# Appendix — Ellenbecker v. Howe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1223%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1005 ## Text Supreme our, Oe, tes FILED 93128 8 JAN 1 11994 OFrick OF THE CLERK | No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1993 JAMES ELLENBECKER, in his capacity of Secretary of the South Dakota Department of Social Services, TERRY WALTER, in his capacity as Program Administrator, South Dakota Office of Child Support Enforcement, Petitioners, Vv. VELDA HOWE, THERESA TAKEN ALIVE, on behalf of themselves, their children, and all others similarly situated, | Respondents. APPENDICES MARK BARNETT ATTORNEY GENERAL DAVID L. BRAUN = Special Assistant Attorney General Counsel of Record 700 Governor's Drive Pierre, South Dakota 57501 : (605) 773-3641 Attorneys for Petitioners TABLE OF CONTENTS Velda Howe, et al. v. James Ellenbecker, et al.; United States Court of Appeals for the Eighth Circuit; No. 92-3354 Velda Howe, et al. v. James Ellenbecker, et al.; United States Court of Appeals for the Eighth Circuit; Judgment; (11/3/93) Velda Howe, et al. v. James Ellenbecker, et al.; United States District Court; No. 90-3007; (9/18/91) Velda Howe, et al. v. James Ellenbecker, et al.; United States District Court; Central Division; No. 90-3007; Order; (9/18/93) Velda How e, et al. Vv. James Ellenbecker, et al.; United States District Court; Central Division; No. 90-3007; Order (3/27/92) Vv. es ee ornate s United States District Court; Central Division; No. 90-3007; Memorandum Order (8/10/92) 42 U.S.C. §§ 651-699 PAGE A-87 A-106 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT NO. 92-3354 VELDA HOWE, on behalf of themselves, their children, and all other similarly situated; THERESA TAKEN ALIVE, on behalf of themselves, their children and all others’ similarly situated, Piaintiffs - Appellees, vs. JAMES ELLENBECKER, in his capacity as Secretary of the South Dakota Department of Social Services; TERRY WALTER, in his capacity as Program Administrator, South Dakota Office of Child Support Enforcement; Defendants - Appellants, LOUIS W. SULLIVAN, in his capacity as Secretary of the United States Department of Health and Human Services, Defendant. Appeal from the United States District Court for the District of South Dakota Submitted: June 16, 1993 Filed: October 13, 1993 A-2 Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON and MORRIS SHEPPARD ARNOLD, Circuit Judges. JOHN R. GIBSON, Circuit Judge. James Ellenbecker, Secretary of the South Dakota Department of Social Services, Terry Walter, Program Administrator of the South Dakota Office of Child Support Enforcement, and Donna Shalala, Secretary of the United States Department of Health and Human Services,’ appeal from a declaratory judgment entered in favor of a class represented by Velda Howe and Theresa Taken Alive,’ Donna E. Shalala replaced Louis w. Sullivan, M.D., as the Secretary of Health and Human Services on January 22, 1993. The Secretary of Health and Human Services, who was a defendant in the proceedings in the district court, originally appealed the district court's order, but subsequently voluntarily dismissed his appeal. * Howe and Taken Alive bring this action on behalf of themselves, their children, custodial parents, and children who have A-3 recognizing their rights to enforce claims for child support enforcement services under Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq. (1988). The district court ordered the federal government and the State to negotiate with the Indian tribes, of which Howe and Taken Alive were enrolled members, in an attempt to reach a cooperative agreement concerning enforcement of child support obligations to their children. The State argues that Howe and Taken Alive have no standing and no private enforcement right under Title IV-D which they may assert in an absent parents residing on Indian reservations in South Dakota, and all others similarly situated, claiming that they have been denied child support collection services secured under Title IV-D of the Social Security Act, the Child Support and Establishment of Paternity Act, 42 U.S.C. § 651 et seg. (1988). This matter was certified as a class action by order filed October 24, 1990. A-4 action under 42 U.S.C. § 1983 (1988). Wwe affirm the judgment of the district court.°® Howe is an enrolled member of the Crow Creek Sioux Indian Tribe and lives with her four children in Chamberlain, South Dakota. She receives Aid to Families with Dependent Children (AFDC) benefits for herself and her minor son. As a condition of receiving AFDC, she was required to cooperate with the State in establishing her child's paternity, securing child support for her children, and assign the right to receive the child support for her son to the State. She claims that despite her willingness to cooperate with the State and identify her son's father, the State made no effort to establish the paternity of . The Honorable Donald J. Porter, United States District Judge for the District of South Dakota. A-5 her son because the putative father lives on a South Dakota Indian reservation. Taken Alive receives AFDC benefits for her minor daughter. She has custody pursuant to a judgment and decree of divorce from the Standing Rock Sioux Tribal Court, which required the father to pay child support in the amount of $300.00 per month to Taken Alive. Taken Alive claims that although she informed the South Dakota Office of Child Support Enforcement of the divorce decree, the OCSE has refused to attempt to collect child support because the father lives on a South Dakota Indian reservation. The district court describes the AFDC program as a “federal-state cooperative effort administered by the _ states." Howe _v. Ellenbecker, 774 F. Supp. 1224, 1226 (D.S.D. 1991). Under the program, states make monetary payments to financially needy A-6 families, including children deprived of parental support. 42 U.S.C. § 601 et seq. Although state participation in the program is not required, if a state enters the progran, it must operate its Plan in compliance with the statutory requirements and regulations promulgated by the Secretary of Health and Human Services. The Act requires every participating state to have a plan in effect for child support collection which meets the Act's minimum standards, 42 U.S.c. § et seg. Since 1950, the federal government has continued to revise the requirements governing efforts by states to enforce child support. In 1984, Congress enacted an amendment requiring states to pass laws for mandatory wage withholding and liens, as well as requiring paternity establishment services for both AFDC and non-AFDC families. See Child Support Enforcement Amendments of 1984, Pub. A-7 L. No. 98-378, codified at 42 U.S.C. § 651 et seg. (1988). Shortly thereafter, Congress passed the Deficit Reduction Act of 1984 which provided that when a non-custodial parent of an AFDC child makes a support payment to the state pursuant to a Title IV-D plan, the AFDC family receives the first fifty dollars collected without any reduction in the amount of assistance they receive under the plan each month. Pub. L. No. 98-369, codified at 42 U.S.C. § 657(b)(1) (1985). If a state fails to comply with any of the Title IV-D child support enforcement regulations, it risks losing federal matching funds. South Dakota follows differing approaches to child support enforcement depending on whether or not the absent parent lives within an Indian reservation. In cases where the absent parent does not live on an Indian reservation, upon receiving an application A-8 from a parent requesting collection assistance, the South Dakota Office of Child Support Enforcement first attempts to locate the absent parent. The OCSE then sends a notice of support debt to the absent parent requesting financial data so that the ocsE can determine the amount owed. The OCSE next attempts to obtain a stipulation from the absent parent admitting paternity and agreeing to pay the amount owed. Finally, if the absent parent refuses to stipulate to paternity or the amount owed, the OCSE turns the case over to counsel who attempts to obtain paternity determinations and support orders through the state courts. If the absent parent lives and works on the reservation, the OCSE attempts to locate the absent parent and seeks a stipulation of paternity and the amount owed. However, because the state courts lack jurisdiction A-9 over parents residing on the reservations, the State cannot pursue these parents through the state courts. The State has had little success in its efforts to enforce state court orders on the reservations because of jurisdictional barriers. Moreover, the State does not use tribal courts to pursue the absent parents, in part, because the federal government will not provide matching funds for pursuing child support claims through the tribal courts. Each of the nine tribes located in South Dakota operates a tribal court system having jurisdiction over tribal members, and the State may use them to bring paternity and child support actions. The district court rejected the arguments of the federal and state governments that Title IV-D does not afford individuals a private right of action under section 1983, and that they do not have standing to bring A-10 _._.this action. The court found that the Secretary's interpretation that Title IV-D precluded federal financial assistance to states which pursue absent parents who reside and work on Indian reservations when the tribe does not comply with the Title IV-D regulations was unreasonable. The district court concluded that the State could provide enforcement’ services through contractual agreements with attorneys, and that the State could use tribal courts to pursue absent parents without contradicting the regulations. The court reasoned that in enacting Title Iv- D, Congress did not intend to permit exclusion of a large percentage of Indian children from its benefits, and accordingly, that the State must provide them with the services they are entitled to receive. ee A-11 The court ordered the federal government to attempt to negotiate with the tribes in South Dakota a_tribal plan which would be statutory, regulatory, as well as functionally equivalent of a state plan as described in Title IV-D. The court concluded that the state and federal governments should reach every effort to negotiate a cooperative 5 agreement with each of the nine tribes. The parties do not attack the extent of the Upon a Motion for Reconsideration and Request for Stay Pending Reconsideration by the federal government, the district court vacated its earlier order requiring both the federal and state governments to negotiate, and ordered the State to “use every reasonable effort to negotiate a cooperative agreement or purchase of service agreement with each of the nine tribes in South Dakota." Howe __v. Ellenbecker, 796 F. Supp. 1276, 1280 (D.S.D. 1992). A-12 remedy, and accordingly, we need not discuss the remedy in detail. The only issue on appeal is the propriety of the district court's determination that Howe and the class have standing, and that they have a private enforceable right to sue under 42 U.S.C. § 1983. We review this ruling under a de novo standard. In order to have standing in federal court, plaintiffs must show that they have suffered or are about to suffer a "personal injury" that is "fairly traceable" to the defendant's conduct, and that the injury is "likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984). Because standing is determined by the specific claims presented, international Primate Protection Leaque v. Administrators of Tulane Educ. Fund, ——sU.S. si, - 111 S. Ct. 1700, 1704 (1991) (quoting Allen v. Wright, A-13 468 U.S. 737, 752 (1984)), whether Howe and the class have standing depends on whether the statute at issue, Title IV-D, creates an express or implied private right of action. Warth v. Seldin, 442 U.S. 490, 500-01 (1975). Here, the injury the class suffers, specifically denial of child support enforcement services, is directly traceable to the State's refusal to assist them in obtaining child support enforcement from the absent fathers living within Indian reservations and is capable of judicial redress. Therefore, their standing depends on whether Title IV-D confers a private right of action under section 1983 upon parties in their position. As a general rule, plaintiffs may bring private causes of action under section 1983 = for violations of federal statutes. Maine v. A-14 Thiboutot, 448 U.S. 1, 8 (1980). However, a private right of action will not lie if Congress has not’ created any enforceable rights in the statute, Pennhurst State Schoo] & Hosp. v. Halderman, 451 U.S. 1, 24-25 (1981), or if it intended to foreclose private enforcement by providing a comprehensive remedial scheme in the _ statute itself, id s fe) WwW a Sea_ Clammers Ass'n, 453 U.S. 1, 14 (1981). Recently, in Suter v. \s4) @ Att ae A. 2 1360 (1992), the Supreme Court refined its analysis of private rights of action under section 1983, concluding that a section 1983 action is created where Congress intends the statute to benefit persons like the plaintiffs through the imposition of mandatory and direct obligations on the state, and where no comprehensive enforcement mechanism exists A-15 under which plaintiffs may find relief.