# Petition for Writ of Certiorari — Kitchens v. Bowen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0465%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 485 U.S. 934 ## Text 8 4 87 6 ‘) Supreme Court, U.S. FILED NOV 14 98T No. JOSEPH F. SPANIOL, JR LER In the Supreme Court of the United States OCTOBER TERM, 1987 RONNIE O. KITCHENS, et al., Petitioners, v. OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, UNITED STATES OF AMERICA, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PHILIP FREDERICK SCHUSTER, II Counsel of Record ROGER FREDRICK DIERKING Attorneys for Petitioners 1500 N.E. Irving Street, Suite 540 Portland,OR 97232 (503) 231-7765 November 12, 1987 STEVENS-NESS LAW PUBLISHING CO., PORTLAND, OR. 97204 e711 i. QUESTIONS PRESENTED l. Are persons designated as biological fathers of children born out-of-wedlock constitutionally entitled to notice of actions mandated by federal Social Security AFDC regulations which implicate their rights at the Title IV-A application for assistance stage? ae Is the Secretary of Health and Human Services, rather than the states, responsible, under the AFDC statutes and principles of cooperative federalism, for directing that notice be provided to these designated biological fathers? ii. PARTIES TO THE PROCEEDINGS IN THE COURT BELOW The plaintiffs in the district court case were the appellants in the court of appeals. The named plaintiffs in Kitchens, et al v. Bowen, et al were: Ronnie O. Kitchens Glenn D. Rogie Michael J. Callaghan Gerald E. Ryon Gordon D. O'Dell John F. Moore Robert W. Dickinson The defendants in the district court were the appellees in the court of appeals. The named defendants in Kitchens, et al. v. Bowen, et al were: Otis R. Bowen, Secretary, Department of Health and Human Services, United States of America Keith Putman, Administrator, Adult and Family Services Division, Department of Human Resources, State of Oregon Jim Hunter, Administrator, Support Enforcement Division, Department of Justice, State of Oregon iii. TABLE OF CONTENTS QUESTIONS te ease eek a oe Oe ee PARTIES TO THE PROCEEDINGS IN THE COURT EG a a TABLE OF AUTHORITIES... ccccccccece OPINIONS Decne bee eeeeeekeseeee PTE ec hob eeéeesee 6a eeeeees CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED.... Cr beee Bs Te ee 2. The AFDC Title IV-A Program Is MOCROMAL FH SSGOEsccccccceccc 3. The State Child Support Enforce- ment - Title IV-D - Proceedings Are Both Interstate and Intra- SESCSEIS. CHSEOCCELE ccec ccsscccve 4. The Proceedings In This Case. REASONS FOR GRANTING THE WRIT...... I. The Conflicts Are Substantial. II. The Issues Have National DE ewes ose See seeeecees page i ii iv. A. Federal Regulations Impli- cate Substantial Fifth and Fourteenth Amendment Due Process Property Rights of Designated Fathers at The Title IV-A AFDC Application For Assistance Stage....... 24 B. Federal Regulations Impli- cate Substantial Fifti: and Fourteenth Amendment Due Process Personal Interests of Designated Fathers at The Title IV-A AFDC Appli- cation For Assistance Stage 28 C. Federal Regulations Fail To Afford Designated Fathers Their Fifth and Fourteenth Amendment Procedural Due Process Rights to Notice... 32 III. The Federal Action Test Employed By The Court of Appeals To Dismiss This Case Conflicts With Decisions Of This Court and With Other Courts of AppealS.....cceceeee 4G IV. The Younger Abstention Doctrine Is Inapplicable...... 5@ CoE Ras 6 cece ce od 666d 06 DHSS O® 52 LRN INI EN AIRE SER wy Appendix A: Appendix B: Appendix C: Appendix D: Vv. APPENDICES Opinion@®f the Ninth Circuit \Court of Appeals A-1 Judgment Order of the Ninth Circuit Court of 0 ae A-23 Opinion of the United States District Court for the District of Oregon. B-1 Order of the United States District Court for the District of Oregon. B-10 Judgment of the United States District Court for the District of og ee ee re ee ee B-11l U.S. Magistrate's Find- ings and Recommendations C-1 Constitutional Provisions D-l Statutory Provisions D-2 Regulatory Provisions -D-16 vi. TABLE OF AUTHORITIES © CASES Abbott Laboratories v. Gardner, 7 US 136 [RTT edhekaveueudes é ee Armstrong v. Manzo, 388 US 545, 167 Sp.Ct. Rptr 3001 (1965)....... Beck v. Communications Workers of America (C.W.A.), 776 F2d 1187 (4th ny Tg Ren 54460666665 0646680060 Blum v. Yaretsky, 547 US 991 page 41 27 45,46 PRO) és week oksedee66eteene 18,19,40,43,46 Bowen v. Yuckert, 482 US , 96 LEG2ZG 119 (1987) )cccccccccccse 22,397,477 Caban v. Mohammed, 441 US 388 (1 Peeeeeeseseeseceeseeseseseces Califano v. Sanders, 438 US 99 Te et tadab ebads éads 6666000406460 660 City of Claremont v. Truell, 126 N.H. “36, 489 A2da 581 (1985) ws. eee Clearfield Trust Co. v. United States, 318 US 363 (1943) .cccceceee Dandridge v. Williams, 397 US 471 DEEN cid aeeekeasewaseassensenees Duncan v. Peck, 752 F2d 1135 (6th CEE « DEN 6¢ 0 e6eh6o0008 000666 28 41 27 49 23 46 AEE Cg Bere vil. Finnerty v. Boyett, 469 S2d 287, (La.App. 2d Cir BPOOl 6eeedeosecses 3¢ Fuentes v. Shevin, 487 US 66 (1972) 33 Goldberg v. Kelly, 397 US 254 Pe 32 Hillsborough County v. Automated Med. Labs., 471 US 707 (1985)..... 48,49 In Re Baby Girl Eason, Ga P 358 SE2d 459 vs) pene 30 Juidice v. Vail, 43@ US 327 (1977) 58 King v. Smith, 392 US 309 (1968)... 48 Lehr v. Robertson, 463 US 248 (198 3} 00066 6beseseceosseon 4,21,28,29,38,35 Little v. Streater, 452 US 1 (1981) 33 Lloyd v. Lloyd, 731 F2d 393 (7th Gans Di ihindD semen aedesace see 46 Lugar v. Edmondson Oil Co., Inc., 457 U 922 (1982) 18,19,22,40,42,44,45,46 Lukhard v. Reed, 481 US ’ 95 LEd2d 328 Pett ith anc bkieeeeeeees 9,48 Mathews v. Eldridge, 424 US 319 II ie ee ei cle 19,34 Mitchell v. W.T. Grant Company, 416 US 600 eR eee i 36 viil. Moore v. City of East Cleveland, Ohio, 431 US 494 (1977) ..eeereeeee New York State Dept. of Social Services v. Dublino, 413 US 465 (1973) eccccccccccesecescccesescece Pennzoil Co. v. Texaco, Inc., 481 US (95 LEd2d 21) (1987) Rendell-Baker v. Kohn, 457 US 8380 31 49 51 [LSE SZ) ccecescesesesesseees 18,19,49,43,46 Rivera v. Minnich, 483 US aT" LEd2d 473 DT) tihsesdadadsbncsiccs Rodriguez v. Compass Shipping Co., Ltd., 451 US 596 (1981) .ecccceeeee Roudybush v. Zabel, 813 F2d 173 (8th Cio LOST cccccccecceseeeocsce Santosky v. Kramer, 455 US 745 (1982) .ccccccccccccesccccccececsees Stanley v. Illinois, 405 US 645 (1972) cc cccccccccccccccscccese United Mine Workers of America v. “Gibbs, 383 US 715 (1966). .cccoeeee Younger v. Harris, 401 US 37 (1971) 25 47 46 31 4,28,31 51 5@ 'e. CONSTITUTION \ United States Constitution ASEICLO VI, ClOUSE Zesccsccccscesces 3,36 Fifth Amendment.......... 3,14,15,16,24,32 Fourteenth Amendment.......... 3,16,24,32 STATUTES Act of August 14, 1935, 49 Stat. 627 9 42 USC § 601-615... cc cccccccccccees 9 Act of January 4, 1975, 88 Stat. 2351 12 42 USC § 651-667... cc ccccccccccccee 12 42 USC cod PERE TETUELEEETUO TTC 3,23 O62 (8) (4) wcccsccccccess 3,39,48 RP tOe CR 6 wad cecassdsoene 3,37 602(a) (7) (A)......2- 3,11,27,28,35 O82 (8) (11)) wccccccccces 3,39,48 Ce ee Cae? Cl ; DC. Wes ) CV-85~-1815-RE OTIS R. BOWEN, et al. ) Defendants~-Appellees. ) OPINION Argued and Submitted July 8, 1987 - Portland, Oregon Filed August 20, 1987 Before: John F. Kilkenny, Alfred T. Goodwin and Warren J. Ferguson, Circuit Judges. Opinion by Judge Kilkenny Appeal from the United States District Court for the District of Oregon James A. Redden, District Judge, Presiding COUNSEL Philip F. Schuster, II, Roger F. Dierking, Portland, Oregon for the plaintiffs- appellants. Robert M. Atkinson, Salem, Oregon, Felicia Chambers, Washington D.C., for the defendants~appellees. APP. A-1l OPINION KILKENNY, Senior Circuit Judge: This appeal arises out of a challenge to the constitutionality of a social welfare program that does not mandate immediate notice to the putative fathers of children whose mothers apply for benefits under that program. The questions presented for review are whether the district court erred by dismissing the complaint as against the federal defendant for lack of any federal action, and against the state defendants by virtue of the doctrine of abstention. For the reasons set forth below, we affirm. FACTS AND PROCEEDINGS BELOW Appellants are a group of seven men who, in applications submitted for benefits under the Aid to Families with Dependent APP. A-2 Children ("AFDC") program,- were identified by the mothers of children born out of wedlock as the children's fathers. At the time of their filing the underlying action, appellants were all defendants in Oregon state court proceedings brought by the state to establish paternity and, pursuant to the AFDC applicants’ assignment of Support rights to the state, to collect support obligations. In suing the Secretary of the United States Department of Health and Human Services ("Secretary" or “federal defendant"), the Administrator of the Adult and Family Services Division of the Oregon