                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                     Assigned On Briefs October 8, 2012 Session

                    IN THE MATTER OF: CHASE B.S., ET AL.

              Direct Appeal from the Juvenile Court for Shelby County
         No. X6145, X0784, X1494 and X1512      Curtis S. Person, Jr., Judge


              No. W2011-02334-COA-R3-JV - Filed November 30, 2012


The trial court dismissed “petitions for medical support” of non-marital children filed by the
Department of Human Services as inconsistent with the child support statutes and guidelines.
We affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
                                  and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General
and Warren Jasper, Senior Counsel, for the appellant, State of Tennessee Department of
Human Services.

                                         OPINION

       This appeal arises from four petitions for medical support filed in the Juvenile Court
for Shelby County by the Department of Human Services (“DHS”) on behalf of four mothers
of non-marital children (“Mothers”) against the children’s fathers (“Fathers”). In each of the
petitions, DHS alleged Respondent Father owed a duty of support to a minor child, that the
minor child was in the care or custody of Petitioner Mother, and that Mother “hereby makes
application for medial support assistance pursuant to Title IV-D of the Social Security Act
and 42 U.S.C.A. § 1396k.” DHS prayed the court to “establish medical support of said
children pursuant to 42 U.S.C.A. § 1396k.” DHS did not pray for additional child support,
nor did it assert that prior support orders had been made by the court. Following hearings
before the magistrate, the magistrate dismissed the petitions. DHS requested a hearing of
each matter before the juvenile court judge, which conducted a consolidated hearing on
August 9, 2011. The trial court determined that it could not “parse” medical support from
child support, and that medical support could be awarded only in the context of child support
under the guidelines. It found that DHS has not prayed for child support, that no child
support worksheet had been entered in three of the four matters, and that it could not hear the
matter of child support absent the statutorily required notice to Fathers. The trial court
accordingly dismissed the petitions, and DHS filed notices of appeal to this Court.

                                                   Issue Presented

           DHS presents the following issue for our review:

           Whether the Shelby County Juvenile Court abused its discretion when it found
           in these four consolidated matters that it must have the ability to set child
           support before it may determine medical support.

                                                      Discussion

        The issue presented by this lawsuit, as we perceive it, is whether, in a Title IV-D
action for support, the trial court may order “medical support only” without proof of the
Defendant Father’s income and without evidence to support a deviation from the child
support guidelines. DHS asserts that an action seeking only medical support for non-marital
children is permitted to effectuate its responsibility under 42 U.S.C.A. § 654 and Tennessee
Code Annotated § 71-5-115 and in light of the assignment of rights provided in section 71-5-
117. Although it cites no case law in its brief to support its contention that an action for
medical support of a child is distinct from an action for child support and, therefore, not
subject to the child support guidelines, in the trial court DHS asserted that its position was
supported by our holding in Corbin v. Corbin, No. W2008-00437-COA-R3-CV, 2009 WL
454134 (Tenn. Ct. App. Feb. 24, 2009). The trial court, on the other hand, determined that
it could not deviate from the child support guidelines to set “medical support only” without
considering the statutory factors and the requisites of the child support guidelines. We agree
with the trial court.

       As initial matters, we note that the petitions filed in this case were not petitions to
modify child support, that no prior child support orders had been entered in the matters, and
that no orders of parentage had been entered in accordance with Tennessee Code Annotated
§ 36-2-311.1 The parents of the children for whom DHS sought medical support were not
and had never been married and apparently were not living together. Further,
notwithstanding DHS’s contention in its brief that it “will not always have authority under


           1
               It does not appear, from the record transmitted to this Court, that paternity was disputed in the four
actions.

                                                           -2-
Title XIX to seek a support award . . . because these matters do not always fall under Title
IV-D granting the Department authority to seek child support on behalf of a custodial
parent[,]” it is not disputed that the petitions in these matters were filed pursuant to the
authority granted under Title IV-D of the Social Security Act. Accordingly, future
hypothetical actions which may not be encompassed by Title IV-D are not before us.

      The provisions of Title 71 of the Tennessee Code also are not disputed in this case.
As DHS asserts, Title 71 authorizes the State to seek reimbursement from responsible parties
for medical assistance benefits. Tennessee Code Annotated § 71-5-115(2012) provides:

       To the extent permitted by federal law, the department may require or permit
       that responsible parties of a recipient of medical assistance supplement or
       reimburse for any benefit or benefits rendered to the recipient pursuant to the
       part.

