MILLER v. YOUAKIM

Transcript: 

Argument of Paul J. Bargiel

Chief Justice Warren E. Burger: We'll hear argument next in 742, Miller against Youakim.

Mr. Bargiel, I think you may proceed when you're ready.

Mr. Paul J. Bargiel: Thank you.

Mr. Chief Justice, may it please the Court.

This case began in January of 1974 when the plaintiff's father complained against the Department of Children and Family Services of the State of Illinois in the Federal District Court for the Northern District of Illinois.

The complaint challenged the Illinois policy refusing foster care payments, the persons who cared for children who were related to them and to the children themselves.

Illinois based its policy of refusing foster care payments to relatives upon its determination first that assistance had always been provided to related person and to children under the basic AFDC program contained in Section 406 to the Social Security Act.

And secondly, upon the determination that Section 408 of the Social Security Act define those eligible for Foster Care benefits as caretakers and children who are unrelated to each other.

The plaintiffs in this case are caretakers and children who are related to each other and thus are denied Foster Care benefits under Illinois' policy.

Their complaint alleged the course of action that the Illinois scheme was in violation of their Fourteenth Amendment rights to equal protection.

The Department of Children and Family Services filed a motion to strike and dismiss the plaintiff's complaint which the three-judge court which was in panel to hear this case treated as a motion for summary judgment.

The three-judge court held that the Illinois policy of denying Foster Care benefits to children who are related to their caretakers was not a denial of equal protection.

That case was appealed directly to this Court and the plaintiff in their jurisdictional statement urged in addition to their equal protection claim for the very first time that the Illinois policy or scheme of denying Foster Care benefits was inconsistent with the Federal Social Security Act and therefore there was a violation of the Supremacy Clause of the United States Constitution.

Because this claim had not previously been presented to the three-judge court, this Court reversed the three-judge court's decision and remanded the case to the three-judge court for consideration of this issue.

On remand, the single judge of the District Court found that the Illinois scheme of the denying Foster Care benefits to related caretakers was inconsistent with the Social Security Act and therefore a violation of the Supremacy Clause.

The Department of Children and Family Services appealed this decision to the Seventh Circuit Court of Appeals, and the Seventh Circuit Court of Appeals affirmed the District Court's determination.

The Department of Children and Family Services then filed its notice of appeal to this Court and subsequently its jurisdictional statement urging that its policy of the denying Foster Care benefits to related persons was consistent with the Social Security Act and this Court noted probable jurisdiction on the 21st of February 1978.

Justice Harry A. Blackmun: Mr. Attorney General, are there many other States had follow Illinois' lead here?

Mr. Paul J. Bargiel: There are other states which follow Illinois' lead.

I believe that the briefs indicate that there are six or seven states who are doing this.

I believe, however, that the majority of states who are involve in the program now take the contrary position that is that foster care is maybe related care.

The issue in this case I think maybe simply stated as our children who are related to their caretakers and children themselves eligible for foster care assistance under Section 408 of the Social Security Act.

It is our position that this case involves essentially a question of statutory construction and it's also our position that Section 408 of the Social Security Act by its clear terms indicates that foster care means unrelated care.

Since our case turns entirely upon a proper reading of the statute, I would like to devote the reminder of my time to a reading of the statute to show the Court what we believed to be the clear indication in the statute itself that foster care is unrelated care.

The statute is contained in an appendix, our jurisdictional statement.

This appendix say in Section 608 is contained at page a6 of that appendix and that is what I want to devote my argument to if I may.

Section 608 is entitled "Payment to States for foster home care of dependent children; definitions".

On paragraph (a) terms or defines I should say the term dependent child.

It reads as follows, “The term dependent child' shall, notwithstanding Section 606(a) of this title, also include a child.”

Now, I would like to focus if I may on two words in one of the phrases that are used in those first two lines.

The first word is the word notwithstanding.

Notwithstanding according to its common usage means in spite of.

So, the term dependent child in Section 608 is going to be a child who in spite of Section 606(b) of this title.

Now, Section 606 -- I'm sorry section -- in spite of Section 606(a) of this title.

Now, Section 606(a) is the regular AFDC program and it provides that the children will be eligible for assistance if they live with specified relative.

Now, if Section 608 which defines the term dependent child as one that is a child in spite of the definition contained in Section 606(a), it must indicate an intention on the part of Congress to create a class which is different in the class which was already created in Section 606.

