Full opinion text
MEMORANDUM OF DECISION McMILLAN, District Judge. TABLE OF CONTENTS Page No. I. SUMMARY OF DECISION ................................................................... 1532 II. CASE HISTORY ................................................................................... 1533 III. THE PRESENT CONTROVERSY; THE TEXT OF THE CHALLENGED NEW STATUTE AND REGULATIONS ................................................. 1533 IV. HOW PLAINTIFFS ARE BEING INJURED BY THE NEW STATUTE AND REGULATIONS .................................................................................... 1535 V. THE CONTROLLING FEDERAL STATUTES AND REGULATIONS NOW REQUIRE THE STATE TO INCLUDE A CHILD RECEIVING ADEQUATE CHILD SUPPORT IN HIS OR HER FAMILY’S AFDC FILING UNIT AND TO COUNT THAT CHILD’S INCOME AS FAMILY INCOME ................ 1543 VI. THE LANGUAGE AND LEGISLATIVE HISTORY OF THE 1984 DEFRA AMENDMENT DEMONSTRATE CONGRESSIONAL INTENT TO PREEMPT STATE LAW RESTRICTIONS ON THE USE OF CHILD SUPPORT THAT WOULD PREVENT THE STATE FROM TREATING ONE CHILD’S SUPPORT INCOME AS FAMILY INCOME ........................................... 1548 A. Plaintiffs Have Standing To Challenge Whether Congress Has PreEmpted State Domestic Relations Law ............................................. 1549 B. State Domestic Relations Laws Are Not Pre-Empted Unless Pre-Emption Is Positively Required By A Direct Federal Enactment ..................... 1549 C. The Language And Legislative History Of DEFRA Demonstrate That Congress Did Intend To Pre-Empt State Law ................................... 1550 VII. THE FEDERALLY SANCTIONED STATE REQUIREMENT THAT MOTHERS SEEKING AFDC FOR THEIR UNSUPPORTED CHILDREN MUST ASSIGN TO THE STATE THE CHILD SUPPORT RIGHTS OF AN ADEQUATELY SUPPORTED CHILD UNCONSTITUTIONALLY DEPRIVES THE SUPPORTED CHILD OF PROPERTY. WHEN THE STATE COOPERATES WITH A FEDERAL PLAN TO COMPEL A MOTHER TO SURRENDER ONE CHILD’S INCOME SO THAT THE REMAINING CHILDREN CAN SURVIVE ON AFDC, THE STATE TAKES PROPERTY FROM THE CHILD’S TRUSTEE AND IMPOSES AN UNCONSTITUTIONAL TAX ON THE SUPPORTED CHILD’S MEMBERSHIP IN A PARTICULAR TYPE OF FAMILY UNIT. THE STATE THUS BECOMES THE FEDERAL GOVERNMENT’S PARTNER IN A TAKING ............................................... 1551 A. The Child Receiving Adequate Child Support Suffers A Loss Of Property As A Result Of The Enforcement Of The SFU Regulations ______________ 1551 B. By Pre-Empting State Law Restrictions On The Use And Distribution Of Child Support Paid By A Father For The Benefit Of His Child, DEFRA Becomes The Instrument Of A Taking ............................................ 1553 C. A Taking Can Occur When Regulation Reshapes A Property Right ... 1553 D. Even If Congress Has Failed To Pre-Empt Those Elements Of State Law That Would Deny The State Access To The Child Support Income Of An Adequately Supported Child Living With His Or Her AFDC Dependent Family, The State Has Forced Mothers To Surrender The Child’s Property To The State In Violation Of The State’s Own Laws ................... 1555 VIII. A DEPRIVATION OF PROPERTY THAT SIMULTANEOUSLY INFLICTS DAMAGE ON A FUNDAMENTAL INTEREST, FAMILY AUTONOMY, TRIGGERS SPECIAL JUDICIAL SCRUTINY OF GOVERNMENT ACTION CAUSING SUCH INJURIES ................................................................. 1555 A. Whether Accomplished By Means Of Federal Pre-Emption Or Otherwise, The Expropriation Of The Supported Child’s Property In Order To Reduce Governmental Expenditures Punishes The Child For Exercising The Child’s Fundamental Right To Live With His Or Her Family _____ 1557 B. The Supported Children Should Not Be Penalized For Their Mother’s Alleged Past Breaches Of A Fiduciary Duty .................................... 1557 C. The' DEFRA Scheme Endangers Family Integrity And Undermines The Well-Being Of Family Members ....................................................... 1558 D. The DEFRA/SFU Plan Contradicts Existing Incentives For Fathers To Recognize And Honor Their Duty To Support Their Children ............ 1559 E. By Forcing The Realignment Of Parental Duties, The Federal And State Governmental Actions Weaken The Underpinnings Of Family Life _____ 1562 F. Though The Reduction Of Governmental Deficits Is An Important Objective Worthy Of Legislative Attention, The Constitution Should Not Permit Family Duties To Be Destroyed So That Federal Dollars Can Be Saved ............................................................................................ 1563 IX. THE RELIEF THAT IS DUE ............................................................... 1563 X. CONCLUSION ...................................................................................... 1564 I. SUMMARY OF DECISION Plaintiffs are children of low income mothers. They bring this suit through their mother and next friend, on behalf of themselves and similarly situated persons. Not all the children of each mother have the same father. Some of the children are “needy,” and have been receiving AFDC (Aid to Families with Dependent Children) payments. Some of the children are not “needy” because their absent fathers are making adequate child support payments to the mother. The state defendants, acting under a rational interpretation of pertinent recent federal statutes and regulations, are “deeming” the support payments from absent fathers to be income available to all the dependent children in the house. Defendants are cutting off or reducing AFDC payments accordingly, with tragic results shown by the evidence. This is an unlawful “taking” of the child’s income from an absent father. It also unlawfully deprives the other children in the family of AFDC benefits by destroying or reducing their entitlement because one of the mother’s children who has income of his or her own exercises his or her right to live in the mother’s family unit. Regardless of whether federal pre-emption in a technical sense has occurred, the federal scheme has, in fact, overpowered state family law, and has undermined traditional understandings of family values and duties. Plaintiffs seek an end to the “deeming” practice. They are entitled to relief. II. CASE HISTORY This case has been here before. In Gilliard v. Craig, 331 F.Supp. 587 (W.D.N. C.1971) (three judge court), this court enjoined the state defendants from reducing or withholding “the payment of AFDC [Aid to Families with Dependent Children] benefits. ... because of the presumed availability to an AFDC family of [child] support payments which belong to one or more but not all members of that family.” Id. at 593-94. That decision was appealed to the Supreme Court and was affirmed. 409 U.S. 807, 93 S.Ct. 39, 34 L.Ed.2d 66 (1972), reh. den., Craig v. Gilliard, 409 U.S. 1119, 93 S.Ct. 892, 34 L.Ed.2d 704 (1973). The 1971 injunction remains in effect because it has not been stayed, vacated, withdrawn or reversed. Walker v. City of Birmingham, 388 U.S. 307, 313-14, 87 S.Ct. 1824, 1828, 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers of America, 330 U.S. 258, 293-14, 67 S.Ct. 677, 695-06, 91 L.Ed. 884 (1947); Wright v. Jackson, 522 F.2d 955, 958 (4th Cir.1975). Consequently, the state defendants remain subject to the commands of the original injunction pending modification or reversal. