dissenting.
I agree with the following analysis by the district court:
After an earlier remand from the North Dakota Supreme Court and from this court, the Department received no new or additional evidence and no arguments. The Department relied entirely upon the record established in 1990 to reach its 1992 decision.
The Department treated the results of 1983 blood tests as conclusive on the issue of paternity, contrary to law, even though the blood test results were never received into evidence at the administrative hearing.
The Department improperly devalued Appellant’s credibility for having cooperated with the Southwest Area Child Support Enforcement Unit and its attorney in stipulating to the dismissal with prejudice of a 1983 paternity action against the person Appellant believes is the father of her child.
The Department improperly devalued Appellant’s credibility because she presented her diary which contained an alteration, though there was no evidence that the alteration was material to any issue in this case, no evidence that Appellant was trying to hide anything, no evidence that Appellant was trying to deceive anyone, and no information in the diary about sexual relations with anyone. Appellant has attested, under penalty of perjury, that she had sexual intercourse during the possible time of conception with only one person, the person she believes to be and has identified as the father of her child.
He * * * * *
Appellant has satisfied her duty to cooperate in establishing paternity of her child and in obtaining child support, as permitted by controlling federal law. See, 45 C.F.R. § 232.12(b)(3). See also, *894S.N.S. v. North Dakota Dep’t of Human Servs., 474 N.W.2d 717 (N.D.1991), B.K. v. Department of Health and Rehab. Serv., 537 So.2d 633 (Fla.App.1988), and Doston v. Duffy, 732 F.Supp. 857 (N.D.Ill.1988).
It is presumed that Appellant has cooperated in establishing paternity and in obtaining child support by submitting her attestation of lack of information. S.N.S., 474 N.W.2d, at 720-721. The Department has not established by substantial evidence that Appellant’s attestation of lack of information is false.
The Department’s findings of fact are not supported by the preponderance of the evidence, the Department’s conclusions of law are not sustained by the findings, and the Department’s decision is unsupported by the conclusions.
I also agree with a similar analysis in Erickson v. Commissioner of DHS, 494 N.W.2d 58, 63 (Minn.App.1992):
Implicit in the BCSSA’s noncooperation determination is the assumption that appellant is withholding the name of the possible father of her son and that appellant has it within her power to have the sanction lifted at any time by naming the father of her son. We believe appellant’s attestation of no further information, together with the facts that she has not named anyone else as a possible father in the more than six and a half years she has been subject to the sanction and that the agency offers no evidence she has further information, are sufficient for a determination under 45 C.F.R. § 232.12(b) that she is cooperating adequately in establishing the paternity of her son. Under these facts, the BCSSA’s conclusion that she has information is no longer reasonable.
For like reasons, I respectfully dissent.
LEVINE, J., joins.