Nikitas JUVELIS, an incompetent, by his father and next friend, George JUVELIS v. Karen SNIDER, in her official capacity as the Secretary of the Department of Public Welfare, Commonwealth of Pennsylvania, Appellant.
No. 94-2207
United States Court of Appeals, Third Circuit
Decided Oct. 10, 1995
68 F.3d 648
Argued July 20, 1995.
Reversed and remanded for proceedings consistent with this opinion.
VAN GRAAFEILAND, Circuit Judge, concurring separately:
I concur in the result reached by my colleagues, but I do so with reservations. In the first place, I depart from my colleagues’ description of the Board‘s ruling as a “compendium of errors.” The Board considered Blanco‘s claim of hardship as it related to her application for suspension of deportation and rejected it. This was not a “compendium of errors.”
Secondly, I am concerned about the precedential effect of my colleagues’ treatment of generalized violence as the equivalent of “extreme hardship.” Civil unrest and generalized violence are conditions endemic to much of Central America. They do not justify a claim of extreme hardship by every reluctant deportee to one of these countries. Before Blanco can qualify for suspension from deportation, she must establish that her hardship would be different and more severe than would that of other illegal aliens returned to the same milieu. See INS v. Jong Ha Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031-32, 67 L.Ed.2d 123 (1981). See also Vargas v. INS, 826 F.2d 1394, 1397 (5th Cir.1987); Marquez-Medina, 765 F.2d 673, 676-77 (7th Cir. 1985). This is not what Blanco claimed or proved. Indeed, in the motion to reopen Blanco‘s case and provide her a suspension of deportation hearing, her counsel, quoting Senator DeConcini stated that Mrs. Blanco and her children “like thousands of other Salvadorans, ‘have been the innocent victims of war, random violence, and civil strife in their homeland.‘” Moreover, in the decision of the Board of Immigration Appeals, the Board stated that Mrs. Blanco was “fleeing general conditions of violence” and that “at no time has [she] been directly or indirectly threatened or harmed by anyone in El Salvador on account of her political opinion, nor has she established a pattern or practice of persecution of groups of persons situated similarly to [her].” We are required to give substantial deference to the Board‘s findings of fact. If they are supported by reasonable, substantial and probative evidence on the record considered as a whole, they are conclusive. Maikovskis v. INS, 773 F.2d 435, 446 (2d Cir.1985); Sarkis v. Sava, 599 F.Supp. 724, 726 (E.D.N.Y.1984).
I am content with my colleagues’ finding of extreme hardship but not on the ground that her exposure to violence was more severe than that of other Salvadoran refugees.
Edmond A. Tiryak, (argued), Philadelphia, Pennsylvania, for Appellee.
Before: SLOVITER, Chief Judge, SCIRICA and McKEE, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
In this case we must decide whether the policy of Pennsylvania‘s Department of Public Welfare requiring intent to establish domicile discriminates under
I.
Nikitas Juvelis (Niki) is a profoundly retarded and physically handicapped 33 year old citizen of the United States.1 Although Niki‘s parents are also United States citizens, they have lived in Venezuela since Niki‘s birth. When Niki was fifteen, his parents placed him, at their expense, in the Melmark Home, a residential home for the handicapped in Delaware County, Pennsylvania. He has lived there continuously for the past eighteen years. Prior to Niki‘s placement in Melmark, his parents had no connection to Pennsylvania. In recent years, Melmark‘s costs have gone up sharply, while Niki‘s parents have gotten older and their income has declined. The Juvelises anticipate that soon they will be unable to afford Niki‘s fees at Melmark.2
Pennsylvania‘s Department of Public Welfare (DPW) provides benefits to retarded persons, which can include payment for placements in facilities like Melmark. The Juvelises applied for such coverage for Niki. DPW policy gives the counties primary responsibility for determining eligibility for mental retardation services. But the counties may not expend state funds to provide services for a person who is not a state resident. Niki was turned down for coverage because, for funding purposes, he was not considered a bona fide resident3 of Delaware County or of Pennsylvania. This residency determination was made on the basis of DPW policy, but that policy is nowhere codified as a rule or regulation.
