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

VANDE WALLE, Chief 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 con- . elude that the Bureau’s finding of noncooperation by Sherry is supported by a preponderance of the evidence, justifying the denial of benefits. Accordingly, we reverse the district court’s judgment.

In a prior appeal, S.N.S. v. North Dakota Dep’t of Human Services, 474 N.W.2d 717, 720-721 (N.D.1991) (S.N.S. I), relying upon Tomas v. Rubin, 935 F.2d 1555 (9th Cir.1991), we remanded this case to the Department for a redetermination of the benefit issue, with the following explanation:

“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.
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“[A]n attestation by an applicant that she has no additional information about paternity creates a presumption of cooperation, and the burden then shifts to the Department to establish by substantial evidence that the attestation of lack of information is false.
“The Department, without according any weight to Sherry’s attestation of lack of information, found that Sherry’s testimony was not credible and that she had failed to cooperate.... [Wjhere, as here, the Department failed to employ proper evidentiary standards, it is preferable that the Department be given an opportunity to determine eligibility using the proper standard.”

In remanding the case to the Department, we stated that Sherry’s attestation created a presumption of cooperation which shifted the burden to the Department to establish by substantial evidence that the attestation is false. We defined the term “substantial evidence” in Hanson v. North Dakota Industrial Commission, 466 N.W.2d 587, 590 (N.D.1991):

“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is something less than the greater weight of the evidence and, in other words, is something less than a preponderance of the evidence.”

On remand, no party requested an opportunity to present additional evidence. The Department reevaluated the evidence in the record and found that there was substantial evidence that Sherry’s attestation of lack of information about the paternity of her child, Margie (a pseudonym), is false. On that ground, the Department further found that Sherry has not cooperated as required by the federal regulations, and the Department reaffirmed its previous order denying AFDC benefits to Sherry-

The Department relies primarily upon four evidentiary factors which it asserts constitute substantial evidence that Sherry’s attestation is false: (1) Sherry identified Larry (a pseudonym) as Margie’s father, but blood tests showed that there is a zero percent chance that Larry is Margie’s father, and because Sherry has not discredited the validity of the blood tests, the inescapable conclusion is that someone other than Larry is Margie’s father; (2) during initial conversations with the Department Sherry expressed doubts about whether Larry was Margie’s father; (3) Sherry stipulated to the dismissal of the paternity action against Larry, thereby demonstrating, to at least some extent, her concurrence that Larry is not and cannot be Margie’s father; and (4) Sherry’s personal diary contained an altered entry on May 2, 1981, near the time when Margie was conceived, stating that Sherry had “made out ... all night” with a man whom the entry originally stated was “Rollo” (a pseudonym); Sherry concedes she crossed through Rollo’s name with a pen and inserted Larry’s name in its place, but Sherry *893has not offered any revealing explanation for the alteration.

We believe that the foregoing evidentia-ry factors, when considered together, constitute substantial evidence upon which the Department could find that Sherry’s attestation of lack of information is false. We may not have made the same finding, but when the standard is “substantial evidence” we give greater deference to the agency’s finding than we would ordinarily accord to an agency’s findings of fact under the preponderance of the evidence standard. Hanson, supra, 466 N.W.2d at 590.

Upon finding that Sherry’s attestation is false, the Department made the further finding that Sherry is not cooperating pursuant to the mandate of the federal regulations, and concluded that Sherry, therefore, is not entitled to receive AFDC benefits. Our review of the Department’s finding that Sherry is not cooperating is governed by the preponderance of the evidence standard under Section 28-32-19, N.D.C.C. In making that review we exercise restraint, and we do not make independent findings of fact or substitute our judgment for that of the agency. Wherry v. North Dakota State Hospital, 498 N.W.2d 136 (N.D.1993). Nor do we review the decision of the district court, as the dissent seems to suggest. Johnson v. North Dakota Workers’ Compensation Bureau, 496 N.W.2d 562 (N.D.1993). Rather, we determine only whether a reasoning mind reasonably could have concluded that the agency’s findings of fact were supported by the weight of the evidence. Tobias v. North Dakota Dep’t of Human Services, 448 N.W.2d 175 (N.D.1989).

The requirement that an applicant for AFDC benefits must cooperate requires the applicant to provide available information which will help the Department establish paternity. 45 C.F.R. 232.12(b) (1992). We conclude that a reasoning mind could reasonably conclude that the Department’s finding that Sherry has not cooperated is supported by the weight of the evidence. Consequently, we reverse the judgment of the district court.

SANDSTROM, J., concurs. NEUMANN, J., concurs in the result.