Remillard v. Carleson , 325 F. Supp. 1272 ( 1971 )

ORDER GRANTING DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

PER CURIAM.

California participates in the federal aid to needy families program. 42 U.S. C. § 601 et seq. Part of this program gives aid to needy children who are “deprived of parental support or care by reason of the * * * continued absence from the home * * * of a parent”.

Plaintiffs are mothers whose husbands are absent from home while on duty with the armed forces of the United States. Plaintiffs receive monthly allotment checks from the military, but such checks seldom if ever total more than $150.00 per month.¹ The State does not contest that both plaintiffs, as well as many other military dependents, could easily demonstrate the “need” required by the statute cited above. The State does claim, however, that absence occasioned by a father’s military duties can never be “continued” within the meaning of 42 U.S.C. § 601. California Department of Social Welfare Regulation EAS section 42-350.1.²

Plaintiffs challenge this state-wide regulation on both statutory and constitutional grounds, and ask that the Court enjoin its enforcement. A three-judge court was appointed. See King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968) (note 3), and Gilmore v. Lynch, 400 F.2d 228 (9 Cir. 1969). Memoranda were submitted, and by agreement of both parties, hearings on plaintiffs’ motions for preliminary and final relief, as well as on defendants’ motion for summary judgment, were consolidated. Said hearing being held, the matter was taken under submission.

The Federal Act mandates that aid be given “with reasonable promptness to all eligible individuals”. 42 U.S.C. § 602(a) (10). An eligible child, within the present context, is one whose parent is absent from the home on a “continued” basis, which absence deprives the child of support and care. The precise definition of “continued absence” rests with the States, but regulations of the Department of Health, Education and Welfare provide specific guidelines for this decision:

“Within this interpretation of continued absence the State agency in developing its policy will find it necessary to give consideration to such situations as divorce, pending divorce, desertion, informal or legal separation, hospitalization for medical or psychiatric care, search for employment, employment away from home, service in the armed forces or other military service, and imprisonment.” HEW, Handbook of Public Assistance Administration § 3422.2 (emphasis added).

The key to the instant dispute is the phrase “will * * * give consideration to * * In cases of a father’s absence due to imprisonment, or temporary medical treatment, or parental separation, California considers each applicant’s situation individually. There is no across-the-board exclusion of any of these categories listed in the HEW regulation.³ But children of fathers absent on military orders get a different kind of “consideration”. California claims that it has judged this group, us a group, and has decided it is to be deemed ineligible for § 606 payments.

This blanket exclusion of an entire group, specifically designated in the regulation as worthy of consideration, is reminiscent of California’s one-time practice of conclusively presuming that informal parental separations did not result in “continued” absence until three months had passed. A three judge court of this circuit refused to find this all-encompassing declaration of ineligibility consistent with the policies behind § 606. The latter is designed for the sustenance of needy children. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). The Court found that it might have been administratively convenient to “give consideration” to an entire group and thereby totally exclude it. But the three judges found that such a device wrongly denied aid to many children who, if given individual consideration, would have been able to show a disruption of family support patterns every bit as grave as that caused in situations where the family breadwinner has been imprisoned or deported, and where § 606 payments are given. Damico v. California, No. 46538 (N.D.Calif. Sept. 12, 1969).

The State suggests that the real cause of plaintiffs’ distress is not the absence of their spouses but is rather the inadequacy of military pay scales. “Cause” is a nebulous term which in this case may well encompass the factor of low pay. But it also includes the disruption caused by precipitately depriving a man of his civilian employment, assigning him to duty posts to which dependents may not accompany him, and making it necessary for the mother to rely on the tender mercies of the military allotment system. Congress, in its traditional solicitude for the soldier and his dependents, has shown a realization that military service represents, for many families, a disruption or dissociation as great as that envisaged by both HEW and California regulations.

In interpreting any statute, the courts will presume if at all possible that Congress would not act in a manner offending due process reasonability. The interpretation of § 606 urged by California would raise serious questions under the equal protection and due process clauses of the Constitution. All legislative classifications must be reasonable in light of the goals of the statutory program of which they are a part. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Developments in the Law: Equal Protection, 82 Harv.L.Rev. 1067, 1077 et seq. It is difficult to see what legitimate goal is served by the classification here. California will give aid to the needy child of a prisoner whose term may be as little as ninety days. The state will also help the dependents of a divorced mother whose support payments from her absent husband are insufficient to meet basic needs. A parental spat may result in an informal separation of but a few weeks duration, but § 606 payments are available if dependent children are in want as a result thereof. But nothing is given to the needy child of a soldier who, often involuntarily, may remain away from home for as long as two years. This distinction might have been deemed rational at the time the AFDC program was instituted, when the armed services were composed of small numbers of long-term volunteers. It is doubtful whether it can pass muster today, when world tensions require the maintenance of large overseas contingents of draftees and non-career enlistees. See Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841 (1924) (due process rationality to be judged in light of contemporary circumstances); and People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194 (1970) (same). This court will not reach the constitutional arguments advanced herein, but it finds them sufficiently compelling to warrant the conclusion that Congress did not intend its program to be administered in the manner chosen by California.

The Court therefore declares that California may not deny benefits under U. S.C. § 606 to otherwise eligible children by means of the conclusive presumption, embodied in the regulation cited above at note 2, that a parental absence is not “continued” if occasioned by service in the armed forces of the United States. Some military absences may indeed be temporary; there comes to mind the situation posed by the career serviceman who chooses not to bring his family to a duty station. But other military absences give rise to the needs the statute was designed to fill. Each case must be considered in light of all relevant factors. Damico v. California, cit. supra.

Accordingly, IT IS HEREBY ORDERED that defendants herein are enjoined from enforcing California Department of Social Welfare Regulation EAS section 42-350.1 in a manner inconsistent with the declaration entered above. Execution of this Order is stayed for a period of ten days to allow the defendants to file notice of appeal if they so desire, except that the temporary restraining order hitherto issued shall remain in effect as to plaintiffs Dones and Remillard. Further stays of execution will only be considered upon timely application to the Court.

Before: HAMLIN, U. S. Circuit Judge; CONTI and WOLLENBERG, U. S. District Judges.

1 . Plaintiff Joyce Dones, with two young children, and a baby soon to be born, receives $145.00 as her allotment from the Army. Prior to his induction, Mr. Dones earned approximately $600.00 per month in civilian employment. Plaintiff Nancy Remillard is the mother of one child. Her husband is an enlistee now serving in Vietnam; her allotment totals $130.-60, which sum has often been delayed for considerable periods due to bureaucratic errors.

2 . “ ‘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 [or] a definite interruption of or marked reduction in marital and family responsibilities and relationships compared to previously existing conditions. ‘Continued absence’ does not exist when one parent is physically absent from the home on a temporary basis. Examples are visits, trips made in connection with current or prospective employment, active duty in the Armed Services.”

3 . Counsel for the State was uncertain of California’s policy as to persons employed away from home. The Court does not express any opinion as to the validity of the State’s exclusion or inclusion of this group from § 606 benefits.