We read that of course since the child who was eligible in 606 was a child who was living with specified relative, we read that as being, the Section 608 child as being someone who is not living with a specified relative.

Congress also chose the word, chose to include the word also that is after the term dependent child shall notwithstanding Section 606(a) of this title.

I said it shall also include a child.

Now, the word "also" as it's commonly used means in addition to, besides or as well as.

So, the definition in 608 of dependent child is a definition in addition to or besides or as well as the definition on Section 606(a).

Again, since the definition in 606(a) requires a dependent child to be living with the specified relative, the definition in Section 608 must be something different, and we contend again that's further indication that the differences that the child is going to be unrelated to his caretaker in Section 608.

Paragraph one indicates that the term dependent child shall notwithstanding Section 608(a) of this title also include to child and one reads, “who would meet the requirements of such Section 606(a) except for his removal from the home of relative specified in Section 606(a).

So under paragraph (a)1, a dependent trial is a child who notwithstanding the provisions of Section 606, shall include also a child who would be eligible under Section 606 but for his removal from the home of a specified relative.

We submit that this is again an indication of the fact that Congress intended to create a new class of persons here on the Section 608, and that new class of persons were going to be eligible for care are persons who are unrelated to the persons for whom, or by whom they are given care.

Justice William H. Rehnquist: Now, that you're -- you are saying that the language except for his removal from a home by judicial decree suggests that 606(a) would exclude those people and in such a way (Voice Overlap).

Mr. Paul J. Bargiel: That's -- that is correct, Your Honor.

That is precisely our position.

One of the reasons so we take that position is that the children who were removed from the home of a relative pursuant to a judicial determination that that home was no longer fit where all this children who are eligible for assistance under the basic AFDC program contained in Section 606.

Congress did not need to pass Section 608 in order to provide illegibility for children who were removed from the home of one relative pursuant to a judicial determination and placed in the home of another relative.

Those kinds of children were always covered under the basic AFDC program.

It's our position then since Congress didn't need to do that, it must have been their intention to create new class of persons who would be eligible for assistance.

That new class of persons of course are persons who are unrelated to their caretakers because they were never eligible for assistance under the basic AFDC program.

And I -- and I might add Congress too through out the definition of dependent child here has contrasted the definition of dependent child in Section 608 with the definition of dependent child in Section 606 and I think that contrast was intended to demonstrate that the class of children who are going to be eligible for assistance under Section 608 is a different class than the one on the Section 606.

Now, on page a7 on the brief at paragraph (b), the Congress has also defined the term aid the families with dependent children.

And they do that in the same fashion that they have defined the term dependent child on paragraph (a).

They say the term make the families with dependent children shall notwithstanding Section 606(b) of this title include also, foster care on behalf of a child described in paragraph (a).

The term Aid to Families with Dependent Children in Section 606(b) which is the basic AFDC program means, aid to a family who is taking care of a child who is related to that family.

If this section notwithstand -- if Section 606 which is the new program, the Foster Care program is created notwithstanding Section 606(b), again, it must be another indication that Congress intended to create a new class of persons and again that new class of persons are families who are not related to the children that they live with.

Now, I think too that the plaintiffs recognized in this case, that that language notwithstanding Section 606(a) or notwithstanding Section 606(b).

In the term also, presents a problem to their interpretation of the statute and I would say that because they define Section 608(b) that is -- they defined the term Aid to Families with the Dependent Children at page 35 of their brief and I think it's interesting to note the way they do that.

Page 35 at the bottom of their appellee's brief quotes, from Congress' statute Section 608(b) they say it's given a specific meaning and the meaning that they give it read as follows, they say, “The term Aid to Families with Dependent Children shall include foster care in behalf of a child describe in paragraph (a) of this section.”

What's significant about that is that they have deleted the very language which I say indicates Congress' intention to create a new class of children.

It reads the term Aid to Families with Dependent Children shall and then the phrase notwithstanding Section 606(b) is deleted.

Justice Thurgood Marshall: But this also in A7 includes child care institutions too which is not involved in this at all.

Mr. Paul J. Bargiel: That -- that is correct, Your Honor.

Justice Thurgood Marshall: It also includes 603(a)(1).

What is this just a hard project?

Mr. Paul J. Bargiel: I'm sorry, Your Honor I don't --

Justice Thurgood Marshall: That's my problem I don't understand it, you understood it.

