Hill v. Ibarra

Decision Date28 January 1992
Docket NumberNo. 90-1207,90-1207
Citation954 F.2d 1516
PartiesEvelyn HILL, Plaintiff-Appellant, v. Irene IBARRA, in her official capacity; the Denver Department of Social Services; Mary Krane, in her official capacity, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Stephen F. Dunham of Morrison & Foerster, Denver, Colo. (Charles F. Kaiser, Janet C. Perriman and Kimberly E. Ghiselli, with him on the briefs), for plaintiff-appellant.

Wm. John Crichton, III, Asst. Atty. Gen., Human Resources Section, Denver, Colo. (Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen. and Richard H. Forman, Sol. Gen., with him on the brief), for Irene Ibarra.

Niels Loechell, Asst. City Atty., Human Services Div., Denver, Colo. (Patricia L. Wells, Denver City Atty., with him on the briefs), for The Denver Dept. of Social Services and Mary Krane.

Before HOLLOWAY, ANDERSON and TACHA, Circuit Judges.


Evelyn Hill appeals from a summary judgment entered by the district court dismissing her civil rights action under 42 U.S.C. § 1983 against the Denver Department of Social Services ("DDSS"), its manager, Mary Krane, and the Executive Director of the Colorado Department of Social Services, Irene Ibarra (collectively referred to hereinafter as "defendants"). Ms. Hill is a former recipient of Aid to Families with Dependent Children ("AFDC"). When she ceased receiving aid the DDSS, as permitted by law, obtained a judgment against the father of Hill's children for child support arrears, in partial reimbursement of aid paid to Ms. Hill. The central issue is whether DDSS was required to pay over to Ms. Hill the money collected on the judgment on the theory that all monies collected by DDSS from the father represent unpaid current child support first, and that applicable federal law gave Ms. Hill a priority interest in such amounts. Due process claims are also presented.

We hold that Ms. Hill has no interest in amounts collected by DDSS on its judgment for child support arrears because she did not authorize DDSS to collect current child support payments as required by the applicable statute and regulations. Similarly, we conclude there was no violation of Ms. Hill's due process rights, and no taking in violation of the Fifth Amendment. Accordingly, we affirm the judgment of the district court.


AFDC is a federal/state welfare program contained in the Social Security Act, 42 U.S.C. §§ 601-628 (1983). The Department of Health and Human Services ("HHS") oversees the program and withholds or reduces federal funds if a state fails to comply with federal requirements. In 1975, Congress amended the Social Security Act by adding Title IV-D to create a child support enforcement program "to enforce support obligations owed by absent parents, establish paternity, and [to obtain] child and spousal support." 42 U.S.C. § 651.

Evelyn Hill received AFDC benefits from DDSS from 1966 until approximately May, 1981. On March 9, 1977, Ms. Hill assigned her rights to receive child support to DDSS, in accordance with the terms specified in Title IV-D. The assignment provided that it was effective as to all of Ms. Hill's past, present and future support rights against Robert Hill, and that any recovery of child support by DDSS under the assignment would be made and distributed in compliance with the Social Security Act, applicable federal regulations, and the rules of the Colorado Department of Social Services. The assignment further provided that it would terminate with respect to current support rights upon the termination of Ms. Hill's eligibility for public assistance, and with respect to support rights attributable to the period during which Ms. Hill received public assistance, upon the repayment of such assistance.

In January of 1978, DDSS, on behalf of and in the name of Ms. Hill, obtained a child support award from the Denver Juvenile Court ordering Robert Hill to pay monthly child support payments in the amount of $150.00 increasing to $225.00 by April 1, 1979, for the benefit of Ms. Hill's three children. DDSS notified Ms. Hill of its efforts to obtain child support payments on behalf of her children and of the order.

As a condition to receiving AFDC, Ms. Hill was required to and did cooperate with DDSS in establishing the support order. Because Ms. Hill was receiving AFDC at the time the support order was entered, the order reflected a pay-over from the court registry to DDSS.