Generally, the policy on residency requires the county to determine the domicile of the individual prior to placement. In this case, because Niki was a minor before placement, he was a resident of his parents’ domicile, Venezuela. When an individual reaches majority, DPW presumes he retains his parents’ domicile unless and until he establishes a new one. Proof of change of domicile has two components: physical presence plus an intent to remain. Niki has physical presence in Delaware County, Pennsylvania. What he lacks is the mental capacity to form an intent to remain. The crux of
II.
“No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .”
III.
The Juvelises sued the Secretary of DPW alleging the policy violated
The magistrate judge issued a report and recommendation that plaintiff‘s motion for summary judgment be granted on the ground that DPW policy violated the Rehabilitation Act.4 Both parties filed objections. The district court approved the magistrate judge‘s finding that DPW‘s policy violated
The Juvelises filed a motion for reconsideration, objecting that the court had failed to provide the parties an opportunity to be heard on the relief. The district court granted the motion for reconsideration, vacated its prior order, and ordered instead (1) approval and adoption of the magistrate judge‘s report and recommendation, (2) denial of DPW‘s motion for summary judgment, (3) grant of the Juvelises’ motion for summary judgment, and (4) a declaration that DPW‘s residency policy violates
The district court had subject matter jurisdiction of these federal claims under
This case presents the narrow question whether DPW can employ an exception to its residency policy that would accommodate a profoundly retarded person without incurring an undue burden or modifying the essential nature of the program. We believe it can.
A.
DPW maintains Niki neither is an “otherwise qualified” person, nor has been discriminated against because of his handicap. “An otherwise qualified person is one who is able to meet all of a program‘s requirements in spite of his handicap.” Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). DPW contends Niki is not “otherwise qualified” because he lacks the capacity to form the intent to establish Delaware County or Pennsylvania as his residence. But “an individual may be otherwise qualified in some instances even though he cannot meet all of a program‘s requirements.” Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1009 (3d Cir.1995). “The benefit . . . cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee‘s program or benefit may have to be made.” Alexander v. Choate, 469 U.S. 287, 300, 105 S.Ct. 712, 719, 83 L.Ed.2d 661 (1985). Furthermore, we have recognized that
DPW concedes that but for his inability to meet the residency test, Niki is qualified for participation in the program providing retardation services. Accordingly, DPW must demonstrate that accommodating Niki would require a fundamental modification of its program or impose an undue burden. This DPW has failed to do.5
B.
DPW contends that accommodating Niki would impermissibly require modification of the essential nature of its program and impose an undue burden. “The first step in resolving this dispute must be to ascertain the essential nature of the . . . program.” Strathie v. Department of Transp., 716 F.2d 227, 231 (3d Cir.1983). The essential nature of the program is to provide mental retardation services for Pennsylvania residents.6 Thus, DPW maintains, and we agree, that residency is fundamental to this state funded system and Pennsylvania domicile is part of the essential nature of its program. See, e.g. Martinez v. Bynum, 461 U.S. 321, 327, 103 S.Ct. 1838, 1841, 75 L.Ed.2d 879 (1983) (states have a legitimate interest in assuring that services provided to its residents are only used by its residents). But the Juvelises have not asked for elimination of the residency requirement altogether.
DPW also contends intent is an essential element of domicile (which presumably makes it essential to its program). But under its present policy, DPW already makes an exception from the traditional intent requirement for residency, applying a presumption that an incompetent individual must intend to adopt the domicile of his parents as of the time he turned eighteen. Although the purpose of this policy is to provide benefits only to individuals whose parents are domiciled in Pennsylvania, the exception discriminates against profoundly retarded individuals like Niki, whose parents live elsewhere, but who are themselves long term residents of the Commonwealth. DPW has not demonstrated that another exception to the intent component would compromise the essential nature of its program or be unduly burdensome.
V.
