maximum qualifying level for a family of five persons
(18 NYCRR 352.14). On May 9, 1974 respondent Lavine issued a fair hearing decision which affirmed the local agency’s denial of public assistance. Respondent Lavine’s decision found petitioner still to be the responsibility of her parents since she was residing with them. Respondent also held that petitioner did not qualify under 18 NYCRR 349.5 to be an emancipated minor. Respondent further found that petitioner’s parents were
not obligated to support petitioner’s unborn child since "that child has no present needs”. Several points are raised on this appeal. Petitioner contends that the fair hearing decision should be reversed because it was not supported by substantial evidence and because she was qualified for public assistance as an emancipated minor. Petitioner also argues that her unborn child has needs independent of its mother and that petitioner was eligible for assistance for her unborn child’s needs. The case law and longstanding public policy make it clear that marriage of a minor works an emancipation because the new relationship gives rise to privileges and responsibilities inconsistent with the subjection of the minor to the control and care of the parent
(Cochran v Cochran, 196 NY 86 ). Such is not determinative, however, when considering an application of an emancipated minor for public assistance. That application must be governed by the statutes and regulations controlling the right to obtain such assistance. Section 101 of the Social Services Law (as amd) provides that: "A parent shall be responsible only for the support of a child
under the age of twenty-one years” (eff Sept. 1, 1974; emphasis added). The regulation which establishes the right of an emancipated minor to public assistance is as follows: 18 NYCRR 349.5 Emancipated Minor, "(a) A grant of public assistance or care may be made to an
emancipated minor in his own right if he is otherwise eligible. For this purpose an
emancipated minor shall mean a person over 16 years of age who has completed his compulsory education, who is
living separate and apart from his family and is not in receipt of or in need of foster care” (emphasis added). There was substantial evidence at the fair hearing to prove that petitioner’s father was contributing to her support "when possible” and that "she is presently being fed at my residence”. Since petitioner moved back into her parents’ household, she was
not living "separate and apart” as required by section 349.5. We conclude therefore, that respondent properly denied petitioner’s application for public assistance for herself and that such determination was supported by substantial evidence in the record. We further hold, however, that petitioner was improperly denied assistance for the needs of her unborn child. In determining the financial need of an applicant for aid to dependent children for the purposes of eligibility for assistance, "An unborn child shall be considered as a child living with one or both parents when the mother’s pregnancy has been determined by medical diagnosis” (18 NYCRR 369.2 [a] [1]). Similarly with regard to medical assistance, the regulations provide: "In determining the net available income of a family household in which there is a pregnant woman, such family household shall be considered as increased by one person from the fourth month of pregnancy which has been medically verified” (18 NYCRR 360.5 [g]). A minor recipient of ADC over 16 may be designated the grantee for an unborn child, and the unborn child designated as a dependent child. The effect of these regulations is clear. An unborn child is seen as a dependent child according to the State regulations. For the purpose of granting aid to dependent children benefits, the unborn child is entitled to the same assistance as is given dependent children after birth (18 NYCRR 352.2 [b], 369.1 [b], 369.2 [f] [4] [iv], 369.3 [a] [5]). Assistance for an unborn is not restricted to those pregnant women already receiving