By Michael Lang ’23
First, I would like to sincerely thank the donors of the Kaplan & Reynolds Public Interest Fellowship for supporting my summer fellowship. Because of this funding I was able to stay focused and remain fully dedicated to my work at the Livingston County Public Defender’s Office. My summer position was challenging, informative and rewarding, and I am grateful to the donors for making it possible. I also want to thank the attorneys and staff at the Livingston County Public Defender’s Office for welcoming me onto their staff this summer. The Livingston County Public Defender’s Office is made up of incredible attorneys and legal staff, all of whom are dedicated to the principle of equal justice for all.
In his memoir Hillbilly Elegy – A Family and Culture in Crisis, Yale Law School alumni J.D. Vance chronicles his life as a “poor” kid from Middletown, Ohio. By all measures Vance beat the statistics. He was raised by an abusive and drug-addicted mother, he had a fractured relationship with his father, and his mother cycled through partners and marriages while failing to hold a steady job or home. Before him, nobody in Vance’s family had graduated college. With the help of his grandmother and through his own determination, Vance would defy the odds and graduate from Ohio State University and then Yale Law School. I am omitting much from his story, but Vance’s ascent to success is a remarkable tale of resilience and overcoming adversity. While Vance himself is an anomaly, his upbringing is typical of many in America’s rural counties, and specifically those in New York’s southern tier. Vance considers himself a descendant of Appalachian “Hillbilly’s,” a subgroup of Scotch Irish immigrants that settled in the mountains stretching from Georgia to the southern tier of New York, and whose economic prospects have been steadily declining in modern America.
Vance argues that the decline in rural America’s quality of life is in part the result of “learned helplessness” which has taken hold of entire communities. Learned helplessness is the belief that one lacks all personal agency because of persistent failure or trauma. Vance believes that learned helplessness is directly correlated to whether an individual has suffered from ACEs or adverse childhood experiences. The Centers for Disease Control and Prevention defines ACEs as “potentially traumatic events that occur in childhood (0-17 years)” such as “experiencing violence, abuse, or neglect; witnessing violence in the home or community; having a family member attempt or die by suicide.” The CDC states, “ACEs are linked to chronic health problems, mental illness, and substance use problems in adulthood” and ACEs “negatively impact education, job opportunities, and earning potential.” While ACEs are prevalent throughout society, Vance argues that socioeconomic conditions in rural communities put them at particular risk. Vance’s book sparked a nationwide conversation about generational poverty, domestic violence, class mobility, and crime in America’s rural communities.
I mention Vance’s story because it provides valuable insight into the social conditions in Livingston County, New York. When I was interviewing for the internship at the Livingston County Public Defender’s office, the Chief Public Defender informed me that interning in her office would expose me to criminal and family issues unique to rural areas. These issues have been exacerbated by the ongoing opioid epidemic, transitional job market, and the economic effects of Covid-19. Compared to neighboring counties, Livingston County is in a significantly better economic condition. The Appalachian Regional Commission, an economic development partnership agency of the federal government, has designated Allegany County, which borders Livingston County to the south, an “at risk” county. In Allegany County the income per capita is $16,850 with a poverty rate of 15.5%, compared to Livingston County at $29,902 and a poverty rate of 13.8%. Both Livingston and Allegany County are well below the national average of $35,977 income per capita and above the national poverty rate of 10.5%.
The Livingston County Public Defender’s office provides legal representation for indigent citizens. Indigent means citizens who are unable to pay for their own counsel. The office handles both criminal and family court cases. I had the opportunity to observe and assist on arraignments, sentencing and trials. My responsibilities consisted of assisting attorneys in their everyday tasks; handling case files, conducting research and drafting motions. However, the experiences that impacted me most were the trials, sentencings, and hearings I was able to observe. The topic of this blogpost is the result of a particularly memorable family court trial I was able to assist with.
The family court attorney invited me to assist him in a trial for an ongoing custody battle. The mother was suing for full custody of her three sons who split time with their father. We were representing the children’s father, who stated that he had a monthly income of under $100 and was the parent of eleven children, none of whom currently lived with him. The father admitted that he had not held a job since the mid 1990’s. The father lived in a one-bedroom house with his elderly stepfather and cousin. He stated that if granted full custody of the boys, he would sleep in the kitchen of the house on a blow-up mattress, his cousin would sleep in the living room with his stepfather, and the children would share a bed in the home’s only bedroom. Neither the mother nor father had graduated from high school. The mother claimed to receive nearly $3,000 in monthly Social Security benefits prior to the custody agreement, but now only receives $800 and lives alone in public housing. She has been unemployed her entire life and was fully dependent on social services.