Department of Human Resources, and the Administrator of the Support Enforcement Division of the Oregon Department of Justice ("state defendants"), 1 pub. L. No. 271, g§ 401 et seq., codified as Title IV-A of the Social Security Act at 42 U.S.C. $& 601 et seg. APP. A-3 appellants have alleged that the federal regulations governing the administration of the AFDC program are unconstitutional because they do not provide for notice to putative fathers at the time when mothers of children born out of wedlock apply for AFDC assistance. The district court dismissed appellants' claim against the federal defendant, both because the complaint failed to allege federal action on the part of that defendant sufficient to warrant the exercise of federal subject matter jurisdiction over the claim, and because the complaint failed to state a claim upon which relief could be granted. The claim against the state defendant was also dismissed under the provisions of the so- APP. A-4 2 It is called Younger abstention doctrine. from the dismissal of their complaint that appellants have timely appealed. STANDARD OF REVIEW We review de novo a district court's dismissal of a complaint for lack of subject matter jurisdiction. Abrams v. Commissioner, 814 F.2d 1356, 1357 #£=(CA9 1987). Similarly, we review de novo a district court's decision to dismiss a complaint for failure to state a claim upon which relief can be granted. Newman v. Universal Pictures, 813 F.2d 1519, 1521 LY (CA9 1987). Finally, we review de novo a dismissal based on the doctrine of abstention. Fresh Int'l Corp. o: Agricultural Labor Relations Bd., 885 F.2d 1353, 1356 (CA9 1986). ee eee ee é Younger v. Harris, 401 U.S. 37, 44-45 (1971). DISCUSSION 1. Background At the heart of this appeal lies the scheme of cooperative federalism existing between the state and federal governments under the AFDC program. The avowed purpose of this program is to promote the benefits of family life by encouraging the care of, 3 inter alia, fatherless,~ needy children, either in their own homes or in those of relatives, by providing financial assistance to the children's mothers or other relatives. 42 U.S.C. § 661. In a nutshell, the AFDC program works as follows. Financial assistance to needy children is provided by state agencies, which are in turn eligible for federal ee ee ee ee et et ee 3 The AFDC program "offers welfare payments to families in which the father is dead, absent, disabled or, at the State's option, unemployed." S. Rep. No. 93-1356, 93rd Cong., 2nd Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 8133, 8146. matching funds if their assistance plans comply with both the Social Security Act's relevant statutory requirements and the regulations implementing the program. For example, a state's plan must provide for prompt notice to the state's child support collection agency upon the furnishing of AFDC assistance to a child who has been deserted or abandoned by a parent, including a child born out of wedlock, without regard to whether the paternity of that child has been established. 42 U.S.C. e 602(a)(11). In addition, and as a condition of eligibility, the AFDC applicant must assign to the state any rights to support she may have from any other person and which have accrued at the time the assignment is executed. 42 U.S.C. $ 602(a)(26)(A). Also, the applicant is generally required to cooperate with the APP. A-7 state, both in establishing the paternity of a child born out of wedlock and in obtaining support therefor. 42 U.S.C. 8 602 (a) (26) (B). The state must have in effect a plan to establish paternity, locate absent parents, and obtain child and spousal support. 42 U.S.C. § 602(a)(27). Similarly, the state must provide child support enforcement services with respect to all AFDC recipients. 42 u.s.c. 8 654(4). Finally, support rights assigned to the state under the AFDC program constitute obligations owed to the state and are collectable by the state under relevant state and local processes. 42 U.S.C. § 656(a)(1). 2. Federal Jurisdiction The gravamen of appellants' complaint against the Secretary is that, in promulgating the regulations governing the administration of the AFDC program, the Secretary failed to require that, at the time mothers of children born out of wedlock apply for AFDC benefits, putative fathers be given notice of the filings of such applications and an opportunity for a hearing. As a result, appellants argue, they have no opportunity to contest the level of AFDC assistance provided and, by virtue of the mothers' assignment of support rights to the state, appellants now face substantial support obligations to the state which accrued during the prenotice period. The Secretary contends that dismissal was proper because appellants failed to allege and show any federal action. The AFDC statute and regulations leave the responsibility for formulating specific APP. A-9 procedures for determining paternity and support obligations to the individual states; therefore, the Secretary asserts, if appellants were deprived of any constitutional rights, the responsibility for that deprivation must fall on the shoulders of the state defendants. In addressing this issue, we note at the outset that “(t]he standards utilized to find federal action for purposes of the Fifth Amendment are identical to those employed to detect state action subject to the strictures of the Fourteenth Amendment." Geneva Towers Tenants Org. v. Federated Mortgage Investors, 504 F.2d 483, 487 (CA9 1974); see also Fidelity Fin. Corp. v. Fede=al Home Loan Bank, 792 F.2d 1432, 1435 (CA 1986) (applying principles of state action cases to federal action issue), cert denied, U.S. , sgz S.Ct. 949 (1987). Accordingly, this court turns now to an examination of the leading state action cases. {1] The relevant standards are set forth in the brace of cases, Blum v. Yaretsky, 457 U.S. 991 (1982) and Rendell- Baker v. Kohn, 457 U.S. 830 (1982). Those decisions make clear that, even though the state defendants here were subject to federal regulations in administering the AFDC program, that fact alone does not establish federal action. Blum, 457 U.S. at 1004; Rendell-Baker, 457 U.S. at 841. Appellants must show that ""there is a sufficiently close nexus between the [federal government] and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the [federal government] itself.’ [Citation omitted] The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the [federal government])is APP. A-1l responsible for the specific conduct of which the plaintiff complains." Blum, 457 U.S. at 18004 (quoting (sic) Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (emphasis in Original); accord, Fidelity Fin., 792 F.2d at 1435. Appellants may establish this required nexus only "by showing that the (federal) government exercised such coercive power or such significant encouragement that it is responsi-~ ble for the specific . .. conduct challenged, or by showing that the [state defendants] halve] exer- cised powers that are tradition- ally the exclusive prerogative of the [federal] government." Id. (citing Blum, 457 U.S. at 1004-1905). {2] As already indicated, the specific conduct challenged by appellants here is the failure to provide for notice and an opportunity for a hearing at the so-called Title IV-A, or AFDC application, stage. While the federal regulations make no APP. A~-12 provision for such notice and hearing, they do not prohibit the states from granting such rights, either. Indeed, the entire AFDC scheme is designed to leave the states responsible for the specific procedures to be employed, subject only to the broad parameters outlined in the federal statutes and regulations. See, e.g., 45 C.F.R. ss 392.31, 302.50, 303-4, and 303-5 (requiring states to establish paternity and secure support obligations in accordance with state law). The State of Oregon was and is free to adopt procedures to give timely notice to putative fathers, and there is no evidence that its failure to do so was compelled or encouraged in any way by the Secretary. Nor is it significant that the Secretary did not take action in the face of the state's failure to provide for such notice: APP. A~-13 “Mere approval of or acquiescence in the initiatives of [the state defendants] is not sufficient to justify holding the [Secretary] responsible for those initiatives ...." Blum, 457 U.S. at 1904-1005. {(3] Finally, the realm of domestic relations is and has been traditionally governed by state law. Lehr v. Robertson, 463 U.S. 248, 256 (1983). Accordingly, appellants' argument that there is a compelling need for national uniformity in this area that overrides any state interests fails; there is nothing in the statutory scheme to indicate a "clear and manifest" intent on the part of Congress to preempt the entire field. Hillsborough County v. Automated Med. Labs., 471 U.S. 7607, 716 (1985). The claim against the federal defendant was properly dismissed. 