Opinion
Jon S. Nicholls, Denver, for plaintiff-appellant.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Douglas D. Doane, Arthur R. Barry, Special Asst. Attys. Gen., Denver, for defendant-appellee.
ENOCH, Judge.
Mary Herndon, plaintiff, appeals from a trial court judgment affirming the decision of the Colorado Board of Social Services (Board), defendant, requiring her to remit overpayments of assistance she received pursuant to the Aid to Families with Dependent Children (AFDC) program. We reverse.
The basic facts are not in dispute. Plaintiff, who had two children by prior marriage, met Alan Nelson in November 1968, and thereafter they lived together as husband and wife. Nelson lost his job in March of 1970. The family at that time included a third child who was born to this couple. Being in severe financial need, plaintiff sought the assistance of the Adams County Department of Welfare in determining whether her family was eligible for benefits and in securing any benefits to which it might be intitled. She explained to the welfare worker assigned to her case that she was living with Nelson, that he was unemployed, and that the family was greatly in need of assistance.
Under the Colorado statutes, 1971 Perm.Supp., C.R.S. 1963, 119--9--1, enacted pursuant to the Social Security Act, 42 U.S.C. s 601 et seq., the basic eligibility criterion for AFDC if as follows:
'(4) (b) A needy child under the age of sixteen who has been deprived of parental support or care by reason of death, continued absence from the home, the physical or mental incapacity of a parent, or unemployment of his father . . ..'
Although unemployment of the father in conjunction with other minor requirements qualifies a family for AFDC assistance, plaintiff's welfare worker failed to apprise her of the benefits available under this provision. The welfare worker testified to the effect that to receive welfare assistance, plaintiff would have to establish eligibility under the 'continued absence from the home' provision of the statute. To do his, plaintiff was told that she would have to leave Nelson and establish a separate residence, implicitly destroying a viable family unit. Because of the stricture of desperate economic need, plaintiff decided to take the welfare worker's advice. The record indicates that the establishment of eligibility for welfare benefits was the only cause of the separation. Had the plaintiff been properly advised that aid was available on the basis of the unemployment of the father, a proper application could have been made by the father and it would not have been necessary to break up the family. 45 C.F.R. s 233.100 (1973).
Plaintiff's application for welfare benefits was approved, and she received monthly checks from March 1970 until August 1971 from Adams County. A second child fathered by Nelson was born in January 1971. Due to plaintiff's change of residence, her case was transferred in August 1971 to the Denver County Welfare Department. Apparently the Denver department made no effort at that time to determine whether plaintiff continued to be eligible for welfare benefits or to investigate the peculiar circumstances that had caused the division of the family solely for the purpose of establishing eligibility.
In December 1971, plaintiff was interviewed in the Denver District Attorney's office with regard to filing a criminal nonsupport action against Nelson. Under repeated questioning by the Assistant District Attorney as to whether she would testify against Nelson and due to his pressure to compel her to authorize a complaint, plaintiff signed the requested papers. She testified that she felt she had no choice in this, yet still conditioned her assent by noting she would testify only upon the actual insistence of the welfare department. Substantially because of plaintiff's extreme reluctance to cooperate and her strongly qualified agreement to participate in nonsupport proceedings, the Assistant District Attorney initiated a welfare department investigation of plaintiff's case. This investigation uncovered the fact that Nelson had returned and was living, at least part time, with his family--a natural consequence of familial separation occasioned solely by economic necessity.
Plaintiff continued to receive benefits from Denver until February 1972, when the department reduced her grant effective March 1972 and instituted proceedings to recover alleged overpayments of AFDC benefits for the entire period during which she had been paid by the Denver department, I.e., August 1971 through February 1972.
Plaintiff appealed the decision of the Denver Department of Welfare to the Board. Prior to the hearing on that appeal, the Denver department reinstated plaintiff's AFDC grant, but continued to attempt recovery of the alleged overpayments. After a hearing, the hearing officer ruled that Nelson, father of the two children, had not been continuously absent from the home from August 1971 to February 1972, and found that the county department had acted in accordant with the regulations of the State Department of Social Services in attempting to recover overpayments in the amount of $980. The decision of the hearing officer was affirmed by the Board, and the agency's decision was subsequently affirmed by the district court.
According to the regulations of the State Department of Social Services, which are applicable to all counties, 1969 Perm.Supp., C.R.S. 1963, 119--9--2, the primary purposes of the AFDC program are 'to provide family security and financial assistance for needy children, to foster and preserve basic human resources and family life, and to foster self-support and self-care. (AFDC) is designed to keep the child in a setting of his own family, and to enable parents to continue responsibility for the family living plan.' Department of Social Services Regulation 4230 (1969).
The issue of eligibility for AFDC assistance is ultimately a matter of federal law, Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, which reinforces the State Department of Social Services regulations as to the principal thrust of the program. In Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561, the Supreme Court stated that the most basic purpose of AFDC was to provide aid to needy children. In Romos v. Montgomery, 313 F.Supp. 1179 (S.D.Cal.), aff'd, 400 U.S. 1003, 91 S.Ct. 572, 27 L.Ed.2d 618, the paramount purpose of the federal program beyond the provision of aid for needy children was described as the maintenance of family structure.
In administering the AFDC program, state administrative agencies must first, of court, comply with specific requirements contained in applicable statutes and regulations. X v. McCorkle, 333 F.Supp. 1109 (D.C.N.J.), aff'd, Engelman v. Amos, 404 U.S. 23, 92 S.Ct. 181, 30 L.Ed.2d 143. However, when there is discretion involved in administering their mandates, departments should consider their actions in light of the stated purposes of programs as a whole. Here, the Denver Welfare Department's proceeding to recover alleged overpayments contravenes the essential purposes of AFDC, aid to needy children and maintenance of their families. Plaintiff's children, fathered by Nelson, were substantially, if not wholly entitled to receive assistance, and recovery by the Board appears ultimately to be justified only because of misguidance of a welfare department agent. Additionally, that misguidance was the sole cause of the dissolution of plaintiff's family.
Governmental activity in this case was improper on two related bases. Pursuant to the applicable regulations of the State Department of Social Services, the principal responsibility of the Adams County welfare worker who was charged with advising plaintiff was to endeavor to bring families together. As discussed previously, the contrary was accomplished.
Secondly, the Denver Assistant District Attorney's initiation of the welfare department investigation of plaintiff's case because of plaintiff's reluctance to cooperate violated the spirit, it not the letter, of the law. In Meyers v. Juras, 327 F.Supp. 759 (D.C.Ore.), aff'd, 404 U.S. 803, 92 S.Ct. 91, 30 L.Ed.2d 39, rehearing denied, 404 U.S. 961, 92 S.Ct. 308, 30 L.Ed.2d 280, an Oregon regulation requiring local welfare administrators to terminate aid to families with dependent children where mothers refuse to cooperate with law enforcement officials in obtaining financial support from non-supporting fathers was held invalid. Further, in Doe v. Carleson, 356 F.Supp. 753, (N.D.Cal.), the court held that even in a case where AFDC benefits were not terminated, state welfare officials could not threaten recipients with termination of benefits for failure to cooperate in obtaining convictions of their spouses for non-support. Under the peculiar facts of this case, applicable statutes and regulations have been disserved.
Judgment reversed.
SILVERSTEIN, C.J., and COYTE, J,, concur.