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 439-40, 96 S.Ct. 2697, 2706, 49 L.Ed.2d 599 (1976). The 1971 class of plaintiffs was “persons who have been or may be subject to a reduction of AFDC (Aid to Families with Dependent Children) benefits based upon unconstitutional or illegal claim of credit by administering agencies for outside income and other resources available to some but not all of a family group.” Gilliard v. Craig, supra, at 588. The plaintiffs (movants) are members of the same class that was granted relief in 1971. They have filed a motion for further relief, seeking the same sort of relief that was ordered in 1971. III. THE PRESENT CONTROVERSY; THE TEXT OF THE CHALLENGED NEW STATUTE AND REGULATIONS On October 10, 1984, the state defendants put into effect a set of new regulations (“Standard Filing Unit” or “SFU” regulations) reading, in pertinent part, as follows: Standard Filing Unit A. The parent and all minor children who are brothers and sisters, including half-brothers and sisters, and who are living together must be included in the same assistance unit unless: 1. The parent or child is an SSI recipient, or 2. The parent or child does not meet all eligibility factors with the exception of income and reserve. Do not exclude a parent or child because of the amount of income or reserve he has. Section 2360 III A, State 1985 AFDC Manual (emphasis added) [attached to Plaintiff’s Motion For Further Relief]. Implementation of the “Standard Filing Unit” (SFU) regulations triggers the operation of two additional regulatory requirements. According to Section 2350 II of the North Carolina AFDC Manual, the income of all members of the assistance unit is counted as available to the whole unit. Section 2365 II requires that the caretaker of a child in an AFDC filing unit assign to the state any rights to support owed or paid on his or her behalf or on behalf of other family members for whom assistance is requested. Thus, once a child receiving child support income becomes a member of the filing unit as is required by the SFU regulations, the state gains access to that child’s income for purposes of reducing the family assistance budget and the state expenditure to the family. Plaintiffs allege that the new regulations violate the original injunction of this court and the Social Security Act, and wrongfully deprive them of previously available AFDC benefits. The state asserts that it promulgated and enforced the “Standard Filing Unit” (SFU) regulation in obedience to and in implementation of 42 U.S.C. § 602(a)(38) (Supp. II 1984) [part of “DEFRA,” the 1984 federal Deficit Reduction Act]. That section states that a state AFDC plan “must “(38) provide that in making the determination under paragraph (7) with respect to a dependent child and applying paragraph (8), the State agency shall (except as otherwise provided in this part) include— “(A) any parent of such child, and “(B) any brother or sister of such child, if such brother or sister meets the conditions described in clauses (1) and (2) of section 606(a) of this title, if such parent, brother, or sister is living in the same home as the dependent child, and any income of or available for such parent, brother, or sister shall be included in making such determination and applying such paragraph with respect to the family (notwithstanding section 405(j) of this title, in the case of benefits provided under subchapter II of this chapter)____” [Emphasis added.] Section 606(a), referred to in the preceding quotation, defines “dependent child”: “(a) The term “dependent child” means a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home (other than absence occasioned solely by reason of the performance of active duty in the uniformed services of the United States), or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) at the option of the State, under the age of nineteen and a full-time student in a secondary school (or in the equivalent level of vocational or technical training), if, before he attains age nineteen, he may reasonably be expected to complete the program of such secondary school (or such training); Paragraph 7 of Section 602 describes the determination of need by the state agency and provides, in relevant part, that such a state plan must “(7) except as may be otherwise provided in paragraph (8) or (31) and section 615 of this title, provide that the State agency— “(A) shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or of any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid; ____” [Emphasis added.] Paragraph 8(A) then requires that the state agency, in making the determination of need for an applicant family: “(vi) shall disregard the first $50 of any child support payments received in such month with respect to the dependent child or children in any family applying for or receiving aid to families with dependent children (including support payments collected and paid to the family under section 657(b) of this title); ____” [Emphasis added.] (These $50.00 items are referred to as “income disregards” or “disregards.”) The statutory modification worked by Section 602(a)(38) was implemented and explained by regulations from the Department of Health and Human Services. Those regulations, 45 C.F.R. § 206.-10(a)(l)(vii) (1985), provide: “(vii) For AFDC only, in order for the family to be eligible, an application with respect to a dependent child must also include, if living in the same household and otherwise eligible for assistance: “(A) Any natural or adoptive parent, or stepparent (in the case of States with laws of general applicability); and “(B) Any blood-related or adoptive brother or sister.” [Emphasis added.] After pointing to these federal instructions, the state asserts that training sessions and discussions with officials from the Department of Health and Human Services in Atlanta, Georgia, and Washington, D.C., have confirmed the state’s belief that its action was required by the federal legislation. See Affidavit of Kay Fields, Chief, Assistance Payments Section, Division of Social Services, North Carolina Department of Human Resources, p. 2. The state defendants have therefore filed a third-party complaint against the Secretary, seeking contribution from the federal government if the court finds the state has acted improperly and orders the payment of additional benefits. IV. HOW PLAINTIFFS ARE BEING INJURED BY THE NEW STATUTE AND REGULATIONS After the state SFU regulations went into effect in October, 1984, the state sent out letters to AFDC recipients who had children in their households who had not been included in the filing unit. These letters stated: “Prior to October 1, 1984, family members who lived together were not required to apply for APDC benefits for everyone. A parent could choose to include or exclude himself or herself and any of the children. “However, the Deficit Reduction Act of 1984, Public Law 98-369, passed by Congress, requires a change in this rule effective October 1, 1984. Section 402(a)(38) of the Act and Sections 2200 and 2360 of the AFDC Manual state that a parent and all brothers and sisters, including half brothers and sisters, who are living in the same household must apply for AFDC with certain exceptions. Any income or assets of the parent and the children are counted in determining eligibility for the family. “Our record shows that your family is probably affected by the change in federal law. Therefore, you must contact your worker by — (Date) to apply