3. Younger Abstention At the time appellants brought this action, they were all defendants in Oregon State court proceedings brought by the state to establish paternity and collect support obligations on behalf of children who were receiving or had received AFDC benefits. In the underlying action, appellants sought a declaratory judgment that the federal AFDC regulations were unconstitutional and an order restraining the state defendants from, inter alia, collecting all past and future support obligations. As indicated above, the district court dismissed appellants' claim against the state defendants based on the principles espoused in Younger vy. Harris, 63 GS. 37 (139733-z While the Younger case involved Criminal proceedings, "[C]oncerns of comity and federalism counsel restraint in civil proceedings as well, when important state interests.are at stake." Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d at 1356; accord, Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 0.8. 423, 432 (1982) (“{t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved." Thus, "“[A]bstention is appropriate in favor of a state proceeding if (1) the state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions." Fresh Int'l, 865 F.2d at 1357-58 (citing Middlesex, supra). Appellants argue that the first prong of the above three-part test has not been APP. A-16 met because four of the appellants’ state court proceedings are no longer “ongoing". This argument fails for two reasons. {4] First, Oregon law subjects these appellants to ongoing child support proceedings that continue until the applicable support orders are either vacated or dismissed. Or. Rev. Stats. 8§ 167.135, 169.1803. Until then, either party to those proceedings can file a motion requesting that the state court modify the Support order. Id. {5] Second, Fresh Int'l suggests that the critical question is not whether the State proceedings are still "ongoing", but whether the “state proceedings were underway before initiation of the federal proceedings." 865 F.2d at 1358. There is no dispute that all of the appellants were already defendants in the state court APP. A-17 proceedings prior to the commencement of the federal action. Appellants next contend that the state interests involved are not sufficiently important to justify Younger abstention. In support of this position they first argue, citing Miofsky v. Superior Court, 703 F.2d 332 (CA9 1983), that this court is reluctant to extend the Younger doctrine to Civil litigation, particularly in civil rights suits. It is true that, prior to Fresh Int'l, this court was somewhat hesitant to expand Younger beyond criminal or quasi-criminal contexts. See, e.g., Playtime Theaters v. City of Renton, 748 F 533 (CA9 1984) rev'd on other grounds, 475 U.S. 41 (1986); Goldie's Bookstore v. Superior Court, 739 F.2d 466, 469-70 (CA9 1984). However, Fresh Int'l recognizes that the earlier view was too restrictive and that abstention is warranted whenever an important state interest is implicated. 805 F.2d at 1359-60. Moreover, the Supreme Court held in Trainer v. Hernandez, 431 U.S. 434 (1977) that a state's interests in "administering its public-assistance programs" and "safeguarding the fiscal integrity of those programs" were sufficiently important to warrant application of the Younger abstention doctrine. Id. at 444. Appellants’ further argument that the interests of the State of Oregon are outweighed by the need for national uniformity in AFDC procedures is no more persuasive in this context than it was with respect to their claim against the federal defendant, above. Similarly, appelilants' argument that the claim against the state APP. A-19 defendants should have been retained under the pendent jurisdiction doctrine of United Mine Workers v. Gibbs, 383 U.S. 715 (1966) ignores the underlying rationale of that decision: Appellants' claim against the federal defendant was properly dismissed, and Gibbs states that "if the federal claims are dismissed before the trial - « « the state claims should be dismissed as well." Id. at 726, [6] Finally, there is no merit to appellants’ argument that they do not (or did not) have an adequate opportunity to raise their federal constitutional claims in the state court proceedings. Three of the appellants did in fact present their constitutional claims in the state court and prevailed thereon. The state trial court determined that the state's failure to notify these appellants at the AFDC application stage denied them their rights to due process and equal protection under the constitutions of both the United States and Oregon. As to those appellants whose paternity proceedings have terminated, or those who failed to raise their constitutional claims in state court, the relevant question is whether they "could have presented" those claims to the state court. Fresh Int'l, 805 F.2d at 1362 (emphasis in original). "All that Middlesex requires is an opportunity to present the federal issue. ... "™ Id. (emphasis in original); see also Juidice v. Vail, 430 U.S. 327, 337 (1977)(same). The success of the three appellants mentioned above belies any argument that the remaining appellants did not themselves have the opportunity to Those decisions are now before the Oregon Court of Appeals. APP. A-21 raise the constitutional issues in state court. The district court therefore did not err in dismissing appellants' claim against the state defendants. CONCLUSION For the reasons set forth above, the decision of the district court is hereby AFFIRMED. APP. A-22 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RONNIE O. KITCHENS, et al.,) No. 86-3994 Plaintiffs-Appellants,) ) Vv. > o.C. Be. ) CV-85-1815-RE OTIS R. BOWEN, et al. ) Defendants-Appellees. ) APPEAL from the United States District Court for the District of Oregon (Portland). THIS CAUSE came on to be heard on the Transcript of the Record from the United States District Court for the District of Oregon (Portland) and was duly submitted. ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court, that the judgment of the said District Court in this Cause be, and hereby is affirmed. Filed and entered August 20, 1987 APP. A-23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RONNIE O. KITCHENS, MICHAEL) J. CALLAGHAN, GORDON D. O'DELL, JOHN F. MOORE, GLENN D. ROGIE, GERALD E. RYON and ROBERT W. DICKIN-~ SON, Plaintiffs, Vv. Civil No. 85-1815-JU OTIS R. BOWEN, SECRETARY, { DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED OPINION STATES OF AMERICA; KEITH PUTMAN, ADMINISTRATOR, ADULT AND FAMILY SERVICES DIVISION, DEPARTMENT OF HUMAN RESOURCES, STATE OF OREGON; JIM HUNTER, ADMIN- j ISTRATOR, SUPPORT ENFORCE- MENT DIVISION, DEPARTMENT OF JUSTICE, STATE OF OREGON, et a Defendants. Philip F. Schuster, II Roger F. Dierking Attorneys at Law 1500 N.E. Irving, Suite 540 Portland, Oregon 97232 See en dco othe ee GRE re a Attorneys for Plaintiffs ee ee ers Richard K. Willard Assistant Attorney General Sheila Lieber Felicia L. Chambers Civil Division U.S. Department of Justice 16th & Pennsylvania Avenue, N.W. Washington, D.C. 20530 Charles H. Turner United States Attorney Jack G. Collins Assistant U.S. Attorney 312 U.S. Courthouse 620 S.W. Main Portland, Oregon 97205 Attorneys for Federal Defendant Dave Frohnmayer Attorney General Glenn Klein Assistant Attorney General 108 Justice Building Salem, Oregon 973194 Attorneys for Defendants Keith Putman and Jim Hunter REDDEN, Judge: Plaintiffs bring this action, claiming their right under the due process clause of the United States Constitution, to receive notice from the government that they are named as fathers at the time when APP. B-2 application is made for Aid for Dependent Children (AFDC) support by the mothers. Both federal and state defendants move for dismissal pursuant to Fed. R. Civ. P. 12. té@}.s Magistrate Juba recommended granting both motions in his Findings and Pecommendation of April 24, 1986. I adopt the Recommendation. BACKGROUND I will comment, but briefly, as the Magistrate's opinion is detailed and correct. The factual background is undisputed. Plaintiffs are all purported fathers of children and are or have recently been involved in state court actions concerning their paternity and support obligations. Although they received notice of the paternity and support proceedings, they did APP. B-3 not receive notice when the mothers applied for AFDC. The failure to receive notice affects plaintiffs. Federal regulations, which plaintiffs do not challenge, mandate that AFDC states: (1) require applicant mothers to assign their support rights to the State; (2) require the applicant mothers' promise to cooperate in establishing chin ie, sheet good cause; and (3) impose an obligation upon the fathers for Support. Under such regulations, an individual later found to be the father