The Juvelises argue for an exception to DPW‘s policy, contending that Niki should be permitted to rebut the presumption that he retains his parents’ domicile and prove that he has established legal residency in Pennsylvania. In order to analyze the impact of such an exception on the essential nature of the program and whether it would constitute an undue burden, we will examine the traditional ways of proving intent to change domicile.
A.
“Although the meaning may vary according to context, ‘residence’ generally requires both physical presence and an intention to remain.” Martinez v. Bynum, 461 U.S. 330, 103 S.Ct. at 1843. “In general, the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning.” Vlandis v. Kline, 412 U.S. 441, 454, 93 S.Ct. 2230, 2237, 37 L.Ed.2d 63 (1973) (citing, as reasonable, an official opinion of Connecticut‘s Attorney General). “Domicile, therefore, has both a physical and a mental dimension. . . .” 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3612 (2d ed. 1984). Although physical presence yields easily to objective analysis, divining intent can be elusive.
Persuasive evidence of intent can include establishment of a home, Walls v. Ahmed, 832 F.Supp. 940, 943 (E.D.Pa.1993), place of employment, location of assets, and registration of car, Matter of Estate of Phillips, 4 Kan.App.2d 256, 604 P.2d 747, 754 (1980), and, generally, centering one‘s business, domestic, social, and civic life in a jurisdiction, Walls v. Ahmed, 832 F.Supp. at 943; Reiersen v. Commissioner of Revenue, 26 Mass.App.Ct. 124, 524 N.E.2d 857, 858 rev. denied, 403 Mass. 1101, 526 N.E.2d 1295 (1988). Motive is not determinative, although it may be important evidence tending to show whether or not there was an intention to make a home. Restatement of Conflict of Laws § 22 (1934); see also Martinez v. Bynum, 461 U.S. at 332-33, 103 S.Ct. at 1844-45 (motive betrayed lack of intent to change permanent home); Mansfield Township Board of Ed. v. State Board of Ed., 129 A. 765, 766 (N.J.Super.1925) (child who is brought into state by parent or guardian who is nonresident for purpose of receiving education in public schools of state is not a resident).
B.
Although the principle that an incompetent person presumptively lacks the capacity to change domicile is well grounded in common law, the rule is not immutable. Rishell v. Jane Phillips Episcopal Memorial Med. Ctr., 12 F.3d 171, 173 (10th Cir.1993). Accordingly, in many instances courts have recognized a change of domicile for an incompetent person. The burden of proof, however, lies on the person seeking to establish a change of domicile.
The actual mental capacity required for selection of a domicil[e] of choice has been held to be much less than that required generally for the management of an individual‘s affairs, so that ability merely to have and express a preference with respect to the location of his home has been held sufficient to enable an incompetent to select his domicil[e].
Estate of Freeman v. Department of Revenue, 1989 WL 23045, at *3 (Or.Tax 1989) (quoting 96 A.L.R.2d 1236, 1241 (1964)). “Whether an incompetent may change his domicile depends on the extent to which his reason is impaired. A comparatively slight degree of understanding is required. It is sufficient if he understands the nature and effect of his act.” Coppedge v. Clinton, 72 F.2d 531, 533 (10th Cir.1934) (footnote omitted). “It is in every case a question of fact whether a person who is mentally deficient or of unsound mind is able to choose a home.” Restatement of Conflict of Laws § 40 cmt. a (1934). “The crucial question is whether the person has sufficient mental capacity to choose a home. That he may be incapable of managing his own affairs is not conclusive; nor is the fact that he has been adjudged incompetent and a guardian appointed over his person or property.” Restatement (Second) of Conflict of Laws § 23 cmt. a (1971). “It has been recognized that, while a person may not be capable of doing some acts, . . . yet he may have a sufficient degree of understanding to change his domicile.” In re Estate of Phillips, 269 Cal.App.2d 656, 75 Cal.Rptr. 301, 304 (1969) (quoting Goodrich, Conflict of Laws (4th ed. Scoles) at 60).
