Tsosie v. Califano

• Decision Date: 03 November 1980
• Docket Number: No. 75-3195,75-3195
• Parties: Bessie TSOSIE, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1328

630 F.2d 1328

Bessie TSOSIE, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 75-3195.

United States Court of Appeals Ninth Circuit.

Submitted Feb. 8, 1978.

Decided July 22, 1980.

Rehearing Denied Nov. 3, 1980.

Robert N. Hilgendorf, Santa Fe, N. M., for plaintiff-appellant.

Michael F. Hertz, Atty., Dept. of Justice, Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and KENNEDY, Circuit Judges, and S. WILLIAMS, ^* District Judge.

KENNEDY, Circuit Judge:

Appellant Bessie Tsosie contests the denial of child's insurance benefits under the Social Security Act to a child adopted by her after the death of the eligible wage earner. Tsosie asserts that the district court erroneously construed the relevant statute, 42 U.S.C. § 416(e), to deny benefits. In the alternative, she contends that the statute violates the child's due process rights under the fifth amendment by allegedly adopting an impermissible classification. Because 42 U.S.C. § 416(e) clearly mandates denial of benefits in this case and because appellant has not demonstrated that the statute denies any right by reason of the statutory classification scheme, the district court's order granting summary judgment to the Government is affirmed.

Alfred Keese, the child-claimant in this case, was born August 2, 1959 to Kee Keese and Mary Keese. When the child was six months old, his parents sent him to live with his aunt and uncle, Bessie and Frank Tsosie. When Alfred was four, the Tsosies petitioned to adopt him. That petition was denied and dismissed in 1965 when the natural parents withdrew their consent to the adoption. At that time, the trial court of the Navajo Tribe appointed the Tsosies to be Alfred's guardians. The child was still under the guardianship of the Tsosies when Frank died, in 1971. Shortly after Frank's death, Bessie Tsosie again petitioned to adopt Alfred. Her petition was granted on November 14, 1972.

Alfred received benefits from the state Aid to Families with Dependent Children program from June 1971 to March 1972, a period four months preceding and five months following Frank's death. The amount of these benefits was $37.00 per month, and the benefits were terminated in March 1972 due to a change in policy of the Arizona Department of Welfare. Alfred received an additional $6.20 per month in social security benefits on the account of his natural father, Kee Keese. Thus, at the time Frank died, Alfred was receiving $43.20 a month in total support benefits.

Following Frank Tsosie's death and shortly after her adoption petition was granted, Bessie Tsosie filed an application for mother's Social Security insurance benefits and for child's insurance benefits on behalf of Alfred. Under 42 U.S.C. § 402(g)(1)(E), the widow of a fully insured wage earner is entitled to mother's insurance benefits if, at the time she filed an application for benefits, she had in her care an individual entitled to child's insurance benefits. An individual is entitled to child's insurance benefits if he was a "child" of the wage earner, as defined by § 416(e), and dependent on him at the time of the wage earner's death. 42 U.S.C. § 402(d)(1) (C)(ii) and § 416(e).

Under § 416(e), the term "child" includes a person's natural children and his legally adopted children. The section further describes when a child is deemed legally adopted:

(A) person shall be deemed, as of the date of death of an individual, to be the legally adopted child of such individual if such person was at the time of such individual's death living in such individual's household and was legally adopted by such individual's surviving spouse after such individual's death but only if (A) proceedings for the adoption of the child had been instituted by such individual before his death, or (B) such child was adopted by such individual's surviving spouse before the end of two years after (i) the day on which such individual died or (ii) August 28, 1958; except that this sentence shall not apply if at the time of such individual's death such person was receiving regular contributions toward his support from someone other than such individual or his spouse, or from any public or private welfare organization which furnishes services or assistance for children.

Tsosie's applications for mother's and child's insurance benefits were denied initially by an administrative law judge and again, after a hearing, by the Secretary. The Secretary denied the claims because Alfred did not meet the definition of "child" under the literal terms of 42 U.S.C. § 416(e). This determination was based on the finding that, at the time of Frank's death, Alfred (1) had not yet been adopted, and (2) was receiving regular and substantial assistance from sources other than the wage earner or his spouse. The district court affirmed the administrative decision, and this appeal followed.