for everyone who is required to be in the payment. If you do not contact your worker by this date, your AFDC and Medicaid will be stopped.” Upon contacting their local welfare office, recipients like the plaintiffs were informed that they had to include all children in the filing unit and the child support income received by previously excluded children would now be deducted from the payment amount of a recalculated grant for the new larger AFDC unit. The mother or caretaker would receive only a $50 “disregard” from the child support paid to her on behalf of a previously excluded child. The mother or caretaker was required to sign a form entitled “Assignment of Rights to Support,” which authorized the payment of a court ordered support amount for the newly included children] directly to the North Carolina Department of Human Resources. Any support paid directly to the mother or caretaker had to be reported to the county department of social services and that amount, less the $50 “disregard,” would then be counted as income when the AFDC grant was calculated. State defendants estimate that enforcement of the SFU regulations would result in “termination or reduction of benefits to about 11.3% of AFDC cases in North Carolina____ 7,730 cases would be adversely affected, with an annual loss of benefits ranging between $3.0 and $4.7 million annually.” See Division of Social Services, Planning and Information Section, August 22, 1984 Memorandum, which is Attachment 1 to Memorandum of Law in Support of Plaintiffs’ Motion for Further Relief. The affidavits submitted by the plaintiffs demonstrate how these federal and state directives have been implemented in North Carolina and how the interlocking state and federal plans have affected the income and lives of families like those of the plaintiffs: 1) Diane Thomas has two children, Crystal, age 9, and Sherrod, age 7. Ms. Thomas, age 32, has been unable to find gainful employment although she looks constantly for work. She states: “4. James Edward Shaw is the father of Crystal. By virtue of a Wake County Court Order, 78 CVD 5056, Mr. Shaw is required to pay $20 a week toward Crystal’s support. He almost never complies with the Order, however, and Crystal has been on public assistance for her whole life. “5. John Pennington is the father of Sherrod. Although there is no civil court order requiring him to do so, Mr. Pennington has regularly paid $200 a month in child support for Sherrod. “6. Prior to October, 1984,1 received an AFDC grant for myself and my daughter Crystal in the amount of $194. “7. On October 15, 1984, I received a letter notifying me that if I did not reapply for AFDC and include my son Sherrod in the application, the AFDC for Crystal would be terminated. “8. I did not reapply for AFDC and my assistance was terminated. The reason I did not reapply is that Sherrod’s father had on an earlier occasion threatened to harm me physically if I put his son on welfare. He also threatened to attempt to obtain custody of Sherrod. “9. I asked for a fair hearing to challenge the termination of AFDC. The state hearing officer upheld the decision of the county to terminate my AFDC.” After the hearing mentioned by Ms. Thomas, the hearing officer filed a report in which he noted: “On October 15, 1984 the county agency notified appellant by letter that her non-assistance child must be added to the budget unit because of a change in regulations. Appellant did not wish to include this child in the assistance grant and requested a local hearing on October 18,1984 to appeal this action. A hearing in the matter was held on October 26, 1984 and on that same date a decision was rendered affirming the county’s requirement to include this child in the grant. Appellant did not apply for assistance for this child, and her grant was terminated on October 29, 1984 effective November 30, 1984.” The hearing officer also found as facts the following: “Appellant’s son and daughter have different fathers____ The father of the male child pays court ordered child support of $200 per month. These payments are made regularly and are routed through the clerk of court’s office. “The Wake County Department of Social Services informed the appellant on October 18, 1984 that new federal regulations required that the male child be included in the Aid to Families with Dependent Children grant and that if application for the child were not made, the grant would be terminated. Appellant did not apply for her son, and her assistance was terminated effective November 30, 1984. “Appellant contends that her son’s needs are met by his support payments and that he does not require assistance. She further contends that she is required by law to use her son’s support money solely for his support and maintenance. The son’s father has expressed very negative feelings about having his child receive public assistance when he is providing adequate support for the child.” Despite Ms. Thomas’ objections, the hearing officer upheld the termination. He found that the county had correctly implemented the SFU regulations, which he found to be consistent with the governing federal regulation, 45 C.F.R. § 206.-10(a)(l)(vii)(B) (1984). Ms. Thomas’ May 2, 1985, affidavit continues: “10. Because I had no money with which to support Crystal, I finally reapplied for benefits in February, 1985. I included Sherrod on the application as I was required to do, and signed an assignment of Sherrod’s support rights to the state. “11. As of April 11,1985, John Pennington began to withhold the child’s support for Sherrod. He informed me that as long as I was going to use Sherrod’s support money to keep up my daughter Crystal, he would continue to withhold the support. “12. Because I was receiving $200 a month for Sherrod, my AFDC grant was reduced to $73 a month. I could not support Crystal on this amount, so I was forced to use some of Sherrod’s support to meet Crystal’s needs. “13. Since my AFDC was terminated in November, 1984, I have been unable to purchase clothing and other necessary items for my children. Our phone service was disconnected in December because I could not pay the bill. I currently have , overdue accounts for lights and gas. “14. Because I have been unable to support both children, members of my family have been providing some assistance. They have their own families and obligations, however, and cannot continue supporting me on an indefinite basis.” By supplemental affidavit, dated September 16,1985, Ms. Thomas further described her situation: “1. I have received no direct child support from John Pennington, the father of my son Sherrod, since April 11, 1985. “2. I was informed by my worker in the Wake County IV-D Unit that she had a meeting with John Pennington about support for Sherrod. On May 22, 1985, John Pennington signed a Voluntary Support Agreement and Order in Wake Country 85 CVD 3433. This Agreement requires him to pay child , support of $87 month, beginning 7/1/85. “3. As far as I know, John Pennington did pay the support due for July, because I received a $50 disregard check at the end of August. “4. Since April, 1985 when Mr. Pennington stopped paying support voluntarily, he has not visited Sherrod. Prior to that time, he visited Sherrod on a regular basis, generally taking his son with him to his home in Durham every other weekend. “5. Mr. Pennington is extremely opposed to his son being on welfare benefits, and has told me that he stopped seeing his son because I now receive AFDC for Sherrod. “6. Sherrod is very upset that his father no longer visits him. He frequently asks me why his daddy does not come to see him anymore. Since the time his father has stopped visitation, Sherrod has begun to wet his bed on a frequent basis. Also since the visitation stopped, Sherrod has become much more disruptive, especially in school. Furthermore, his performance in school seems to have declined. “7. It is my opinion that the lack of visitation with his father has severly affected Sherrod, causing the bedwetting, disruptive behavior and poor school performance. I cannot think of any other aspects of Sherrod’s life which have changed or might have caused these behavioral problems.” 