The principle that an incompetent lacks capacity to change domicile “rests upon the notion the incompetent person‘s right to declare domicile must be suspended until reason returns to avoid legal consequences that may later harm the person‘s best interest.” Rishell, 12 F.3d at 173 (citing 13B Wright, Miller & Cooper, supra, § 3616). “As corollary to the general principle,” however, the Tenth Circuit has concluded, “when an incompetent person will never regain reason, preserving the person‘s right to determine domicile in the future is but a fiction.” Id. Furthermore, “[u]nder New York law, a guardian may change the domicile of an incompetent . . . if done in good faith and in the best interest of the conservatee.” Love v. Roosevelt Hospital, 1993 WL 190345, at *1 (S.D.N.Y.1993) (citing Gibbs v. Berger, 59 A.D.2d 282, 399 N.Y.S.2d 304, 307 (N.Y.App. Div.1977) which relied on objective criteria including length of relationship to New York, probability that incompetent would live out her life in New York, and abandonment of former residence). In Elliott v. Krear, 466 F.Supp. 444 (E.D.Va.1979), the minor plaintiff‘s divorced mother, who had legal custody of him, was domiciled in California. But the court held that the minor was domiciled in Virginia, where he was born, had spent all but one year of his life, and where his mother had left him in the actual custody of his grandparents. Id. at 447.
In Dunlap v. Buchanan, 741 F.2d 165, 168 (8th Cir.1984) the court recognized the issue to be “a factual question of where, considering the mosaic of circumstances surrounding [an incompetent‘s] care and control, he is domiciled.” And in In re Teeter, 73 Cal.App.3d 932, 141 Cal.Rptr. 103, 106 (1977), the court observed that a mentally disturbed patient‘s intent is often “unascertainable, and therefore it becomes necessary to use objective factors to determine residence.” (citing 2 B.E. Witkin, California Procedure (Actions) §§ 445-7, at 1273 et seq. (2d ed. 1970)).
C.
Because only a minimal degree of mental capacity is required to establish a change of domicile, a number of courts have dispensed with reliance on an incompetent individual‘s articulation of intent in favor of an analysis that relies on “a mosaic of circumstances.” Relevant circumstances include the opinions of parents or guardians who are acting in good faith and in the best interest of the individual, as well as objective factors demon-
VI.
Plaintiffs have proposed that DPW should follow those states that, in other contexts, consider the “mosaic of circumstances” surrounding an incompetent individual‘s assertion of domicile and adopt a “substantial contacts” test for residency. To satisfy the requirements of the Rehabilitation Act, DPW must show that adoption of such a test would interfere with the essential nature of its program or be unduly burdensome. We believe that the consideration of relevant circumstances in evaluating an incompetent individual‘s legal assertion of domicile will neither alter the essential nature of the program nor be unduly burdensome.
A.
To establish a change of domicile under a “substantial contacts” test, the individual, or those acting in his behalf, must be able to demonstrate good faith. Ordinarily, competent individuals may establish a change of domicile by demonstrating a sincere or good faith intention to remain in the new location, and the absence of any intent to go elsewhere. For a competent individual, it makes no difference whether his motive is good or bad. Motive becomes relevant to the good faith inquiry only when one‘s purpose in moving to the new location betrays a lack of intention to remain. Here, however, the good faith of those seeking to establish that an incompetent individual has changed his domicile assumes an added significance. Under the Rehabilitation Act, it may interfere with the essential purpose of the program for DPW to recognize a change of domicile for individuals whose only motive in moving is to obtain state funded services. Accordingly, under the Rehabilitation Act, the good faith of those seeking to establish a change of domicile for an incompetent individual seek- ing state funded services may be tested by examining the motive behind the change of residence.