° Id. . Before Suter, the Supreme Court developed a three-part framework for analyzing whether a plaintiff could enforce a federal law by bringing a § 1983 action. See Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 509 (1990). This inquiry examined (1) whether Congress intended the provision at issue to benefit the putative plaintiff, and if so, (2)whether it reflected merely a congressional preference or imposed binding obligations on a state or (3) whether the plaintiff's interest was so "vague and amorphous" that it is beyond the power of judicial enforcement. Id. This Circuit, as well as others, has recognized that although Suter weakened earlier precedent in vital respects, the Court was careful not to explicitly overrule the Wilder framework. See Arkansas Medical Soc'y, Inc. v. Reynolds, Nos. 92-3146/93-2352, slip op. at 8-9 (8th Cir. Sept. 10, 1993) ("Suter did not overrule Wilder") ; w Vv ves, 976 F.2d 65, 68 (lst Cir. 1992); Procopio v. Johnson, 994 F.2d 325, 311 N.9 (7th Cir. 1993). Following the lead of the First and Seventh Circuits, we believe it "both prudent and possible to synthesize the teachings of Suter with the Court's prior precedents." Stowell, 976 F.2d at 68. Thus, we proceed by using the Wilder framework .as articulated in Suter. however, we need not discuss in detail whether Howe and the class have “vague and amphorous" interests that are beyond the power of judicial enforcement because neither party disputes that the interests of obtaining child at 1366-68 & n.11. Our analysis for evaluating a federal law's enforceability under section 1983 begins by inquiring “whether the provision in question was intended to benefit the putative plaintiff." Wilder, 496 U.S. at 509. We agree with the district court that in enacting Title IV-D Congress intended to benefit AFDC families. First, Congress expressly provided in 42 U.S.C. § 651 that the purpose of Title IV-D is to "“assur[e] that assistance in obtaining support will be available. .. to all children." Second, Congress' intent to benefit AFDC women and children with absent fathers is evident from the plain language of Title IV-D's requirements. For example, to meet the Act's minimum standards, a state Support are capable of redress through judicial decree. A-17 must, inter alia: make Title IV-D services available to non-AFDC families, 42 U.S.C. § 657(c); give the first fifty dollars collected from each absent parent to the family without a corresponding reduction in their monthly AFDC payment, 42 U.S.C. § 657 (b); and provide families with annual notice of support collected on their behalf, 42 U.S.C. § 654(5). Third, the legislative history sows that Title IV-D was primarily designed to “help children attain this right [to support], including the right to have their fathers identified so that support can be ovtained." S. Rep. No. 93-1356, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 8133, 8145-46. Finally, the decisions of other courts are consistent with our view that Title IV-D was intended to benefit needy families. See Carelli v. Howser, 923 F.2d 1208, 1211 (6th Cir. 1991) (Title IV-D was intended to benefit both AFDC A-18 families and "the public fisc" by reducing public welfare); Behunin v. Jefferson County Dep't of Social Servs., 744 F. Supp. 255, 257- 58 (D. Colo. 1990) (Congress primarily intended Title IV-D to. secure support enforcement services for children and their families); Beasley Vv. Harris, 671 F. Supp. 911, 921 (D. Conn. 1987) (Congress intended to enlarge the assistance to the family); cf. Wehunt v. Ledbetter, 875 F.2d 1558, 1565 (11th Cir. 1989), Cert. Denied, 494 U.S. 1027 (1990) (Title IV-D was enacted to reduce welfare costs). We thus conclude that Congress enacted Title IV-D to benefit "putative plaintiffs" such as Howe and the class members. J Next, we must determine whether Congress set forth the intent to benefit these types of families in specific and mandatory terms in the provision at issue. Suter, 112 S. Ct. at | A-19 J 1370. To assert a section 1983 action, the y statute at issue must give unambiguous notice ~ to the State of what is expected of it, y instead of "broad limits" in which to comply. t Suter, 112 S. Ct. at 1368; Arkansas Medical 7 Soc'y, slip op. at 9 (discussing the Suter Court's emphasis on the fact that terms must > be "unambigucusly" conferred to be . enforceable). Once a state decides to enter 1 the AFDC program, the requirements of Title IV-D and its corresponding regulations are mandatory and unambiguous. For example, in w ; addition to the mandatory requirements stated : above, state plans "must provide that the - State will undertake" a program to establish the paternity of a child born out of wedlock, , 42 U.S.C. § 654(4), and the state “must” notify a family "at least annually" of the | amount of child support collected on its behalf. 42 U.S.C. § 654(5). See Behunin, 744 A-20 F. Supp. at 258 (listing reasons Title IV-D is mandatory). A state may not receive federal funds for its AFDC program unless it has a Title IV-D child support recovery program that complies with federal law. 42 U.S.C. § 602(a) (27). Furthermore, the regulations reiterate the statute's plain directives, requiring that participating states must attempt to locate absent parents, 45 C.F.R. § 303.3(b); must periodically review and adjust child support orders, 45 C.F.R. § 303.4; must determine the paternity of children born out Of wedlock, 45 C.F.R. § 303.5; and must enforce support obligations for the children, 45 C.F.R. § 303.6. The mandates of Title IV-D are particular and specific enough to impose binding obligations on South Dakota, and accordingly, create substantive enforceable rights in the class. See Wilder, 496 U.S. at 512 (holding that the Boren Amendment of the a A-21 Medicaid Act creates substantive federal rights enforceable under section 1983 because the Act actually required the states to adopt "reasonable and adequate rates" for medical assistance); cf. Suter, 112 S. Ct. at 1370 (holding that the Adoption Assistance and Child Welfare Act of 1980 does not create a private enforceable right under section 1983 because Act only required states to make "reasonable efforts"). Finally, even though the class falls within the parameters of intended beneficiaries and Title IV-D imposes mandatory requirements, we must conclude. that’ the statute itself does not provide a "comprehensive remedial scheme which leaves no room for additional private remedies" in order to hold that Title IV-D confers an enforceable right on Howe and the class members to sue under section 1983. Suter, 112 S. Ct. at 1368 A-22 & n.1l. Title IV-D confers an enforceable right on Howe and the class members to sue under section 1983. Suter, 112 S. Ct. at 1368 & Ww. ii. Title IV-D does contain an enforcement scheme in the form of fiscal sanctions the federal government may assert against the State, but these remedial measures are neither comprehensive nor available to the Class. The federal government's authority to audit and impose monetary sanctions does not constitute "comprehensive" remedies. See Wright v. City of Roanoke Redevelopment and Housing Auth., 479 U.S. 418, 423 (1987) (finding a federal agency's authority to audit and withhold federal funds insufficient to show Congress' intent to preclude section 1983 actions). Furthermore, Howe and the class have no alternative enforcement remedy because the State has continuously refused to assist them in obtaining Title IV-D services to which i A-23 they are entitled. We see no enforcement provisions in Title IV-D that show a congressional intent to foreclose these Indian women and children from asserting private remedies. We cannot believe that in enacting Title IV-D Congress intended to deny child Support enforcement services and paternity determination for a such a large segment of the South Dakota population. Our analysis under Wilder and Suter leads us to the conclusion that the Howe class may assert their claims under section 1983. We affirm the judgment of the district court. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. APPENDIX B United States Court of Appeals FOR THE EIGHTH CIRCUIT Appeal from the United States District Court for the District of South Dakota No. 92-3354SDP Velda Howe, on behalf of themselves, their children, and all others similarly situated; Theresa Taken Alive, on behalf of themselves, their children, and all others’ similarly situated, Appellees, vs. James Ellenbecker, in his capacity as Secretary of the South Dakota Department of Social Services; Terry Walter, in his capacity as Program Administrator, South Dakota Office of Child Support Enforcement, Appellants, Louis W. Sullivan, in his capacity as Secretary of the United States Department of Health and Human Services, Defendant. JUDGMENT This appeal from the United States District Court was submitted on the record of A-25 the district court, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the judgment of the district court in this cause is affirmed in accordance with the opinion of this court. A true copy. ATTEST: /s/ Michael E. Gans, Clerk U.S. Court of Appeals Eighth Circuit MANDATE ISSUED 11/3/93 AyPENDIX C VELDA HOWE, Theresa Taken Alive, on Mehalf of themselves, their children, and al: others similarly situated, Plaintiffs, Vv. JAMES ELLENBECKER, in his capacity as Secretary of the South Dakota Department of Social Services; Terry Walter, Program Administrator, South Dakota Office of Child Support Enforcement, and Louis Sullivan, M.D., in his capacity as Secretary of the United States Department of Health and Human Services, Defendants. Civ. No. 90-3007 United States District Court, D. South Dakota, C.D. Sept. 18, 1991 Aid to Families with Dependent Children (AFDC) recipients whose children had absent parents residing on Indian reservation brought class action against state officials and the Secretary of the Department of Health and Human Services (HHS), claiming they had been denied child support collection services to A-27 which they were entitled under the Social Security Act. The District Court, Donald J. Porter, J., held that: (1) Title IV-D of the Social Security Act, dealing with child support enforcement, created enforceable right in AFDC recipients, and recipients had standing to bring § 1983 action to enforce Claims for child support enforcement services, and (2) Title IV-D does not permit the HHS to deny federal financial assistance to states to pursue absent Indian parents who reside and work on Indian reservation. So ordered. i. Civil Rights Social Security and Public Welfare Title IV-D of the Social Security Act, dealing with child support’ enforcement, created enforceable right in Aid to Families with Dependent Children (AFDC) recipients, and A-28 recipients had standing to bring § 1983 action to enforce claims for Title IV-D child support enforcement services. Social Security Act, § 452 et seq., as amended. 42 U.S.C.A. § 651 et seq.; 42 U.S.C.A. § 1983. 2. Federal Civil Procedure Nine South Dakota Indian tribes were not indispensable parties to civil rights action brought by Aid to Families with Dependent Children (AFDC) recipients whose children had absent parents residing on Indian reservations within South Dakota, claiming that they have been denied child support collection services secured them under the Social Security Act, and thus, failure to join tribes did not warrant dismissal of suit. Social Security Act, § 451 et seq., as amended, 42 U.S.C.A. § 651 et seq.; Fed.Rules Civ.Proc.Rule 19, 28 U.S.C.A. A-29 3. Social Security and Public welfare Title IV-D does not permit the Department of Health and Human Services (HHS) to deny federal financial assistance to states to pursue absent Indian parents of children whose custodial parents are recipients of Aid to Families with Dependent Children (AFDC) benefits when the absent Indian parent resides and works on an Indian reservation and the tribe does not comply with Title Iv-p regulations; child support enforcement services could be provided recipient by reaching agreement with respective tribal governments, or state could utilize tribal court system. Social Security Act, § 451 et seq-, aS amended, 42 U.S.C.A. § 651 et seq. 4. Social Security and Public welfare Any interpretation of Title Iv-D of Social Security Act, dealing with child Support enforcement, that results in exclusion Eee a tl OO OL A-30 of large percentage of Indian children and their parents from its benefits is unreasonable and contrary to language and purposes of the Act. Social Security Act, § 451 et seq., as amended, 42 U.S.C.A. § 651 et seq. 5. Declaratory Judgment Declaratory relief may be granted regardless of availability of an injunction. 28 U.S.C.A. § 2201(a). Krista Clark, Dakota Plains Legal Services, Mission, S.D., B.J. Jones, Dakota Plains Legal Services, Fort Yates, N.D., for plaintiffs. Mark L. Bratt, Asst. Atty. Gen., David L. Braun, Sp. Asst. Atty. Gen., Office of Legal Services/Dept. of Social Services, Pierre, S.D., for James Ellenbecker. A-31 David L. Zuercher, Asst. U.S. Atty., Pierre, S.D., Lucille Meis, Office of Chief Counsel, Health and Human Services, Denver, Colo., for Federal defendant. MEMORANDUM OPINION DONALD J. PORTER, District Judge. On February 8, 1990, plaintiffs Velda Howe and Theresa Taken Alive filed this class action against defendants James Ellenbecker, Secretary of the South Dakota Department of Social Services, Terry Walter, Program Administrator of the South Dakota Office of Child Support Enforcement and Louis Sullivan, M.D., Secretary of the U.S. Department of Health and Human Services (HHS). Plaintiffs are custodial parents of children who have absent parents residing on Indian reservations within South Dakota. Plaintiffs bring this action on behalf oof themselves, their children, and all others similarly situated, A-32 claiming that they have been denied child support collection services secured them under Title IV-D of the Social Security Act, the Child Support and Establishment of Paternity Act, 42 U.S.C. § 651 et seg.’ Trial was held before the Court on July 23-25, 1991. FACTS Plaintiff's Bac! Velda Howe is an enrolled member of the Crow Creek Sioux Indian tribe and resides with her four children in Chamberlain, South Dakota. Howe is a present recipient of Aid to Families with Dependent Children (AFDC) for herself and her twelve year old son, Daniel. As a condition of receiving AFDC, Howe was required to cooperate with the state in establishing her child's paternity, in , The matter was certified as a class action by order filed October 24, 1990. A-33 securing child support for her children, and in assigning to the state the right to receive child support for her son. Howe expressed a willingness to cooperate with the state in establishing paternity and collecting support, and identified the putative father of Daniel for the State Office of Child Support Enforcement. Howe claims that despite her cooperation and repeated requests, the state has made no effort to establish the paternity of Daniel because the putative father lives on a South Dakota Indian reservation. Theresa Taken Alive receives AFDC from the State of South Dakota for her minor child, Caroline. Taken Alive has custody of Caroline pursuant to a Judgment and Decree of Divorce from the Standing Rock Sioux Tribal Court. This decree requires that Caroline's father pay child support in the amount of $300,00. per month to Theresa Taken Alive. Taken Alive A-34 has informed the State Office of Child Support Enforcement of the decree of divorce but claims that the state has refused to attempt to collect child support from Caroline's father because he lives on a South Dakota Indian reservation. Plaintiffs claim that the state defendants refusal to assist them in obtaining child support and the federal defendant's refusal to provide matching funds to assist the state in child support enforcement violates Title IV-D of the Social Security Act and denies plaintiffs their right to child support collection services on the basis of their race, in violation of the equal protection clause of the fourteenth amendment and the due process clause of the fifth amendment to the United States Constitution. A-35 AFDC AND TITLE IV-D AFDC is a federal-state cooperative effort administered by the states. The program provides monetary payments from the state to financially needy families, which include children deprived of parental support due to death, disability or desertion. 