2) Mary Medlin is the 30-year-old mother of four children, Anthony Medlin, age 14; Roderick Medlin, age 13; Karen. Medlin, age 10; and Jermaine Medlin, age 1. Unable to find a full- or part-time job, Ms. Medlin has no earned income. Ms. Medlin states: “4. John Sanders is the father of Anthony Medlin and Roderick Medlin. His paternity has never been legally established and he has never supported Anthony or Roderick. “5. Bobby Harrington is the father of Karen Medlin. On January 4, 1980, he signed a Voluntary Support Agreement in Wake County 80 CVD 0053, agreeing to pay $39 a week. During early 1984, he regularly paid about $320 every three months. On August 20, 1984, the court ordered that he pay $200 a month, with $40 a month assigned to arrearages which had built up and $160 a month to current support. He began paying $200 a month in September, 1984. “6. James Richardson is the father of Jermaine. Since Jermaine was born, Mr. Richardson has provided direct support to his son, purchasing clothing and diapers, contributing to my household bills and paying me $50 cash as child support. A criminal action for support in Wake County, 85 CR 10961 is currently pending against him, because he has refused to sign a voluntary support agreement. “7. Prior to October, 1984, I received AFDC for myself and my two older children, in the amount of $223. “8. After October 1, 1984, I was informed by the Wake County Department of Social Services that my AFDC grant would be terminated unless I added Karen and Jermaine to the application. “9. Although I did not want to put Karen or Jermaine on AFDC, I did apply for them because it was the only way I could receive any income for myself and my other two children. “10. After I applied with everyone on the application, my whole grant was terminated. The Department of Social Services informed me tljat because I received $200 in child support for Karen and $50 in child support for Jermaine, my whole family was ineligible. “11. When I added the two younger children to the AFDC application, I was required to sign an Assignment of Rights to Support form (DSS-1201) on their behalf. This assigned their support to the North Carolina Department of Human Resources. “12. Because both Bobby Harrington (Karen’s father) and I objected to the state taking Karen’s child support money, I agreed to relinquish custody of Karen to her father. She is, therefore, no longer on my AFDC grant. I signed a Consent Agreement allowing him to suspend his support payments. [Emphasis added.] “13. After I let Karen go live with her father, I reapplied for AFDC for Anthony, Roderick and Jermaine. My current grant amount is $215 per month. This is the grant for four persons—$244—reduced by $29 per month because Anthony is temporarily out of the home. I also receive $50 per month for Jermaine’s support from James Richardson, which I am allowed to keep because of the ‘$50 disregard.’ ” James Richardson, father of Jermaine, has filed an affidavit, which states: “2. Since the time Jermaine was born, I have been involved in his care and support. I have provided clothing, food and diapers for Jermaine, and have paid some of the household bills for Jermaine’s mother, Mary Medlin. I have occasionally brought gifts for some of Mary Medlin’s other children. “3. After Mary Medlin applied for AFDC for her other children, she told me that Jermaine would have to be included in the AFDC application. Because I was taking care of him, I did not think he should be on public assistance and objected to this. She said that if Jermaine were not placed on AFDC, she would lose her AFDC for all her other children. Upon learning that, I reluctantly consented to having Jermaine placed on the AFDC grant. “4. Shortly after Jermaine was placed on the AFDC grant, I was contacted by Nancy Dickerson at the Child Support Enforcement Unit in Wake County. She requested that I sign a voluntary support agreement to pay approximately $165 per month. I asked if all the money would go to Jermaine she explained that if I paid that amount, only $50 would go to my child, and the rest would be kept by the state to pay for Ms. Medlin’s AFDC grant. I told her that I did not think that was right because Jermaine had never been on AFDC and the state should not get Jermaine’s support. Although I was, and am, interested and willing to support my son, I refused to sign the agreement unless the money would go to Jermaine. [Emphasis added.] “5. Soon after that meeting, a sheriff came to my job to serve me with a warrant for criminal non-support, case number, 85 CR 10961, Wake County. I was not there and had to pick up the warrant at the sheriff’s office. “6. I hired an attorney to assist me with this case because I did not believe I should have to pay support that would not be used for my own child. My attorney was unable to obtain the results I sought, which would have allowed my child to receive all my support. He advised me to sign a support agreement in the amount of $136 a month, which I reluctantly did.” 3) Joyce Miles, 34, has five children, DeAngela Allen, age 17; Felicia Allen, age 14; Larry Miles, age 10; Johnetta Miles, age 6; and Kisha Miles, age 5. Ms. Miles does not have a full- or part-time job. She states: “4. The father of my two younger children is John Brown. No legal paternity determination was ever made with regard to him and he has never been ordered to pay support. He has never supported these two children. “5. The father of Larry Miles, Jr. is Larry Miles. He was originally ordered to pay support pursuant to Wake County 76 CR 64672. As of October 31, 1983 he was $4,803 in arrears. On July 18, 1984, he signed a Voluntary Support Agreement and Order in Wake County, 84 CVD 4576 to pay $108 per month toward current support and $22 a month toward the arrearages. “6. The father of the two oldest children is Arthur Allen. Pursuant to Wake County 83 CVD 3122, he regularly pays child support of $189 per month for his children. “7. Prior to October, 1984, I was receiving AFDC in the amount of $244 per month for myself and my three younger children. The two older children were receiving $189 per month child support from their father. “8. After October, 1984, the Wake County Department of Social Services required me to add my two older children to the AFDC application. I was informed that my entire grant would be terminated unless I reapplied and included all the children. “9. Although I did not want to put my two older children on AFDC, because they are adequately supported, I did so because it was the only way I could receive any income for myself and the three younger children. 