Objective factors that will be probative of good faith will include the length and likely duration of the individual‘s residence, his financial or other connections to the locale, and the quality of his contacts with other locations. In other contexts, there is no minimum period of residence required for establishing a new domicile. But where we are examining the motive of those seeking to establish a change of domicile for the purpose of receiving state-funded services under the Rehabilitation Act, duration of residence will be of particular significance. Also relevant, although not dispositive, is the individual‘s subjective attachment to his home. We recognize that incompetent individuals will have varying abilities to express their subjective preferences and the weight attributable to this factor will vary accordingly. Because this inquiry is directed at discovering the extent of the individual‘s attachment to Pennsylvania, a residency determination made on the basis of these factors will not alter the essential nature of the program.
The opinions of parents or guardians who are acting in the incompetent individual‘s best interest also will be probative. We note that this last factor is different from the kind of surrogacy we rejected in Easley v. Snider, 36 F.3d 297 (3d Cir.1994). In Easley, mental alertness was part of the essential nature of a program designed “to allow the physically disabled to live in the least restrictive environment as independently as possible.” Id. at 302. Accordingly, we held:
[The use of surrogates] would shift [the focus of the program] from the provision of attendant care and its societal objectives for the physically disabled to personal care services to the many thousands of physically disabled who are often served by other specially designed state programs. The proposed alteration would create a program that the State never envisioned when it enacted the Care Act.
Id. at 305. But here, mental capacity to choose domicile is not a criterion fundamen-
B.
DPW also objects that administration of a substantial contacts test would be unduly burdensome. “Accommodations that are ‘reasonable’ must not unduly strain financial resources.” Nathanson v. Medical College of Pennsylvania, 926 F.2d at 1386. DPW, however, has not shown that a “substantial contacts” test would create an undue financial burden. DPW predicts a substantial contacts test would be susceptible to abuse, opening the door “for out-of-state parents to attempt to present sham residency claims on behalf of their incompetent children,” and “encourag[ing] counties to place their residents in other counties’ facilities, if not out-of-state facilities,” and abandon their funding obligations by declaring them residents of the new county or state. We are skeptical of these predictions. First, DPW has offered no evidence that the proposed modification would likely lead to these results. Second, we have injected a threshold good faith inquiry to forestall this kind of abuse and these hypothesized strategies would likely fail a substantial contacts test that looks at duration of residence, quality of contacts to the new locale, and relationships to other locations. And finally, we require the Commonwealth to consider substantial contacts only when traditional residency tests discriminatorily exclude retarded individuals.
As we have noted, the Juvelises have conceded that Niki lacks the mental capacity to 7 choose a domicile, but his parents are clearly acting in good faith and in his best interests when they assert Niki is domiciled in Pennsylvania. DPW has not met its burden of proving that it would impose an undue burden on the Commonwealth to consider substantial contacts to determine whether Niki has established domicile in Pennsylvania.7
VII.
We will affirm the district court‘s judgment that DPW has failed to carry its burden of proving that it would interfere with the essential nature of the program or be unduly burdensome to allow Niki to rebut the presumption that he maintains his parents’ domicile.
Nevertheless, our inquiry does not end there. Niki must establish that he has in fact changed his residence from that of his parents. The Juvelises have pointed to several objective factors that support the conclusion that Niki has established a domicile in Pennsylvania: Niki has resided at Melmark for eighteen years, all of his friends and possessions are there, his parents have paid substantial fees to the Delaware County home over those years, and it is expected that Niki will continue to reside in Pennsylvania for the rest of his life. Furthermore, within his limited ability to do so, Niki has expressed a subjective attachment to Melmark.8 Finally, his parents are clearly acting in good faith and in Niki‘s best interest in asserting that Melmark is Niki‘s home. We conclude that Niki has made a sufficient showing to establish a change of domicile to Pennsylvania.
DPW has failed to prove that a modification of its policy to allow Niki to show a change of domicile to Pennsylvania would be unduly burdensome. Accordingly, we hold that a mentally incompetent individual who has been denied state funded services by operation of the presumption that incompetents cannot intend a change of domicile may rebut that presumption. The individual must demonstrate good faith and must show substantial contacts to Pennsylvania in order to establish that he has adopted a Pennsylvania domicile. We believe the Juvelises have made the requisite showing and will affirm the judgment of the district court.