The opinion
Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
10-10-1995
Juvelis v Snider
Precedential or Non-Precedential:
Docket 94-2207
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Juvelis v Snider" (1995). 1995 Decisions. Paper 263.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/263
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-2207
___________
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
_______________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 93-cv-02911)
___________________
Argued July 20, 1995
Before: SLOVITER, Chief Judge,
SCIRICA and McKEE, Circuit Judges
(Filed: October 10, 1995)
KATE L. MERSHIMER, ESQUIRE (ARGUED)
Office of Attorney General
of Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, Pennsylvania 17120
Attorney for Appellant
EDMOND A. TIRYAK, ESQUIRE (ARGUED)
The Curtis Center, Suite 1100
6th and Walnut Streets
Philadelphia, Pennsylvania 19106
Attorney for Appellee
1
__________________
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 section 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a) (1988), against a
profoundly retarded individual on the basis of his handicap. The
district court found the policy discriminatory and required the
Department of Public Welfare to fund retardation services for the
plaintiff Nikitas Juvelis. We will affirm.
I.
Nikitas Juvelis (Niki) is a profoundly retarded and
physically handicapped 33 year old citizen of the United States.0
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
0
The American Association for Mental Deficiencies defines
profoundly retarded individuals as those with I.Q. scores below
20. Niki additionally has cerebral palsy and clubbed feet and is
confined to a wheelchair.
2
anticipate that soon they will be unable to afford Niki's fees at
Melmark.0
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 resident0 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
0
When Niki first arrived at Melmark, the cost of tuition was
$11,000 per year. Currently, Melmark's tuition is $60,000. Over
the past eighteen years, the Juvelises have paid several hundred
thousand dollars to Melmark.
0
A bona fide resident is one who is legally domiciled in
Pennsylvania. See discussion infra, part V. We recognize the
distinction between domicile and residence. See, e.g., 13B
Charles A. Wright et al., Federal Practice and Procedure § 3612
(2d ed. 1984) ("[T]he domicile of a person is the place where he
has his true, fixed home and principal establishment, and to
which, whenever he is absent, he has the intention of returning.
Domicile . . . is more than an individual's residence, although
the two typically coincide."). In this opinion, when we say
residence, we are referring to bona fide residence or domicile.
3
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 this case is whether a residency
requirement that depends on mental capacity is discriminatory in
a way that violates § 504 of the Rehabilitation Act. To answer
this question, we must determine whether residency is essential
to DPW's program and whether Niki can satisfy the residency
requirement under a reasonable modification to DPW's policy.
Easley v. Snider, 36 F.3d 297, 300 (3d Cir. 1994). "The test to
determine the reasonableness of a modification is whether it
alters the essential nature of the program or imposes an undue
burden or hardship in light of the overall program." Id. at 305.
Accordingly, DPW must show that it cannot employ an exception to
its residency policy that would accommodate profoundly retarded
persons without incurring an undue burden or modifying the
essential nature of its program.
II.
Section 504 of the Rehabilitation Act provides:
"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 . . . ."
29 U.S.C. § 794(a) (1988 & Supp. IV 1992). As a recipient of
federal financial assistance, DPW is subject to the requirements
of § 504. DPW maintains that Niki is not "otherwise qualified"
4
for inclusion in Pennsylvania's mental retardation program
because he is not a Pennsylvania resident. The Juvelises contend
that Pennsylvania's policy for determining residency makes Niki's
exclusion "solely by reason of" his retardation. DPW counters
that it cannot modify implementation of its residency requirement
in a way that would accommodate Niki's handicap without making
fundamental changes to its program that would impose an undue
burden on the Commonwealth.
III.
The Juvelises sued the Secretary of DPW alleging the
policy violated § 504 of the Rehabilitation Act, his
constitutional right to travel, and his constitutional rights to
procedural and substantive due process. Because there was no
dispute as to any material fact, the district court referred the
cross motions for summary judgment to the magistrate judge.
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.0 Both
parties filed objections. The district court approved the
magistrate judge's finding that DPW's policy violated § 504, and,
without setting a timetable, ordered DPW to develop and implement
a mechanism that would allow the Commonwealth to apply its
residency requirement in a manner that does not discriminate
0
She also recommended denying defendant's motion for summary
judgment. Having disposed of the case on statutory grounds, the
magistrate judge did not reach the constitutional issues.
5
against retarded persons. Meanwhile, the court enjoined DPW from
denying Niki benefits.
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 § 504 and that Niki is eligible for mental retardation
services.
The district court had subject matter jurisdiction of
these federal claims under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction of a final decision of the district court. 28
U.S.C. § 1291 (1988). In reviewing dispositions on summary
judgment, we apply the same test the district court should have
used. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.