Tennessee Code Annotated § 71-5-117 permits DHS to recover medical assistance provided
to a recipient from a responsible party. The section provides, in pertinent part:

              (b) Upon accepting medical assistance, the recipient shall be deemed
       to have made an assignment to the state of the right of third party insurance
       benefits to which the recipient may be entitled. Failure of the recipient to
       reimburse the state for medical assistance received from any third party
       insurance benefits received as a result of the illness or injury from which the
       medical assistance was paid may be grounds for removing the recipient from
       future participation in the benefits available under this part; provided, that any
       removal from participation shall be after appropriate advance notice to the
       recipient and that the provider of service shall not be prevented from receiving
       payment from the state for medical assistance services previously furnished the
       recipient, and that nothing in this subsection (b) shall require an insurer to pay
       benefits to the state that have already been paid to the recipient.

       ....

              (d)(1) To the extent necessary to reimburse the department for
       expenditures for its costs for services provided for any child eligible for
       medical services under Title XIX of the federal Social Security Act, compiled
       in 42 U.S.C. § 1396 et seq., the department shall have a right of action against,
       and shall be permitted to garnish the wages, salary, or other employment
       income of, any person who:
                     (A) Is required by a court or administrative order to

                                              -3-
              provide coverage of the costs of health services to a child who
              is eligible for medical assistance under Title XIX of the federal
              Social Security Act;
                      (B) Has received payment from a third party for the costs
              of such services provided to such child; and
                      (C) Has not used such payments from the third party to
              reimburse, as appropriate, either the other parent or guardian of
              such child or the provider of such services.
              (2) The claims by the department for the costs of such services shall be
        subordinate to any claims for current or past-due child support.

Tenn. Code Ann. § 71-5-117(b)&(d)(2012)(emphasis added).2

        In its brief, DHS relies on these provisions of Title 71 and on 42 U.S.C.A. § 654 for
the proposition that it may assert its right to recover benefits in an action for support that does
not seek child support. Its argument, as we understand it, is that 42 U.S.C.A. § 654 provides
that the State must provide services relating to the enforcement of child support obligations
as appropriate, and in these cases, because the State was providing only medical assistance,
an action seeking medical support only, and not child support, is appropriate. We disagree.


        42 U.S.C.A. § 1396k provides for the “assignment, enforcement, and collection of
rights of payments for medical care[.]” It states:

        (a) For the purpose of assisting in the collection of medical support payments
        and other payments for medical care owed to recipients of medical assistance
        under the State plan approved under this subchapter, a State plan for medical
        assistance shall--
                       (1) provide that, as a condition of eligibility for medical
               assistance under the State plan to an individual who has the legal
               capacity to execute an assignment for himself, the individual is
               required--
                              (A) to assign the State any rights, of the individual
                       or of any other person who is eligible for medical


        2
          Formerly Tennessee Code Annotated § 71-5-117(e). We note that, in the 2012 bound replacement
volume 12B containing Title 71, former subsection 117(e) is contained at 117(d), and former subsection
117(d) is contained at 117(c). Former subsection 117(c) was deleted by 2010 Pub.Acts c. 776, § 1, effective
January 1, 2011. We observe that the version of the Code currently available on Westlaw does not reflect
the alterations made in the bound volume.

                                                   -4-
              assistance under this subchapter and on whose behalf the
              individual has the legal authority to execute an
              assignment of such rights, to support (specified as
              support for the purpose of medical care by a court or
              administrative order) and to payment for medical care
              from any third party;
                      (B) to cooperate with the State (i) in establishing
              the paternity of such person (referred to in subparagraph
              (A)) if the person is a child born out of wedlock, and (ii)
              in obtaining support and payments (described in
              subparagraph (A)) for himself and for such person,
              unless (in either case) the individual is described in
              section 1396a(l)(1)(A) of this title or the individual is
              found to have good cause for refusing to cooperate as
              determined by the State agency in accordance with
              standards prescribed by the Secretary, which standards
              shall take into consideration the best interests of the
              individuals involved; and
                      (C) to cooperate with the State in identifying, and
              providing information to assist the State in pursuing, any
              third party who may be liable to pay for care and services
              available under the plan, unless such individual has good
              cause for refusing to cooperate as determined by the
              State agency in accordance with standards prescribed by
              the Secretary, which standards shall take into
              consideration the best interests of the individuals
              involved; and
              (2) provide for entering into cooperative arrangements
      (including financial arrangements), with any appropriate agency
      of any State (including, with respect to the enforcement and
      collection of rights of payment for medical care by or through a
      parent, with a State's agency established or designated under
      section 654(3) of this title) and with appropriate courts and law
      enforcement officials, to assist the agency or agencies
      administering the State plan with respect to (A) the enforcement
      and collection of rights to support or payment assigned under
      this section and (B) any other matters of common concern.
      (b) Such part of any amount collected by the State under an assignment
made under the provisions of this section shall be retained by the State as is
necessary to reimburse it for medical assistance payments made on behalf of

                                     -5-
       an individual with respect to whom such assignment was executed (with
       appropriate reimbursement of the Federal Government to the extent of its
       participation in the financing of such medical assistance), and the remainder
       of such amount collected shall be paid to such individual.