Mr. Paul J. Bargiel: Well, our position -- our position is that eligibility is defined in Section 608 in terms of a dependent child or family with whom that child is living.

Once that child is eligible, that child may be eligible for foster care in a family home or maybe eligible for foster care in child care institution.

What I am focusing on and what this case is all about in my estimation is, who is eligible for the benefits which were provided for in Section 608.

And I am saying that Congress defines who is eligible, when they defined the term dependent child and when defined it is being a new definition notwithstanding the old definition which was contained in the basic AFDC program.

I would like -- I would like to point out again that the plaintiffs exclude in their reading of that definition.

Justice Thurgood Marshall: Well, why is it that in this case, this is not included in all of this language on page 86 and 87, which I don't understand?

Mr. Paul J. Bargiel: Why -- why is what not included, Your Honor?

Justice Thurgood Marshall: The respondents in this case.

Mr. Paul J. Bargiel: I'm -- I'm sorry, I do not --

Justice Thurgood Marshall: You say will not pay this people that are in this case right?

Mr. Paul J. Bargiel: That is our -- our positions that are not (Voice Overlap)

Justice Thurgood Marshall: And my question is why!

W-H, Why?

Mr. Paul J. Bargiel: Our position is we will not pay them because Congress did not define them as a class which was eligible for assistance under Section 608 of this program.

They are eligible for assistance under Section 606 by its literal terms and they've always been eligible under Section 606 by its literal terms.

Congress created a new class of persons in Section 608, a class of person who were formerly ineligible to receive any benefits.

Before Section 608 was created, any child who was unable to live with the relatives specified in Section 606 was ineligible for AFDC, could receive no benefits whatsoever, no matter how --

Justice Thurgood Marshall: What about -- what about 607?

Mr. Paul J. Bargiel: Well, 607 requires that a child lives with a specified relative again, and be deprived of parental support because of his father's unemployment.

That's precisely our point.

Under those programs, a child would be eligible for assistance if he had the ability to live with a specified relative.

But children who could not leave with the relative, were not eligible for any assistance at all and when the Congress passed this program it's our position that they did it with the intension of benefiting a class of children who were previously ineligible for any kind of assistance at all.

As the Solicitor General points on in his brief too, I might add, there was no controversy in this case until the monitory benefits for foster care where increased beyond what the basic the AFDC program provided for.

But when this program was initially enacted in 1961, that is the Foster Care program, when in was initially acted -- enacted in 1961, the benefits as I understand were precisely the same for the basic program as they were for the Foster Care program.

Now, it seems to me if the benefits were the same, when the program was created and they weren't increased until 1967.

If the benefits were the same that must indicate that Congress intended at that time to benefit a new class of persons.

One who had been previously without any kind of assistance at all, because the benefits were precisely the same.

At any rate, my point is that the way that the plaintiffs can wind up being eligible for assistance under this program is to exclude the language which I said as they have done at page 35 of their brief.

In order to be eligible for foster care or in order for the state to be able to receive matching benefits for foster care, they have to under Section 608(f), they have to provide a program which is designed to improve the conditions in the home from which the child was removed or to otherwise make possible, as being place on a home of a relative specified in Section 606(a) of this title.

It's our position that if the state has to provide a program which will put a child, take a child out of foster care and put him in the home of a specified relative that has no significance or no meaning if the child was already in the home of a relative because the goal of Section 608 is then satisfied.

That is -- that is to say, that a child -- there is no purpose or point in taking a child out of the home of one relative and putting him in the home of another relative.

This -- this language of Congress in Section 608(f) in our view has no significance whatever.

If the statute is interpreted to permit foster care by relatives, it has no meaning.

Based upon our reading of the statute and the reading which I have attempted to engage in here before the Court, it's our position that foster care means unrelated care.

It's clear even if it's implicit in the statute.

Chief Justice Warren E. Burger: Do you think that it means that in the ordinary vernacular clause?

Mr. Paul J. Bargiel: Do I think it means unrelated care in the ordinary vernacular?

Chief Justice Warren E. Burger: Yes.

Mr. Paul J. Bargiel: I did until --

Chief Justice Warren E. Burger: You read the statutes.

Mr. Paul J. Bargiel: Pardon?

Chief Justice Warren E. Burger: Until you read the statues.

Mr. Paul J. Bargiel: No, no, until I read the dictionary definitions, not until I read the statues.

