Howe v. Ellenbecker, Civ. No. 90-3007.

• Decision Date: 18 September 1991
• Docket Number: Civ. No. 90-3007.
• Citation: 774 F. Supp. 1224
• Parties: Velda HOWE, Theresa Taken Alive, on Behalf of themselves, their children, and all others similarly situated, Plaintiffs, v. 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.
• Court: U.S. District Court — District of South Dakota

774 F. Supp. 1224

Velda HOWE, Theresa Taken Alive, on Behalf of themselves, their children, and all others similarly situated, Plaintiffs, v. 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.

September 18, 1991.

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.

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 of themselves, their children, and all others similarly situated, 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 seq.¹ Trial was held before the Court on July 23-25, 1991.

FACTS

Plaintiff's Background

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 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 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.

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 seq. 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 seq.; 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 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. Id. 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 mandatory wage withholding and liens and provided for federal tax withholding availability and access to Federal Parent Locator Services. Id. 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.'" Id. quoting S.Rep. No. 98-387, 98th Cong., 2nd Sess., at 1 U.S.Code Cong. & Admin.News 1984, p. 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 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 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 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 collection actions taken against an absent parent under the jurisdiction of the tribe.² At present, the state does not have a cooperative agreement with any tribe in South Dakota.

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.

OCSE follows a basic four step...