has incurred obligations for AFDC payments from their commencement, although he did not have notice or opportunity to be heard on setting the amount of those payments. Plaintiffs say this failure to give notice violates their due process rights. APP. B-4 DISCUSSION When a party objects to any portion of the Magistrate's Findings and Recommenda- tion, the district court must make a de novo determination of that portion of the Magistrate's report. oe U8. C. g 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1369, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). Here plaintiffs object to the entirety of the Findings and Recommendation, and thus I review it in its entirety de novo. A. Federal Defendant Federal defendant argues that he is free from liability as a matter of law, because there has been no federal action. The federal action principle is merely the analog of the state action principle as applied to the federal government. Geneva APP. B-5 Towers Tenants Organization v. Federated Mortgage Investors, 504 F.2d 483, 487 (9th Cir. 1974). The state action principle is expressed in Blum v. Yaretsky, 457 U.S. 991, 1005-006 (1982), and is detailed in the briefs and the Magistrate's well reasoned opinion. Plaintiffs fail to point to a federal statute or regulation that requires the States not to give notice at the AFDC application stage. The United States does not coerce or significantly encourage an ommission of notice but leaves the notice procedures to the states. 42 0.8.C. e 656(a)(1); 42 U.S.C. & 602(1)(27). The federal government has not preempted the entire field, making it impossible for a state to impose its own notice require- ments. The statutes are clear that the APP. B-6 rari she OH Cal Bie Si lg RG hae Hee rT ae iii inna aion dah Dates wee esi Adicts states are free to impose their own regu)a- tions. Since there has been no federal action, this claim for violation of due process must be dismissed. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 925 (1982). B. State Defendants The state defendants argue that the Younger abstention doctrine requires dismissal as against them. This doctrine does require a federal court to abstain from any action against state officials in which: (1) the plaintiffs sought to enjoin the continuation of the state proceeding or sought to enjoin state officials from enforcing a state statute, and (2) the basis for federal relief could have been raised as a complete or partial defense to a pending or ongoing state enforcement proceeding. LH. ve. Jamieson, 643 F.2d 1351, 1352-53 (9th Cir. 1981). Plaintiffs do seek to enjoin a state statute. The remedy they seek is to preclude collection of accrued child Support for the prenotice period, This basis for federal relief could have been raised as a partial defense to the state proceedings to which these plaintiffs are or were involved. This case is not clearly distinguish- able from Trainer v. Hernandez, 431 U.S.434 (1977), wherein the Supreme Court held that the federal court should abstain from intervening in a pending state civil enforcement proceedings. Plaintiffs argue that the actions of some plaintiffs have been terminated. However, the question is not whether they presented their federal claims in the state proceedings, but whether they had the APP. B-8 iii iii Ate Piha? nati i abl niin? tb abe opportunity to &. Juidice v. Vail, 4390 U.S. 327, 337-38 (1977). CONCLUSION sens Upon de novo review, I find that Judge Juba's Findings and Recommendation properly dismissed all claims, There» is an absence of federal action by the federal defendant, and a federal claim may not be pursued against the state defendants. DATED this 23 day of June, 1986. James A. Redden James A. Redden United States District Judge FILED June 24, 1986 APP. B-9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RONNIE O. KITCHENS, MICHAEL) J. CALLAGHAN, GORDON D. O'DELL, JOHN F. MOORE, GLENN D. ROGIE, GERALD E. RYON and ROBERT W. DICKIN- SON, Plaintiffs, Vv. Civil No. 85~-1815-JU OTIS R. BOWEN, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED ORDER STATES OF AMERICA; KEITH PUTMAN, ADMINISTRATOR, ADULT AND FAMILY SERVICES DIVISION, DEPARTMENT OF HUMAN RESOURCES, STATE OF OREGON; JIM HUNTER, ADMIN- ISTRATOR, SUPPORT ENFORCE- MENT DIVISION, DEPARTMENT OF JUSTICE, STATE OF OREGON, ee ee” Defendants. IT IS ORDERED that the Findings and Recommendation of Judge Juba dated Eee Te Pe April 24, 1986 are ADOPTED. Dated this 23 day of June, 1986. ae ld es se mm James A. Redden | James A. Redden United States District Judge FILED June 24, 1986 ____ ae IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RONNIE O. KITCHENS, et al., Plaintiffs, Civil No. ) ) ) ) Vv. ) ) 85-1815-JU ) ) ) ) ) OTIS R. BOWEN, Secretary Department of Health and Human Services, et al., JUDGMENT Defendants. Based on the record, IT IS ORDERED that this action is dismissed. _ Dated this 25 day of June, 1986. Jeffrey Amram Clerk, United States District Court FILED June 25, 1986 APP. B-11 APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ORiGON RONNIE O. KITCHENS, et al., ) ) Plaintiffs, ) Vv. ) Civil No. ) 85-1815-JU OTIS R. BOWEN, Secretary ) of Health and Human Ser- )FINDINGS AND vices, et al., ) RECOMMENDATION ) Ce Defendants. ) PHILIP F. SCHUSTER, II ROGER F. DIERKING 1508 N.E. Irving, Suite 549 Portland, Oregon 97232 Of Attorneys for Plaintiff RICHARD K. WILLARD, Asst. Attorney General U.S. Dept. of Justice-Civil Div. CHARLES H. TURNER, United States Attorney JACK G. COLLINS, Asst. U.S. Attorney 312 U.S. Courthouse 620 S.W. Main Street Portland, Oregon 97265 FELICIA CHAMBERS U.S. Dept. of Justice, Rm, 3537 18th & Pennsylvania Avenue, N.W. Washington, D.C. 20530 Attorneys for Federal Defendant JUBA, Magistrate: PRELIMINARY STATEMENT Plaintiffs are six individuals, each of whom is or was a defendant in an Oregon State court proceeding brought by the State to establish paternity and child Support obligations. They bring this action against the Secretary of the U.S. Department of Health and Human Services, (federal defendant or Secretary), the Administrator of Adult and Family Services of the Oregon Department of Human Services, and the Administrator of the Support Enforcement Division of the Oregon Department of Justice (State defendants) alleging that regulations governing the establishment of paternity and obligations owed to recipients of Aid to Families with Dependent Children (AFDC) are unconstitutional. Plaintiffs seek relief pursuant to 42 U.S.C. § 1983. Plaintiffs claim that the Secretary's implementation of the AFDC and Child Support Enforcement (CES) programs, which direct participating states, in accordance with state law, to establish the paternity of and support obligations owed to AFDC recipients, violates due process. As to the Federal Defendant, plaintiffs allege that due process requires that the Secre- tary mandate that State provide putative fathers with notice and a hearing at the time AFDC applications are filed, and that the Secretary must prescribe when and under what circumstances blood testing can be utilized in paternity actions. Fur- ther, plaintiffs allege that the federal regulations andlewtwt ty omit requirements allowing putative fathers to show that granting AFDC benefits to children while in their mother's care is against the best interests of the child. Plaintiffs also attack the Oregon statutory and regulatory schemes as violative of due process and equal protection of the law. As relief plaintiffs seek a declara- tory judgment determining the invalidity of the federal regulations, and an injunc- tion directing the Federal and State Defendants to promulgate specific regulations incorporating additional protections and prohibiting the State from collecting any support obligations until cheese semiinkions are promulgated. The Federal Defendant now moves to dismiss this action for lack of subject matter jurisdiction and because plaintiffs have failed to state a claim upon which relief may be granted. The State Defendants move to dismiss pursuant to Fed. R. Civ. P. 12 on the basis of the Younger abstention doctrine. Both motions to dismiss should be granted. STATUTORY BACKGROUND This summary of the relevant statutes is taken from the Secretary's well-written brief. The AFDC program was enacted by Congress in 1935, Act of August 14, 1935, Pub. L. No. 271, & 461 et seq., 49 Stat. 627, et seg., and is established in Title IV-A of the Social Security Act, 42 U.S.C. $ 601 et seg. The purpose of the AFDC program is to encourage the care of needy dependent children in their own homes or those of relatives in order to help maintain and strengthen family life, and to assist the parent or relatives with whom they are living to attain or retain APP. c-5 the maximum self-sufficiency that is consistent with continuing parental care and protection. 