       42 U.S.C.A. § 654 provides, in relevant part, that a state plan for child support must
provide that the State will provide services relating to establishing paternity or child support
with respect to each child for whom medical assistance is provided under subchapter XIX
of the chapter. 42 U.S.C.A. § 654 It states, in relevant part:

       A State plan for child and spousal support must - -
       (1) provide that it shall be in effect in all political subdivisions of the State;
       (2) provide for financial participation by the State;
       (3) provide for the establishment or designation of a single and separate
       organizational unit, which meets such staffing and organizational requirements
       as the Secretary may by regulation prescribe, within the State to administer the
       plan;
       (4) provide that the State will--
                      (A) provide services relating to the establishment of
               paternity or the establishment, modification, or enforcement of
               child support obligations, as appropriate, under the plan with
               respect to--
                              (i) each child for whom (I) assistance is provided
                      under the State program funded under part A of this
                      subchapter, (II) benefits or services for foster care
                      maintenance are provided under the State program
                      funded under part E of this subchapter, (III) medical
                      assistance is provided under the State plan approved
                      under subchapter XIX of this chapter, or (IV)
                      cooperation is required pursuant to section 2015(l)(1) of
                      Title 7, unless, in accordance with paragraph (29), good
                      cause or other exceptions exist;
                              (ii) any other child, if an individual applies
                      for such services with respect to the child; and
                      (B) enforce any support obligation established with
               respect to--
                              (i) a child with respect to whom the State
                      provides services under the plan; or
                              (ii) the custodial parent of such a child;
       (5) provide that (A) in any case in which support payments are collected for an

                                              -6-
       individual with respect to whom an assignment pursuant to section 608(a)(3)
       of this title is effective, such payments shall be made to the State for
       distribution pursuant to section 657 of this title and shall not be paid directly
       to the family, and the individual will be notified on a monthly basis (or on a
       quarterly basis for so long as the Secretary determines with respect to a State
       that requiring such notice on a monthly basis would impose an unreasonable
       administrative burden) of the amount of the support payments collected, and
       (B) in any case in which support payments are collected for an individual
       pursuant to the assignment made under section 1396k of this title, such
       payments shall be made to the State for distribution pursuant to section 1396k
       of this title, except that this clause shall not apply to such payments for any
       month after the month in which the individual ceases to be eligible for medical
       assistance[.]

42 U.S.C.A. § 652(f) provides:

       The Secretary shall issue regulations to require that State agencies
       administering the child support enforcement program under this part enforce
       medical support included as part of a child support order whenever health care
       coverage is available to the noncustodial parent at a reasonable cost. A State
       agency administering the program under this part may enforce medical support
       against a custodial parent if health care coverage is available to the custodial
       parent at a reasonable cost, notwithstanding any other provision of this part.
       Such regulation shall also provide for improved information exchange between
       such State agencies and the State agencies administering the State medicaid
       programs under subchapter XIX of this chapter with respect to the availability
       of health insurance coverage. For purposes of this part, the term “medical
       support” may include health care coverage, such as coverage under a health
       insurance plan (including payment of costs of premiums, co-payments, and
       deductibles) and payment for medical expenses incurred on behalf of a child.

       In its brief to this Court, DHS acknowledges that the actions filed in the trial court
were filed as child support enforcement services pursuant to Title IV-D of the Social Security
Act, 42 U.S.C. § 1396k, and Tennessee Code Annotated § 71-3-124. Section 71-3-124
provides:

       (a)(1) Each applicant or recipient who receives or authorizes payment of public
       or temporary assistance pursuant to Title IV-A or IV-E of the Social Security
       Act, compiled in 42 U.S.C. § 601 et seq. And 42 U.S.C. § 670 et seq.,
       respectively, or any successor program providing temporary assistance or

                                              -7-
foster care or adoption assistance shall be deemed to have assigned to the state
any rights to support from any other person such applicant or recipient may
have:
                (A) In the applicant's own behalf or in behalf of any other family
        member for whom the applicant is applying for or receiving aid; and

