Sherdrick v. Dept. of Social Welfare

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 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
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                       Nos. 90-301, 90-302 & 92-070


 Terry Shedrick                               Supreme Court

      v.                                      On Appeal from
                                              Human Services Board
 Department of Social Welfare

                                              November Term, 1991
 Catherine Cook

      v.

 Department of Social Welfare


 Cynthia Desrosier

      v.

 Department of Social Welfare


 John Wesley, Chair (90-301, 90-302)

 Theodore Kramer, Chair (92-070)

 William R. Dysart, William J. O'Neill and Linda Shapiro, Vermont Legal Aid,
   Inc., Burlington, for plaintiffs-appellees

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Christina Byrum and
   Donelle S. Staley, Assistant Attorneys General, Waterbury, for defendant-
   appellant


 PRESENT:  Allen, C.J., Gibson and Johnson, JJ., and Peck, J. (Ret.),
           Specially Assigned


      ALLEN, C.J.   The Department of Social Welfare (DSW) appeals from
 three decisions of the Human Services Board declaring that, for food stamp
 eligibility purposes, a husband, wife and their minor children constitute a
 separate household from an adult child of one of the spouses living in the
 same household.  We agree with DSW that the governing federal and state
 regulations are consistent with federal statute and that requiring the
 inclusion of adult children of a parent with minor children in the parent's
 food stamp household is consistent with the intent of Congress.  We
 therefore reverse.
      Appellee Terry Shedrick is a disabled food stamp recipient who resides
 with his wife and two of his wife's children, a daughter of 16 and a 20-
 year-old son.  DSW notified appellee that his food stamp benefits would
 terminate because he did not provide information regarding the earnings of
 his wife's son, who does not purchase and prepare food with the other
 household members.
      Appellee Catherine Cook is a food stamp recipient who resides with her
 husband, two daughters, 19 and 15, and a granddaughter, 8, whose mother does
 not reside in the household.  Appellee received food stamps based on a
 household of four: herself, her disabled husband, her minor daughter, and
 her minor granddaughter.  Her 19-year-old daughter, who does not purchase
 and prepare food with the other household members, obtained a job, and DSW
 notified appellee that her monthly food stamp grant would be reduced from
 $197 to $126 and that she would be assessed for an overpayment of $974.
      Appellee Cynthia Desrosier is a food stamp recipient who resides with
 her son, 18, and her daughter, 15.  Her son works full time, pays rent to
 his mother, but purchases and prepares his food separate from his mother and
 sister.  DSW terminated appellee's monthly food stamp grant of $169 due to
 her failure to provide information regarding her son's earnings.
      Each recipient appealed to the Board, asserting that the adult child
 constituted a separate household and was not required to be included in
 appellee's household under federal law and regulations.  The Board agreed in
 all three cases, concluding that the applicable Vermont food stamp
 regulation, based on the identical language of the federal regulation, (FN1) 
 was inconsistent with the 1987 amendment to { 2012(i) of the Food Stamp Act.
      The 1964 Food Stamp Act defined "household" to include any single
 individual who prepared his or her own meals using separate cooking
 facilities and nearly any group of individuals functioning as a single
 economic unit and sharing common cooking facilities.  See 7 U.S.C. {
 2012(e)(1964).  In 1977 Congress amended the definition of "household" to
 require individuals or groups of individuals, related or not, who
 customarily purchased and prepared meals together to be treated as a single
 household.  7 U.S.C. { 2012(i)(1977).  This definition of "household"
 allowed individuals, whether living alone or with others, to qualify as
 separate households if they customarily purchased food and prepared meals
 separately.  In 1981 and 1982, in response to perceived abuses in the food
 stamp program, Congress again amended the Food Stamp Act, creating mandatory
 household designation in parent-child households and sibling households.
 The amendments provided that parents and children, or siblings, who live
 together shall be deemed to comprise a single household for food stamp
 purposes, regardless of whether the parent-child or sibling household
 purchased food or prepared meals separately or together, unless one of the
 parents or siblings was elderly or disabled.  7 U.S.C. { 2012(i)(1981,
 1982).  These amendments created an irrebuttable presumption that "parents
 and children, or siblings, who live together" purchase food and prepare
 meals together for home consumption.  See Robinson v. Block, 869 F.2d 202,
 211-12 (3d Cir. 1989).  Under the 1981-82 amendments, then, parents would be
 compelled to include their non-minor children in their households for food
 stamp purposes.
      Congress again amended the Food Stamp Act in 1987, creating the present
 definition of "household," which establishes a new exemption from the
 irrebuttable presumption created by the 1981-82 mandatory household
 composition provisions.  The current definition of "household" in 7 U.S.C.
 { 2012(i) reads in part:

           "Household" means (1) an individual who lives alone or
           who, while living with others, customarily purchases
           food and prepares meals for home consumption separate
           and apart from the others, (2) a group of individuals
           who live together and customarily purchase food and
           prepare meals together for home consumption, or (3) a
           parent of minor children and that parent's children
           (notwithstanding the presence in the home of any other
           persons, including parents and siblings of the parent
           with minor children) who customarily purchase food and
           prepare meals for home consumption separate from other
           persons, except that (other than as provided in clause
           (3)) parents and children, or siblings, who live
           together shall be treated as a group of individuals who
           customarily purchase and prepare meals together for home
           consumption even if they do not do so, unless one of the
           parents, or siblings, is an elderly or disabled member.
           . . .  (Emphasis supplied.)

           It is this new definition of "household" that is at the heart of the present
           controversy.
        DSW argues that the phrase "a parent of minor children and that
   parent's children" distinguishes between "minor children" and "children" in
   general, who might be minors or adults.  Read in that manner, the statute
   would mandate the inclusion of the adult child within a single food stamp
   household, thereby requiring consideration of that adult child's income in
   the food stamp determination.  In Shedrick and Desrosier, the failure to
   provide income information about the adult child would terminate
   eligibility.  In Cook, including the adult child's income in the food stamp
   budget would reduce benefits significantly.
        Appellees contend that the words "that parent's children" mean the
   children referred to earlier in the phrase, namely, "minor children."  Under
   this interpretation, in Shedrick and Desrosier the income of the son would
   not be included in the food stamp budget, since only the minor daughter
   would be included within the phrase in { 2012(i), "a parent of minor
   children and that parent's children."  Similarly, in Cook only the
   recipient's 15-year-old daughter, and not her 19-year-old daughter, would be
   part of the food stamp household.  The latter's income would not be factored
   into the food stamp budget calculation.
                                       I.
        Our task, in reviewing the Board's conclusion that the food stamp
   regulations are inconsistent with the statute, is to determine "whether
   Congress has directly spoken to the precise question at issue."  Chevron,
   U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984).  "If
   the intent of Congress is clear, . . . the court, as well as the agency,
   must give effect to the unambiguously expressed intent of Congress."  Id. at
   842-43.  On the other hand, "if the statute is silent or ambiguous with
   respect to the specific issue, the question for the court is whether the
   agency's answer is based on a permissible construction of the statute."  Id.
   at 843.  Hence, interpretation of { 2012(i) is central to resolution of the
   instant appeals.
        The 1987 amendment to 7 U.S.C. { 2012(i) is not a model of clarity, but
   upon careful analysis, we find the construction urged by DSW to be correct.
   The language of the statute indicates that the drafters intended to
   distinguish between "children" and "minor children."  In such proximity it
   is unlikely that the unmodified reference to "children" was intended to mean
   "minor children."  The drafters could have used the phrase "such children"
   or repeated the words "minor children" to indicate that this second
   reference to children was intended to describe only minor children.  We will
   not construe the statute to render a clear distinction meaningless.  See
   Town School Dist. of St. Johnsbury v. Town School Dist. of Topsham, 122 Vt.
   268, 272, 169 A.2d 352, 355 (1961) (it is presumed that all language is
   inserted in a statute advisedly).
        Also supporting our construction is the language of the parenthetical
   phrase following the second reference to "children" -- "(notwithstanding the
   presence in the home of any other persons, including parents and siblings of
   the parent with minor children)" -- which omits reference to non-minor
   children of the parent with minor children.  This omission supports the
   interpretation that such non-minor children are includible as children
   making up the household of the "parent of minor children and that parent's
   children."  Appellees argue that the word "including" within this
   parenthetical clause is nonexclusive and indicates an intent to describe a
   larger group than just parents and siblings of the parent with minor
   children.  See, e.g., P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 77 n.7
   (1979).  In the present context, however, there are no persons that could
