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Cannon v. Dept. of Public Aid

OPINION FILED OCTOBER 3, 1979.

OLA B. CANNON, PLAINTIFF-APPELLANT,

v.

ILLINOIS DEPARTMENT OF PUBLIC AID ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Rock Island County; the Hon. DAVID DeDONCKER, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Plaintiff Ola B. Cannon appeals from an order of the Circuit Court of Rock Island County affirming the decision of the Illinois Department of Public Aid, which denied the application of Cannon to add another dependent to her AFDC grant.

The appeal in this case is brought under the terms of the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 267). The Department denied benefits for Andre Letchow, an eight-year-old fourth cousin who was living with Mrs. Cannon, until such time as a currently filed adoption proceeding by Cannon was final. At the time of the Cannon application for benefits, the circuit court, in the adoption proceedings by Mrs. Cannon, had only entered its interim order giving her temporary custody of the child. It was contended by Mrs. Cannon that she was entitled to benefits for Andre during the six months waiting period between the interim order and the final order of adoption. (See Ill. Rev. Stat. 1975, ch. 4, par. 9.1-14.) The Department refused to allow such benefits and the order of the Department was approved by the circuit court.

Ola Cannon is 48 years old and receives Social Security disability and AFDC benefits for her son Paul. Andre Letchow was born in 1969 to Ola Cannon's first cousin. Since 1972, when Andre was three years old, Ola Cannon has in fact been his sole custodian. The whereabouts of his parents are unknown. In 1977, after the boy had been with her for five years, Ola Cannon desired to adopt Andre Letchow, formally. She filed her adoption petition on August 1, 1977, in the Rock Island Circuit Court. On October 7, 1977, that court, in the adoption proceeding, entered its interim order giving Ola Cannon temporary custody of the boy and appointing a guardian ad litem (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-13). The statutory provisions governing adoptions require, in some cases, a six month's waiting period between the interim order of custody and the final order of adoption. Ill. Rev. Stat. 1975, ch. 4, par. 9.1-14.

After she had received temporary legal custody of Andre in the adoption proceedings, on October 11, 1977, Ola Cannon applied for AFDC on Andre's behalf. Her application was denied. The Department stated that it could not give her benefits until such time as a final decree of adoption was entered. Until that time, the Department ruled, Andre was not a dependent child of such character that benefits would be granted under the Act. Although the Department denied benefits under the AFDC program, the Department suggested that Ola Cannon apply for benefits under the foster care program. Ola Cannon appealed from the agency decision to the circuit court, as we have noted, under the terms of the Administrative Review Act. The circuit court affirmed the agency's denial of benefits.

• 1, 2 The purpose of the Federal Aid to Families with Dependent Children Act was to provide assistance to needy children living with close relatives. (42 U.S.C. § 601 (1976).) The Federal statutory provisions set forth certain eligibility with respect to assistance under the Act. (42 U.S.C. § 606 (1976).) States which chose to participate in the AFDC program may not impose stricter eligibility requirements than those contained in the Federal Act (Townsend v. Swank (1971), 404 U.S. 282, 30 L.Ed.2d 448, 92 S.Ct. 502), and the States must impose each condition of eligibility required in the Social Security Act. (45 C.F.R. 233.10(a)(1)(i).) Section 606(a) of the Federal Act defines the term "dependent child" as that term is used in the statutory scheme providing for aid to families with dependent children. In pertinent part, that section states that a 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, 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, * * *." (42 U.S.C. § 606(a) (1970).)

The Illinois Public Aid Code, passed to operate with the Federal assistance under the Federal AFDC Act, has similar eligibility requirements. To receive aid an otherwise eligible and needy child:

"* * * must (1) be living with his or their father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepsister, uncle or aunt, or other relative approved by the Illinois Department, in a place of residence maintained by one or more of such relatives as his or their own home, * * *." (Ill. Rev. Stat. 1977, ch. 23, par. 4-1.2.)

With respect to the availability of assistance for needy children and the congressional intent behind the program, the Illinois Supreme Court has recently noted that:

"It is not the purpose of the AFDC program to provide assistance to all needy children, but rather to those who are not only needy as determined under State standards, but who also meet the Federal definition of a `dependent child' * * *." Sweet v. Department of Public Aid (1977), 66 Ill.2d 195, 206, 361 N.E.2d 1118.

The question presented in the instant case is whether Andre Letchow is a dependent child of such type that he is entitled to benefits under the AFDC program of the State of Illinois. There is no question that he is a needy child as defined by the statutes.

The Department's Categorical Assistance Manual for AFDC, Topics PO-435 and PO-435.1, sets forth those relatives with whom a child must be living in order to qualify as a dependent child. The list therein includes all those relatives set forth in the Federal and State statutory provisions and it adds, as to adoptive relatives, that the "relationship exists between an adopted child and his adoptive parents and relatives rather than the child's natural parents." We also note that a policy statement by the Department indicated the Department's policy that an adoption must be final before an applicant is considered an adoptive parent to whom benefits will be paid for a dependent.

• 3 In the instant case, the child, Andre Letchow, is the son of Ola Cannon's first cousin, so he is her first cousin once removed, or, as otherwise expressed, her fourth cousin. As such, the relationship does not come within the specified blood relationships which, under the statutory provision, must exist for a child to be considered a "dependent child." (42 U.S.C. § 606 (a) (1970); Ill. Rev. Stat. 1977, ch. 23, par. 4-1.2.) The farthest removed relative permissible under those statutory provisions is a first cousin. At the time in question on this appeal, Andre Letchow was not the adopted son of Ola Cannon, for the final order of adoption had not been entered, and Ola Cannon had only temporary legal custody of the boy. Neither the pertinent provisions of the Federal Act nor those of the State program require the Department to consider a child adopted prior to a court order establishing that relationship. Benefits during the interim period, or prior thereto in circumstances similar to those in this case, are conceptually available under the foster care program. (42 U.S.C. § 608 (1970); Ill. Rev. Stat. 1977, ch. 23, par. 5001 et seq.) Ola Cannon did not pursue the potential benefits under the foster care program, nor did she attempt, so far as the record discloses, to have the six-month ...


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