42 U.S.C. § 601 et seg. States are not required to participate in the AFDC program but, if they do so, they must operate the program in compliance with the statutory requirements and the regulations promulgated by the Secretary. One of these requirements is that the state have a plan in effect for child support collection which meets the standards set forth in Title IV-D of the Social Security Act. 42 U.S.C. § 651 et seg,; See also Wehunt v. Ledbetter, 875 F.2d 1558, 1559-60 (11th Cir. 1989), cert, denied sub nom. Brown _v. Ledbetter, --- U.S. ---, 110 S.Ct. 1472, 108 A-36 L.Ed.2d 609 (1990); Id. at 1569 (Clark, J., dissenting). The federal government has made efforts since 1950 to require that absent parents support their children. The early attempts were near-complete failures. Wehunt, 875 F.2d at 1569. In 1974, Congress enacted the Social Security Amendments of 1974 which radically revised the previous law. This new law provided for increased matching funds and incentive payments to local governmental units to improve their enforcement of support orders. The 1974 changes also required families to assign their child support payments to the state as a condition of receiving AFDC. Jd. at 1569. In 1984, a second set of changes in the child support enforcement requirements was instituted to strengthen Title IV-D. These changes required states to pass laws for A-37 mandatory wage withholding and liens and provided for federal tax withholding availability and access to Federal Parent Locator Services. jal. at 1570. These 1984 amendments were "intended to ensure that ‘all children in the United States who are in need of assistance in securing financial support from their parents will receive assistance regardless of their circumstances. '" a4. quoting S.Rep. No. 98-387, 98th Cong., 2nd Sess., at 1 U.S.Code Cong. & Ajmin.News 1984, Pp. 2397. This also provided that paternity establishment services be provided to both AFDC and non-AFDC recipients. Id,. The Deficit Reduction Act of 1984 also had an effect on Title IV-D. This act provided that when a non-custodial parent of a child receiving AFDC makes support payments to. the state, the first fifty dollars collected would be paid to the family without affecting A-38 the amount of assistance it received. 42 U.S.C.S. § 657(b) (1) (1985). States must comply with the Title IV-D child support enforcement regulations or they risk the withholding of federal matching funds. The state is required to undertake the establishment of paternity and the enforcement of support obligations for all AFDC children and non-recipients as well. The state must comply with the regulations promulgated by the Secretary, including a time frame within which states must respond to requests for support enforcement assistance. Wehunt, 875 F.2d at 1561. The Secretary of the U.S. Department of Health and Human Services is responsible for implementing state plans and establishing regulations for the Title IV-D program. 42 U.S.C.S. § 652 (1985). The state plans are required by statute to be in effect in all A-39 political subdivisions of the state, and to provide for entering into cooperative arrangements with appropriate courts and law enforcement officials. 42 U.S.C.S. § 654 (1985). The state plans are further required to provide child support collection and paternity determination services for AFDC children, for foster children, and for any individual not otherwise eligible for services. Id. Neither the statute nor the regulations enacted by the Department of Health and Human Services consider the question of how states are to operate child support collection schemes in non-Pub.L. 280 states where Indian reservations exist. There are no regulations exempting states from providing support enforcement services to Indian families whose absent parent resides on an Indian reservation and there is no authorization for Indian ae) Je in Ss A-40 Tribes to provide AFDC programs on the reservation. The Secretary has interpreted Title IV-D and the regulations promulgated by HHS in developing a policy that deters states from using tribal courts to assist in child support collections unless the tribal court utilizes tribal or state law that conforms with Title IV-D. Under this policy, the state is encouraged to enter into cooperative agreements with the tribes to provide services on the reservations. The states may enter into these agreements with a tribe and provide services as long as the tribe has enacted tribal law or agreed to use state law which complies with Title IV-D in those areas in which the service is to be provided. If no cooperative agreement exists that ensures compliance with Title IV-D, the states do not receive federal funding for child support A-41 collection actions taken against an absent parent under the jurisdiction of the tribe.* At present, the state does not have a cooperative agreement with any tribe in South Dakota. * For example, federal funding would not be available for the following activities: 1) Where the state has an agreement with the tribe that allows tribal personnel to pursue child support enforcement activities against persons who are within tribal jurisdiction, applying a tribal code which does not conform to Federal IV-D requirements. 2) Where the state has an agreement with the tribe that allows state or county IV- D personnel t pursue child support enforcement activities against persons who are withi tribal jurisdiction applying a tribal code which does not conform with Title IV-D requirements. 3) Where the state, without an agreement with the tribe, |pursues child support enforcement activities against persons who are within’ tribal jurisdiction through utilizatiion of tribal courts which do not apply law which conforms with Title IV-D. — ewe tt we A-42 South Dakota Child Support Enforcement Procedures The South Dakota Office of Child Support Enforcement (OCSE) consists of approximately 60 employees under the direction of Program Administrator Terry Walter. In addition to the OCSE employees, OCSE contracts with over 50 states attorneys and utilizes the services of special assistant attorneys general to provide legal assistance to persons seeking child support enforcement services. OCSE is funded largely through federal matching funds, through its share of child support collected and through incentive grants offered by the federal government. OCSE handles over 23,000 cases, assisting AFDC families, non-AFDC families and foster children in collecting child support payments. Of these 23,000 cases, over 5,000 involve absent Indian parents who live and work on the reservation. A-43 OCSE follows a basic four step approach to child support enforcement cases when the absent parent lives or works in South Dakota but not within an Indian reservation. Upon receiving an application from a parent requesting collection assistance, OCSE first attempts to locate the absent parent. OCSE then sends the absent parent a notice of support debt asking the parent to provide OCSE with financial data so that they can determine the amount owed by the absent parent. OCSE next attempts to obtain a stipulation from the absent parent admitting paternity and agreeing to pay the amount owed. Finally, if the absent parent will not stipulate to paternity or to the amount owed, the case is turned over to legal counsel who attempt to obtain paternity determinations and support orders through the state courts. A-44 In cases where the absent parent is an Indian who lives and works on the reservation, OCSE locates the absent parent and asks him or her to stipulate to paternity and to child support payment obligations. However, because state courts do not have jurisdiction over Indians residing on the reservations, the state is unable to pursue these parents through use of the state courts. The state has attempted to enforce state court orders on the reservation but has had little success because of the jurisdictional barriers. The state does not utilize tribal courts to pursue absent parents, in part because the federal government has notified the state that federal matching funds would not be available for pursuing child support claims through the A-45 tribal court system.” When the state is audited by the federal government, these cases are not considered in determining whether the state has complied with Title IV-D requirements. South Dakota has not been sanctioned by the federal government for non- compliance with federal regulations in the treatment of cases where the absent parent lives and works on the reservation. Tribal Court Systems There are nine tribes located within the boundaries of South Dakota. Each of these tribes operates a tribal court system which has jurisdiction over tribal members. Judges from the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, the Oglala Sioux . There was evidence presented at trial that on at least one occasion, the state threatened to sanction an individual who had not made attempts on her own to obtain a child Support order through a tribal court. — ei A-46 Tribe and the Rosebud Sioux Tribe all testified at trial that these tribal courts were open courts in which the state may properly bring paternity and child support actions against Indian parents living on the reservations. There were no facts presented which would indicate that any South Dakota Indian Tribal court would prohibit the state from utilizing the court for child support enforcement orders. Each of the tribes has separate tribal codes; however, none of the tribes have laws that fully comply with Title IV-D. Plaintiffs presented evidence that, from 1983 to 1990, the North Dakota Office of Child Support Enforcement contracted with Maury Thompson, States Attorney for Sioux County, North Dakota, to provide child support enforcement services through the Standing Rock Sioux Tribal Court. The Standing Rock A-47 Reservations is located within both North and South Dakota. Thompson was successful in establishing paternity and obtaining support orders but, because of the unemployment ane poverty on the reservation, was less successful in collecting under the support orders. However, because of his efforts in obtaining the orders, the state was able to use enforcement techniques such as federal tax intercept to collect some of the support money due. North Dakota received federal matching funds to assist in paying fer the contract with Thompson. The contract was terminated in January, 1990 when HHS announced that it would no longer provide matching funds for child Support enforcement services performed through tribal courts that did not fully comply with Title IV-D. In addition to the contract with Thompson, the North Dakota OCSE also contracted with other attorneys to provide A-48 child support enforcement services through other tribal courts in North Dakota. Through the use of these contracts, the North Dakota OCSE was able to obtain paternity determinations and child support orders from the various tribal courts. These contracts were also terminated when HHS announced that it wousd no longer provide matching funds. ANALYSIS AND DISCUSSION Motions to Dismiss [1] The defendants argue that this case must be dismissed because Title IV-D of the Social Security Act does not afford individuals a private right of action and thus plaintiffs do not have standing to bring this action. Plaintiffs have sued under 42 U.S.C. § 1983. Section 1983 authorizes suits against those acting under color of state Jaw for violations of federal law and for violations A-49 of the U.S. Constitution. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). The Supreme Court has ruled that there are two situations where a § 1983 action based upon violation of a federal statute may not be brought. First, an action may not be brought under § 1983 for violation of a federal statute if that statute does not create enforceable rights in the plaintiff. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 24, 101 S.Ct. 1531, 1543, 67 L.Ed.2d 694 (1981). Second, a plaintiff may not bring suit under § 1983 for violation of a federal statute if Congress has foreclosed private enforcement in the enactment of the statute. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981). Four recent cases have addressed the issue of whether a plaintiff has standing to A-50 bring a § 1983 action for violation of Title IV-D of the Social Security Act. In Wehunt v. Ledbetter, 875 F.2d 1558 (11th Cir. 1989), cert. denied sub nom., Brown v. Ledbetter, ~~~ U.S. ---, 110 S.Ct. 1472, 108 L.Ed.2d 609 (1990), the Eleventh Circuit Court of Appeals, with Judge Clark dissenting, dismissed a complaint against the Commissioner of the Georgia Department of Human Resources after determining that Title IV-D did not afford the plaintiff an enforceable right. Since that decision, three courts have held that § 1983 does create enforceable rights. See Carelli v. Howser, 923 F.2d 1208, 1211. (6th Car. 1991),° reh'q denied en banc, 1991 WL 3470, “In Carelli, the 6th Circuit rejected the holding in Wehunt, concluding that’ the plaintiffs in that case, all those currently eligible for child support enforcement in Clermont and Brown Counties of Ohio, were afforded an enforceable right in Title IV-D. The Court went on to hold that under the A-51 1991 U.S.App. LEXIS 7102 (6th Cir. 1991); } ; Jeff 7 ) ( ta) Services, 744 F.Supp. 255 (D. Colo. 1990); Beasley v. Ginsberg, Civ. No. H-86-619, 1989 WL 202144, U.S. Dist. LEXIS 16682 (1989). In determining whether plaintiff has standing to bring this action under § 1983, it must first be determined whether Congress has created enforceable rights in Title IV-D. If Title IV-D was intended to benefit the putative plaintiffs, an enforceable right exists unless it merely reflects a Congressional preference for a certain kind of conduct, rather than a binding obligation on circumstances of that case, where the Federal Secretary had already taken corrective action against the state, private enforcement was foreclosed. Under the facts of this case, the federal defendant has not taken corrective action but rather has taken the position that plaintiffs are not entitled to the benefits they seek. mn A-52 the governmental unit, or unless the interest sought to be enforced is so vague and amorphous as to be beyond the competence of the judiciary to enforce. Wilder v. Virginia osp. Ass'n, --- U.S. <---, ---, 110 S.Ct. 2510, 2516-18, 110 L.Ed.2d 455 (1990). Upon examining Title IV-D and the legislative history that accompanied its enactment, this court finds that Congress intended Title IV-D to benefit persons such as the plaintiffs, and that the intent is expressed within Title IV-D as a binding obligation on the government and not merely as a Congressional preference. There are several factors present that lead to the belief that Congress, in enacting Title IV-D, intended to benefit women and children in AFDC families such as the plaintiffs. The first and most obvious is the purpose of Title IV-D set out at 42 U.S.C. § 652: ————ee A-53 For the purpose of enforcing the support obligations owed by absent parents to their children and the spouse (or former spouse) with whom such children are living, locating absent parents, establishing paternity, obtaining child and spousal support, and assuring that i Ane _ _ available under this part [42 U.S.C. §§ 651 et seq.] to all children (whether or not eligible for aid under part A [42 U.S.C. §§ 651 et seq.) for whom such assistance is requested.... 