                (B) That have accrued at the time such assignment is executed.
        (2) Each payment shall constitute “receipt” for purposes of determining
when the assignment is executed.
        (3) During the terms of such assignment, the department shall be
subrogated to the rights of the child or children or the person having custody
to collect and receive all child support payments.
        (4) The department has the right to initiate any support action in its own
name or in the name of the recipient under existing laws of this state and to
recover any payments ordered by the courts of this or any other state.
        (5) In the exercise of its subrogation rights, the department shall give
the person having custody prior notice of any action taken to enforce or modify
support and shall inform the custodian of the right to intervene to protect any
future interest; provided, that failure to provide such notice shall not be a
defense to the obligor in any proceeding.
        (6)(A) Notwithstanding any other provision of law to the contrary,
neither the department of human services, nor any Title IV-D child support
contractor of the department, nor any recipient of public assistance in this or
any other state or territory, shall be required to demonstrate to a court or
administrative tribunal in this state that the caretaker of the child for whom
child support is sought is vested with any more than physical custody of the
child or children in order to have standing to petition for child support from the
legal parent of the child or children for whom support is sought, or to seek
enforcement or modification of any existing orders involving such child or
children.
        (B) Legal custody of a child to whom a child support obligation is owed
shall not be a prerequisite to the initiation of any support action or to the
enforcement or modification of any support obligation, whether or not the
obligation has been assigned to this state or any other state or territory by
operation of law.
        (b) The department shall certify to the clerks of the appropriate state
courts that an assignment of any and all rights, title and interest in support
rights has been made to this state by a public assistance or temporary
assistance recipient of this state. The department may also, in its discretion,
certify to the clerk of the appropriate court in this state that a recipient of

                                       -8-
public assistance or temporary assistance in another state has assigned support
rights to that state pursuant to federal law. Upon receipt of this certification,
the clerks of the appropriate state courts shall transmit support payments that
they receive on behalf of such public assistance or temporary assistance
recipient. The clerk shall transmit the amount directly to the agency specified
by the department in accordance with § 36-5-101. The clerks are to identify
these payments by the names of the parties involved in the cause of action and
by the docket number of the cause of action. These support payments shall be
transmitted to the department or the specified agency continuously until the
department notifies the clerks of the appropriate state courts that it is no longer
necessary to do so. The department shall send to each recipient notice of
payments received in such recipient's behalf quarterly.
        (c)(1) Upon the filing of an application by an individual not otherwise
eligible for support services under this section, the department may initiate
support actions for an individual, in accordance with the provisions of Title
IV-D of the Social Security Act, compiled in 42 U.S.C. § 652 et seq., as
amended.
        (2) The department or any entity, public or private, that contracts with
the department to establish paternity or to establish, modify or enforce child
or spousal support pursuant to the provisions of Title IV-D of the Social
Security Act shall have authority and standing to file any legal actions to
establish paternity or to establish, modify or enforce child or spousal support
in any judicial or administrative proceeding on behalf of the department and
the state for persons who have assigned rights of support to the department
pursuant to this section, or who have otherwise applied for child or spousal
support services pursuant to the provisions of subdivision (c)(1) or Title IV-D
of the Social Security Act. The department or its contractors may file such
legal actions without the necessity of intervening in an existing action or
naming the state as a party to the action. The department or its contractors shall
not be required to provide proof that the obligor, the obligee or the child has
applied for or is receiving Title IV-D child support services in order to meet
the requirements for conducting Title IV-D child support judicial or
administrative actions.
        (d) The provision of services under a child support enforcement
program that includes services by an attorney or an attorney's representative
employed by, under contract to, or representing the department shall not create
an attorney-client relationship with any party other than the state. Attorneys
employed by or under contract to the department shall have an affirmative duty
to notify individuals applying for child support services or temporary
assistance for needy families (TANF) recipients or recipients of any successor

