dissenting.
A regulation limiting child care to “an AFDC eligible family member” does not “guarantee child care ... for each family with a dependent child requiring such care” as 42 U.S.C. 602(g)(l)(A)(i)(I) commands. In my opinion, the regulation violates the plain meaning of the Family Support Act and is invalid. Therefore, I respectfully dissent.
This guarantee of child care for a dependent child whose caretaker works was enacted by the Family Support Act of 1988 § 301, 42 U.S.C. § 602 (1988). Well before the current administration became preoccupied with correct family values, Congress sought to encourage work by the caretaker of a needy and dependent child. The legislative history explains that the purpose of the Family Support Act was
to replace the existing AFDC program with a new Family Support Program which emphasizes work, child support, and need-based family support supplements, to amend title IV of the Social Security Act to encourage and assist needy children and parents under the new program to obtain the education, training, and employment needed to avoid long-term welfare dependence, and to make other necessary improvements to assure that the new program will be more effective in achieving its objectives, .... ”
H.Conf.Rep. No. 998, 100th Cong., 2d Sess. 91, reprinted in 1988 U.S.Code Cong. & Ad.News 2879. The emphasis is on employment to avoid welfare dependence.
The Senate Committee report explained: The value of child care authorized under this provision may not be treated as income for purposes of any other Federal or federally-supported program that bases eligibility for or the amount of benefits upon need, and may not be claimed as an employment-related expense for purposes of the dependent care credit under section 21 of the Internal Revenue Code of 1986.
S.Rep. No. 377, 100th Cong., 2d Sess. 35-36, reprinted in 1988 U.S.Code Cong. & Ad.News 2812-13.1 (Emphasis supplied). This congressional history clearly rejects the notion, argued here by the Department and employed by the majority opinion, that, “[i]f the literal, dictionary definition of family applied to these provisions of the statute, [a “family with a dependent child”], Delorme’s grandson would be ineligible for AFDC benefits altogether because the family’s resources, including De-lorme’s income, would exceed the eligibility guidelines.” The congressional history explicitly clarifies that the value of child care “may not be treated as income” for any eligibility purpose. Therefore, Congress has decreed that payment of child care assistance does not affect the working family member’s eligibility for any other benefits.
The congressional emphasis is not on AFDC eligibility of a working family member, but rather on the need of the dependent child for child care to permit that member to obtain employment or to remain employed. The federal regulation contradicts 42 U.S.C. § 602(g)(l)(A)(i)(I) by limiting child care assistance to only caretaker relatives who are themselves eligible for *590AFDC. 45 C.F.R. § 255.2 (1991). Nowhere does the statute state or imply the limiting status of an “AFDC eligible” family member.
An eligible “dependent child” is statutorily defined in the same subchapter on “Aid to Families with Children”:
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);
42 U.S.C. § 606(a) (1988) (emphasis supplied). Thus, 42 U.S.C. § 602(g)(l)(A)(i)(I) guarantees child care assistance to a dependent child living with his working grandmother.
In my opinion, this bureaucratic effort to add a limiting condition through a convoluted regulatory definition subverts the Family Support Act’s goals of supporting family integrity and of encouraging employment. The Family Support Act guarantees the “dependent child” with the child care assistance required for the caretaking “individual in the family to accept employment or remain employed.”2
Therefore, I would reverse and remand with directions to the Department to determine Delorme’s eligibility on the statutory *591criterion: Is this child care assistance for her dependent grandchild required for De-lorme to remain employed?
LEVINE, J., concurs.. This policy was carried into the final enactment:
6. Income and tax treatment of child care benefits
Present Law
No provision.
House Bill
The House bill requires that the value of any day care provided under this act not be treated as income for any other Federal or Federally-assisted need-based program and may not be claimed as an employment-related expense for tax purposes.
Senate Amendment
The Senate amendment is the same as the House bill.
Conference Agreement
The conference agreement follows the House bill and the Senate amendment.
H.Conf.Rep. No. 998, 100th Cong., 2d Sess. 163, reprinted in 1988 U.S.Code Cong. & Ad.News 2951.
. See Miller v. Carlson, 768 F.Supp. 1331, 1336 (N.D.Cal.1991) (Preliminary injunction requiring state and federal officials to provide continued child care assistance to AFDC recipients who had been or would be terminated from state-sponsored employment and training program, but who continued to participate satisfactorily in their approved education or training activities):
The child care provisions of the statute are not only broadly delineated, but also mandatory. The Family Support Act dictates that a state "must guarantee” child care for each eligible individual. 42 U.S.C. § 602(g)(l)(A)(i). Child care for all eligible individuals is therefore a requirement, not an option. Congress established only two criteria that an AFDC recipient must meet in order to qualify for child care: satisfactory participation in an educational or training activity, and approval of this activity by the state. Plaintiffs argue that the members of the class who seek preliminary relief, by definition, have met these criteria: they are participating satisfactorily in training or educational activities which the state already has approved. California has no authority to deny child care to plaintiffs to whom a federal statute guarantees such assistance. See Miller v. Youakim, 440 U.S. 125, 135, 99 S.Ct. 957, 964, 59 L.Ed.2d 194 (1979) (state was without authority to deny Foster Care benefits to children living with relatives where Congress mandated these benefits for "any” child eligible under federal requirements); Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971) (where Congress requires that aid be furnished "to all eligible individuals," states and federal agencies are without authority to approve more narrow criteria). Therefore, plaintiffs present a strong case that the categorical exclusion of AFDC recipients in education or training activities from child care eligibility solely because they are not GAIN participants is without congressional authorization and thereby invalid. See also 45 C.F.R. § 233.10(a)(1)(h) ("A State may ... [p]rovide more limited public assistance coverage than that provided by the Act only where the Social Security Act or its legislative history authorizes more limited coverage.”) (emphasis added).
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By contrast, the child care provisions are found in Title III of the Act, entitled "Supportive Services for Families" (not, significantly, "Supportive Services for JOBS Families”), and funding for child care is uncapped. 42 U.S.C. § 602(g)(3) (Supp.1990). States receive open-ended federal matching funds for child care provided to those who need it to accept employment or to remain employed, to JOBS participants, and to “each individual participating in an education and training activity ... if the State agency approves the activity...." 42 U.S.C. § 602(g)(1)(A). Funding for child care, unlike JOBS funding, is therefore limited only by the number of eligible individuals.
(Footnote omitted).