42 U.S.C. § 651 (emphasis supplied). This statutory purpose demonstrates that Congress had a specific and primary intent to aid families in child support enforcement when enacting Title IV-D. Two additional factors which reveal that Congress' primary intent in enacting Title IV- rt to A-54 D was to aid the families of absent parents are found in the fact that Congress has expressly required states to provide Title IV- D services to non-AFDC families as well as to those receiving the benefits and that Congress has required that the first $50 collected from absent parents of AFDC recipients go to the family without a corresponding offset to the AFDC payments. These requirements would be inconsistent with the claim that the primary purpose of Title IV-D was to recoup welfare expenditures. The most important factor indicating that Congress intended to aid families of absent parents and to give these families an enforceable right is the language of Title IV- D. Precatory rather than mandatory language was determined in Pennhurst to be an important factor in determining that a statute created no privately enforceable rights. 451 U.S. at A~55 19-20, 101 S.Ct. at 1540-41. The language in Title IV-D is mandatory and set out in specific and definite terms that directly benefit the children and families entitled to support enforcement services. It sets forth what states must do to participate in the progran. For example, participating states must establish the paternity of children born out of wedlock, 42 U.S.C. § 654(4)(A); they must secure payments for abandoned children and their remaining parent, 42 U.S.C. § 654(4)(B); and they must provide notice of the mount collected to each family at least annually. 42 U.S.C. § 654(5)(A); see also Carelli, 923 F.2d at 1210; Carelli v. Howser, 733 F.Supp. 271, 276 (S.D. Ohio 1990), rev'd, 923 F.2d at 1208 (6th Cir. 1991) (examples of the mandatory language found within Title Iv- D). The strong mandatory language combined with the factors previously discussed leads A-56 this Court to find that Title IV-D of the Social Security Act does create an enforceable right in plaintiffs. Plaintiffs may also be denied standing if it is shown that Congress has foreclosed private enforcement in the enactment of Title IV-D. See Middlesex County, 453 U.S. at 20, 101 S.Ct. at 2626. The state defendants have the burden to demonstrate "by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement." Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, .93 L.Ed.2d 781 (1987). A court should not lightly conclude that Congress intended to preclude the § 1983 as remedy for the deprivation of a federally secured right. Jd. at 423-24, 107 $.Cct. at 770-71. The state defendants have set forth no specific provision or other A-57 evidence that would indicate to the court that Congress has precluded private enforcement of Title IV-D. The Court therefore finds that plaintiffs do have standing under § 1983 to bring this action to enforce their claims for Title IV-D child support enforcement services. {2} Defendants also argue that this case must be dismissed for failing to join indispensable parties as required by Rule 19 of the Federal Rules of Civil Procedure. Defendants claim that the nine South Dakota Indian tribes are indispensable because they have major interests and must consent to ‘encroachment by the state of South Dakota within reservation boundaries and by use of their independent tribal court systems." See State Defendants' Post-Trial Brief at p. 3. As is made evident by this Court's holding, consent of the tribes is not essential to provide plaintiffs relief. The Court will A-58 therefore decline to dismiss this case for failure to join the nine South Dakota Indian tribes. nte atio itle IvV- [3] HHS has interpreted Title IV-D to preclude federal financial assistance to states to pursue absent Indian parents who reside and work on an Indian Reservation when the tribe does not comply with Title IV-D regulations. Following well-established principles of administrative law, this Court must give substantial deference to an agency's interpretation of a statute that it administers, and cannot substitute its judgment for a reasonable interpretation by the agency. st v ivan, ~--- U.S. ---, - --, 111 S.Ct. 1759, 1766-68, 114 L.Ed@.2d 233 (1991); Connecticut Dept. of Maintenance v. He er, 471 U.S. 524, 532, 105 S.Ct. 2210, 2214, 85 L.Ed.2d 577 (1985). Where the A-59 agency's interpretation of a statute "represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." Chevron U.S.A. v. Natural] Resources Defense Council, 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984), reh'g denied, 468 U.S. 1227, 105 S.Ct. 28, 82 L.Ed.2d 921 (quoting United States v. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)). Although Courts must give substantial deference to an agency's interpretation, they are not required to "rubber stamp... administrative decisions that they deen inconsistent with a statutory mandate or that frustrate the Congressional policy underlying A-60 a statute." u u obacco an Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (quoting NLRB v. Brown, 380 U.S. 278, 291-292, 85 S.Ct. 980, 988, 13. L.Ed.2ad 839 (1965)). The Administrative Procedures Act provides that a reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 42 U.S.C.S. § 706(2)(A) (1985). While the scope of review under this standard is narrow, the agency must "articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made. '" Environmental Defense Fund v. E.P.A., 852 F.2d 1316, 1326 (D.C.Cir. 1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989) (quoting Motor Vehicle Mfrs. Ass'n v. A-61 State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983)). "Moreover, if the agency ‘does not reasonably accommodate the policies of a statute or reaches a decision that is "not one that Congress would have sanctioned," .. . a reviewing court must intervene to enforce the policy decisions made by Congress.'" Environmental Defense Fund, 852 F.2d at 1326 (quoting National Resources Defense Council v. Herrington, 768 F.2d 1355, 1383 (D.C.Cir. 1985)). Upon review of the language of Title IV-D and the underlying purpose of the statute, this Court is unable to find that HHS's interpretation is a reasonable one. The language and structure to Title IV-D are the foremost indicators that Congress intended all children to benefit from the child support enforcement services established by the statute. 42 U.S&.C.S. § 651 A-62 specifically provides that the purpose of the Title IV-D is to enforce "the support obligations owed by absent parents to their children and the spouse (or former spouse) with whom such children are living, locating absent parents, establishing paternity, obtaining child and spousal support, and assuring that assistance in obtaining support will be available ... to al] children for whom such assistance is requested." 42 U.S.C.S. § 651 (1985) (emphasis supplied). Further, § 654 provides that "A state plan for child and spousal support must-- .-.. (6) provide that (A) the child support collection or paternity determination services established under the plan shall be made available to any individual not otherwise eligible for such services...." 42 U.$.C.S. s 654 (6) (1991) (emphasis supplied). A-63 This language strongly indicates that Congress did not give HHS the authority to arbitrarily deny services to a large group of Indian children simply because jurisdiction over their absent parents rests with the tribal government rather than the _ state government. While the defendants argue that jurisdictional problems’ have severely hindered any attempts to pursue Indian absent parents, it is clear that defendants' attempts have been limited to the use of state court enforcement procedures. While Congress may have intended and envisioned that the states would enter into cooperative agreements with > There is no dispute among the parties that the state does not have jurisdiction to enforce state court orders against Indians living and working on the reservation. See Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir. 1990), reh'g denied en banc, 1990 U.S. App. LEXIS 9521 (8th Cir. 1990), cert denied, --- U.S. ---, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991). A-64 tribes to solve jurisdictional problems, no agreements have resulted. It is unreasonable to assume that since the tribes have refused to submit to state jurisdiction, Indian children who in many cases have no relationship with the tribe should therefore be entitled to a lesser degree of assistance in obtaining paternity determinations and child support orders. This is also not a case where plaintiffs are asking the defendants to undertake unreasonable measures to assist then. Defendants could provide enforcement services by reaching agreement with the . respective tribal governments or they could utilize the tribal court system. The state currently has contractual agreements with state's attorneys who provide legal services to individuals seeking child support in state court. The court cannot see any significant distinction A-65 in providing those same services to individuals pursuing Indian absent parents in tribal courts.° While the forum may be different, attorneys familiar with the tribal courts could contract to provide the services in the same manner currently practiced in state court. (4} The defendants, citing § 655(a)(1), contend that appropriations are authorized * Defendants attempted to show that tribal courts were incompetent or somehow inferior to state courts in that they were uncooperative with OCSE, showed favoritism toward certain tribal members and that they were manipulated by the tribal council. In light of recent decisions recognizing the sovereignty of tribal governments, it is important that tribal courts be recognized as legitimate tribunals for the resolution of disputes that come within tribal jurisdiction. As the U.S. Supreme Court stated in Santa Clara Pueblo v. Martinez: "Tribal Courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians." 436 U.S. 49, 65, 98 S.Ct. 1670, 1680-81, 56 L.Ed.2d 106 (1978). A-66 only for the operation of plans approved under $654 of the plan. Because federal regulations promulgated by the Secretary require all cooperative agreements to comply with Titie IV-D, see 45 C.F.R. § 303, 107 (Cc), the defendants assert that they are unable to provide services on the reservations unless the tribes comply with Title IV-D reguiations. The Court finds this argument unpersuasive for three reasons. First, an agency's interpretation of a statute is entitled to great deference unless that interpretation is unreasonable or inconsistent with the policies and purposes of the statute. Bureau of U.S. 89, 97, 104 S.Ct. 439, 444 78 L.Ed.2d i195 (1983). As discussed above, the Court finds that any interpretation of Title IV-D that has as its result the exclusion of a large percentage of Indian children and their A-67 parents from the benefits of the statute is unreasonable and contrary to the language and purposes of the statute. Secondly, this is not a situation where plaintiffs are able to conform their conduct to comply with Title IV-D. While the situation would be resolved if the tribes would adopt the Title IV-D regulations, plaintiffs do not control what laws are adopted by the tribe. In many cases, the individuals seeking assistance may not be members of the tribe or even live on the reservation and, thus, have very little influence over tribal policies. It is thus unreasonable to deprive them of Title IV-D services in an effort to encourage the tribes to adopt Federal regulations. Finally, the Court is not convinced that the use of tribai courts to pursue absent parents would be contrary to the agency's own is and ere ‘uct the bes ns, are the be the tle hus V-D bes hat ent Own A-68 regulations.’ The regulations provide that services not performed in compliance with Title IV-D requirements are not eligible for Federal funding. See 45 C.F.R. § 304.22; Federal Defendant's Post-Trial Brief at p. 8. Were the state to utilize the tribal courts in assisting plaintiffs, the services provided would be the legal counsel and tribal court fees, not the use of the tribal court. These regulations provide that these services, and not the tribal court itself, comply with Title Iv-p.