Lewis-Upshur Animal Control Facility Supervisor Jan Cochran testifies at Friday's hearing in front of Magistrate Kay Hurst.
In this photo from a September 2020 hearing, Lewis-Upshur Animal Control Facility Supervisor Jan Cochran testifies in front of Magistrate Kay Hurst, who retired Wednesday. / File photo by Katie Kuba

County awarded custody of dogs in animal cruelty case, paving way for animals to be adopted, fostered

BUCKHANNON – Custody of 40 dogs seized from an Abbott Road residence in April 2020 due to allegations of animal cruelty and neglect has been awarded to the Upshur County Animal Control/Humane Officer, according to a ruling handed down in Upshur County Magistrate Court Friday.

Many of the dogs – which include Great Pyrenees adult canines, Great Pyrenees pups, Boston terriers, Yorkshire terriers and Jack Russell terriers – have been housed at the Lewis-Upshur Animal Control Facility since they were seized April 20, 2020.

Others had to be transported to Barbour County shelters for housing until Tuesday, Sept. 22 of this week, when there was finally space for them at LUAC, according to court documents.

At Friday morning’s civil hearing in magistrate court, Upshur County Magistrate Kay Hurst ruled that a preponderance of the evidence suggested the animals were neglected by their owner, Denise Clark, who is also facing criminal charges of animal cruelty in Upshur County Magistrate Court.

The animals are alleged to have been found in “dog crates stacked on top of each other” three or four rows high with two to six dogs in each crate, some of which were puppies.

The ruling

“After considering the evidence, this court finds by a preponderance of the evidence that the subject animals were neglected by placing too many animals in crates with the condition of the crates being stacked in positions to cause danger for the animals if crates would fall or be knocked off,” Hurst said.

Hurst noted her decision was based on information about the unsanitary conditions of the residence and testimony that the dogs were deprived of food and water.

“[Witnesses] testified that there was no food or water seen throughout the residence,” she said.

On Wednesday, Sept. 23, county administrator Carrie Wallace filed a civil complaint on behalf of the Upshur County Commission requesting that a bond amount be set in the case in accordance with the section of state code that governs county officers’ responsibilities with regard to the custody and care of animals that are believed to be abandoned, neglected or allegedly subjected to cruel treatment.

The Barbour County Commission also filed a similar civil complaint.

In addition to awarding custody of the animals to the county’s humane officer “for further distribution in accord with reasonable practices for the humane treatment of animals,” Hurst set a bond of $16,947.18 in the Upshur County civil case to cover the cost of care, including medical treatment, for the animals.

That amount was calculated based on LUAC’s standard $5 per animal per day fee plus veterinarian bills and is intended to span the time period from which the animals were originally seized on April 20, 2020 through Friday, Sept. 25, 2020.

Hurst set the bond in the Barbour County civil case at $18,090. That amount is based on the county’s charge of $10 per animal per for the time period from the day of impoundment through Tuesday, Sept. 22, when the Lewis-Upshur Animal Control Facility had enough space to receive the remaining animals from the Abbott Road residence.

The bond must be posted within five days.

“I just want to say that as a dog owner myself, I understand Ms. Clark calling her dogs her kids because animals are part of the family – they just are,” Hurst said, as she announced her ruling. “However, in this instance, the dogs – or least many of them – were for breeding purposes and for selling.”

“It wasn’t brought up in the hearings that any specific dog was a personal pet of Ms. Clark’s, so my ruling is, for Upshur and Barbour County both … that the 41 dogs and two birds taken possession of by the Upshur County Animal Control/Humane Officer Jason Knicely … should be awarded to the county animal control officer,” Hurst added.

The timeline of events

The animals were initially discovered on March 11, 2020 after the Upshur County Sheriff’s Department assisted the state Bureau of Alcohol, Tobacco and Firearms in executing a search warrant at the residence of William J. and Denise M. Clark related to a separate case.

A criminal complaint filed subsequently by investigating officer Cpl. Tyler Gordon says he and Upshur County Animal Control/Human Officer Jason Knicely went in the dwelling to check on the condition of the dogs and were “overwhelmed by the odor of feces and urine.”

“The crates were dirty and [the animals] had no food or water,” Gordon wrote. “The overall conditions in which the animals were living … was less than adequate and humane.”

During Friday’s magistrate court hearing, Knicely testified that on April 20, more than a month later, the county seized a total of 16 “inside dogs,” including 13 Boston terriers and three Yorkshire terriers.

Gordon told the court that seven days later, on April 27, 15 additional “outside dogs” – including four adult Great Pyrenees canines, four Pyrenees pups, five Jack Russell terriers and two Boston terriers – were seized from the back porch of the residence. A 16th tan dog that had been tied to a tree on the side of the house was also taken.

The court on Friday also viewed footage from Gordon’s body camera showing the conditions inside the residence as well as the back room in which the crates/dog travel carriers were stacked.

Clark was subsequently charged with 53 counts of cruelty to animals and five counts of commercial dog breeding (other animals including pigs, sheep, goats and birds were discovered on the property, according to the file in the Upshur County Magistrate Clerk’s office).