It's clear in my mind that Congress intended foster care to be unrelated care, because of the way that defined the term dependent child and aid to families with dependent children.

I think that the term foster care may vary from person to person or individual to individual.

As the plaintiffs point out, foster may imply the relationship between a child and his caretaker that is anyone who provides what the mother or father would provide with be considered to be a foster parent.

I will concede that that's true but I don't think that our case turns on, on that understanding.

We rely on the plain language that Congress used in the Social Security Act and it's our position that based upon that language and our reading of it, which I think is not a selective reading but a fair reading, foster care means unrelated care.

In order for the plaintiffs to include themselves in this category, to make themselves eligible, they have to engage in a selective reading of the statutes.

They have to read out words and phrases because they can't read them consistently and make all the terms and all the provisions of the foster care statute have significance or make or sense.

I would like to reserve whatever time I have left for rebuttal and I would simply ask the Court that they reverse the judgment in order of the Seventh Circuit Court of Appeals.

Argument of Robert E. Lehrer

Chief Justice Warren E. Burger: Very well.

Mr. Lehrel.

Mr. Robert E. Lehrer: Mr. Chief Justice and may it please the Court.

This case presents the question of whether a neglected or abused child judicially taken from his own home may be deprived to federal Foster Care benefits solely because the state then places him in a home of his relative.

The Department of Health Education and Welfare with the children here says that Congress intended no such deprivation.

Illinois says, “The Congress intended precisely that deprivation by affirming the Court of Appeals' decision here, this Court will effectuate Congress' intent, these neglected or abused children be cared for under the Federal Foster Care program which was intended to assure this children the most suitable out of home care for them.”

Now, the state defendant says the benefits here are the same and tries to make the program served -- duplicate assistant programs.

Programs did not provide duplicate assistance today and they did not provide it in 1961.

Section 408 provides in Section F and in the service components of the licensing standards a range of social services which is specifically designed to meet the needs of neglected or abused children who have been removed from their own homes and made state wards.

These services are provided to assure the child proper care and the foster family home or child care institution in which he is placed and also are provided to the child and to the parents from which -- from whom he was taken in order to affect the reunification of the family.

Justice William H. Rehnquist: Doesn't -- well, doesn't 608 have in the very language you just quote suggests that Congress was thinking about 2 different classes of children in 608 and 606?

Mr. Robert E. Lehrer: No, Your Honor with all due respect, I don't believe that is the case.

The character of those services applies to a class of children who have been abused or neglected in their own homes not just to abused and neglected children who have been placed in the homes of non-relatives.

The services provide, the required services under the Federal Act require an individualized social service plan to assure the child proper care in the home in which she is placed and also provide for services to not only him but to the parents, the home from which she was removed in order to effectuate a reunification of the family.

The character of those services is no less applicable to children who are placed with relatives and those who are placed with non-relatives.

It's just as much in need to -- they're just in much in need to remedy the neglect the deprivation of children placed in relatives by effecting a reunification of the family as children placed with non-relatives.

So no, the service component here which is not only reflected in F but also reflected in the licensing or approval standards is responsive to the abuse or neglect and that's not -- it doesn't go along to children who are placed in non-related homes.

For instance, the service component of the licensing standards which all states under F are required to apply to eligible children and which Illinois applies to the related homes here --

Justice William H. Rehnquist: But your definition of eligible children comes from 606(a), doesn't it?

Mr. Robert E. Lehrer: Well, the definitions of eligible children come from 606(a) but it turns at least in part or eventually on the last paragraph of 608(a) because the state's contention here is as the Court of Appeals noted.

State says in its brief turns on the statutory definition of foster family home in Section 608(a) --

Justice William H. Rehnquist: Well, doesn't it also turn on the definition of the dependent child in 608(a)?

Mr. Robert E. Lehrer: Most certainly, Your Honor, and what Section 608(a) is doing is to -- is defining a -- is establishing a new program and setting forth new eligibility standards which a child may meet and be a dependent child.

It's redefining the term dependent child.

Justice William H. Rehnquist: What -- what do you make of the language that your opponent relies on in the first part of Section 608(a) there, that a dependent child shall also include a child who would meet the requirements of Section 606(a) or Section 607 except for his removal from a home of a relative?

Does that suggest to you that a child who is removed from a home of a relative by a judicial decree would not except for 608 meet the requirements of 606 or 607?

Mr. Robert E. Lehrer: No, if I understand your question properly, the language that defendant makes so much of his language that supports the conclusion of the children here are eligible.