10. When I added the two older children to the AFDC application, I was required to sign an Assignment of Rights to Support form (DSS 1201—attached) on their behalf. This assigned their support to the North Carolina Department of Human Resources. 11. Because of this Assignment, my older children do not receive the $189 child support they are entitled to receive from their father. It is diverted by the Clerk of Court to the Department of Human Resources. “12. With myself and the three younger children on the AFDC grant, my payment was $244 a month. With all five children on the grant, my payment is $288 a month. (I am currently receiving only $278 per month because the Department of Social Services is collecting an overpayment.) I also receive a $50 monthly check, called the child support disregard. “13. Because of the loss of most of the child support, I have been unable to provide for the two oldest girls as I was able to before. I have been unable to purchase such things as class rings, shoes and clothing.” 4) Arvis Waters, age 29, has five children, Allen Waters, Jr., age 10; Andre Waters, age 8; Alise Waters, age 7; Bernard Williams, Jr., age 2; and Aaron Williams, age 1. Ms. Waters attends North Carolina Central University full time and participates in a work-study program while taking care of her children, but she earns no income. Ms. Waters states: “4. The father of my three oldest children is Allen Waters. He pays no support for his children. Because of his extremely violent behavior, I have been exempted from the requirement that I assist the Department of Social Services in obtaining support from him. “5. The father of the two youngest children is Bernard Williams. He regularly pays child support of $45 per week for his children. He pays this support pursuant to an Order of the Family Court of the State of New York, County of Bronx, docket number P-78667/83, dated March 23, 1984. “6. Due to my lack of income or child support for the three oldest children, I applied for AFDC benefits for myself and three oldest children in August, 1984. Before the application was completed however, I was informed by my eligibility worker at the Durham County Department of Social Services that my two youngest children must also be included in the AFDC application. “7. Although I did not want to put my two youngest children on AFDC, because they are adequately supported, I did so because it was the only way I could receive any income for myself or the three oldest children. “8. When I added the two youngest children to the AFDC application, I was required to sign an Assignment of Rights to Support form (DSS 1201—attached) on their behalf. This assigned their support to the North Carolina Department of Human Resources. “9. Because of this Assignment, my youngest children do not receive the $45 weekly child support they are entitled to receive from their father. It is diverted by the Clerk of Court to the Department of Human Resources. “10. With myself and the three oldest children on the AFDC grant, my payment would have been $244 a month. With all five children on the grant, my payment is $288 a month. Although I am entitled to receive a $50 monthly check, called the child support disregard, I have not been receiving this. “11. I appealed the decision requiring me to add my two youngest children to the AFDC grant and sign an assignment of their child support at a State Administrative hearing. On February 21, 1985, I received a Notice of Decision which upheld the County Department’s decision that I must include my youngest two children in the AFDC application and assign their support to the state. “12. Due to only receiving a total of $288 per month for me and my five children to live on, I am not able to provide my children with many of the things I would like to. For example, I can never buy my children new clothes and even though I keep my children clean, they often aren’t dressed the way I would like or the way other children at day care are. Also, there is no money left after the necessary bills are paid and therefore I can never buy any toys or special things for them like other children in the neighborhood have. Next week is the birthday of one of my children and I cannot even afford a birthday present. If I got the support money for my two younger children, I would be able to at least buy a few things for them other than absolute necessities and then they wouldn’t feel so left out. Also, my youngest child needs a car seat and a high chair and I cannot afford to buy either.” By supplemental affidavit, Ms. Waters offered this information: “1. Since the time the Standard Filing Unit went into effect, my family and I have been off and on AFDC several times. I am not currently receiving AFDC benefits, but have reapplied. “2. My understanding is that the father of my two youngest children regularly pays $45 a week into the Clerk of Court in Bronx, New York. This money is not transmitted to me or the Clerk of Court in Durham County, North Carolina on a regular basis. The Clerk in New York has informed me that the office there is too backlogged to send the money as it is paid in. “3. I moved to North Carolina from New York in May, 1984. The last child support I received in New York was in April, 1984. I worked from May through August and did not receive any AFDC benefits during that time. Because of the backlog in New York, however, I did not receive any of the child support paid for those months. “4. When I returned to school in September, 1984, I began to receive AFDC benefits. I received AFDC from September through December 1984. “5. In November, 1984, accumulated child support of $495 was sent to me. This caused my AFDC check to be terminated effective December 1, 1984, despite the fact that this amount represented child support during the months I worked and was not receiving AFDC. I had no income for December, January and a portion of February. “6. I was permitted to reapply for AFDC in February, and was reinstated, at the rate of $288 a month, in March. I also received a pro rated check for part of February. “7. I continued to receive $288 per month in AFDC benefits through July. “8. In May, another accumulated child support check, for $585, was sent to me from New York. I reported this to the Department of Social Services and was informed that it would cause my AFDC to again be terminated. For reasons I do not understand, the AFDC check was not terminated, and I received $288 in AFDC through July. “9. In August, my AFDC check was in the amount of $195. I was informed by my worker that my benefits were being reduced to recoup the benefits I received after receiving the May child support check. I have not been informed how much the department intends to recoup. 