° ’ There was testimony at trial that the tribal courts are open forums which would allow the commencement of paternity and child support actions without any existing cooperative agreement. & To the extent that the agency's regulations and policies do deter the state from providing Title IV-D services to the plaintiffs, they are unreasonable and contrary to the language and purpose of the statute. A-69 The state defendants have continually argued throughout this action that they have attempted to provide child support enforcement services through the state court and have been thwarted in these attempts by the tribes’ unwillingness to allow enforcement of state court orders on the reservations. Defendants claim that based upon the decisions in Rosebud Sioux Tribe, 900 F.2d at 1172, and State vy. Spotted Horse, 462 N.W.2d 463 (S.D. 1990), this Court cannot grant the relief requested by plaintiffs. These decisions, however, recognize tribal jurisdiction over Indians living on the reservation and do not stand for the proposition that the state may not bring claims in tribal court or may not enter cooperative agreements with the tribes. As long as the state respects the tribe's jurisdiction and provides Title IV-D services| through cooperative agreements with the tribes A-70 or through utilization of the tribal courts, it will not have unlawfully infringed upon tribal jurisdiction. The state defendants also presented several hypothetical situations in which they claim it would be unreasonable for them to pursue absent parents through the tribal courts. Defendants suggest that the tribes could prohibit the state from using the tribal court when disputes arise or that situations exist where the tribal court would not have jurisdiction over an Indian absent parent living on the reservation.” The Court is not * The state defendants argue that ordering them to pursue Indian absent parents who live on the reservation could create a "haven" for these individuals on the Rosebud Reservation because the Rosebud Sioux Tribe does not claim jurisdiction over Indians who are not members of the tribe. This argument is flawed in that it assumes that there are individuals living on the Rosebud Reservation who are not subject to any jurisdiction. Even in the event that this assumption could be true, this Court's A-71 suggesting through this opinion that the state must pursue Indian absent parents living on the reservation through the tribal courts when the tribe has not provided a reasonable access to the court. The Court does, however, find that where no cooperative agreement has been made with a tribe for the pursuit of absent parents within the tribes jurisdiction, and where reasonable access to a tribal court exists, the children of Indian absent parents are entitled to the same degree of child support enforcement service as other children ; 10 pursuing claims in state court. order would only reduce the size of the "havens" which currently exist on all reservations within the state because of defendants' refusal to provide Title IV-D services to plaintiffs. 10 The Court notes that even though the high unemployment rates on the reservation may make it difficult to collect support on the reservation, an important service is provided | to children through the establishment of their | it 1d CONCLUSION Congress enacted Title IV-D for the purpose of "assuring that assistance in obtaining support will be available to all children...." 42 U.S.C.S. § 651 (1985). While this does not require defendants to take unreasonable steps to provide child support services to anyone, the Court finds that it does require defendants to provide equal services to children and families in like situations. Simply put, this Court cannot find that, in enacting Title IV-D, Congress intended to permit defendants to exclude a large percentage of Indian children from its benefits. It is not for this Court to determine how defendants will provide the paternity. This is particularly true in the case of Indian children where the establishment of an Indian parent may entitle them to membership in the tribe, and to certain federal benefits. A-73 Title IV-D services to plaintiffs. Evidence presented at trial established that reasonable avenues exist for the provision of these services. Where these reasonable avenues exist, defendants must provide plaintiffs the services they are entitled to receive. [5} The Declaratory Judgment Act authorizes this Court to "declare the rights and other legal relations of any interested party seeking such declaration." 28 U.S.C. § 2201(a). Declaratory relief may be granted regardless oof the availability of an injunction. Green v. Mansour, 474 U.S. 64, 72, 106 S.Ct. 423, 427, 88 L.Ed.2d 371 (1985) (citing Steffel_v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505 (1974)). Accordingly, plaintiffs are granted declaratory judgment. es he 25 2d A-74 APPENDIX D UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION ORDER CIV. 90-3007 Velda Howe, Theresa Taken Alive, on behalf of themselves, their children, and all others similarly situated, Plaintiffs, vs. James Ellenbecker, in his capacity as Secretary of the South Dakota Department of Social Services, Terry Walter, in his capacity as Program Administrator, South Dakota Office of Child Support Enforcement Louis Sullivan, M.D., in his capacity as Secretary of the United States Department of Health and Human Services, Defendants. The Court finds that defendants’ policy of denying child support collection services to plaintiff's and their children because the children's absent parents reside on South A-75 Dakota Indian reservations violates Title Iv- D of the Social Security Act. It is therefore ORDERED that declaratory judgment is entered for plaintiffs in accordance with the findings of fact and conclusions of law as fully set forth in the Court's Memorandum Opinion filed this date. Dated September 18, 1991. BY THE COURT: /s/ Donald J. Porter U.S. District Judge ATTEST: WILLIAM F. CLAYTON, CLERK By /s/ Vicky J. Reinhard Deputy (Seal of Court) yn tT (Ah te (Th ww Cu APPENDIX E UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION MEMORANDUM ORDER CIV. 90-3007 VELDA HOWE and THERESA TAKEN ALIVE, on behalf of themselves, their children and all others similarly situated, Plaintiffs, vs. JAMES ELLENBECKER, in his capacity as Program Administrator, South Dakota Office of Child Support Enforcement, and LOUIS SULLIVAN, M.D., in his capacity as Secretary of the United States Department of Health and Human Services, Defendants. On September 18, 1991, this Court granted declaratory relief in favor of Plaintiffs in the above-entitled case. On November 1, 1991, a hearing was held at the United States Courthouse, Pierre, South Dakota, during which counsel for all parties had the opportunity to propose what further relief should A-77 appropriately flow from this Court's September 18, 1991, memorandum opinion. On November 13 and November 15 respectively, State and Federal Defendants each filed a notice of appeal to the United States Court of Appeals for the Eighth Circuit. The Eighth Circuit | dismissed both Defendants' appeals. This | Court now issues this memorandum order to provide Plaintiffs further relief in accordance with its previous memorandum opinion. ussj Plaintiffs and similarly situated persons are in a unique position with respect to the implementation of Title IV-D of the Social Security Act, the Child Support and Establishment of Paternity Act, 42 U.S.C. §§ 651 et seq. In order to receive federal aid for child support enforcement’ services, A-78 participating states must draft a State plan, which is to follow fairly strict federal requirements. The states must, according to the regulations promulgated pursuant to the statute, pass laws to ensure certain procedures will be carried out in the effort to fulfill the purposes of the Act. 45 C.F.R. § 302.70. A State plan must be in effect in all political subdivisions, 42 U.S.C. § 654 (1); and a state's Title IV-D agency must administer the plan in conformity with Title IV-D requirements, 45 C.F.R. § 301.10. If the state's Title IV-D agency delegates any of the Title IV-D functions to a local. agency or official, the state agency has the responsibility to ensure compliance with the State plan. 45 C.F.R. § 302.12(a) (3). Federal financial and technical assistance is available for many of the expenditures associated with implementation of this A-79 federal-state cooperative effort. See 45 C.F.R. pt. 304; 45 C.F.R. § 301.15. Neither Congress nor the Department of Health and Human Services, when adopting these statutes and regulations, seems to have contemplated the existence of a sovereign Native American Indian Tribe within a state's borders. South Dakota provides a situation in which a state that chose to participate in this federal-state cooperative effort has different laws governing different groups of people living within its boundaries. As stated, the statutory and regulatory scheme requires a participating state to pass certain | laws in order to become eligible for federal | financial assistance. 45 C.F.R. § 302.70. The State must also ensure that all parties to cooperative agreements or purchase of service contracts, which a state enters with courts, law enforcement officials, and attorneys to 5 A-80 provide these child support enforcement services, comply with the federal requirements. 45 C.F.R. § 303.107; 45 C.F.R. § 304.22. Those requirements would include adherence to the newly enacted federally mandated state laws. The state courts, in which these services would be provided, are already bound by state law, and would therefore be required to follow those laws passed to conform to federal requirements as well. In South Dakota, however, the State has no jurisdiction over the nine tribes residing within its borders. See Rosebud Sioux tribe v. South Dakota, 900 F.2d 1164 (8th Cir. 1990), cert. denied, _—aU.S. ___, «111 S. Ct. 2009, 114 L. Ed. 2d 98 (1991). As a result, the statutory and regulatory scheme has left a gap: If South Dakota considers the Indian tribes "political subdivisions" and enters cooperative agreements or purchase of service A-81 contracts to provide child support enforcement services to children who have an Indian absent parent living on a reservation, the State runs the risk that the tribal court, unlike a state court, will not recognize the Title IV-D mandated state laws. The parties have proposed methods by which the State of South Dakota _ would) negotiate with a tribe or tribal court to| provide for the delivery of child support enforcement services just as it would negotiate with its own state courts, agencies, or private attorneys to provide these services in the state courts. Again, however, because the State in this instance has no power to demand compliance with its own State plan (é prerequisite for federal funding), such negotiations would not necessarily result ir Plaintiffs receiving the relief requested. The Court finds, as.a- result, that. such ch A-82 negotiations between a state and a sovereign Indian tribe were not necessarily considered by Congress or the Department of Health and Human Services when requiring administration and implementation of Title IV-D State plans in all political subdivisions of the state. Federal Defendants assert otherwise. Specifically, they argue that cooperative agreements with tribal entities are indeed contemplated by 42 U.S.C. § 654(7) and 45 C.F.R. § 303.107 to assist South Dakota in carrying out its State plan. The Court, however, does not find this to be a particularly appropriate approach to the problen. A sovereign tribal entity with jurisdiction. within its own borders simply cannot be forced to comply with state laws, or a State plan, even if that plan is dictated by federal, not state, law. A-83 The Court reiterates that Congress, in passing Title IV-D of the Social Security Act, "intended all children to benefit from the child support enforcement services established | by the statute." Howe v. Ellenbecker, 774 F.| Supp. 1124, 1231 (D.S.D. 1991). Thus, the) fact that Indian tribes in South Dakota stand independent of the State of South Dakota cannot prove fatal to the effort to provide these services on the reservations within the) State. While the Court appreciates State Defendants’ willingness to negotiate with the Tribes, the Court finds that the State may not | be the most efficient or effective means by which children with an Indian absent parent living on a reservation may receive child support enforcement services. Rather, the Court finds that the Native American Indian Tribes in South Dakota would more appropriately be treated as states for the To| e€ A-84 purposes of implementing Title IV-D. Any requirements that the Tribes would have to meet are federal requirements, not requirements initiated by the State of South Dakota, which itself simply follows’ the federal mandates. Federal Defendants have stated they are willing to make federal funding available for services provided on Indian reservations in compliance with Title IV-D requirements and to furnish technical assistance in establishing cooperative agreements between the State and the Tribes. This offer of assistance includes help in negotiating these agreements with the tribes, reviewing tribal law for compliance with federal law, and examining proposed cooperative agreements. The Court assumes that Federal Defendants would be willing to provide similar assistance whether or not A-85 State Defendants were involved in the negotiations. Accordingly, it is ORDERED that. Federal Defendants are to propose to the nine Native American Indian Tribes within the State of South Dakota the | possibility of implementing a Tribal plan, | which would be the statutory and regulatory, as well as functional, equivalent of a State plan as described in 42 U.S.C. §§ 651 et seg and 45 C.F.R. §§ 301 et seg. Federal Defendants are to inform the Court within 60 (sixty) days of this date regarding their progress in complying with this Order. Dated March 27, 1992. A-86 BY THE COURT: /s/ Donald J. Porter U.S. Senior District Judge ATTEST: WILLIAM F. CLAYTON, CLERK By /s/ Vicky J. Reinhard Deputy (Seal of Court) APPENDIX F UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION MEMORANDUM ORDER CIV. 90-3007 VELDA HOWE, THERESA TAKEN ALIVE, on behalf of themselves, their children and all others similarly situated, Plaintiffs, vs. JAMES ELLENBECKER, in his capacity as Secretary of the South Dakota Department of Social Services, TERRY WALTER, in- his capacity as Program Administrator, South Dakota Office of Child Support Enforcement, and LOUIS SULLIVAN, in his capacity as Secretary of the United States Department of Health and Human Services, Defendants. The federal defendant in the above- captioned case has filed a Motion for Reconsideration and Request for Stay Pending Reconsideration. Federal defendant strongly A-88 opposes this Court's order filed March 27,| 1992, in which the Department of Health and Human Services (HHS) was ordered to negotiate directly with the nine tribes located in South Dakota and to propose to them the possibility of implementing a Tribal Plan that would provide for child support enforcement services on the reservation. This Court had concluded that because the federal statute and regulations refer only to State Plans, neither Congress nor HHS considered the possibility of a semi-sovereign Indian nation existing within the boundaries of a state. The Department of Health and Human Services is the entity “hat ultimately must approve or disapprove 3 state's plan based on its degree of compliance with federal law. Because of this role, as well as the State's apparent unsuccessful) attempts to provide services to plaintiffs, this Court found that the most efficient and A-89 effective approach was to order. direct