What Section 608 is doing, Section 408 of the Act is doing, is to make irrelevant the definition in 606.

That's what notwithstanding suggests, that here, notwithstanding the definition of dependent child in 406.

Here is a new set of eligibility criterion, which --

Justice William H. Rehnquist: Well then, you get all your rights from Section 608.

Mr. Robert E. Lehrer: From Section 608, oh, yes, except that I think as the defendants takes time to point out that the statutory definition does have to be interpreted in the context of its statutory environment particularly Section 601, Section 42 U.S.C., Section 601 which provides that the primary purpose of the program, one of the primary purposes of all the AFDC programs is to encourage the care of dependent children in their own homes or in the homes of relatives.

Thus, our rights straight forward we do have to turn on Section 608 but it has to be interpreted in the light of Section 401 and it's the state's policy here which frustrates the primary purpose of all the AFDC programs.

What's happening here is you have Congress in 1956 amending the Social Security Act since they specifically the one on the primary purposes of all the AFDC programs is to encourage the care of dependent children in their own homes or in the homes of relatives and the import of the states' position is that five years later Congress has established a new AFDC program which frustrates precisely those goals.

And it frustrates it in precisely this way as this -- that the state's policy serves as a disincentive in the first instance for relatives to care dependent children has happened in this case.

It has happened in this case, the Youakims were discouraged from taking care of children who are related to them.

That's the first way that discourages as the primary purpose of the AFDC programs.

The second way is that even if that disincentive is overcome and the children are as they were here placed in the homes of relatives then the State policy denies them to service specified in Section 608(f) designed precisely to reunify the family as its placed back in his own home.

It is most unreasonable to read Section 6 -- Section 408 of the Act to frustrate what Congress five years previously had said with the primary purposes of all the AFDC programs.

So, it was not true in 1961 and it's not true today that the programs provide duplicate assistance.

Although as defendant points out, there was no higher federal matching rate in 1961 for these benefits.

In fact, all the states immediately even though there was no higher federal matching rate, immediately began paying substantially higher benefits and this reflects the recognition by the states that what was meant here was a program to care for children who needed special remedial care, who needed more benefits.

Now in 1967, when the matching rate was increased, what Congress said in providing those increased matching benefits was that the benefits were necessary because foster care was more costly than care in a child's home and also that it was responsive to the needs of the child and that's what's going on here.

Congress established a new program to meet the needs of these children.

These children who have been especially grown up in unsuitable environments and have been subject to abuse or neglect, it's a remedial program.

This is not simply a program for children who don't happen to have a relative to live with.

In fact, which is what defendant is arguing would suggest in fact of course most children who don't have relatives to live with aren't eligible for the Foster Care program.

This was not a new comprehensive program to take care of children who didn't happen to have a relative to live with.

What it was is a new program to take care of children who have been subject to abuse or neglect in their own homes.

And it's a small program especially designed to meet the needs of children unfortunate enough to have grown up in those sorts of environments.

In Illinois, for instance, there are over 500,000 children eligible for regular AFDC benefits but the entire AFDC Foster Care program includes only 4,000 children.

So, we're talking about a small group of children here.

Now, defendants placed great reliance on the statute and we think they are proper to place great reliance on the statute but they draw the wrong conclusions for.

The statute very persuasively as the Solicitor points out supports the conclusion that the children here are eligible for Foster Care benefits.

We discussed the statute at length in our brief but there are four points that merit emphasis here.

First is the statutory definition of foster family home.

Second is the specification that AFDC shall include foster care to an eligible child in the foster family home of any individual.

Third is the provision within the statutory definition that foster family homes in which eligible children are placed may be approved as meeting licensing standards.

This is a provision which is specifically applicable to homes, to states in which relative homes are not licensed.

And fourth, in Section 402(a)(19)(f), a related provision of the Act which constitutes a specific congressional recognition of a relative home as a foster family home.

First, the statutory definition of foster family home, defendant dismisses the significance of this because of the statutory definitions repetition of the defined term foster family home in the definition itself.

I'm reading now from the last paragraph of Section 408.

In fact, the repetition of the terms suggest a congressional weariness that any paraphrase of that term might be read to restrict the states' authority to place a child in the home which it might deemed most suitable and thus that the only restrictions on foster family homes are those the state places on the home itself in terms of the homes' suitability.