10. Also in August, I checked with the Durham Clerk of Court’s office and learned that $810 in child support had been sent from New York in July. This money was sent to the North Carolina Department of Human Resources. I immediately went to talk with my worker at Durham D.S.S. to learn how that money would be distributed. My worker told me that if I returned the August AFDC check, I could receive all but $288 out of the $810 support check. The $288 would reimburse the state for the AFDC paid in July, the month the support was received. “11. I returned my August AFDC check and voluntarily terminated my AFDC case, based on the information obtained from Durham D.S.S. At the end of August I received a check for $50, representing the disregard for the July support received. “12. I returned to D.S.S. to try to learn why I had only received $50. At that time my worker said he had been mistaken and that all the remainder of the $810 in child support would be retained by the state. I tried to get my August check back, but that request was denied. I reapplied for AFDC, but have not yet been certified or received any money. “13. Other than the one $50 payment I received in August, I have not received any child support disregard checks. [Emphasis added.] “14. As a result of being without income, I have absolutely no money. I have run out of just about everything that cannot be purchased with Food Stamps, such as soap, toothpaste, toilet paper, etc. My rent has not been paid for September. When my son had an asthma attack, I did not have enough cash to pay a cab to get him to the health clinic. Both Aaron and Bernard are pigeon toed and need to wear hard shoes, but I cannot by [sic] them. None of the children have had any new clothes or shoes for several months. It is only through the kindness of a friend that I even have diapers for the baby. I am extremely frustrated and do not understand why my children cannot get the child support being paid for them.” 5) Diane Jefferys, age 25, has four children, Latoya T. Jefferys, age 8; Anettress T. Jefferys, age 5; Shanta M. Jefferys, age 4; and Anthony T. Jefferys, age 2. Ms. Jefferys is unemployed and is without any independent source of income of any kind. She states: “4. I am married to Michael Jefferys, although we have been separated for many years. He is the father of Latoya and Anthony. As a result of a court order in the Wake County case 79 CVD 2360, he is required to pay $51 a week in support. “5. Johnny Michael Shannon is the father of Shanta and Anettress. No paternity determination has been made by a court regarding Mr. Shannon, nor has he been ordered to pay support. “6. Prior to October, 1984, I received AFDC for myself and Anettress and Shanta in the amount of $223 a month. I received child support from Michael Jefferys of $204 per month. The total was $427. “7. After October, 1984, I was required to add Latoya and Anthony to the AFDC grant. Neither I nor the children’s father wanted them added to the welfare unit, but I had no real choice because I had to have some income to support Shanta and Anettress. “8. In November, 1984, my AFDC grant increased to $267 per month. I also received a $50 check each month as the child support disregard. “9. I have not received a $50 disregard check since May, 1985. I later found out this was because Michael Jefferys stopped paying support. I don’t know why he stopped paying support, but he has told me that he feels like when he pays, his children do not really benefit. He feels like he is supporting all my kids when he pays support. 10. My AFDC check is now my only income. It has gone up to $294 because of the ten percent increase that went into effect July 1, 1985. 11. After my income dropped, I experienced extreme financial difficulties. I could barely afford the rent of $200 per month for my house on my income of $427 per month. After the new rule went into effect and my income went down I got behind on my rent and was evicted in June. I could not find a place to live that I could afford on my lower income. I had to move in with my cousin, who already had a household of four. Due to her kindness my family has been able to stay there, but we really need a place of our own. I got behind on most of my other bills and have had a terrible struggle trying to keep the bunk beds I bought for my children. I cannot buy any clothes or shoes for the children, and have been getting used clothing from charitable organizations. I have had to miss several doctor’s appointments because I have not had money to pay for transportation.” While plaintiffs’ affidavits poignantly and effectively document the economic and personal consequences of the SFU regulations, it is also helpful to note the actual income reduction suffered by those movant children who are forcibly included in the AFDC unit and whose child support rights are then assigned to the state. A chart supplied by the movants illustrates the income lost by each child previously receiving child support: Family Pre SFU Post SFU Reduction Sherrod Thomas $200/mo $74 + $50 = $124 38% Aaron & Bernard Williams $194/mo $96 + $50 = $146 25% Felicia & DeAngela Allen $189/mo $96 + $50 = $146 23% Latoya & Anthony Jefferys $204/mo $106 + $50 = $156 24% Karen Medlin $200/mo $53 + $50 = $103 48.5% V. THE CONTROLLING FEDERAL STATUTES AND REGULATIONS NOW REQUIRE THE STATE TO INCLUDE A CHILD RECEIVING ADEQUATE CHILD SUPPORT IN HIS OR HER FAMILY’S AFDC FILING UNIT AND TO COUNT THAT CHILD’S INCOME AS FAMILY INCOME. In 1971, this court invalidated the North Carolina policy of classifying child support in amounts exceeding the state determined need levels as a resource available to the family in which the child lived and thereby reducing the amount of AFDC benefits for that family. This decision reflected the conclusion that this policy violated the intent of the Social Security Act as then written. The court found that the Act obviously intended to provide assistance only to needy children. Classification of a child as needy was based on a comparison of the child’s resources with the state need standard. By demanding that a child receiving child support in excess of the need standard had to be included in the AFDC unit, North Carolina officials disregarded congressional intent to include only needy children in such units. In addition, in 1971, this court found that the North Carolina practice ignored the limitations imposed by 42 U.S.C. § 602(a)(7), which authorized state officials, in making need determinations, to consider a child’s resources in determining a child’s needs, but did not authorize nor require that resources available to only one child living in an AFDC home should be treated as a resource available to the whole family. Since a child receiving child support had no apparent legal duty to support the other members of his or her family, the child’s income could not be treated as a family financial resource. Plaintiffs now assert that, despite the changes made in the Social Security statute by the Deficit Reduction Act (“DEFRA”) amendments, the Standard Filing Unit (“SFU”) regulations continue to contradict the purpose of that Act by (1) including ineligible children in the assistance unit and (2) presuming that child support payments made to one child in a family represent income available to the family as a whole. In order to evaluate plaintiffs’ statutory challenges to the SFU regulations, it is helpful to examine the legislative history and the language of the DEFRA amendment. In May, 1983, Secretary of Health and Human Services Margaret M. Heckler submitted a legislative proposal to Vice President George Bush as President of the Senate. Her proposal, aimed at minimizing state and federal AFDC expenditures and thereby reducing the federal deficit, contained a “group of related amendments to establish uniform rules on the family members who must file together for AFDC, and