dissenting.
I respectfully dissent. The facts are set forth in the principal opinion as well as the H.E.W. regulation and the Missouri statute involved in this case.
The issue is whether § 453.400, RSMo 1978, satisfies the requirements of H.E.W. regulation 45 C.F.R. § 233.90(a). The H.E.W. regulation requires that the state law be one of general applicability, which requires stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children. Section 453.400 does not require stepparents to support a stepchild unless the stepchild is living in the same home with the stepparent. This was one of the findings of the three-judge District Court in Gaither v. Sterrett, 346 F.Supp. 1095 (N.D. 1972), which prevented an Indiana statute from being used to reduce AFDC payments. The United States Supreme Court affirmed, Sterrett, Administrator, Department of Public Welfare, et al. v. Gaither, et al., 409 U.S. 1070, 93 S.Ct. 688, 34 L.Ed.2d 660 (1972). In my opinion, § 453.400, RSMo 1978, does not require stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children and therefore cannot be used to terminate or reduce A.D.C. payments. There is no need to declare § 453.-400 invalid or unconstitutional. However, to the extent § 453.400 is inconsistent with the federal regulations, which I believe it is, then this state statute may not be used, in my opinion, as a vehicle to terminate or reduce A.D.C. payments. I would therefore reverse the circuit court judgment, and consequently I dissent.