negotiation between the tribes and HHS. Federal defendant asserts that the Court's approach is contrary to law. Specifically, Federal defendant argues that the statute and regulations refer specifically to State Plans, that Congress intended the Title IV-D program to be implemented as a "coherent whole" within the state, and that Congress authorized payment of federal monies only to states, not to tribes. Federal defendant also expresses concern about tribal sovereignty. A Tribal Plan, federal defendant asserts, would have to comply with each and every requirement of Title IV-D and would therefore infringe upon the tribe's right of self-government. State defendants have, on several occasions during the course of this litigation, expressed Similar concerns. The State has asserted that _———e A-90 neither the State nor this Court can force the tribes to enter agreements or change their tribal laws. | The Court shares these concerns about tribal sove,eignty and both recognizes anc respects the independent, semi-sovereign status of the nine Indian Tribes located within the State of South Dakota. As 3 result, the March 27, 1992, memorandum order was addressed to the federal defendant, not tc the Indian tribes themselves. At no time has the Court suggested it has the authority to the jurisdiction to order a tribe to enter @ cooperative agreement or to modify its tribal laws. The inability of this Court to ordey | specific action on the part of the tribes doe : not, however, leave plaintiffs without avenue: for relief. Any order issued from the Cour} < in this case is simply addressed to th < rh parties before it, not to the tribes or triba | 2. m A-91 officials who lie outside the court's jurisdiction. Federal defendant strongly objects to negotiating with the tribes in the manner proposed by the Court's order filed March 27, 1992, on the basis that to do so would be contrary to law. Federal defendant asserts instead that cooperative agreements between the state and the tribal entities are contemplated by § 457(7) of the Social Security Act, 42 U.S.C. § 654(7), and 45 C.F.R. 5 303.107 (1990). See Federal defendant's Response to Brief of Plaintiffs (Requesting Additional Relief) at 2. The Court appreciates the attempt to seek a solution within the language of the statute itself. The Court finds, however, that just as Tribal Plans were not specifically contemplated by Congress when enacting the statute or by the agency when promulgating the A-92 regulations, neither were such state-tribal agreements. The statute and accompanying regulations anticipate cooperative agreements between a state and its own state courts, courts in which state law would necessarily be followed.’ The statute and regulations simply do not take into account the possibility that these services might be provided in courts, such as tribal courts located within the State of South Dakota, that are not answerable to state law. Federal defendant also argues vehemently that Congress authorized funding only for states, not for’ tribes. The initial requirements regarding the necessary laws that must be passed in order to receive funding are 1 Also anticipated were purchase of service agreements in which attorneys, workins in the state courts, would provide the Title IV-D child support and enforcement services. A-93 the burden of the state, the entity receiving the funding. Federal defendant suggests that as a result of the limited funding authorization, a tribal entity may be party only to a cooperative agreement and not to its own Tribal Plan. As a result, however, the tribe, to which no federal money flows directly and which has no Plan of its own, should not be required to change its tribal laws. A tribal entity, as a party to a cooperative agreement and thus acting more like a state court than the state itself for the purposes of Title IV-D, would need only recognize those federal mandates that apply to the services covered by its particular cooperative agreement. Finally, Federal defendant objects to the Court's Tribal Plan proposal on the grounds that the semi-sovereign, independent status of the Indian tribes, in part, prevents the A-94 implementation of any Tribal Plan as proposed by this Court. Federal defendant contends that under the Court's proposed scheme the tribes would be required to comply with al) the federal requirements already mandated of the states rather than simply "picking and choosing" among the several Title IV-D prograr services applicable to its own particularized cooperative agreement with the state. The Court notes that State defendants initially took a very different positior regarding the requirements a tribe would have to meet before obtaining Title IV-D services. This earlier position was the focus of significant dispute among the parties: As has been emphasized by the State and Federal Defendants throughout this litigation, before any child support enforcement services can be provided as requested by Plaintiffs herein, the various Indian tribes must meet any and al] requirements of Title IV-D of the Social Security Act, as the State Defendants have been required to do. In other — A-95 words, before the State Defendants can avail themselves to the benefits of Title IV-D, including the federal funding as requested by Plaintiff's herein, the State Defendants were, and still are, required to comply with all Title IV-D mandates and requirements. It is the State Defendants' position herein that the tribes must be required to do likewise. State defendants' letter filed November 14, 1991, in response to Court order filed November 4, 1991 (emphasis original). Nevertheless, the Court finds that the distinction Federal defendant currently makes regarding the requirements a tribal entity must meet provides a sufficient justification for negotiating state-tribal cooperative agreements rather than Tribal Plans in the effort to grant plaintiffs relief. According to the applicable law, the services provided pursuant to cooperative arrangements or agreements must conform with Title IV-D requirements. See 45 C.F.R. § 304.22; Howe v. A-96 Ellenbecker, 774 F. Supp. 1224, 1233 (D.S.D. 1991). Federal defendant has stated it is prepared to provide federal funding for "cooperative arrangements with tribal entities or purchase of service agreements with private attorneys for the provision of child support enforcement services that comply with the conditions set forth in the Federal statute and regulations." Federal defendant's Response to Brief of Plaintiffs (Requesting Additional Relief) at 4. The services, and the agreements pursuant to which’ those services would be provided in the tribal court, must adhere to federal law.. The Court understands, however, that a tribe would not necessarily have to change its tribal code in order to recognize and comply with the provisions of a given cooperative agreement. The Court's findings are not intended to imply that a tribe's cooperation is irrelevant A-97 to the issue of whether federally funded services would be provided in the tribal courts. The tribes would have to make their courts available for carrying out the federally mandated procedures described in the cooperative agreement, and they would have to recognize these procedures before the child support enforcement services would, or even could, be provided. The Court does not understand, however, that an agreement to provide, for example, genetic testing under the terms of a eeepeeitive agreement and funded largely by the federal] government would require a tribe to change its substantive law.* How the tribe addresses the issue of genetic testing for establishing paternity in Plaintiffs suggested at oral argument that Title IV-D requires states to pass some laws that are simply not applicable to Native American Indian tribes. A-98 situations independent of the Title IV-D program is of no consequence in determining whether the cooperative agreement complies with federal law. The tribe must simply, as the term suggests, “cooperate” with those requirements when services are being provided pursuant to the cooperative agreement. Both the federal and the State defendants have expressed a willingness to negotiate, in some manner, with the tribes. The Court recognizes that negotiations with the nine Indian tribes to prepare cooperative agreements for the various services provided under Title IV-D may be qualitatively different than any negotiations undertaker pursuant to this statute in the past. Furthermore, no one questions that the Indiaz tribes in South Dakota have distinct tribal codes, none identical to the code of the State of South Dakota, which has already bee A-99 modified to comply with the federal mandates. Yet this Court has determined that "Congress intended all children to benefit from the child support enforcement services established by the statute." Howe v. Ellenbecker, 774 F. Supp. 1224, 1231 (D.S.D. 1991). Accordingly, the Court urges the parties to approach negotiation with a certain degree of flexibility, a recognition of the distinctive relationship among the state, the tribes, and the federal government, and a willingness to acknowledge that the definition of "compliance," as negotiations progress, may have to be shaped to accommodate the unique situation of the Indian tribes within South Dakota. The Court seeks a solution most amenable to all parties, but one that will nevertheless achieve the ultimate goal: providing child support enforcement services to plaintiffs. A-100 As the federal defendants oppose negotiatin directly with the tribes as independent entities capable of carrying out their ow Tribal Plans, the Court finds that such ar approach would, contrary to its earlier findings, not be the most effective means of granting plaintiffs relief. Accordingly, it is ORDERED that the directives contained ir this Court's March 27, 1992, memorandum order are vacated in their entirety. It is further ORDERED that State defendants will use every reasonable effort to negotiate : cooperative agreement or purchase of service agreement with each of the nine tribes in the State of South Dakota. This effort wil! include, but will not be limited to, sending: letter, as proposed by State defendants, tc each tribe. The letter will advise the tribe: of the benefits of the Title IV-D program an —_> A-101 the specifics of the state's child support enforcement progran. The State defendant shall then propose a meeting with each tribe in order to describe the program more fully and to answer any questions and address any concerns the tribes may have regarding implementation of the program and use of the tribal courts. The discussions would necessarily include an explanation of the federal participation funding scheme, as this may be an important factor in a tribe's decision whether to enter an agreement with the state. It is also ORDERED that the federal . defendants shall, in concert with the State defendants, co-author the described letter to each of the tribes. The federal defendants shall also attend any meetings with the tribes to discuss implementation of the Title IV-D program and the use of tribal courts. In addition, the A-102 federal defendants shall provide technical assistance in establishing agreements between the State and the nine Native American Indian tribes located within South Dakota. Specifically, as federal defendants have expressed 4a willingness to do, federal defendants shall help negotiate the agreements with the tribes and examine proposed cooperative agreements. During the negotiations, both federal and State defendants shall make clear that no changes in tribal law are mandated in order for the tribes to arrange for child support and enforcement services to be provided for children who have an Indian absent parent living on the reservation. Rather, the services themselves, and the cooperative agreements that govern them, must comply with federal law before those services may be A~-103 approved and financially supported by the federal government. It is therefore ORDERED that Federal defendant's Motion for Reconsideration is granted in accordance with this memorandum order. It is further ORDERED that Federal defendant's Request for Stay Pending Reconsideration is granted. The State defendants have filed a Motion for Reconsideration and Dismissal based upon the recent United States Supreme Court decision in Suter v. Artist, 503 U.S. __, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992). In Suter, the Court found that the Adoption Assistance and Child Welfare Act of 1980 "neither confers an enforceable private right on its beneficiaries nor creates an implied cause of action on their behalf." Suter, 118 L. Ed.2d at 16. State defendants assert that the rationale applied in Suter should be A-104 applied to the instant case, and that this Court should determine as a matter of law that Plaintiffs have no private enforceable right under Title IV-D of the Social Security Act. This Court filed its original memorandu opinion in this case on September 18, 1991. Defendants then filed an appeal to the United States Court of Appeals for the Eighth Circuit, which was dismissed on January 238, 1992 for lack of jurisdiction. Accordingly, this Court filed its supplemental memorandu order granting Plaintiffs further relief on March 27, 1992. The Court considers any new legal developments that may affect this Court's original memorandum opinion, which held that Title IV-D does create an enforceable right in AFDC recipients and that Title IV-D does not permit the exclusion of Indian children who have absent parents living on the reservation from its benefits, a matter A-105 for the parties and the appellant court to consider on appeal. Without ruling on the merits of the motion, it is ORDERED that State defendants’ Motion for Reconsideration and Dismissal is denied. Dated August 10, 1992. BY THE COURT: /s/ Donald J. Porter Senior U.S. District Judge ATTEST: WILLIAM F. CLAYTON, CLERK By /s/ Vicky J. Reinhard Deputy 7 (Seal of Court) A-106 APPENDIX G TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 7. SOCIAL SECURITY ACT TITLE IV. GRANTS TO STATES FOR AID AND SERVICES TO NEEDY FAMILIES WITH CHILDREN AND FOR CHILD-WELFARE SERVICES PART D. CHILD SUPPORT AND ESTABLISHMENT OF PATERNITY § 651. Authorization of appropriations For the purpose of enforcing the support obligations owed by absent parents to their children and the spouse (or former spouse) with whom such children are living, locating absent parents, establishing paternity, cbtaining child and spousal support, and assuring that assistance in obtaining support will be available under this part [42 USCS §§ 651 et seq.) to all children (whether or not eligible for aid under part A [42 USCS §§ 601 et seq.) for whom such assistance is requested," there is hereby authorized to be appropriated for each fiscal year a sum A-107 — sufficient to carry out the purposes of this part [42 USCS §§ 651 et seq.]