the situations in which income must be counted. In general, the parents, sisters and brothers living together with a dependent child must all be included; the option of excluding a sibling with income, for example, would no longer be available.” Page 1 of Exhibit A to Federal Defendant’s Motion to Dismiss And In the Alternative For Summary Judgment. [Emphasis added.] In a “Section-by-Section Summary” of the proposed amendments to the Social Security Act, Secretary Heckler described those amendments captioned “Parents and Siblings of Dependent Child Included in AFDC Family” as follows: “Section 102 of the draft bill would further amend the plan requirements contained in section 402(a) of the Social Security Act by adding a new requirement that the State include, as a member of the AFDC family (both the needs and the countable income of) the parents and the minor siblings of the dependent child for whom aid is claimed and who are living with the dependent child if the siblings are, themselves, deprived of parental support or care and under the age limit selected by the State. “The general inclusionary rule does not, however, include stepbrothers and stepsisters of the dependent child nor does it include, if the dependent child has attained age 16, the employable parent of the child. Once it has been determined that the parent or sibling must be included in the AFDC family unit, one consequence is, as would be made explicit within paragraph (37), that any income of the parent or sibling must be considered as part of the family’s income for purposes of determining eligibility and benefit amount, notwithstanding section 205(j) of the Social Security Act, in the case of OASDI benefits. This amendment would become effective October 1, 1983.” Id. at pp. 3-4. [Emphasis added.] Although the Secretary’s legislative proposal was not adopted by Congress when it was originally submitted in the 1983 legislative session, similar changes were enacted as part of the Deficit Reduction Act of 1984. The legislative history of the 1984 Act demonstrates that Congress accepted the core of the Secretary’s proposal when they passed 42 U.S.C. § 602(a)(38). The Senate Finance Committee’s explanation of the pertinent DEFRA change reads as follows: B. Income Maintenance Provisions Aid to Families With Dependent Children (AFDC) Provisions 1. Parents and Siblings of Dependent Child Included in AFDC Family (sec. 971 of the bill) (Contained in S. 2062 as originally reported) Present Law There is no requirement in present law that parents and all siblings be included in the AFDC filing unit. Families applying for assistance may exclude from the filing unit certain family members who have income which might reduce the family benefit. For example, a family might choose to exclude a child who is receiving social security or child support payments, if the payments would reduce the family’s benefits by an amount greater than the amount payable on behalf of the child. In addition, a mother who is a minor is excluded if she is supported by her parents. However, if she has no income of her own which may be attributed to her child, the child may qualify for assistance as a one-person unit, and receive proportionately more in assistance than it would receive as part of a two-person unit. The income of the parents of the minor parent is not considered in determining the eligibility of the child. Explanation of Provision The provision approved by the Committee would require States to include in the filing unit the parents and all dependent minor siblings (except SSI recipients and any stepbrothers and stepsisters) living with a child who applies for or receives AFDC. In addition, if a minor who is living in the same home as his or her parents applies for aid as the parent of a needy child, the income of the minor’s parents would be counted as available to the filing unit. The rules that would be used in determining the amount of available income would be the same as are currently used in counting the income of stepparents. This change will end the present practice whereby families exclude members with income in order to maximize family benefits, and will ensure that the income of family members who live together and share expenses is recognized and counted as available to the family as a whole. A similar provision was approved by the Committee last year, but was dropped in conference with the House. S.Rep. No. 98-169, Senate Comm. on Finance, 98th Cong., 2d Sess., Deficit Reduction Act of 1984, Explanation of Provisions Approved by Committee on 3/21/84, 980 (Comm.Print 1984). The Conference Report also indicates that, while the House initially made no change in the law, it later agreed to adopt the Senate amendment with one modification: 24. Parents and Siblings of Dependent Child Included in Filing Unit Present law There is no requirement in present law that parents and all siblings be included in the AFDC filing unit. Families applying for assistance may exclude from the filing unit certain family members who have income which might reduce the family benefit. In addition, a mother who is a minor may be excluded if she is supported by her parents. However, if she has no income of her own which may be attributed to her child, the child may qualify for assistance as a one-person unit. The income of the minor parent’s parents is not considered in determining the eligibility of the child. House bill No provision. Senate amendment Requires States to include in the filing unit the parents and all minor siblings living with a dependent child who applies for or receives AFDC. SSI recipients and stepbrothers and stepsisters are excluded from this requirement. In addition, if a minor who is living in the same home as his parents applies for aid as the parent of a needy child, the income of the minor’s parents would be counted as available to the filing unit. The rules that would be used in determining the amount of available income would be the same as are currently used in counting the income of stepparents. Effective April 1, 1984. Conference agreement The conference agreement follows the Senate amendment with the following modification: amonthly [sic] disregard of $50 of child support received by a family is established. The disregard is applied at eligibility determination and benefit calculation. The provision is effective October 1, 1984. H.Conf.Rep. No. 98-861, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Ad. News 697, 751,1401. Despite the DEFRA changes, plaintiffs contend that the children receiving child support payments in excess of the individual need standard cannot properly be included in an AFDC filing unit. Plaintiffs point to the language of 42 U.S.C. § 606(a) which defines “dependent child,” the intended AFDC beneficiary, as a “needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home ... or physical or mental incapacity of a parent, and who is living with [a relative] in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) at the option of the state, under the age of nineteen and a full-time student____” [Emphasis added.] Plaintiffs argue that the child support income of the affected children makes them ineligible for assistance because, by virtue of receiving such payments, they are not needy children. Their individual incomes exceed the prorated state need standard for persons living