   fit into the "larger group" other than non-minor children of parents with
   minor children.  This implies that, despite the word "including," the
   notwithstanding clause applies solely to parents and siblings of the parent
   with minor children.  The inclusion of these two categories implies the
   exclusion of others.  See Grenafege v. Department of Empl. Security, 134 Vt.
   288, 290, 357 A.2d 118, 120 (1976) (under maxim of expressio unius est
   exclusio alterius, "wages" meant those earned in subject employment where
   Legislature so indicated, but such restriction did not apply where
   Legislature did not so indicate).
        The 1987 amendments did not, then, alter the basic rule that "parents
   and children, or siblings, who live together shall be treated as a group of
   individuals who customarily purchase and prepare meals together for home
   consumption even if they do not do so, unless one of the parents, or
   siblings, is an elderly or disabled member."  7 U.S.C. { 2012(i).  The
   change merely permits parents with minor children, and that parent's
   children to constitute a separate household despite the presence in the home
   of parents or siblings of the parent with minor children.  Prior to the
   amendment, the presence of such persons would have precluded separate
   household status for the parent with minor children.  We can find no
 language to support appellees' argument that a single family unit, absent an
 extended family situation, may divide into two separate households if one of
 the children is a non-minor.  In such situations, there is no sibling or
 parent from which the family unit may separate.
      The Department of Agriculture recognized this limitation to the
 exception when it promulgated regulations that provide only for the two
 cases that Congress intended to cover with its 1987 amendment to { 2012(i) -
 - the three-generation household and the household where one of two or more
 siblings in the family has minor children.  See 7 C.F.R. { 273.1(a)(2)(C)
 (last clause) and { 273.1(a)(2)(D) (last clause).  The Department explained
 that the 1987 amendments to the Food Stamp Act allow a parent with minor
 children to live with his or her sibling or parent "and yet be considered a
 separate household."  52 Fed. Reg. 36392 (1987).
      The regulatory amendments are not, as the Board concluded and appellees
 argue, inconsistent with the statute as we construe it.  They simply make
 clear that separate household status is afforded to parents with minor
 children when the parents live with their parent(s) or sibling(s).
                                             II.
    Appellees Shedrick and Cook make a second argument in support of the
    Board's decision, based on the last clause of the deeming provision of {
    2012(i)(" unless one of the parents, or siblings, is an elderly or disabled
    member").  The effect of the "unless" clause is to create an exception to
    "deeming" for an elderly or disabled recipient who, "while living with
    others, customarily purchases food and prepares meals for home consumption
    separate and apart from the others."  7 U.S.C. { 2012(i)(1).  Appellees
    contend that since there is an elderly or disabled person in their subject
    households, the "unless" clause completely nullifies the "deeming" clause as
    applied to the food stamp households in question.  As the adult child of a
    parent with minor children in both cases purchases food and prepares meals
    for home consumption separately from the rest of the household, elimination
    of the "deeming" provision would accomplish appellees' goal of allowing the
    adult child's income in each case to be excluded from the larger household
    for food stamp purposes.
         We disagree.  The "unless" clause can be read logically to exclude only
 elderly and disabled parents and siblings from the household.  This reading
 is more consistent with the syntax of the clause and with the balance of {
 2012(i) -- which expressly exempts the elderly and disabled from the deeming
 provision --  than the construction urged by appellees.  Moreover, the
 language of the "unless" exception to the deeming clause focuses
 specifically on the elderly and disabled.  We see no reason to stretch the
 plain words of the clause to yield additional benefits to the household on
 account of nonelderly and nondisabled adult children of parents with minor
 children, who are more likely to be income earners than their elderly or
 disabled relatives.
       Reversed.

                                         FOR THE COURT:




                                         Chief Justice



FN1.    7 C.F.R. { 273.1(a)(2)(c) and its State counterpart, Vt. Food Stamp
 Manual { 273.1(a)(2)(C), state:
 (a)  Household definition
 . . . .
      (2)  Special definition:  (i)  The following
 individuals living with others or groups of individuals
 living together shall be considered as customarily
 purchasing food and preparing meals together, even if
 they do not do so:
 . . . .
      (C)  Parent(s) living with their natural, adopted
 or stepchild(ren) and such child(ren) living with such
 parent(s) unless at least one parent is elderly or
 disabled . . .