A. Operation of the Statute

1. Applicability of the "regular contribution" exclusion. We deal first with appellant's contention that the Secretary erroneously construed § 416(e) to mandate denial of benefits in this case. Appellant argues that Congress did not intend the section's exclusion of after-adopted children receiving regular outside contributions to disqualify children whose adoption proceedings were instituted before the death of the wage earner. ¹ Appellant supports this proposition with the following isolated fragment of legislative history:

The committee believes it is reasonable to presume that where a worker initiated adoption proceedings, . . . prior to the worker's death, the child lost a source of support on the death of the worker.

S.Rep. No. 744, 90th Cong. 1st Sess. reprinted in (1967) U.S.Code Cong. & Ad.News, 2834, 2927. From this sentence appellant infers that Congress believed that predeath commencement of adoption proceedings alone demonstrates a child's dependence on the wage earner and that, therefore, Congress did not intend the "regular contributions" exclusion to apply to adoption proceedings begun before the wage earner's death.

This reading disregards the statute's plain terms, which require application of the regular contributions exception to children whose adoption proceedings were commenced prior to the wage earner's death.

The isolated portion of legislative history and the tenuous inferences drawn from it on which appellant relies are insufficient to compel a result at odds with the statute's clear mandate. See United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1280, 6 L.Ed.2d 575 (1961); Natural Resources Defense Council, Inc. v. EPA, 507 F.2d 905, 915 (9th Cir. 1974); Hagler v. Finch, 451 F.2d 45, 48 (9th Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1522, 31 L.Ed.2d 805 (1972); Maun v. United States, 347 F.2d 970, 976 (9th Cir. 1965). Even if Tsosie were correct regarding congressional intent, moreover, we have substantial doubts that the present case fits the category of adoptions commenced but not completed before the death of the insured wage earner. Although Frank and Bessie Tsosie initially commenced adoption proceedings in 1965 before Frank died, their petition was denied and dismissed shortly thereafter. More than five years later, after Frank had died, adoption proceedings were instituted by Bessie that led to the order of adoption in this case. But the proceedings leading to adoption were entirely separate from those begun by Frank and terminated before his death. The legislative history shows that Congress intended to expand the definition of children entitled to benefits to those whose adoption proceedings were pending at the time of the wage earner's death and were completed more than two years later. It is not clear, however, that Congress intended to extend benefits to the situation in which a prior attempt to adopt ended in failure and a new proceeding was instituted after the wage earner's death. S. Rept. No. 744, 90th Cong., 1st Sess., reprinted in (1967) U.S.Code Cong. & Ad.News 2834, 2927. ("In some cases, a surviving spouse, due to circumstances beyond her control, is unable to complete within 2 years of the worker's death an adoption started before his death." (emphasis added)).

Even if, as appellant contends, Congress believed that the mere predeath institution of adoption proceedings constitutes some indicium of dependency, it is somewhat unlikely that Congress presumed such dependency would continue in the intervening years between adoption petitions. In this case, moreover, the earlier proceedings were terminated by reason of the natural parents' denying their consent, a circumstance that generally raises the legitimate inference that the natural parents recognized their obligation to support the child, thus eliminating the child's dependency on the insured. ²

2. Application of the exclusion to this case. Appellant contends that the Secretary and the district court erred in concluding that the $43.20 per month Alfred received for four months preceding and five months following Frank Tsosie's death was regular and substantial, thus denying Alfred further benefits under § 416(e). The statute literally only requires that the benefits received be regular. 42 U.S.C. § 416(e). That provision has been interpreted to mean regular and substantial support to avoid what might otherwise be an unconstitutional presumption of loss of support. Stowers v. Finch, 323 F.Supp. 863, 864 (E.D.Cal.1971). The standard of regular and substantial support was applied by the Secretary in the present case to exclude Alfred from further benefits. See also Carey v. Social Security Board, 62 F.Supp. 458 (W.D.Ky. 1945).

Appellant first contends that the benefits were not regular because the AFDC payments began only four months before Frank Tsosie died and were terminated five months later. For purposes of Social Security...