}. § 652. Duties of Secretary (a) Establishment of separate organizational unit; duties. The Secretary shall establish, within the Department of Health and Human Services a separate organizational unit, under the direction of a designee of the Secretary, who shall report directly to the Secretary and who shall-- (1) establish such standards for State programs for locating absent parents, establishing paternity, and obtaining child support and support for the spouse (or former spouse) with whom the absent parent's child is living as he determines to be necessary to assure that such programs will be effective; (2) establish minimum organizational and _ staffing requirements for State units engaged in A-108 carrying out such programs under plans approved under this part [42 USCS §§ 651 et seq.]; (3) review and approve State plans for such programs; (4) evaluate the implementation of State programs established pursuant to. such plan, conduct such audits of State programs established under the plan approved under this part [42 USCS §§ 651 et seq.] as may be necessary to assure their conformity with the requirements of this part [42 USCS §§ 651 et seq.], and, not less often than once every three years (or not less often than annually in the ease of any State to which a reduction is being applied under section 403(h)(1) [42 USCS § 603(h)(1)], or which is operating under a corrective action plan in accordance with section 403(h) (2) A~-109 [42 USCS § 603(h)(2)]j), conduct a complete audit of the programs established under such plan in each State and determine for the purposes of the penalty provision of section 403(h) [42 uscS § 603(h)] whether the actual operation of such programs in each State conforms to the requirements of this part [42 USCS §§ 651 et seq.]; (5) assist States in establishing adequate reporting procedures and maintain records of the operations of programs established pursuant to this part [42 USCS §§ 651 et seq.] in each State; (6) maintain records of all amounts collected and disbursed under programs established pursuant to the provisions of this part [42 USCS §§ 651 et seq.] and of A-110 the costs incurred in collecting such amounts; (7) provide technical assistance to the States to help them establish effective systems for collecting child and spousal support and estabiishing paternity; (8) receive applications from States for permission to utilize the courts of the United States to enforce court orders for support against absent parents and, upon a finding that (A) another State has not undertaken to enforce the court order of the originating State against the absent parent within a reasonable time, and (8B) that utilization of the Federal courts is the only reasonable method of enforcing such order, approve such applications; (9) operate the Parent Locator Service established by section 453 [42 USCS § 653); and A-111 (10) not later than three months after the end of each fiscal year, beginning with the year 1977, submit to the Congress a full and complete report on all activities undertaken pursuant to the provisions of this part [42 USCS §§ 651 et seq.}], which report shall include, but not be limited to, the following: (A) total program costs and collections set forth in sufficient detail tc show the cost to the States and the Federal Government, the distribution of collections to families, State and local governmental units, and the Federal Government; and an identification of the financial impact of the provisions of this part [42 uscs kh 651 et seq.); A-112 (B) costs and staff associated with the Office of Child Support Enforcement; (C) the following data, with the data required under each clause being separately stated for cases where the child is receiving aid to families with dependent children (or foster care maintenance payments under part E [42 USCS §§ 670 et seq.]), cases where the child was formerly receiving such aid or payments and the State is continuing to collect support sestqnet to it under section 402 (a) (26) or 471(a)(17) [42 USCS §§ 602(a) (26), 671(a)(17)}], and all other cases under this part [42 USCS §§ 651 et seq. } A-113 (i) the total number of cases in which a support obligation has been established in the fiscal year for which the report is submitted, and the total amount of such obligations; (ii) the total number of cases in which a support obligation has been established, and the total - amount of such obligations; (iii) the mumber of cases described in clause {i) in which support was collected during such fiscal year, and the total amount of such collections; (iv) the number of cases described in clause (ii) in A-114 which support was collected during such fiscal year, and the total amount of = such collections; and (v) the number of child support cases filed in each State in such fiscal year, and the amcunt of the collections made in each State in such fiscal year, on behalf of children residing in another State or against parents residing in another State; (D) the status of all State plans under this part [42 USCS §§ 651 et seq.] as of the end of the fiscal year last ending before the report is submitted, together with an explanation of any problems which are delaying or preventing approval A-115 of State plans under this part [42 USCS §§ 651 et seq.]}; (E) data, by State, on the use of the Federal Parent Locator Service, and the number of locate requests submitted without the absent parent's social security account number ; (F) the number of cases, by State, in which an applicant for or recipient of aid under a State plan approved under part A [42 USCS §§ 601 et seg.}]) has refused to cooperate in identifying and locating the absent parent and the number of cases in which refusal so to cooperate is based on good cause (as determined in accordance with the standards referred to in section A-116 402 (a) (26) (B) (ii) [42 USCS s 602 (a) (26) (B) (ii) }); (G) data, by State, on the use of Federal courts and on use of the Internal Revenue Service for collections, the number of court orders on which collections were made, the number of paternity determinations made and the number of parents located, in sufficient detail to show the cost and benefits to the States and to the Federal Government; (H) the major problems encountered which have delayed or prevented implementation of the provisions of this part [42 USCS §§ 651 et seq.] during the fiscal year last ending prior to the submission of such report; and (I) the amount re) f administrative costs which are expended in each functional category of expenditures, including establishment of paternity. The information contained in any such report under subparagraph (A) shall specifically include (i) the total amount of child support payments collected as a result of services furnished during the fiscal year involved to individuals under section 454(6) [42 USCS § 654(6)], (ii) the cost to the States and to the Federal Government of furnishing such services to those individuals, and (iii) the extent A-118 to which the furnishing of such services was successful in providing sufficient support to those individuals to assure that they did not require assistance under the State plan approved under part A [42 USCS §§ 601 et seq.]. (b) Certification of child support obligations to Secretary of Treasury for collection. The Secretary shall, upon the request of any State having in effect a State plan approved under this part [42 USCS §§ 651 et seq.], certify to the Secretary of the Treasury for collection pursuant to the provisions of section 6305 of the Internal Revenue Code of 1954 [26 USCS § 6305] the amount of any child _ support obligation (including any support obligation with respect to the parent who is living with the child and receiving aid under the State plan approved under part A [42 USCS §§ 601 et seq.]) which is assigned to such State or is A-119 undertaken to be collected by such State pursuant to section 454(6) [42 USCS § 654(6)]. No amount way be certified for collection under this subsection except the amount of the delinquency under a court or administrative order for support and upon a showing by the State that such State has made diligent and reasonable efforts to collect such amounts utilizing its own collection mechanisms, and upon an agreement that the State will reimburse the Secretary of the Treasury for any costs involved in making the collection. All reimbursements shall be credited to the appropriation accounts which bore all or part of the costs involved in making’ the collections. The Secretary after consultation with the Secretary of the Treasury may, by regulation, establish criteria for accepting amounts for collection and for making certification under this subsection including @ wn Lov r A-120 imposing such limitations on the frequency of aking such certifications under this ursection. c) Payments to States. The Secretary of the seasury shall from time to time pay to each tate for distribution in accordance with the rovisions of section 457 [42 uSscsS § 657] the mount of each collection made on behalf of uch State pursuant to subsection (b). €) Child support management information stem. (1) Except as provided in paragraph (3), the Secretary shall not approve the initial and annually updated advance automated data processing planning document, referred to in section 454 (16) [42 USCS § 4°4(16)], unless he finds that such document, when implemented, will generally carry out the objectives of the A-121 management system referred to in such subsection, and such document-- (A) provides for the conduct of, and reflects the results of, requirements analysis studies, which include consideration of the program mission, functions, organization, services, constraints, and current support, of, in, or relating to, such systen, (B) contains a description of the proposed management system referred to in section 655(a)(1)(B) [42 USCS % 655(a) (1! (B)), including a descriptic:: of information flows, input data, and output reports and uses, (C) sets forth the security and interface requirements to be employed in such management systen, A-122 (D) describes the projected resource requirements for staff and other needs, and the resources available or expected to be available to meet such requirements, (E) contains an imslementation plan and backup procedures to handie possible failures, (F) contains a summary of proposed improvement of such management system in terms of qualitative and quantitative benefits, and (G) provides such other information as the Secretary determines under regulation is nevessary. (2) (A) The Secretary shall through the separate organizational unit established pursuant to subsection (a), on a continuing basis, review, assess, and inspect the planning, design, and A-123 operation of, management information systems referred to in section 455(a)(1)(B) [42 USCS § 655(a)(1)(B)], with a view to determining whether, and to what extent, such systems meet and continue to meet requirements imposed under paragraph (1) and the conditions specified under section 454(16) [42 USCS § 654(16)]). (B) If the Secretary finds with respect to any statewide management information system referred to in section 455(a)(1)(B) [42 USCS § 655(a)(1)(B)) that there is a failure substantially to comply with criteria, requirements, and other undertakings, prescribed by the advance automated data processing planning document theretofore approved by the Secretary with \ (3) requirement of paragraph (1) or any A-124 respect to such system, then the Secretary shall suspend his approval of such document until there is no longer any such failure of such system to comply with such criteria, requirements, and other undertakings so prescribed. The Secretary may waive any condition specified under section 454(16) [42 USCS § 654(16)] with respect to a State if-- (A) the State demonstrates to the satisfaction of the Secretary that the State has an alternative system or systems that enable the State, for purposes of section 403(h) [42 USCS § 603(h)], to be in substantial compliance with other requirements A-125 of this part [42 USCS §§ 651 et seq.]); and (B) (i) the waiver meets_ the criteria of paragraphs (1), (2), andg (3) of section 1115(c) [42 USCS § 1315(c)(1)-(3)], or (ii) the State-provides assurances to the _ Secretary§ that steps will be taken to otherwise improve the State's child support enforcement program. (e) Technical assistance to States. Thee Secretary shall provide such technica! assistance to States as he determine: necessary to assist States to plan, design, develop, or install and provide for the§ security of, the management informatio systems referred to in section 455(a) (1) (8 [42 USCS § 655(a) (1) (B)]. et nd & n, hee A-126 (f) Inclusion of medical support in child support orders. The Secretary shall issue regulations to require that State agencies administering the child support enforcement program under this part [42 USCS §§ 651 et seq.] petition for the inclusion of medical support as part of any child support order whenever health care coverage is available to the absent parent at a reasonable cost. Such regulation shall also provide for improved information exchange between such State agencies and the State agencies administering the State medicaid programs under title XIX [42 USCS §§ 1396 et seq.] with respect to the availability of health insurance coverage. (g) Standards for State paternity establishment programs. (1) A State's program under this part [42 USCS §§ 651 et seq.] shall be found, for A-127 purposes of section 403(h) [42 USCS § 603(h)], not to have complied substantially with the requirements of this part [42 USCS §§ 651 et seq.