But that aside, Mr. Justice White, you look a bit confused, I'm sorry okay.

I'm sorry, I thought you'd ask a question.

But the use of the defined term foster family home has no reason to stop reading the definition.

The definition goes on to say that a foster family must at least be a home for children and it must be licensed or approved by the state.

The purpose of the licensing or approval requirement was to assure that the homes in which eligible children were placed met state qualitative standards and it's state standards which must govern their suitability.

In Illinois as in all states, caretakers of state foster children and their homes are required to and do meet the same qualitative standards as applied to homes caring for non-relative foster children.

And these qualitative standards which I've reviewed summarily before mandate that the home meet specified safety and health standards and prescribe minimum safety requirements and the caretakers themselves must meet certain -- must pass inspection as to their health and their overall fitness to care for these children.

In short, except for purposes of AFDC foster care eligibility, Illinois deems the related caretakers here to be foster parents just in the same manners as it does to unrelated caretakers.

Defendants continued cate -- grouped the related caretakers here with the relatives under the regular AFDC program.

But in fact, the relatives here and the homes here just aren't any relatives and they aren't any homes.

These are relatives and homes which have been especially approved by the state under state law to be suitable for the care of children who have been abused and neglected in their own homes and then taken from those homes and made state wards.

So, the grouping that defendants try to effectuate is belied by its own law and its own practice and policy.

Mr. Chief Justice Burger, in this context, in the context of this statutory definition of foster family home which is the determinative term in the case.

In that context, the state's argument really rests upon a proposition that Congress meant to simply exclude them, exclude relative homes from the meaning of foster family homes in the first instance but as in response to Mr. Chief Justice Burger's question, counsel concede that that, in fact, the ordinary use of the word may often carry with it and usually does carry with it as we discussed at length in our brief the meaning of relative care.

As a matter of fact, in this Court's previous opinion in this case, it used the term related foster care and related foster parents, related foster home without any apparent ease or strain associated with that term.

That's the common ordinary meaning of the term and that's the meaning which Congress attributed to it in the foster care statute.

Second point in the statute which I emphasize is Section 408(b) which refers to the AFDC, term AFDC shall notwithstanding Section 606(b) of this title include also foster care in behalf of the child described in the foster family home of any individual and the term of any individual explicates the term foster family home.

It demonstrates what's otherwise clear from the legislative history and from the logic of the statute, that Congress meant to include any individual the state might deem to be a suitable caretaker for its foster children as AFDC foster parents.

What individuals might be AFDC foster parents, Section 408(b) when read with the statutory definition says that any individuals may be so long as the state deems them suitable under its licensing standards which Illinois does for relatives.

Finally, there is the -- or third there is the approval provision in Section 4 -- in the last paragraph of Section 408 which provides that a foster family home maybe either licensed or approved as meeting licensing standards.

Legislative history does not indicate specifically why this approval of procedure was included -- alternate approval procedure was included in the statute.

But we do know that in 1961, as today, several states exclude relative homes from licensing in the first instance and in that light, it's most logical to read that insertion of the approval procedure as Congress' effort, Congress' mandate that children placed in such homes, that those homes meet the same standards as were applied to homes which were licensed under state law.

In this context, the approval requirement emergence with Congress' means of insuring that the children placed in those homes, in their relative homes would receive the same benefit as children placed in homes which weren't licensed.

But there obviously would have been no reason for Congress to include that alternative provision unless it intended that children place in relative homes would be eligible for the Foster Care program.

Fourth point in the statute, which I have emphasized, we do discuss others in our brief but the four points in this statute would emphasize this Section 402(a)(19)(f) which we discussed at length in our brief and I wont review that in detail here but that does constitute a specific congressional recognition of a relative home as a foster family home.

Chief Justice Warren E. Burger: Probably not relevant but suppose a child was placed in one of the institutions.

The institution was run by the grandmother of the child, what would that enter into?

As distinguished from a private home of the grandmother, it's an institution where they got 40 or 50 children or a 150 that happens to be run by the grandmother of the particular child.

Mr. Robert E. Lehrer: Well, the state is given authority under its licensing standards to approve certain classifications of individuals as suitable caretakers or not.

A state might well decide and precisely right Mr. Chief Justice Burger, it's precisely not the question presented in this case.

A state might decide that for purposes of institutional care, it might not be appropriate to have a grandmother or any relative care for that child in that setting because she might show favoritism, maybe against the child or maybe for the child.

