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12/22/97 CYNTHIA A. VARNER v. DEPARTMENT PUBLIC

December 22, 1997

CYNTHIA A. VARNER, PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appealed From No. 07-0090060-001. State Agency, Department of Public Welfare.

Before: Honorable James R. Kelley, Judge, Honorable Jim Flaherty, Judge, Honorable Emil E. Narick, Senior Judge.

The opinion of the court was delivered by: Narick

OPINION BY

SENIOR JUDGE NARICK

Filed: December 22, 1997

Cynthia A. Varner (Varner) petitions for review of an order of the Department of Public Welfare (Department) that affirmed the decision of a hearing officer which denied her appeal thereby discontinuing her entitlement to receive Aid to Families with Dependent Children (AFDC) benefits.

The facts are not in dispute and are summarized as follows. Varner and Cory Whitbeck (Whitbeck) are the parents of a son Ryan, born October 27, 1992. The parents never married and separated before Ryan's birth. Varner lives in Blair County, Pennsylvania and Whitbeck lives in North Carolina. Pursuant to a July 31, 1995 custody order from the Blair County Court of Common Pleas (trial court), Ryan was alternately in the physical custody of his mother for two months and in the physical custody of his father for one month on a recurring basis; thus, in a single year's time, Ryan spent eight months with Varner and four months with Whitbeck. *fn1 Varner applied for and had been receiving AFDC benefits since April 29, 1995. *fn2

On February 13, 1996, the trial court entered a new custody order that superseded and modified the previous custody order of July 31, 1995. *fn3 As a result thereof, Ryan would be in the physical custody of Varner for eight and one-half months and in the physical custody of Whitbeck for three and one-half months during 1996; during 1997 and thereafter, Ryan would only be in the physical custody of Whitbeck for less than two months per year. On March 29, 1996, Varner forwarded a copy of the new custody order to the Blair County Assistance Office (CAO). See 55 Pa. Code § 153.44.

On April 1, 1996, the CAO sent Varner a notice informing her that because Ryan was temporarily residing with Whitbeck in North Carolina, she would not qualify to receive AFDC benefits and that CAO proposed to "discontinue" her benefits effective April 15, 1996. *fn4 On April 3, 1996, Varner filed an appeal and requested a telephone hearing on the grounds that she continued to maintain primary care, custody and control of Ryan, both residentially and physically. (R.R. 4a). Varner asserted that Ryan did not reside in North Carolina but rather was there on a court-mandated visit. Id.

A hearing was conducted before a welfare hearing officer on June 4, 1996. Varner testified on her own behalf; Donald Beegle, an income maintenance casework supervisor for the CAO, testified on behalf of the Department. On July 26, 1996, the welfare hearing officer issued an adjudication and order that denied Varner's appeal. On that same day, the Department issued an order, without an opinion, that affirmed the decision of the welfare hearing officer. *fn5 It is from this order of the Department that Varner now petitions for review.

One of the eligibility requirements for AFDC benefits is that the child must be living with a specified relative capable of and responsible for the care and control of the child. See 55 Pa. Code § 151.41. Section 151.43(d) of the Department's regulations, however, provides, in pertinent part, as follows:

The temporary absence of either the child or the relative from his home will not affect the eligibility of the child for AFDC under the following circumstances:

(1) The absence does not basically affect the responsibility of the relative for the care and control of the child....

(2) The relative will exercise this responsibility when the reason for the temporary separation no longer ...


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