Title IV-D plan is approved by the Secretary, the state becomes eligible for reimbursement by the federal government of seventy-five percent of the expenditures made under that plan. In addition to review and approval of state child support plans, 42 U.S.C. § 652(a)(3), the Secretary's responsibilities under Title IV-D include, inter alia, providing technical assistance to state IV-D agencies, periodically evaluating and auditing state child support programs, maintaining records of amounts collected by the states and reporting to Congress on the effectiveness of state child support activities. See 42 U.S.C. § 652(a). Section 652(a)(1) further directs the Secretary of HEW to "establish such standards for State programs . . . as he determines to be necessary to assure that such programs will be effective."
The specific statutory provisions of Title IV-A and Title IV-D which are at issue in the present case appear at 42 U.S.C. § 602(a)(26)(B) and § 654(4). Section 654(4) requires that state IV-D agencies must undertake to establish the paternity of each child born out of wedlock on whose behalf assistance is claimed under the Title IV-A AFDC program, and to locate the absent parents (or other persons legally liable for support) of the AFDC children, and to obtain any support payments due to the children or their caretaker relatives. Section 602(a)(26)(B) of Title 42 mandates that state agencies administering AFDC programs under Title IV-A of the Act condition the eligibility for assistance of an AFDC applicant or recipient upon his or her cooperation with the state in the establishment of paternity, location and support efforts.
However, sections 654(4) and 602(a)(26)(B) permit Title IV-A and Title IV-D state agencies, respectively, to excuse the cooperation of an AFDC recipient or applicant, and to forego the establishment of paternity and parent-location and collection of support owed to an AFDC household upon a finding by the state Title IV-A agency that good cause exists for such an exception. It is further specified that such finding is to be made "in accordance with standards prescribed by the Secretary [of HEW]" pursuant to section 602(a)(26)(B), "which standards shall take into consideration the best interests of the child on whose behalf aid is claimed", 42 U.S.C. §§ 602(a)(26)(B), 654(4).
Standards relating to the good cause exception of sections 602(a)(26)(B) and 654(4) have been published in proposed form;
and, on November 21, 1975, the Office of Child Support Enforcement, HEW, advised participating states through the Agency's regional offices that state IV-A and IV-D agencies should "utilize care and common sense in administering its program so that children and their custodial parents or caretaker relatives will not be harmed by the support enforcement process."
Nonetheless, the only standards for excusing compliance to have been actually and formally incorporated to date in HEW regulations are limited to situations involving incest, forceable rape, or adoption where "in the opinion of the IV-D agency, it would not be in the best interests of the child" to undertake the establishment of paternity. 45 C.F.R. § 303.5(b).
Subsequent to the filing of plaintiffs' summary judgment motion, certain action taken by the Secretary of HEW has rendered the mandamus aspects of this litigation moot.
Accordingly, the narrow question remaining before the Court is whether defendant's present regulations, which implement the mandatory provisions but not the good cause exception of sections 602(a)(26)(B) and 654(4), are inconsistent with the underlying statutory authority of Title IV of the Act.
Mandatory provisions of the statutory sections at issue in the present case originated in the Social Services Amendments of 1974 which were signed into law by President Ford on January 4, 1975. P.L. 93-647, 88 Stat. 2337, H.R. 17045 (93rd Cong. 2d Sess.).
Among a number of changes in existing law effected by P.L. 93-647, section 101(a) created a new Part D of Title IV of the Social Security Act, establishing a comprehensive federal-state "Child Support and Establishment of Paternity Program." The Title IV-D provisions included, at section 654(4) [section 454(4) of the Act], a requirement that state plans for child support must provide that such states will undertake:
(A) in the case of a child born out of wedlock with respect to whom an assignment under section 402(a)(26) of this title is effective, to establish the paternity of such child, and