42 U.S.C. & 661 "... (AFDC) offers welfare payments to families in which the father is dead, absent, disabled or at the state's option, unemployed." S. Rep. No. 93-1356, 93rd Cong., 2nd Sess., reprinted in, 1974 U.S. Code Cong. & Ad. News 8133, 8146. The AFDC program is based on a scheme of cooperative federalism in which Congress provides certain sums to be paid to the states which have approved state plans providing for state financial participa- tion in furnishing aid and services to needy children. 42 U.S.C. §&& 601, 682(a) (2). Congress required that the state plan shall provide that such aid be furnished with reasonable promptness to all eligible individuals. 42 U.S.C. § 662(a) (16) (A). The state plan must also provide that prompt notice be given to the state child Support collection agency of the furnishing of AFDC to a child who has been deserted or abandoned by a parent, including a child born out of wedlock, without regard to whether the paternity of that child has been established. 42 U.S.C. § 602(a) (11). As a condition of eligibility, the AFDC applicant must assign to the state any rights to support he or she may have from any other person and which have accrued at the time the assignment is executed. 42 U.S.C. & 602(a)(26)(A). Also, the applicant must cooperate with the state in establishing the paternity of a child born out of wedlock who receives AFDC, and in obtaining support, unless the applicant APP. C-7 oS has good cause for refusing to cooperate as determined by the state agency in accordance with standards prescribed by the Secretary. 42 U.S.C. § 682(a) (26) (B). The state must also have in effect a plan to establish paternity, locate absent parents, and obtain child and spousal Support under Subchapter IV-D of the Act. 42 U.&,¢. S$ 662(a)(27). The Secretary must approve a state plan that complies with the provisions of section 6@2(a). 42 U.S.C. § 602(b). In 1975, Congress enacted the CSE program, Social Services Amendments of 1974, Pub. L. Now 93-647, § 161(a) et seq., as Title IV-D of the Social Security Act. 42 U.S.C. § 651 et Seg. In so doing, Congress authorized federal financial support for a panoply of services and programs designed to encourage the enforcement of child support obligations by the states. See, 1974 U.S. Code Cong. & Admin. News, at 8168. Congress was concerned with the steadily rising costs of the AFDC program and sought to redress a national failure to enforce support obligations owed dependent children, a principal cause of the rising AFDC costs. Id. at 8145-8149. TO accomplish this, the legislation mandated that the states provide child support enforcement services with regard to all AFDC recipients. 42 U.S.C. § 654(4). The state plan must comply with standards that the Secretary has determined are necessary to the establishment of an effective program. 42 U.S.C. & 652(13)(a)(1). Support rights assigned to the state under the AFDC program constitute an obligation owed to the state and are collectible by the state under applicable state and local processes. 42 U.S.C. § 656(a) (1). In the 1984 amendments, Congress mandated that effective October l, 1985, the states shall have an effect all laws to improve child support enforcement, 42 U.S.C. $ 654(28), including expedited processes under the state judicial or administrative systems for obtaining and enforcing support orders, and, at the state's option, for establishing pater- nity. 42 U.S.C. § 666(a) (2). Congress also provided that the state plan shall permit the establishment of the paternity of any child prior to his or her eighteenth birthday. 42 0.8.C. g 666 (a) (5). The Secretary has promulgated regulations implementing the AFDC and CSE programs at 45 C.F.R. § 232.1 et seq., and 45 C.F.R. § 308 et seq. APP. C-16 II. DISCUSSION A. The Federal Defendant Plaintiffs contend that the failure of the federal regulations to provide notice and an opportunity for plaintiffs, as persons designated as fathers by mothers receiving AFDC benefits, to participate in the application for assistance procedure is inconsistent with the Congressional mandate and in violation of plaintiffs' due process and equal protection rights. Plaintiffs allege that the federal regulations deny them the opportunity to participate during the application procedure, in the determina- tion of what is in the child's best interest. . 1. Legal Standards The standards utilized to find federal action for purposes of the Fifth APP. C-11 Amendment are the same as those employed to detect state action. Geneva Towers Tenants Organization ve Federated Mortgage Investors, 504 F.2d 483, 487 (9th Cir. 1984); Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1981). The ultimate issue in determining whether a party is subject to suit under g 1983 is whether the alleged infringement of federal rights is fairly attributable to that party. Id. The Supreme Court has recently discussed the elements required to establish governmental action. Regulation of an entity does not convert that entity's action into governmental action. Plaintiffs must show that: "There is a sufficiently close nexus between the [federal government] and the challenged action of the regulated entity so that the action of the latter may be fairly treated as’ that of the [federal government] itself." [citation omitted]. The purpose of this requirement is to assure that constitutional standards are involved only when it can be said that [the federal government] is responsible for the specific conduct of which the plaintiff complains. The importance of this assurance is evident, when, as in this case, the complaining party seeks to hold the [federal government] liable for the actions of private parties. Blum v. Yaretsky, 457 U.S. 991, 1804 (1982) (emphasis in original). The government is responsible for the actions of third parties when it has exercised coercive power or provided such significant encouragement that the law imputes the action to the government itself. Id. Mere approval of, or acquiescence in, the decisions of a third party is not sufficient to justify holding the government responsible for those actions. Id. Finally, the required nexus may »e present if the federal government has exercised powers that are ‘traditionally the exclusive perogative of the state’. Blum, at es. 2. Analysis of the Regulations “=. a Essentially the Secretary argues that the challenged regulations are the actions of the State of Oregon and not mandated by the federal regulations. Plaintiffs basically argue that the federal regulations pre-empt the State and are inadequate for failure to mandate notice and hearing requirements. In accordance with the Congressional prescription that AFDC be provided to eligible persons with reasonable promptness, 42 U.S.C. § 6@2(a) (16) (A), the Secretary determined, that each person wishing to apply for AFDC would have the Opportunity to do so without delay, 45 C.F.R. § 266.10(a)(1). The AFDC applicant Or recipient must assign any rights to support to the state, and cooperate in establishing the paternity of children born out of wedlock, and support obligations, 45 C.F.R. §§ 232.11 (a)(1)(i), (ii), 232.12(a) (i), (2), (3), unless good cause for refusing to cooperate is found. Good cause, as defined by the Secretary, encompasses circumstances which are against the best interests of the child, and includes situations where cooperation may result in physical or emotional harm to the child or caretaker relative, where the child was conceived as a result of rape or incest, or where adoption proceedings are being contemplated or are pending. 45 C.F.R. § 232.42 (a). The CSE regulations mandate that a state undertake to establish the paternity of a child born out of wedlock who is APP. C-15 receiving AFDC benefits, and to secure Support for that child "from any person who is legally liable, using state laws. . ." 45 C.F.R. § 302.31 (a) (1), (2), 303.4(a), 383.5(a) (1), (2). (emphasis added). The support obligation, consti- tuting an obligation owed to the State, shall be established by "[oJrder of a court of competent jurisdiction, [or] {[o]ther legal process as established by State lews. .« «” 88. CoB Rs ss 302.50(a), (1), (2), 303.4(b) (emphasis added). Pursuant to the Child Support Enforcement of 1984, the Secretary promulgated regulations which require (effective October 1, 1985,) that states enact laws providing for expedited processes having the same force and effect as those established through judicial process to establish and enforce child eh ee 1 tee cael at et es 5 le = oe PG. a an fh ee Se, support obligations. 45 Ceres Rs 8 302.70(a) (2). These regulations mandate that support enforcement proceedings’ be completed in one year from filing, and that the state may utilize such proceedings in the establishment of paternity. 