in the home that claimant and the child shared, ORS 418.149(1) was satisfied. Therefore, AFSD had to assume that claimant's daughter was deprived of parental support or care due to the continued absence of the mother, and he and his daughter were eligible for an ADC grant.
AFSD disagreed. It concluded that ORS 418.149 did not apply, because it states a visitation standard that "addresses the situation in ADC cases in which the child resides with one parent and the other parent visits the child in the custodial parent's home." In contrast, here, according to OAR 461-125-120(2) and OAR 461-125-130(2), the child resided with both of her parents because she lived with each parent more than 30 percent of every month. 4 As a result, ORS 418.149 did not apply because neither parent ever lived "out of the home in which the child resides."
On review, claimant argues that the legislature intended for ORS 418.149 to apply even when the child has two homes, one with each parent. According to claimant, the reference in ORS 418.149(1) to "the home in which a child resides" is intended to refer to the home of the parent with legal custody. Therefore, even if a child lives with each parent, unless ORS 418.149(1)(a) and (b) are satisfied, that child is presumed to be deprived of parental support or care due to the continued absence of a parent. Applying ORS 418.149(1)(a) and (b) here, claimant argues, the agency would have to assume that his child was deprived due to the continued absence of her mother.
We conclude that a legal custody award is not determinative of where a child lives for purposes of ORS 418.149(1). ORS 418.149(1) states that it applies to situations "where a parent is living out of the home in which the child resides." Claimant argues that the relevant "home" for purposes of the statute is the home of the parent with legal custody. However, a legal custody award is not determinative because it does not, necessarily, describe where or with whom a child actually resides. Instead, a factual inquiry is necessary to determine where and with whom a child actually lives. An example illustrates the point: If a mother has sole legal custody of her child but the child actually lives with the father, under claimant's understanding of ORS 418.149(1), AFSD would have to treat the child as living with her mother. If the child's father did not visit the mother's home, AFSD would have to assume that the child was deprived due to the continued absence of the father from the home. Because the child actually lived with the father, that result would make no sense. A factual inquiry would reveal that the child lived with her father. AFSD could then apply ORS 418.149(1) to determine whether the child was deprived of parental support or care due to the continued absence of her mother. We conclude that legal custody is not determinative of where and with whom a child resides for purposes of ORS 418.149(1). 5 Instead, we agree with AFSD that, to determine where and with whom a child resides, AFSD must conduct a factual inquiry.
The issue that remains is whether ORS 418.149 applies when that factual inquiry reveals that the child has two homes, one with each parent. Claimant argues that the statute does apply. We disagree. ORS 418.149(1) explicitly refers to a situation in which a child has only one home. It does not envision a situation in which a child has two homes, one with each parent. As a consequence, it focuses on the interaction between the absent parent and child through the parent's visits to the child's only home. Its purpose is to ensure that the child is not denied ADC assistance merely because his or her absent parent visits. To accomplish that purpose, the statute creates a statutory presumption that allows interaction between an absent parent and his or her child but complies with the federal regulation defining a continued absence. However, because ORS 418.149(1) was not designed to evaluate cases where a child has two homes, one with each parent, the statutory presumption created by the statute could violate federal law when applied to a child in that situation. Although one parent might be out of the home that is applying for benefits, that absence might not "interrupt or * * * terminate the parent's functioning as a provider of maintenance, physical care, or guidance for the child," or "preclude[ ] counting on the parent's performance of the function of planning for the present support or care of the child." 45 C.F.R. § 233.90. Therefore, because of its purpose and design, the application of ORS 418.149 in a situation where a child lives with each parent part of each month would be inappropriate and would not ensure compliance with 45 C.F.R. § 233.90. Because claimant concedes that that is the situation here, we conclude that ORS 418.149(1) does not apply to this case.
Instead, AFSD has promulgated OAR 461-125-120(2), 6 which applies when a child lives with each parent during part of each calendar month. Under that rule, a child is not deprived of parental support or care due to the continued absence of a parent if the child's parents share "care, custody and control" of their child. That means:
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