| unless, for any fiscal year beginning on or after October 1, 1994, its paternity establishment percentage for such fiscal year is based on reliable data an (rounded to the nearest whole percentag§ point) equals or exceeds-- (A) 75 percent; (B) for a State with a paternity establishment percentage of not less than 50 percent but less than 7° percent for such fiscal year, the paternity establishment percentag™ of the State for the immediatelj— preceding fiscal year _ plus percentage points; SS A-128 (C) for a State with a paternity establishment percentage of not less than 45 percent but less than 50 percent for such fiscal year, the paternity establishment percentage of the State for the immediately preceding fiscal year plus 4 percentage points; (D) for a State with a paternity establishment percentage of not less than 40 percent but less than 45 percent for such fiscal year, the paternity establishment percentage of the State for the immediately preceding fiscal year plus 5 percentage points; or (E) for a State with a paternity establishment percentage of less than 40 percent for such fiscal year, the paternity establishment A-*'.29 percentage of the State for the immediately preceding fiscal year plus 6 percentage points. (2) For purposes of this section-- (A) the term "paternity establishment percentage" means, with respect to a State (or all States, as the case may be) for a fiscal year, the ratio (expressed as a percentage) that the total number of children-- (i) who have been born out of wedlock during the fiscal year, (ii) (I) except as provided in the last sentence of this paragraph, with respect to whom aid is being paid under the State's plan approved under part A or E [42 USCS §§ 601 et 1e ir A-130 seq. or §§ 670 et seq.] as of the end of the fiscal year, or (II) with respect to whom services are being provided under the State's plan approved under this part or [part] E [42 USCS §§ 651 et seq. or §§ 670 et seq.) as of the end of the fiscal year pursuant to an application submitted under section 454(6) {42 USCS § 654(6)], and (iii) the paternity of whom has been established or acknowledged during the fiscal year, bears to the total number of children who were born out of wedlock during the immediately preceding fiscal year and (except as provided in A-131 such last sentence) with respect to whom aid was being paid under the State's plan approved under part A or E [42 USCS §§ 601 et seq. or §§ 670 et seq.] as of the end of such preceding fiscal year or with respect to whom services were being provided under the State's plan approved under this part or [part] E [42 USCS §§ 651 et seq. or §§ 670 et seq.] as of the end of such preceding fiscal year pursuant to an application submitted under section 454(6) [42 USCS § 654(6)]; and (B) the term "reliable data" means the most recent data available which are found by the Secretary to be th ng 1S \@ —_ € A-132 reliable for purposes of this section. For purposes of subparagraph (A), the total number of children shall not include any child who is a dependent child by reason of the death of a parent unless paternity is established for such child or any child with respect to whom an applicant or recipient is found to have good cause for refusing to cooperate under section 402(a)(26) [42 USCS § 602(a)(26)] or any child with respect to whom the State agency administering the plan under part E [42 USCS §§ 670 et seq.] determines (as provided in section 454(4)(B) [42 USCS § 654(4)(B)]}) that it is against the best interests of such child to do so. (3) (A) The requirements of this subsection are in addition to and shall A-133 not supplant any other requirement (that is not inconsistent with such requirements) established in regulations by the Secretary fer the purpose off determining (for purposes of section 403(h) [42 USCS § 603(h)]}]) whether the program of a State operated under this | part [42 USCS § 651 et seq.] shall be treated as complying substantially with the requirements of this part [42 USCS § 651 et seq.]. (B) The Secretary may modify the requirements of this subsection to take into account such additional variables as the Secretary identifies (including the percentage of children born out-of-wedlock in 4 State) that affect the ability of a State to meet the requirements of this subsection. A-134 (C) The Secretary shall submit an annual report to the Congress that sets forth the data upon which the paternity establishment percentages for States for a fiscal year are based, lists any additional variables the Secretary has identified under subparagraph (A), and describes State performance in establishing paternity. (h) Requirement of prompt State response to requests for child support assistance. The standards required by subsection (a)(1) shall include standards establishing time limits governing the period or periods within which a State must accept and respond to requests (from States, jurisdictions thereof, or individuals who apply for services furnished by the State agency under this part {42 UscsS §§ 651 et seq.] or with respect to whom an A-135 assignment under section 402(a) (26) [42 USCS § 602(a)(26)] is in effect) for assistance in establishing and enforcing support orders, including requests to locate absent parents, § establish paternity, and initiate proceedings to establish and collect child support awards. (i) Requirement of prompt State response to requests for child support assistance. The standards required by subsection (a)(1) shall include standards establishing time limits governing the period or periods within which a State must distribute, in accordance with section 457 [42 USCS § 657], amounts collected as child support pursuant to the State's plan approved under this part [42 USCS §§ 651 et seq.]. § 653. Parent Locator Service (a) Establishment; purpose. The Secretary shall establish and conduct a Parent Locator A-136 Service, under the direction of the designee of the Secretary referred to in section 452(a) (42 USCS § 652(a)], which shall be used to obtain and transmit to any authorized person (as defined in subsection (c)) information 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. (b) Disclosure of information to authorized persons. Upon request, filed in accordance with subsection (d) of any authorized person (as defined in subsection (c)) for the social security account number (or numbers, if the individual involved has more than one such number) and the most recent address and place of employment of any absent parent, the Secretary shall, notwithstanding any other Provision of law, provide through the Parent A-137 Locator Service such information to. such person, if such information-- (1) is contained in any files or records maintained by the Secretary or by the Department of Health and Human Services; or (2) is not contained in such files or records, but can be obtained by the Secretary, under the authority conferred by subsection (e), from any _. other department, agency, or instrumentality of the United States or of any State. No information shall be disclosed to any person if the disclosure of such information would contravene the national policy or security interests of the United States or the confidentiality of census data. The Secretary shall give priority to requests made by any authorized person described in subsection (c) (1). ich ds he he =I f A-138 "Authorized persons" defined. As used in subsection (a), the term "authorized person" means~-~- (1) any agent or attorney of any State having in effect a plan approved under this part [42 USCS §§ 651 et seg.], who has the duty or authority under such plans to seek to recover any amounts owed as child and spousal support (including, when authorized under the State plan, any official of a political subdivision) ; (2) the court which has authority to issue an order against an absent parent for the support and maintenance of a child, or any agent of such court; and (3) the resident parent, legal guardian, attorney, or agent of a child (other than a child receiving aid under part A of this title [42 USCS §§ 601 et seq.]) (as determined by regulations prescribed by A-139 the Secretary) without regard to the existence of a court order againt an absent parent who has a duty to support and maintain any such child. (da) Form and manner of request for information. A request for information unde: this section shall be filed in such manner an form as the Secretary shall by regulation prescribe and shall be accompanied or supported by such documents as the Secretar) may determine to be necessary. (e) Compliance with request; search of files and records by head of any department, etc. of United States; transmittal of informatio to Secretary; reimbursement for cost of search; fees. (1) Whenever the Secretary receives oi request submitted under subsection (b which he is reasonably satisfied meet the criteria established by subsectior he an Ty ,eS A-140 (a), (b), and (c), he shall promptly undertake to provide the information requested from the files and records maintained by any of the departments, agencies, or instrumentalities of the United States or of any State. (2) Notwithstanding any other provision of law, whenever the individual who is the head of any department, agency, or instrumentality of the United States receives a request from the Secretary for information authorized to be provided by the Secretary under this section, such individual shall promptly cause a search to be made of the files and records maintained by such department, agency, or instrumentality with a view to determining whether the information requested is contained in any such files or records. If such search discloses the A-141 information requested, such individua] shall immediately transmit such information to the Secretary, except that if any information is obtained the disclosure of which would contravene national policy or security interests of the United States or the confidentiality of census data, such information shal) not be transmitted and such individual shall immediately notify the Secretary. If such search fails to disclose the information requested, such individual shall immediately so notify the Secretary. The costs incurred by any such department, agency, or instrumentality of the United States or of any State in broviding such information to the Secretary shall be reimbursed by hin. Whenever such services are furnished to an individual specified in subsection A-142 (c)(3), a fee shall be charged such individual. The fee so charged shall be used to reimburse the Secretary or his delegate for the expense of providing such services. (3) The Secretary of Labor shall enter into an agreement with the Secretary to provide prompt access for the Secretary (in accordance with this subsection) to the wage and unemployment compensation claims information and data maintained by or for the Department of Labor or State employment security agencies. (f) Arrangements and cooperation with State agencies. The Secretary, in carrying out his duties and functions under this section, shall enter into arrangements with State agencies administering State plans approved under this part [42 USCS §§ 651 et seq.] for such State agencies to accept from resident parents, A-143 legal guardians, or agents of a child described in subsection (c) (3) and to transnit to the Secretary requests for information with regard to the whereabouts of absent parents and otherwise to cooperate with the Secretary in carrying out the purposes of this section. § 654. State plan for child and spousal support A State plan for child and spousal support must-- (1) provide that it shall be in effect in all political subdivisions of the State; (2) provide for financial participation by the State; (3) provide for the establishment or designation of a single and separate § organizational unit, which meets. such staffing and organizational requirements as the Secretary may by regulation A-144 prescribe, within the State to administer the plan; (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 402(a) (26) or section 1912 of this title [42 USCS § 602(a)(26) or 1396k] is effective, to establish the paternity of such child, unless the agency administering the plan of the State under Part A of this title [42 USCS §§ 601 et seq.] determines in accordance with the standards prescribed by the Secretary pursuant to section 402(a)(26)(B) [42 USCS § 602(a)(26)(B)] that it is against the best interests of the child to do so, or, in the case of such a A-145 child with respect to whom ap assignment under section 1912 [42 USCS § 1396k) is in effect, the State agency administering the plan approved under title XIX [42 USCS §§ 1396 et seq.] determines pursuant tc section 1912(a)(1)(B) [42 USCS § 1396k(a)(1)(B)] that it is against} the best interests of the child tof do so, and (B) in the case of any child with respect to whom such assignment is effective, including an assignment with respect to a child on whose behalf a State agency is making foster care maintenance payments under part E [42 USCS §§ 670 et seq.], to secure support for such child from his parent (or from any other person legally liable for such A-146 support) and, at the option of the State, from such parent for his spouse (or former spouse) receiving aid to families with dependent children or medical assistance under a State plan approved under title XIX [42 USCS §§ 1396 et seq.] (but only if a support obligation has been established with respect to such spouse), utilizing any reciprocal arrangements adopted with other States (unless the agency administering the plan of the State under part A or E of this title [42 USCS §§ 601 et seq., 670 et seq. ] determines in accordance with the standards prescribed by the Secretary pursuant to section 402(a) (26) (B) [42 uscs 602(a)(26)(B)) that it is against A-147 the best interests of the child to do so), except that when = such arrangements and other means have proven ineffective, the State may utilize the Federal courts to obtain or enforce court orders for support; (5) provide that (A) in any case in which Support payments are collected for an individual with respect to whom an assignment under section 402(a) (26) [42 USCS § 602(a)(26)] is effective, such payments shall be made to the State for distribution pursuant to section 457 [42 USCS § 657} and shall not be paid directly to the family, and the individual will be notified on a monthly basis (or on a quarterly basis for so long as the Secretary determines with respect to a State that requiring such A-148 notice on a monthly basis would impose an unreasonable administrative burden) of the amount of the support payments collected; except that this paragraph shall not apply to-such payments for any month following the first month in which the amount collected is sufficient to make such family ineligible for assistance under the State plan approved under part A (42 USCS §§ 601 et seq.]}; and (B) in case in which support payments are collected for an individual pursuant to the assignment made under section 1912 [42 USCS § 1396k], such payments shall be made to the State for distribution pursuant to section 1912 [42 USCS § 1396k]), except that this clause shall not apply to such payments for any month after the month in which the individual A-149 ceases to be eligible for medica) assistance; (6) provide that (A) the child support collection or paternity determination services establ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1223%3A2. Public record. Not legal advice.