45 C.F.R. §8§ 303.161(b)(2), (3). “Orders established [under expedited processes] must have-the same force and effect under state law as orders established by full judicial process within the state[;] {t]he due process rights of the parties involved must be protected; [and] [t]he parties must be provided a copy of the order..." 45 C.F.R. § 303.101(c) (1), (2), and (3). In enacting the Child Support Enforcement Amendments of 1984 Congress stated that “basic responsibility for child support and establishment of APP. C-17 paternity is left to the states," S. Rep. reprinted in, 1983 U.S. Code Cong. & Congress specifically noted that: {the] provision does not mandate a particular procedure nor authorize the Federal agency to impose its views as to the details of State court organi- zation. What is required is that States adopt structures and procedures which will assure that child support and paternity actions are processed in an expeditious manner. 1983 U.S. Code Cong. & Admin. News at 2425. "It is not intended that the Secretary be authorized to specify the particular administrative or judicial structures to be adopted by the States. Rather, it is intended that the Secretary should measure a State's compliance with this provision primarily on the basis of the results it produces." Id. at 2454. APP. C-18 The Secretary is not responsible for the State of Oregon's failure to provide notice and an opportunity to be heard to the putative fathers. Likewise, the Secretary is mot responsible for the State's policy regarding use of blood testing in paternity actions. The required nexus between the federal regulations and plaintiffs' injury is missing. The challenged decisions made by the State according to standards that are not established by federal government. See Blum, 457 U.S. at 1008. Moreover, this is not a situation in which the federal government has exercised powers ‘traditionally within the exclusive perogative’ of the State. The regulation of marital and family relationships is traditionally reserved to the states. Sherrer v. Sherrer, 334 U.S. 343, 354 APP. C-19 (1948); Lehr v. Robertson, 463 U.S. 248, 256 (1983). The regulations in question preserve the states' traditional role. Plaintiff contends that the State is pre-empted from providing for notice by the federal regulations. The Supreme Court has recently discussed pre-emption: the Supremacy Clause .. . invalidates state laws that interfere with, or are contrary to federal law. Under the Supremacy Clause, federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress ~~ is empowered to pre-empt state law by so stating in express terms. In the absence of express pre-emption language, Congress’ intent to pre-empt all state law in a particular area may be inferred when the scheme of federal regulation is sufficiently compre- hensive to make reasonable the inference that Congress "left no room" for supplementary state regulation. Pre-emption of a whole field also will be inferred where the field is one in which “the federal interest is_ so dominant that the federal system will be assumed to preclude enforcement of State laws on the same subject." Even where Congress has not completely displaced state regulation in a specific area, state law is APP. C--26 nullified to the extent that it actually conflicts with the federal law. Such a conflict arises when “compliance with both federal and state regulations is -—— —— George E. Juba United States Magistrate APPENDIX D CONSTITUTIONAL PROVISIONS The Supremacy Clause Article 6, Clause 2, The Supremacy Clause of the United States Constitution, pro- vides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding." The Fifth Amendment to the United States Constitution provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken APP. D-l for public use, without just compensation." The Fourteenth Amendment to the United States Constitution provides in relevant part: "Gection i. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." * & & &. 2 STATUTORY PROVISIONS IN PERTINENT PART 5 USC § 706. Scope of review "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitu- tional and statutory provisions, and determine the meaning of applicability of the terms of an agency action. The reviewing court shall -- : * &£ & @ APP. D-2 "(2) hold unlawful and set aside agency action, findings, and conclusions found to be -- "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; "(B) contrary to constitutional right, power, privilege, or immunity; : 2.8 @n 28 USC 8 1331. Federal Question "The district courts shall have Original jurisdiction of all civil actions arising under the Constitu- tion, laws, or treaties of the United States." 42 usc $ 681. Authorization of appro- priations "For the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilita- tion and other services, as far as practicable under the conditions in such state, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry Out the purposes of this part. The Sums made available under this section shall be used for making payments to States which have submitted, and had approved by the Secretary, State plans for aid and services to needy families with children. 42 USC § 602. State plans for aid and ser- vices to needy families with children; contents; approval by Secretary; records and reports; treatment of earned income advances "“(a) Contents "A State plan for aid and services to needy families with children must -- (1) provide that it shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them; (2) provide for financial participa- tion by the State; (3) either provide for the estab- lishment or designation of a single State agency to administer the plan, or provide for the establishment or designation of a single State agency to supervise the administration of the plan; APP. D4 (4) provide for granting an oppor- tunity for a fair hearing before the State agency to any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness; (5) provide such methods of adminis- tration * * * as are found by the Secretary to be necessary for the proper and efficient operation of the plan; 2. Ls 2.2.2 (7) except as may be otherwise provided in paragraph (8) or (31) and section 615 of this title, provide that the State agency -- (A) shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or of any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in deter- mining the need of the child or relative claiming such aid; ee. £ & 2. (11) provide for prompt notice (including the transmittal of all relevant information) to the State child support collection agency APP. D-5 (established pursuant to part D of this subchapter) of the furnishing of aid to families with dependent children with respect to a child who has been deserted or abandoned by a parent (including a child born out of wedlock without regard to whether the paternity of such child has been established); ee SS 8. aS "(26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required -- "(A) to assign the State any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, and (ii) which have accrued at the time such assignment is executed; "(B) to cooperate with the State (i) in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed, and (ii) in obtaining support payments for such appli- cant and for a child with respect to whom such aid is claimed, or in obtaining any other payments or property due such applicant or such child, unless (in either case) such applicant or recipient is found to have good cause for refusing to cooperate as ee Co — — se determined by the State agency in accordance with standards pre- scribed by the Secretary, which Standards shall take into consid- eration the best interests of the child on whose behalf aid is claimed; * * *" 42 USC ° 653. Parent Locator Service (a) Establishment; purpose "The Secretary shall establish and conduct a Parent Locator Service, under the direction of the designee of the Secretary referred to in .section 652(a) of this title, which shall be used to obtain and transmit to any authorized person (as defined in sub- section (c) of this section) informa- tion as to the whereabouts of any absent parent when such information is to be used to locate such parent for the purpose of enforcing support obligations against such parent. e-< 2 &- Bee 42 USC § 654. State plan for child and spousal support "A state plan for child and spousal support must -- se @ee @ APP. D-7 (4) provide that such State will undertake -- "(A) in the case of a child born out of wedlock with respect to whom an assignment under section 6@2(a)(26) of this title is effective, to establish the pater- nity of such child, unless the agency administering the plan of the State under part A of this subchapter determines in accor- dance with the standards prescribed by the Secretary pursuant to section 602(a) (26) (B) of this title that it is against the best interests of the child to do so, and zx eke & ® "(9) provide that the State will, in accordance with standards prescribed by the Secretary, cooperate with any other State -- "(A) in establishing paternity, if necessary. oe 22.2 42e 42 USC 666. Requirement of statutorily prescribed procedures to improve effective- ness of child support enforcement "(a) Types of procedures required "In order to satisfy section 654(2@0)(A) of this title, each State must have in effect laws requiring the APP. D-8 use of the following procedures, consistent with this section and with regulations of the Secretary, to increase the effectiveness of the program which the State administers under this part: i. ee "(5) Procedures which permit the establishment of the paternity of any child at any time prior to such child's eighteenth birthday. e 2:82 - @¢.25 42 USC - 1362. Rules and regulations "The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services, respectively, shall make and publish such rules and regulations, not inconsistent with this chapter, as may be necessary to the efficient administration of the functions with which each is charged under this chapter." 