The children had each accumulated over 40 unexcused absences from school while living with their mother. Their father took pride in the fact that under his custody they had only three absences, all of which were medically excused and reported to the school. The children told the CPS caseworker that the mother had a boyfriend who beat them and on one occasion held a pistol to one of their heads while threatening to kill each of them and their mother. The children told CPS that their mother had regularly driven them into a neighboring county to allegedly buy drugs. Additionally, the children claimed to have once witnessed a shooting in broad daylight. The youngest son suffered from fetal alcohol syndrome which resulted in him being born with one lung, an underdeveloped heart, and deformed spine. This child required breathing tubes, as well as a device in his brain that drains excessive fluid, requiring consistent medical treatment. Six months prior to this trial, the mother was driving the three sons to school when she crashed and flipped her vehicle. The children told the CPS caseworker that their mother had been drinking excessively the morning of the accident. The mother testified that she had never drank alcohol in her entire life, nor had she ever tried any drugs, and that she did not have a boyfriend. She testified that everything her children told the CPS caseworker was a lie. The father admitted that he smokes marijuana regularly and drinks on the weekends. On cross examination, both the mother and father accused each other of selling drugs. Both the mother and father accused each other of abusing the children. Both parents stated that they do not plan on seeking employment in the future.
The trial devolved into a spectacle of insults and accusations. It seemed that the main issue, which was the children’s welfare, was lost in the mayhem. The trauma and neglect that these children were subjected to was mentioned only when being weaponized by either parent. The children’s condition was not examined honestly or with an eye toward resolution. The judge presiding over this trial was awestruck that this family’s situation had slipped through the cracks of Child Protective Services. The legal standard for custody in New York is the “best interest of the child.” The court will consider factors such as the parenting skills of each parent, the mental and physical health of the parents, the conditions in the home environment, the educational opportunities provided by each parent, the finances of each parent, and whether the children have been subjected to abuse, neglect, or abandonment. In this case, neither parent could fulfill most if any of these factors, especially given the youngest child’s medical expenses. After closing arguments, the judge stated that her concerns went beyond this trial, and she would be referring this case back to CPS for further evaluation.
I was informed that situations like this are alarmingly commonplace in Livingston County. Although it is easy to judge people like this and view their life choices with contempt, I learned to see a broader picture of these issues. As J.D. Vance points out in his memoir, it is highly likely that these parents suffered from similar adverse childhood experiences or ACEs, and in turn they are now subjecting their children to the same trauma that they faced. Unfortunately for these children it will be an uphill battle for them to overcome these ACEs, and their consequences may be permanent. Vance credits his ability to break out of this cycle on his grandmother who assumed most of the parental responsibility of raising him. Vance writes that his grandmother was the only supportive and stable parental figure in his life. However, despite Vance’s pleas to the court that he wished to live with his grandmother, and the chronic abuse and trauma that he suffered while living with his mother, the court system in Ohio refused to place him in his grandmother’s custody.
I believe that the courts should ease the restrictions that encumber relatives from intervening and seeking custody of at-risk children. In New York State, for a nonparent or grandparent to seek custody under Article 6 of the Family Court Act the “nonparent must prove the existence of extraordinary circumstances” such as “surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption over an extended period of time.” Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546 (1976). If the “extraordinary circumstances” are found to exist, then the nonparent or grandparent will be deemed to have “standing” to seek custody, and the court will award custody based on the best interests of the child. Id. at 548. The bar for “exceptional circumstances” is difficult to overcome, and parents rightfully “have a claim of custody to their children that is superior to all others.” Id. However, there are avenues available under the current law for grandparents, nonparents, and relatives to seek custody of at-risk children, and the courts should be more willing to exercise these options. While removing parental rights is a drastic move, and it requires overwhelming evidence, in many situations it is in the best interest of the child. Vance believes that reversing the cycle of domestic violence, ACE’s, and generational poverty in rural communities requires family members of at-risk children to take an active role in their lives and intervene when necessary.
When I was debriefing with the attorney I had assisted, we discussed these issues at length. He told me that as a family court attorney you cannot become emotionally invested in the tragic particulars of cases because they are simply too common. While you must zealously advocate for your client, becoming emotionally charged may cause you to lose sight of your task and fail to represent your client’s interest. I learned that our current family court system is not designed to fix the root of these problems. Too often, the courts are not sufficiently proactive in child abuse proceedings and are left to pick up the pieces after critical damage is done. By the time these cases come before family court, much of the harm done on the community, the families, and particularly on the children, may be irreversible.
My recommendation for a prospective summer intern who wants to serve their community, or who has an interest in family or criminal law, is to branch out and consider a position in a rural community. The challenges posed in rural communities are unique, they require new solutions, and they need young attorneys who are passionate and committed to fixing them.
Name: Michael Lang ‘23
Name of Fellowship: Kaplan & Reynolds Public Interest Fellowship
Placement: Livingston County Public Defender’s Office
Location: Geneseo, NY
One important lesson I have learned from this fellowship: “The challenges posed in rural communities are unique, they require new solutions, and they need young attorneys who are passionate and committed to fixing them.”