                                        -9-
       program providing temporary assistance whose rights to support have been
assigned, who contact or are contacted by the attorney or other child support enforcement
program staff that any legal services provided by the child support enforcement program are
solely on behalf of the state, and that no incidents of the lawyer-client relationship, including
the confidentiality of lawyer-client communications, exist between the attorney and the
applicant or recipient. No such duty shall exist when the applicant for services is another
governmental agency acting on behalf of an individual and there is no direct contact between
the child support enforcement program and the individual seeking support.
               (e)(1) As a condition of eligibility for consideration of the caretaker
       relative in the request for assistance under the TANF program or any successor
       program providing temporary assistance, each applicant for or recipient of
       benefits under this program shall cooperate, unless good cause not to cooperate
       is shown to exist in accordance with 45 Code of Federal Regulations, Sections
       232.40 through 232.49 as they may be amended, with the department and its
       Title IV-D contractors in:
                       (A) Identifying and locating the parent of a child for
               whom aid is claimed;
                       (B) Establishing the paternity of a child born out of
               wedlock for whom aid is claimed;
                       (C) Obtaining support payments for the applicant or
               recipient and for a child for whom aid is claimed; and
                       (D) Obtaining any other payments or property due the
               applicant or recipient of the child.
               (2) Cooperation with the department and its Title IV-D contractors shall
       be defined by the department in rules that are consistent with federal
       regulations.
               (3) If a caretaker relative fails to cooperate with the department or its
       Title IV-D contractors under subdivision (e)(1), the department shall,
       consistent with federal regulations, deny assistance to that caretaker relative
       of a child or children who are otherwise eligible for TANF or any successor
       program providing temporary assistance and it shall, consistent with federal
       regulations, provide assistance to the eligible child in the form of a protective
       payment, but such assistance will be determined without regard to the needs
       of the caretaker relative.
               (4) The commissioner shall promulgate rules to carry out this section.

Tenn. Code Ann. § 71-3-124 (2012).


       Reading the statutes together as a whole, we agree with the trial court that the cause

                                              -10-
of action through which DHS seeks to assert its right to reimbursement is, simply, an action
for child support and that, as such, the action is governed by the child support statutes and
guidelines. DHS’s argument in the trial court was somewhat unclear. On one hand, it
asserted that medical support is not child support and, therefore, the child support guidelines
were not applicable. On the other hand, it asserted that child support may consist of medical
support only and may be ordered without application of the guidelines. The statutory scheme
outlined above, however, gives DHS the authority to bring a support action seeking child
support for the benefit of a non-marital child, and permits it to recover assistance benefits
paid by the State. The Title IV-D action is not merely an action to recover benefits, but to
establish a duty of support in the first instance. The current actions are child support actions
in which DHS attempts to waive the Mothers’ right to all support other than medical support,
and in which DHS seeks to simply ignore the child support guidelines. DHS effectively
asserts that Tennessee Code Annotated 71-5-115 & 117 permits the trial court to enter child
support orders limited to the recoupment of State-provided benefits. We disagree.

       Considered together, the statutes of Tennessee “impose a duty on trial courts to protect
the best interests of children.” Tuetken v. Tuetken, 320 S.W.3d 262, 271 (Tenn. 2010). This
duty “comports with the long-standing notion that the state stands in parens patriae of the
minor children within its borders.” Id. Parties may not relieve a trial court of the duty to
ensure that disputes are resolved in the best interests of the child. Id. at 272. Thus, for
example, parents may not enter into private child support agreements that circumvent the
child support obligations imposed by the statutes. Id. (citing Berryhill v. Rhodes, 21 S.W.3d
188, 192 (Tenn. 2000)). Parents also cannot bind the court on matters of child support by
submitting the matter to an arbitrator. Id.

       It is well-settled that the child support guidelines govern both the process and criteria
for determining a parent’s child support obligation. E.g., Reeder v. Reeder, 375 S.W.3d 268,
275 (Tenn. Ct. App. 2012)(citation omitted). The amount of support that is determined by
a correct application of the formula contained in the guidelines is the presumptive child
support amount. Id. Although the presumptive support amount is rebuttable and the trial
court may, in its discretion, deviate from the guidelines, any deviation must be supported by
specific written findings stating why application of the guidelines would be unjust or
inappropriate. Id. The trial court’s discretionary decision to deviate from the child support
guidelines must nevertheless “take into consideration the applicable law and the relevant
facts.” Id. (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)).

       In the current case, DHS petitioned the trial court for orders of support that deviated
from the child support guidelines and that considered neither the applicable law nor the
relevant facts. The trial court determined that it could not set “medical support only” without
reference to the child support guidelines. We review a trial court’s decision with respect to

                                              -11-
whether a deviation from the child support guidelines is warranted under an abuse of
discretion standard, and will uphold the trial court’s determination if the trial court has
applied the correct legal standard and its decision is not clearly unreasonable. Id. Having
determined that the trial court applied the correct legal standard in this case, we find no abuse
of discretion on the part of the trial court.

                                            Holding

      In light of the foregoing, we affirm the judgment of the trial court. This matter is
remanded to the trial court for the collection of costs. Costs on appeal are taxed to the
Appellant, the State of Tennessee Department of Human Services.




                                                     _________________________________
                                                     DAVID R. FARMER, JUDGE




                                              -12-
