dissenting:
I respectfully dissent.
In my opinion, the provision of 42 U.S.C. § 606 which allows payments only where the otherwise qualified child resides with a designated relative or State appointed foster parent creates an impermissible class distinction which under the circumstances of this case is violative of the Equal Protection Clause of the Fourteenth Amendment.
Under the provisions of Colorado Public Assistance Act, Colo. Sess. Laws 1973, Ch. 340, 119-3-1 et seq., assistance payments are made available to families with a dependent child if the child resides with an eligible relative or if he resides in a foster home as a result of a judicial determination that continued residence in the home of the parent or relative would be contrary to the best interests of the child. Needy families which have otherwise assumed the burdens of caring for a dependent child are not eligible for assistance under this act.
The appellants are members of this excluded class and challenge its constitutionality here. For a legislative classification to withstand scrutiny under the Equal Protection Clause, it “must be rationally related to a legitimate government interest.” United States Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed. 782.
In my view, clearly the underlying purpose of the legislation is to provide assistance to needy children. Nevertheless, one class of needy children is omitted. Apparently, the rationale for the challenged exclusion is the presumption that assistance to the excluded class of families who provide a home for the otherwise dependent child will not benefit the *409child in the same manner as payments to those families who have a legal obligation of support or who are related to the child.
The appellants have alleged that their feeling of responsibility arises under the Spanish custom of crianza. To conclusively presume that the child under their care will not benefit from the payments as much as if the child were living with a blood relative — for example, a first cousin — “is not only ‘imprecise’; it is wholly without rational basis” and “is invidious.” United States Department of Agriculture v. Moreno, supra, at 93 S.Ct. 2827; Williams v. Wohlgemuth, 366 F. Supp. 541 (D.C. W. Pa. 1973), aff’d without opinion, Wohlgemuth v. Williams, 416 U.S. 901, 94 S.Ct. 1604, 40 L.Ed.2d 106 (1974).
The majority opinion suggests the rationality lies in expediency in that without this blood related limitation, the board would be forced to hold a hearing in each case to ascertain whether the applicant had assumed the responsibilities of raising a child. I refuse to believe the constitutionality lies in expediency. Moreover, I see no great burden in holding a hearing to determine the nature of the financial obligation which the family, with whom the dependent child lives, has undertaken. Fraud can be controlled as provided by statute regardless of with whom the child resided. Colo. Sess. Laws, Ch. 340, 119-3-30.
For these reasons, I would hold the eligibility requirement based on with whom the child resides to be invalid under the Equal Protection Clause.
MR. JUSTICE KELLEY authorizes me to say that he joins in this dissent.