42 USC § 1983. Civil action for depriva- tion of rights "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Colum- bia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the depriva- APP. D9 tion of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute vt the OTECriet of Columbia." REGULATORY PROVISIONS IN PERTINENT PART 45 CFR 2 265.10. Hearings "(a) State plan requirements. A State plan under title I, IV-A, X, XIV, or XVI of the Social Security Act shall provide for a system of hearings under which: (1) The single State agency responsi- ble for the program shall be responsi- ble for fulfillment of hearing provi- sions which shall provide for: (i) A hearing before the State agency, or (ii) An evidentiary hearing at the local level with a right of appeal to a State agency hearing. Where a state agency adopts a system of evidentiary hearings with an appeal to a State agency hearing, it may, in some political subdivisions, permit local evidentiary hearings, and in others, APP. D-1@ ee eee provide for a single hearing before the State agency. Under this requirement hearings shall meet the due process standards set forth in the US Supreme Court decision in Goldberg v. Kelly, 397 U.S. 254 (1970) and the standards set forth in this section." 45 CFR 206.19. Application, determina- tion of eligibility and furnishing of assistance. "(a) State plan requirements. A State plan under title I, IV-A, X, IV, or XVI(AABD), of that Social Security Act shall provide that: xkkk tk "(4) Adequate notice shall be sent to applicants and recipients to indicate that assistance has been authorized (including the amount of financial assistance) or that it has been denied or terminated. Under this requirement, adequate notice means a written notice that contains a state- ment of the action taken, and the reasons for and specific regulations supporting such action, and an explanation of the individual's right to request a hearing. 2°. 82 -&.-@ "(7) In cases of proposed action to terminate, discontinue, suspend or reduce assistance, the agency shall give timely and adequate notice. Such notice shall comply with the APP. D-1l provisions of @ 205.18 of this chapter." 45 CFR $ 232.11. Assignment of rights to support. "(a) The State plan must provide that: (1) As a condition of eligibility for assistance, each applicant for or recipient of AFDC shall assign to the State any rights to support from any Other person as such applicant or recipient may have: * * *" 45 CFR 2 232.12. Cooperation in obtaining Support. "The State plan must meet all requirements of this section. "(a) The plan shall provide that as a condition of eligibility for assis- tance, each applicant for or recipient of AFDC will be required to cooperate (unless good cause for refusing to do so is determined to exist in accor- dance with S$ 232.48 through 232.49 of this chapter) with the State in: "(1) Identifying and locating the parent of a child for whom aid is claimed; "(2) Establishing the paternity of a child born out of wedlock for whom aid is claimed; —~ —— x* *&* *& *& en APP. D-12 45 CFR §& 232.43. Proof of good-cause claim. "The plan shall provide that: "“(a) The State or local agency wiil make a good-cause determination based on the corroborative evidence supplied by the applicant or recipient only after it has examined the evidence and found that it actually verifies the good-cause claim. e 2.@ 2@.@ "(g) The State or local agency may further verify the good-cause claim if the applicant's or recipient's state- ment of the claim required by 232.4@(c)(1)(i), together with the corroborative evidence do not provide sufficient basis for making a deter- mination. When the State or local agency determines that it is necessary, the agency may conduct an investigation of good-cause claims to determine that good cause does or does not exist. "(h) If it conducts an investigation of a good-cause claim, the State or local agency will: "(1) Contact the absent parent or putative father from whom support would be sought if such contact is determined to be necessary to estab- lish the good-cause claim; and APP. D-13 "(2) Prior to making such necessary contact, notify the applicant or recipient to enable the applicant or recipient to: "(i) Present additional corroborative evidence or information so that con- tact with the parent or putative father becomes unnecessary; "(ii) Withdraw the application for assistance or have the case closed; or "(iii) have the good-cause claim denied." 45 CFR e 2324.43. Notice to the IV-D Agency "The plan shall provide that: "“(a) If the notice, required by 235.780 of this chapter, has previously been provided to the IV-D agency, the State or local agency will promptly report to the IV-D agency that good cause has been claimed; "(b) The state or local agency will promptly report to the IV-D agency all cases in which it has been determined that there is good cause for refusal to cooperate and if applicable, its determination whether or not child Support enforcement may proceed without the participation of the care- taker relative; and , "(c) The State and local agency will promptly report to the IV-D agency all APP. D-14 cases in which it has determined that there is not good cause for refusal to cooperate," 45 CFR §& 232.49. Enforcement without the caretaker's cooperation. "The State plan may provide that: "(a) If the State or local agency makes a determination that good cause exists it will also make a determina- tion of whether or not child support enforcement could proceed without risk of harm to the child or caretaker relative if the enforcement or collec- tion activities did not involve their participation; "(b) This determination will be in writing, contain the agency's findings and basis for determination, and be entered into the AFDC case record; "(c) If the IV-A agency excuses coop- eration but determines that the IV-D agency may proceed to establish pater- nity or enforcement support, it will notify the applicant or recipient to enable such individual to withdraw their application for assistance or have the case closed; and "(d) Prior to making a determination under this paragraph, the State or local agency will afford the IV-D agency an opportunity to review and comment on the findings and basis for the proposed determination and APP. D-15 consider any recommendation from the IV-D agency." 45 CFR $ ‘ei ye - Need and amount of assistance. "(a) Requirements for State Plans. A State Plan for OAA, AFDC, AB, APTD or AABD must, as specified below: "(1) General. (i) Provide that the determination of need and amount of assistance for all applicants and recipients will be made on an objec- tive and equitable basis and all types of income will be taken into | consideration in the same way except where otherwise specifically authorized by Federal statute and x * *eN Are ae tie Ta 45 CFR § 235.70. Prompt notice to child Support agency. "“(a) A State plan under Title IV-A of 4 the Social Security Act must provide for prompt notice to the State or local child support agency designated pursuant to section 454(3) of the Social Security Act whenever: "(1) Aid is furnished to a child who j has been deserted or abandoned by a parent, to the parent(s) with whom the child lives, or to a pregnant woman under S 233.98 (c)(2) (iv), or "(2) Any of the persons in paragraph (a)(1) of this section is deemed to be APP. D-16 a recipient of aid under $ 233.26 (a) (3) (viii) (D). "(b) In this section: "(1) 'Aid' means Aid to Families with Dependent Children, or AFDC Foster Care. "(2) ‘Prompt notice’ means written notice including a copy of the AFDC case record, or all relevant informa- tion as prescribed by the child Support agency. The prompt notice shall be provided within two working days of the furnishing of aid or the determination that an individual is a recipient under 233.20 (a) (3) (viii)(D). The title IV-A agency and the child support agency may agree to provide notice immediately upon the ftiing of an application for assistance. "(3) 'Furnish' means the date on which cash is given to the family, a check Or warrant is mailed to the family, a deposit is made in a bank for the family, or other similar circumstances in which an assistance payment is made to the family, or the date on which individuals are determined to be recipients under & 233.26 (a) (3) (viii) (D). "(4) "A child who has been deserted or abandoned by a parent' means any child whose eligibility for AFDC is based on continued absence of a parent from the home, and includes a child born out of APP. D-17 wedlock without regard to whether the paternity of such child has been established." 