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

COMMONWEALTH COURT OF PENNSYLVANIA


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On February 13, 1996, the trial court entered a new custody order that superseded and modified the previous custody order of July 31, 1995.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 exists.... (Emphasis added).

55 Pa. Code § 151.43(d)(1) and (2). The Cash Assistance Handbook (CA Handbook) *fn6 provides an example of a temporary absence of a child as follows: "the child is making a court-ordered visit with a parent in another county or state." (R.R. 15a).

In his decision, the welfare hearing officer determined that the aforesaid example of a child making a court-ordered visit is not present here because a "visit is a short stay by a brief residential guest or a short sojourn." (R.R. 9a). The welfare hearing officer also concluded that a temporary absence is an absence of a limited time and that a separation of over a quarter of a year is not a "temporary separation" as defined by the Department's regulations. Id. *fn7 The welfare hearing officer further concluded that, during the three and one-half month period that Ryan would be with his father in North Carolina pursuant to the custody order, Varner will not be responsible for his care and control. *fn8 The welfare hearing officer then concluded that Varner's appeal must be denied.

We begin by noting that the welfare hearing officer's order had the effect of not merely suspending payment of AFDC benefits to Varner while Ryan was in North Carolina, but rather discontinued her entitlement to such benefits in their entirety. Both Varner and the Department are of the erroneous opinion that she was only determined to be ineligible for AFDC benefits during the period from March 30, 1996 to July 13, 1996. We must therefore determine whether or not the Department was correct when it affirmed the decision of the CAO to "discontinue" Varner's AFDC benefits. *fn9

Varner first argues that, because Section 151.43(d) of the Department's regulations does not impose a limit on how long a child can be absent from the home, the Department erred by focusing on the amount of time that Ryan was in North Carolina. See 55 Pa. Code § 151.43(d). Varner asserts the Board should have instead focused on the parent's degree of care and control over the child. The welfare hearing officer did determine that, during the three and one-half month period that Ryan would be with his father in North Carolina pursuant to the custody order, Varner was not responsible for his care and control. The welfare hearing officer in effect concluded that Varner is considered the absent parent during that time since her absence is determined to interrupt her ability to provide physical care, maintenance, and guidance to Ryan while he resides with his father. The Department, therefore, did not err by determining that Ryan's temporary absence from Varner's home did affect his eligibility for benefits under Section 151.43(d)(1) of the Department's regulations. 55 Pa. Code § 151.43(d)(1).

Varner next argues that the Department erred by failing to concluded that Ryan was eligible for AFDC benefits under Section 151.43.(d)(2) of the Department's regulations since she will exercise her responsibility for the care and control of Ryan when the reason for the temporary separation no longer exists. 55 Pa. Code § 151.43(d)(2). *fn10 The welfare hearing officer found that Varner would have care and control of Ryan when the separation, caused by the court-mandated visit with his father, no longer exists. (R.R. 9a). In so finding, the welfare hearing officer appears to have concluded that Varner is only ineligible for AFDC benefits during the periods when Ryan is residing with his father. The CAO, however, did not suspend Varner's benefits during the time periods when Ryan was supposed to be in North Carolina, but rather discontinued her benefits in their entirety. By affirming the discontinuance of Varner's benefits, the Department committed error.

At most, Varner's AFDC benefits should have been suspended during the periods when Ryan was residing with his father in North Carolina. Section 151.43(d)(2) of the Department's regulations provides, in pertinent part, that "during the period of separation, the county staff must decide whether or not the child is still in need or whether his needs are being met: if he is in need, the grant will be computed as though the child were living in the home of the specified relative." 55 Pa. Code § 151.43(d)(2). *fn11 Pursuant to the February 13, 1996 custody order, Varner was responsible for the care and control of Ryan for eight and one-half months during 1996, i.e. an additional fifteen (15) days more than under the previous custody order. Since Varner had previously received AFDC benefits when Ryan was in the care and control of his father for four months during a given year, an argument could be made that Ryan is actually in greater need of benefits as a result of the February 13, 1996 custody order.

Accordingly, the order of the Department affirming the decision of the welfare hearing officer that affirmed the discontinuance of AFDC benefits to Varner will be vacated with directions to remand to the CAO to compute the period of Varner's eligibility and the amount of benefits which she is eligible to receive. *fn12

EMIL E. NARICK, Senior Judge

ORDER

AND NOW, this 22nd day of December, 1997, the order of the Department of Public Welfare, dated July 26, 1996, is vacated and the matter is remanded with directions consistent with this decision.

Jurisdiction relinquished.

EMIL E. NARICK, Senior Judge


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