Appeal from the Order of the Department of Public Welfare in the case of Jacqueline Gable, Case No. 609,342.
Richard M. Clark, for petitioners.
Maura A. Johnston, Deputy Attorney General, with her, John Kane, Associate Counsel, Allen C. Warshaw, Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges Craig, Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
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Petitioners, the Tiani children, appeal from a final order of the Department of Public Welfare which terminated benefits under the Aid to Families with Dependent Children (AFDC) program. The Tianis claim that the department acted contrary to constitutional constraints, as well as to federal regulations, when it included the income of their resident stepfather in calculating the state eligibility for AFDC. Because we conclude that there has been no constitutional or statutory violation by the department, we affirm.
Our scope of review in these cases is limited to determining whether or not the order is supported by law and substantial evidence and that it does not violate constitutional rights. Montgomery County Child Welfare Services v. Hull, 51 Pa. Commonwealth Ct. 1, 413 A.2d 757 (1980).
After the birth of the Tiani children, their father's whereabouts being unknown, the mother remarried. Because the mother's present husband resides with her and the children, the state included the income of that stepfather in calculating the income base available for the children's support. Section 432.12(c) of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 432.12.
Pennsylvania's requirement of stepparent income inclusion conforms to federal changes in section 402(a)(31)
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of the Social Security Act, 42 U.S.C. § 602(a)(31) (1982). Shaffer v. Department of Public Welfare, 86 Pa. Commonwealth Ct. 588, 485 A.2d 896 (1985), Kratzer v. Department of Public Welfare, 85 Pa. Commonwealth Ct. 318, 481 A.2d 1380 (1984).
Petitioners contend that, despite the amendments to the Social Security Act, their position should prevail on the ground that federal regulations continue to provide that income from stepparents who are living with the children shall not be assumed to be available, citing 45 C.F.R. § 233.90(a)(1) as authority.
The contention is incorrect for two reasons. First, in any conflict between a statute and a regulation purporting to implement the statute's provisions, the regulation must, of course, give way. Second, the language prohibiting the assumption of income availability from nonlegally responsible individuals in the household, although present in the 1980 edition of the ...