Howe v. Ellenbecker, 92-3354

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON and MORRIS SHEPPARD ARNOLD; JOHN R. GIBSON
• Citation: 8 F.3d 1258
• Parties: 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, Plaintiffs-Appellees, v. 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.
• Docket Number: No. 92-3354,92-3354
• Decision Date: 13 October 1993

Page 1258

8 F.3d 1258 62 USLW 2244 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, Plaintiffs-Appellees,
v.
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. No. 92-3354. United States Court of Appeals,
Eighth Circuit. Submitted June 16, 1993.
Decided Oct. 13, 1993.

Page 1259

David L. Braun, Pierre, SD, argued (Debra Kant of Dept. of Justice, Washington, DC, on the brief), for defendants-appellants.

B.J. Jones, Fort Yates, ND, argued, for plaintiffs-appellees.

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, ¹ appeal from a declaratory judgment entered in favor of a class represented by Velda Howe and Theresa Taken Alive, ² 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), 774 F.Supp. 1224. 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, 796 F.Supp. 1276. The State argues

Page 1260

that Howe and Taken Alive have no standing and no private enforceable right under Title IV-D which they may assert in an action under 42 U.S.C. § 1983 (1988). We affirm the judgment of the district court. ³

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 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 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 program, 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. § 651 et seq.

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.L. No. 98-378, codified at 42 U.S.C. § 651 et seq. (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 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 over parents residing on the reservations, the State cannot pursue these parents through

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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...