The question is not presented in this case about whether a state might deem relatives to be not suitable caretakers.

Illinois does deem relatives to be suitable caretakers.

Hope that has answered the question but Section 402(a)(19)(f) which we discussed at length in our brief, you first specifically to continuing either protective payments or foster care payments to a child in the home, in a home of a relative who refuses to cooperate in the win program.

It didn't mean to suggest in the brief that the state might not make other alternative dispositions with respect to a child in a home of a non-cooperating relative but that provision does limit the states' remedial action to a dependent child to either continuing foster care in a home of relative or it's going to continue AFDC outside the home to a -- limiting it to foster care which must mean that it must be continued in any home in which the child is placed and that does constitute a specific congressional recognition of a relative home as a foster family home.

Finally, HEW's administrative interpretation of the statute unequivocally supports the conclusion that the children here are eligible for federal Foster Care benefits.

We have not emphasized it here because it emphasizes itself.

It is the interpretation by an agency which is charged with enforcing the foster care statute and indeed was at least cooperated in proposing and establishing the Foster Care program in the first instance.

Moreover, this interpretation has been a matter of public record and prominently so for over four years --

Justice William H. Rehnquist: How many years are left between the enactment of the statute and a promulgation of the regulation?

Mr. Robert E. Lehrer: Fourteen years and I think the reason why there was a lapse, why there was not an articulated policy prior to ‘74 though the Solicitor notes the operative policy.

It was in fact in effect prior to ‘74.

The reason why it is, it supports, again, the conclusion that the children here are eligible it's precisely because the fact of whether children were placed in relative homes or non-relative homes is really irrelevant to the Foster Care program in the sense that the states are given, the placement authority.

Congress in the foster care statute delegated the states the right to make that placement which it deemed to be in the best interest of the child.

So, the Federal Government wasn't reviewing these individual placement decisions.

This is not like the ordinary situations where it sometimes comes up in AFDC cases wherein the state plan one must specify that you're not providing benefits to children, let's say, between 18 and 21.

There was no necessity or need for the states to make that specification, so there would have been no HEW review to those kinds of decisions and it only came to light I think when following two District Court decisions, Federal District Court decisions in early 1971 which brought this fact that a few states were not considering children placed in related care to be eligible.

And at that point, HEW fairly promptly issued an instruction mandating what the proper interpretation of the Act and its own regulations was.

In conclusion, Section 408 in common sense, common sense in terms of what Congress must have intended in light of the primary purposes of the AFDC program and in light of the traditional suitability of relative care in our society which the state policy here frustrates and deters.

The statute itself, in common sense, point decisively towards that reading of Section 408 making the children here eligible for foster care and decisively against the conclusion, the Congress meant to discourage the care of neglected or abused children by their relatives and deny them the higher benefits and specialized social services which were necessary to remedy the abuse and neglect to which they have been subject.

The Department of Health Education and Welfare says that, that reading of the statute making the children here eligible is the correct reading.

It is the correct reading and it is for that reason that the Court of Appeals decision should be affirmed.

Thank you.

Rebuttal of Paul J. Bargiel

Chief Justice Warren E. Burger: Do you have anything further counsel?

Mr. Paul J. Bargiel: I would like to make one brief comment for rebuttal.

Chief Justice Warren E. Burger: All right.

Very well.

Mr. Paul J. Bargiel: I would simply like to reaffirm that our position that unrelated persons are not eligible for foster care.

It is based upon the plain meaning of the language employed by Congress in the statute.

Eligibility is defined in terms of a dependent child or families with dependent children, not in terms of foster care.

Foster care is the thing that a dependent child or an eligible family or eligible for and that's the thing that the plaintiffs overlooked.

I would like to point out one, if I may, one thing that the plaintiff's reading of this statute could result in which Congress obviously never intended.

Section 606 which provides a specification of certain relatives includes as a relative specified relative, a mother or a father, that is a child can be living with his mother or father or certain other relative and be eligible for basic AFDC assistance.

If a brother or a sister can be a foster parent under Section 408 then there is no reason that a mother or a father cannot be a foster parent if they otherwise meet the eligibility criteria because they are also one of the specified relatives contained in Section 606 which Section 608 is written notwithstanding or in spite of.

So, I would suggest to the Court that the plaintiff's construction of this statute would result in at least that foolish result and I would again respectfully request that the Court reverse the determination of the Seventh Circuit Court of Appeals.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.