Ms. Hill went off the welfare roll sometime in 1981. On November 23, 1981, DDSS obtained a judgment in the amount of $8,137.50, plus interest, against Robert Hill, for child support arrearages owed to DDSS. Thereafter, DDSS proceeded to collect on its judgment by garnishment and wage assignment, enforced by court order. From December 23, 1981 to May 6, 1989, DDSS collected $5,350.78 from Robert Hill in partial satisfaction of its judgment against him. None of this amount was paid to Ms. Hill for current child support, and she was not notified of the collection proceedings or the amounts collected.

In 1985, DDSS sent Ms. Hill a letter informing her that she could apply for the services of DDSS to help establish and/or collect current support for her one child who was still a minor. The letter provided:

Please be advised that you may apply for the services of the Denver Department of Social Services to help you establish and/or collect support for your Minor Child(ren).

Please contact the department to inquire about our services and fees....

Plaintiff's Summary Judgment Motion, Ex. J, Addendum to Appellant's Brief, Tab A-8. The letter did not mention DDSS' pending wage assignment for arrearages or Ms. Hill's right to have priority given to the collection and distribution of current support should she choose to have DDSS collect such support on her behalf.

Following cessation of her AFDC benefits in 1981, Ms. Hill had the sole right under state and federal law to enforce against Robert Hill his obligation under state law to pay current child support to her. However, Ms. Hill made no effort to enforce that right.

In her suit, Ms. Hill seeks compensatory, injunctive and declaratory relief, contending that defendants violated her rights under federal law. She also claims she was denied her constitutional right of due process, and that the state deprived her of property without just compensation, in violation of the Fifth and Fourteenth Amendments.

The district court held that defendants' actions did not rise to a violation of due process under the Fourteenth Amendment and did not constitute a taking of property without just compensation under the Fifth and Fourteenth Amendments. The district court also held that Title IV-D creates no rights privately enforceable through § 1983 and that, accordingly, Ms. Hill lacked standing to bring a civil rights action based on alleged violations of the statute. We affirm on somewhat different grounds.


To state a valid cause of action under § 1983, a plaintiff must allege the deprivation by defendant of a right, privilege, or immunity secured by the constitution and laws of the United States while the defendant was acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.1989). Section 1983 has been construed to provide a cause of action not only for violations of the Constitution, but also for violations of federal statutes. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980); Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1380 (10th Cir.1981); Holmes v. Finney, 631 F.2d 150, 154 (10th Cir.1980). However, there is no cause of action under § 1983 where the underlying statute does not create an enforceable right. Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir.1989) ("Section 1983 does not provide a remedy if federal law does not create enforceable rights."); see Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981); Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987). Ms. Hill claims that defendants deprived her of rights secured by federal laws, by the Due Process Clause of the Fourteenth Amendment, and by the Takings Clause of the Fifth Amendment applied to the states through the Fourteenth Amendment.


Ms. Hill asserts that federal law entitles her to the "right to have priority given to the collection and distribution of current support." Appellant's Brief at 8, 29. She alleges that "both federal and state law require DDSS to distribute any monies collected first to the family to satisfy current support," id. at 26 (emphasis added), and that "the express language of both the statute and the implementing regulation requires that priority be given to a current support whenever collections are made by the state." Id. at 28 (emphasis added). Finally, Ms. Hill claims that Colorado Law requires that social services give priority to the collection and distribution of current support, citing Colo.Rev.Stat. § 14-14-104 (1987) and its implementing regulation, 9 Colo.Code Regs. § 2504-1, 6.902.2 (eff. June 1, 1983). Appellant's Brief at 28-29.

The problem with Ms. Hill's argument is that the governing statute and regulations do not empower the state to collect current child support payments for non-AFDC participants unless specifically so authorized by the individual, and, obviously, the state is not obligated to distribute funds it cannot and does not collect. In other words, even if we were to recognize, in general terms, the existence of privately enforceable rights under Title IV-D, 1 as a matter of law and common sense the "right" urged here by Ms. Hill to a prioritized distribution of current child support payments would...

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