45 CFR § 302.31. Establishing paternity and securing support. "The State plan shall provide that: "(a) The IV-D agency will undertake: "(1) In the case of a child born out of wedlock with respect to whom an assignment under $ 232.11 of this title or section 471l(a)(17) of the Act is effective, to establish the paternity of such child; and "(2) In the case of any individual with respect to whom an assignment under 232.it of this titie: or section 471l(a)(17) of the Act is effective to secure support for a child or children from any person who is legally liable for such support, using State laws and reciprocal arrangements adopted with other States when appropriate. Effective Octo- ber 1, 1985, this includes securing Support for a spouse or former spouse who is living with the child or children, but only if a support obligation has been established for that spouse and the child support obligation is being enforced under the title IV-D State plan. "(3) When assigned support payments are received and retained by an AFDC recipient, to proceed as follows: APP. D-18 : : & "(i) In States that implement the IV-A State plan requirements to count retained support payments as income under 45 CFR 233.20(a)(3)(v), the IV-D agency shall notify the IV-A agency whenever it discovers that directly received payments are being, or have been, retained; or "(ii) In States that do not implement the IV-A State plan requirements to count retained support payments as income to meet need, the IV-D agency shall recover the retained payments. This recovery by the IV-D agency shall be carried out in accordance with the standards for program operations provided in 5 303.880 of this chapter. "(b) Upon receiving notice from the IV-A or IV-E agency that there has been a claim of good cause under 232.48 of this title, the IV-D agency will suspend all activities to establish paternity or secure support until notified of a final determina- tion by the IV-A or IV-E agency. "(c) The IV-D agency will not under- take too establish paternity or secure Support in any case for which it has received notice from the IV-A or IV-E agency that there has been a finding of good cause pursuant to 232.40 through 232.49 of this title unless there has been a determination by the State or local IV-A or IV-E agency that support enforcement may proceed without the participation of the APP. D-19 caretaker or other relative. If there has been such a determination, the IV-D agency will undertake to establish paternity or secure support but may not involve the caretaker or other relative in such undertaking." 42 CFR ® 3062.50. Support obligations. "The state plan shall provide as follows: "(a) The support rights assigned to the IV-D agency pursuant to 233.11 of this title or section 471(a)(17) of the Act constitute an obligation owed to the State by the individual responsible for providing such support. Such obligation shall be established by: "(1) Order of a court of competent jurisdiction, "(2) Other legal process as estab- lished by State laws, such as an administrative hearing process or a legally enforceable and binding agreement; or, "(3) For cases receiving child support services under the provisions of sec- tion 48@2(a)(17) an (18) of the Act prior to July 1, 1975, the obligation may be that established by an agree- ment which was entered into prior to July 1, 1975 which does not meet the requirement of paragraph (a)(2) of this section, In the event of a breach of the agreement, such agree- APP. D-20@ ment must be superseded pursuant to paragraph (a)(1) or (2) of this sec- tion as soon as possible. All agree- ments not meeting the requirements of paragraph (a)(1) or (2) of this section must be superseded pursuant to paragraph (a)(1l) or (2) of this sec- tion on the basis of one-third by January 1, 1976, two-thirds by July l, 1976, and all by January 1, 1977; "(b) The amount of the obligation described in paragraph (a) of this section shall be: "(1) The amount specified in the order of a court of competent jurisdiction which covers the assigned support rights; or "(2) If there is no court order, an amount determined in writing by the IV-D agency as part of the legal proc- ess referred to in paragraph (a)(2) of this section in accordance with a formula which meets the criteria pre- scribed in e 302.53. "(c) The obligation described in para- graph (a) of this section shall be deemed for collection purposes to be collectible under all applicable State and local processes. "(d) Any amounts which represent Support payments collected from an individual responsible for providing Support under the State plan shall reduce, dollar for dollar, the amount of his obligation under this section. APP. D-21 "(e) No portion of any amounts col- lected which represent a support obli- gation assigned under § 232.11 of this title may be used to satisfy a medical support obligation unless the court or administrative order requires a specific amount for medical support." 42 CFR 303.4. Establishment of support obligations. "For all cases referred to the IV-D agency Or applying under § 362.33 of this chapter, the IV-D Agency must: "(a) When necessary, establish pater- nity pursuant to the standards of 2 303.5; "(b) Utilize appropriate State Statutes and legal processes in establishing the support obligation pursuant to § 302.58 of this chapter. "(c) Review the support obligation periodically and whenever the IV-D agency becomes aware of changes in the factors which determine the amount of the support obligation." 42 CFR § 303.5. Establishment of pater- nity. “(a) For all cases referred to the IV-D agency or applying under § 362.33 of this chapter in which paternity has not yet been established, the IV-D agency must: "(1) Attempt to establish paternity by court order or other legai process established under State law; or "(2) Establish paternity by acknowl- edgment if under the State law such acknowledgment has the same legal effect as court-ordered paternity, including the right to benefits other than child support. "“(b) The IV-D agency need not attempt i to establish paternity in any case = involving incest or forcible rape, or % in any case in which legal proceedings 7 for adoption are pending, if, in the i opinion of the IV-D agency, it would f not be in the best interests of the . child to establish paternity. "(c) The IV-D agency shall identify id laboratories within the State which i perform legally and medically accept- 2 able tests, including blood tests, . which tend to identify the father or & exclude the alleged father from pater- : nity. A list of such laboratories shall be available to appropriate courts and law enforcement officials, and to the public upon request.” 42 CFR @ 303.7. Cooperation with other States. "“(a) For all cases referred to the IV-D agency under the State plan of another State, the IV-D agency must assist the other State in locating an absent parent, establishing paternity, Or szecuring support for a child or APP. D-23 children and for the spouse (or former spouse) of the absent parent with whom the child or children are living in the other State. Under this standard, the IV-D agency must: "(1) When necessary, locate the putative father or absent parent utilizing the standards prescribed in § 303.3. "(2) When necessary, establish pater- nity or assist the other State in establishing paternity; "(3) Process and enforce all court orders referred by another State, whether pursuant to the Uniform Reciprocal Enforcement of Support Act ; or other legal processes. The IV-D : agency shall utilize the same remedies ‘ normally applied to its own cases; ® 2,82 8 2. 42 CFR § 305.24. Establishing paternity. "For the purposes of this part, in order to be found to be in compliance with the State plan requirement that the State undertake the establishment of paternity (45 CFR 3902.31(a) and 302.33), a State must: re £ 2: £2 4 "(b) Have established and use written ba procedures for establishing the 7 paternity of any child at least until ‘ the child's 18th birthday: * * * * *" 4 APP. D-24 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0465%3A1. Public record. Not legal advice.