S.N.S. v. North Dakota Dept. of Human Services

• Decision Date: 17 September 1991
• Docket Number: No. 900389,900389
• Citation: 474 N.W.2d 717
• Parties: S.N.S., Appellee, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellant, and Stark County Social Service Board, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 717

474 N.W.2d 717

S.N.S., Appellee, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellant and Stark County Social Service Board, Respondent.

Civ. No. 900389.

Supreme Court of North Dakota.

Sept. 17, 1991.

David Boeck (argued), Legal Assistance of North Dakota, Bismarck, for appellee.

Sidney J. Hertz Fiergola (argued), Asst. Atty. Gen., Atty. General's Office, Bismarck, for appellant.

MESCHKE, Justice.

The North Dakota Department of Human Services [the Department] appealed from a district court judgment reversing the Department's denial of Aid to Families with Dependent Children [AFDC] benefits to S.N.S. [Sherry, a pseudonym]. We conclude that the Department failed to properly consider Sherry's attestation that she had no further information on paternity of her child. We therefore modify the judgment of the district court and remand with directions that judgment be entered remanding to the Department for further proceedings in accordance with this opinion.

After Sherry's child, [Margie, a pseudonym], was born in January 1982, Sherry applied for AFDC benefits. She identified Larry [a pseudonym] as the father of her child. The Regional Child Support Agency filed a paternity action against Larry in 1983. When blood tests excluded Larry as the father, the paternity action was dismissed with prejudice by stipulation of the parties.

Thereafter Sherry continued to receive AFDC benefits until August 1988, when her income became sufficient to discontinue the benefits. When her income again declined in December 1988, Sherry reapplied for benefits. In February 1989 the Stark County Social Services Board ruled that Sherry was not cooperating in efforts to establish paternity of Margie. Upon a finding of non-cooperation, benefits continue for the child, but without taking into consideration the needs of the "caretaker relative." 45 C.F.R. 232.12 (1990). Sherry's needs were deleted from the AFDC grant. ¹

Sherry appealed that ruling to the Department and submitted an attestation, as authorized by 45 C.F.R. 232.12(b)(3) (1990), stating that she still believed Larry was Margie's father and that she had no other information about sexual intercourse with other persons during the relevant time. Following a hearing, the Department found that Sherry was not credible and concluded that she had failed to cooperate. The Department affirmed the deletion of Sherry's needs from the AFDC grant.

Sherry appealed to the district court. The court determined that the Department had improperly devalued Sherry's credibility and that the Department's findings of fact were not supported by the evidence. The district court reversed and the Department appealed.

On an appeal of the decision of an administrative agency, we review the decision of the agency, not the decision of the district court. Plante v. North Dakota Workers Compensation Bureau, 455 N.W.2d 195, 197 (N.D.1990). Our scope of review is governed by NDCC 28-32-19. We affirm the agency's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not sustained by the findings of fact, or its decision is not in accordance with the law. Wendt v. North Dakota Workers Compensation Bureau, 467 N.W.2d 720, 724 (N.D.1991). We conclude that the Department's decision is not in accordance with the law.

The AFDC program financially assists families with needy children "[f]or the purpose of encouraging care of dependent children in their own homes." 42 U.S.C. § 601. This grant-in-aid program is governed by federal and state statutes and regulations. S.W. v. North Dakota Department of Human Services, 420 N.W.2d 344, 346 (N.D.1988). If a state administers its program in accordance with all applicable federal statutes and regulations, the state is reimbursed by the federal government for a percentage of the funds expended for the program. Heckler v. Turner, 470 U.S. 184, 105 S.Ct. 1138, 1141, 84 L.Ed.2d 138 (1985); Tomas v. Rubin, 926 F.2d 906, 908-909 (9th Cir.1991). Federal law is germane.

An AFDC applicant must assign to the State any right to support from any other person and must cooperate in efforts to establish paternity and to obtain child support payments. 42 U.S.C. § 602(26). The extent of the cooperation required is spelled out in federal regulations:

(b) The plan shall specify that cooperate includes any of the following actions that are relevant to, or necessary for, the achievement of the objectives specified in paragraph (a) of this section:

(1) Appearing at an office of the State or local agency or the child support agency as necessary to provide verbal or written information, or documentary evidence, known to, possessed by, or reasonably obtainable by the applicant or recipient;

(2) Appearing as a witness at judicial or other hearings or proceedings;

(3) Providing information, or attesting to the lack of information, under penalty of perjury; and

(4) Paying to the child support agency any support payments received from the absent parent after an assignment under § 232.11 has been made. This includes support payments received in the current month and any amounts due to the IV-D agency under the IV-D State plan provisions for recovery of retained direct support payments at 45 CFR 302.31(a)(3)(ii).

45 C.F.R. 232.12(b) (1990). Cooperation includes, in subsection (b)(3), "attesting to the lack of information, under penalty of perjury."

The main question on this appeal is the effect to be given to Sherry's sworn attestation, in accordance with 45 C.F.R. 232.12(b)(3), that she has no further information regarding the paternity of her child. Sherry's attestation was not even mentioned in the hearing officer's recommended findings or the Department's decision denying benefits. Even on appeal the Department largely ignores the attestation and does not recognize that it has any effect.

In Tomas v. Rubin, 926 F.2d at 910, the United States Court of Appeals for the Ninth Circuit outlined...