However, Clark, who appeared via telephone, told the court that some of the “inside dogs” belonged to her, while the “outside dogs,” including the Great Pyrenees adults and pups, belonged to her ex-husband, William Clark. When asked why all veterinary records were kept in her name, Denise Clark said her husband was “irresponsible” and it was easier to keep all the animals’ medical records in one name.

In addition, Clark’s attorney, Zach Dyer, supplied a copy of a letter from Dr. Tonya White at Appalachian Animal Hospital in Elkins saying that White never had any reason to believe Clark neglected, abandoned or abused her animals.

Dyer also painted his client as a longtime animal lover, and Clark said she’d been breeding dogs since age 11 and had, in fact, worked for some time in a veterinary office beginning at age 17.

When asked by Dyer about the “messiness” of her house, Clark said she and her ex-husband were in the middle of remodeling every room in the Abbott Road home when the original March 2020 search warrant was executed.

“They are my kids,” Clark said of the animals, testifying that the dogs provided invaluable emotional support when she experienced several physical and mental health struggles a couple years ago.

Additionally, Dyer argued that the dogs may have been in crates stacked on top of one another because Clark could have been notified that she needed to secure her dogs by officers with the Bureau of Alcohol, Tobacco and Firearms.

The Upshur County Commission’s attorney, Jamie O’Brien with Steptoe & Johnson, however, showed a number of photographs of the conditions in which the dogs were kept and argued that Clark’s testimony demonstrated a “lack of credibility.”

Jamie O’Brien, who represented the Upshur County Commission in Friday’s hearing, speaks with Upshur County Animal Control/Humane Officer Jason Knicely.

The lengthiness of the case

According to Chapter 7, Article 10, Section 4 of West Virginia Code pertaining to county officers and the custody and care of animals believed to have been neglected or treated cruelly, the owner of the animals must be provided with written notice of the seizure.

After that, it’s the owner’s responsibility to request a hearing within five days, and then a magistrate court must schedule the hearing within 10 working days of receiving the request.

Clark had requested a hearing, and it was scheduled for May 6, 2020, according to Hurst. However, Clark’s attorney, Tom Dyer, felt the hearing didn’t need to take place because Clark had been arrested and arraigned that day.

Hurst said she’d since consulted the West Virginia Supreme Court of Appeals, which said a seizure hearing was mandatory.

“Since then, I have spoken with the Supreme Court and they said, yes we do need to have that hearing, and that’s why we have scheduled it,” Hurst said.

Janella Cochran, Lewis-Upshur Animal Control Facility Supervisor, said the length of time the animals were housed at the facility was not only stressful for the dogs but decreased the number of spaces LUAC could use to house owner-surrendered pets and strays.

As of last week, the animal control facility could no longer accept any owner-surrendered animals and was only able to accept strays, injured, abandoned animals brought in by Upshur County Animal Control/Humane Officer Jason Knicely, Cochran told My Buckhannon earlier this week.

“If we had had to house everything that had been taken to Barbour County and here [following the April 20, 2020 seizure], we would not have been accepting any dogs from April until now – or until this court case is over,” Cochran said.

“The more animals you have in the shelter, the more stressful it is on the animals that are in the shelter – the more sicknesses you get, the more chances you have of getting kennel cough, you have normal stress that causes everything from upper respiratory conditions to depression,” she added.

Animals that are harder to rehome are at a greater risk of being euthanized when court case animals occupy cage space, Cochran said.

“You’ve got a limited amount of space because you’ve got the court cases holding up cage space, so then what happens is that … for the harder cases like the deaf pit bull we had, usually if we had to hold him for a month or six weeks or something like that to find him a good home, that’s no big deal, but we’re in a time crunch because we have to have room for strays that come in here.

“So, it was making his time short, and if we didn’t find a rescue to take him, we would have had to euthanize him,” she said. “Because he had nipped because he was scared and due to how he was approached, we did not feel comfortable putting him back out into the public for adoption, so he just needed an experienced person to be able to deal with that,”

(The Pit Bull was transported to a no-kill rescue.)

‘Fur’ever homes on the horizon?

Cochran said the animal control facility has kept track of people interested in providing foster homes, potential adopters and no-kill rescues if the county was awarded custody of the animals.

“Once it’s all done, I think within a week, we can have a lot of them out of here,” Cochran said. “We’ve just got to get it done.”

Upshur County Commission President Terry Cutright, who attended Friday’s hearing, said he wanted to thank O’Brien for stepping in on the commission’s behalf due to Upshur County Prosecuting Attorney Bryan Hinkle having a conflict of interest.

“I definitely want to thank Jamie O’Brien and Steptoe & Johnson,” Cutright said. “I think it was 3 o’clock yesterday afternoon when we found out [we needed to get another attorney]. He really helped us out about a bunch.”

“I’d also like to thank Barbour County for helping us out, too,” Cutright added. “If they hadn’t helped us out [with housing the animals] we wouldn’t have had room to put up all these animals.”

Asked about the lack of space for strays or owner-surrendered animals at Lewis-Upshur Animal Control Facility, Cutright said Friday’s ruling should begin to alleviate that problem.

“This should relieve that because now we can adopt the animals out, and if I understand right, there’s already some people who are wanting to adopt some of them.”

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