1976), cert. denied, 429 U.S. 1038 (1977).
IV.
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.
6
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
(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 (1985).
Furthermore, we have recognized that § 504 requires some
affirmative steps to accommodate handicapped persons. Nathanson
v. Medical College of Pennsylvania, 926 F.2d 1368, 1385 (3d Cir.
1991). The burden is on the recipient of federal funds "to show
that the required modification entails a substantial alteration
in order to avoid a violation of the Act." Id. "[I]f there is
no factual basis in the record demonstrating that accommodating
the individual would require a fundamental modification or an
undue burden, then the handicapped person is otherwise qualified
and refusal to waive the requirement is discriminatory." Easley
v. Snider, 36 F.3d at 302. See also Wagner, 49 F.3d at 1016-17
7
(summary judgment reversed because center failed to offer any
factual basis demonstrating that admission of plaintiff would
have changed the essential nature of the facility or imposed an
undue burden).
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.0
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.0
Thus, DPW maintains, and we agree, that residency is fundamental
0
DPW misperceives the burden of proof on this issue. In its
brief, DPW states, "[T]here is nothing in the record to indicate
that Mr. Juvelis's proposed accommodation would be an easily
administered test." The burden, however, does not lie on Niki to
show the accommodation could be easily administered. Rather, the
burden is on DPW to demonstrate that adjusting its requirements
would fundamentally alter the program or impose an undue burden
on the department.
0
Pennsylvania's Mental Health and Mental Retardation Act of 1966,
as amended, Pa. Stat. Ann. tit. 50, §§ 4101-4704 (Purdon 1969 &
1994 Supp.), set up a comprehensive system providing various
mental retardation services for Pennsylvania residents, including
day programs, family support services, and residential
placements.
8
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 (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. All
they are seeking is an exception from the intent component of the
residency test for their profoundly handicapped child. DPW has
not demonstrated that provision of mental health services for
Niki, who has resided in Pennsylvania for eighteen years, will
interfere with the essential nature of its program.
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.
9
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. at 330. "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 (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 et al., 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, 604 P.2d 747, 754 (Kan. Ct. App.
1980), and, generally, centering one's business, domestic,
10
social, and civic life in a jurisdiction, Walls v. Ahmed, 832 F.
Supp. at 943; Reiersen v. Commissioner of Revenue, 524 N.E.2d
857, 858 (Mass. App.Ct. ), rev. denied, 526 N.E.2d 1295 (Mass.
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 (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.
Courts have permitted incompetents to effect changes of
domicile when they have demonstrated subjective attachment to a
new home and when objective factors support the conclusion that
the change would protect the best interests of the individual.
Thus:
11
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." Coopedge 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 v. Ververs, 75 Cal. Rptr. 301, 304 (Cal. Ct. App. 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
12
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 et al.,
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,
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 Elliot 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 v. California, 141 Cal. Rptr. 103, 106 (Cal. Ct. App.
1977), the court observed that a mentally disturbed patient's
13
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 demonstrating the quality of the individual's attachment
to his proposed domicile. The individual's motive in seeking to
establish a new domicile, the duration of his relationship to the
locale, abandonment of a prior residence, and the location of
assets and friends have all been recognized as demonstrating
attachment to the proposed domicile.
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
14
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 seeking 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
15
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.
16
Id. at 305. But here, mental capacity to choose domicile is not
a criterion fundamental to participation in the program. A
parent or guardian's interpretation of the individual's wishes
will not disrupt the objectives of the program.
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.
17
As we have noted, the Juvelises have conceded that Niki
lacks the mental capacity to 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.0
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
0
DPW claims there is no presumption that the profoundly retarded
cannot prove the requisite intent. According to the agency,
residency determinations are made "on a case-by-case basis," and
the policy "says nothing whatsoever" about who can or cannot form
the requisite intent. Indeed, as plaintiff points out, if Niki
were capable of declaring an intent to make Pennsylvania his
home, DPW would not accept such a declaration as determinative,
but would consider other factors that supported or
contradicted such a conclusion.
Nevertheless, DPW insists that consideration of
substantial contacts to Pennsylvania would be unworkable. It
appears to us that, in practice, DPW relies exclusively on its
presumption that a profoundly retarded individual takes the
domicile of his parent as of the time he turned eighteen.
DPW also has pointed out that the Juvelises did not
seek review of DPW's eligibility decision. Given DPW's
application of its presumption that profoundly retarded
individuals cannot manifest an intent to change domicile, we
believe a request for review would have been futile.
18
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.0 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.
VIII.
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.
0
Melmark is the only home he remembers, he repeats the word
"Melmark" when he is off the grounds, and he turns his wheelchair
and heads towards his cottage at Melmark when told it is time to
go home.
19
20