in an AFDC unit. However, the legislative history clearly shows that the intent of the DEFRA amendment is to measure need by assessing the aggregated resources of all family members. The legislative history also makes clear that the option of choosing which members of a family may be included in the assistance unit is no longer available to families whose members have different individual sources of income. Consequently, the financial circumstances of an individual child are no longer determinative of that child’s exemption from the AFDC unit but are now relevant to an appraisal of the eligibility of his or her mother and half sisters or brothers for AFDC benefits. Plaintiffs further insist that a child receiving child support payments cannot meet the definitional requirements of § 606(a)(1). Such a child is not deprived of parental support. Defendants respond by offering a literal but credible interpretation of clause (a)(1) in light of DEFRA’s legislative history. Defendants point out that deprivation is defined in terms of “support or care ” [emphasis added] and argue that a child receiving child support may still be considered deprived because he or she is not cared for by his or her absent father. The court finds that the defendants’ literal interpretation reflects the intent of the statutory modification accomplished by DEFRA. Finally, plaintiffs state that “nothing in the statute or its Conference Report states that legally restricted child support payments should be counted dollar for dollar in making a determination of need for the dependent child. In fact, the statute never mentions child support, nor does the final Conference Report which accompanies it.” Plaintiffs urge that § 602(a)(7) only directs a state agency to “take into consideration” the income of dependent brothers and sisters when making a determination of need. Plaintiffs suggest that the constitutional implementation of this construction would be to consider income of other deprived siblings but exclude any money that was legally restricted for the use of only specified children. Plaintiffs find nothing in the legislative history to compel a different result. Instead, plaintiffs assert that a constitutional reading of the disputed statutory provisions will not permit counting income that is legally restricted for the use and benefit of only one child as family income. Plaintiffs believe that, when interpreted to avoid constitutional infirmities, the statute does not demand such attribution of income. The court agrees that the constitutional approach to income evaluation would be to exclude legally restricted income. That would be the constitutional approach, but it was not the congressional approach. The court has a duty, when possible, to construe a statute so as to avoid a constitutional question; nevertheless, to give this federal statute the reading plaintiffs suggest is to ignore its legislative history and to read it to be pointless legislation. Unless Congress intended to count the child support resources as available to the family as a whole, little or no saving would be accomplished. In addition, despite plaintiffs’ attempts to offer a limiting reading of the statutory language, the Senate Report and the Conference Report obviously contemplate the inclusion of child support income in an applicant family’s budget. The Conference Report in particular confirms the intended consequences of the statutory amendments. After discussing the previous law which had imposed no requirement that parents and all siblings be included in the AFDC filing unit and after noting that families had been able to exclude from the filing unit members whose income might reduce the family benefit, the Conference Report indicates that “the conference agreement follows the Senate version with one modification, the establishment of a $50 disregard of child support received by the family.” [Emphasis added.] The Senate version, which required states to include in a filing unit the parents and all minor siblings living with a dependent child who applies for and receives AFDC, was designed to “end the present practice whereby families exclude members with income in order to maximize family benefits, and will ensure that the income of families that live together and share expenses is recognized and cqunted as available to the family as a whole.” S.Rep. No. 98-169, supra. [Emphasis added.] This Senate amendment, adopted by Congress with one modification in conference committee, tracks the Secretary’s original proposal so closely that the Secretary’s interpretation of the act’s meaning through promulgation of regulations becomes important. One regulation, 45 C.F.R. § 233.-20(a)(3)(ii)(D) (1985), offers particular assistance in clarifying the statutory meaning: (D) Income after application of disregards, except as provided in paragraph (a)(3)(xiii) of this section, and resources available for current use shall be considered. To the extent not inconsistent with any other provision of this chapter, income and resources are considered available both when actually available and when the applicant or recipient has a legal interest in a liquidated sum and has the legal ability to make such sum available for support and maintenance. The regulatory distinction between “actually” available and “legally” available income corroborates the defendants’ contention that Congress intended the attribution of child support income to other family members as a means of reducing AFDC expenditures. Thus, the only way Congress can have made the statutory presumption of availability effective is by pre-empting that portion of state child support laws that makes the child support money the exclusive property of the child in whose name the child support order was issued or in whose name the money was voluntarily delivered, regardless of the mother’s handling or distribution of the funds. Otherwise, the child’s money would be unavailable under state law and the statutory presumption would be only a figment of the congressional imagination. In Heckler v. Turner, 470 U.S. 184, 105 S.Ct. 1138, 84 L.Ed.2d 138 (1985), the Supreme Court has recently explained that the principle of actual availability of resources and income has, for AFDC purposes, “served primarily to prevent the States from conjuring fictional sources of income and resources by imputing financial support from persons who have no obligation to furnish it or by overvaluing assets in a manner that attributes non-existent resources to recipients.” The same limitation should presumably be applied to federal action regarding the attribution of income unless conflicting state law has been overridden by federal enactment. Plaintiffs reply that despite the explanation provided by the legislative history, Congress did not accomplish a pre-emption of state law that satisfies judicially defined requirements. Here plaintiffs’ statutory and constitutional arguments converge. If the preemption of certain elements of state child support laws has been accomplished, what are the constitutional ramifications of such a selective pre-emption? Can a child previously entitled, under state law and often state court order, to receive a specific amount of monthly child support for his or her exclusive use and benefit be deprived of the protective restrictions on the use of his or her money by virtue of his or