Magistrate denies motion to lower per diem fee for dogs seized from Upshur County residence

BUCKHANNON – An Upshur County magistrate denied a motion to lower a daily fee for housing dogs after they were seized by the county’s animal control/humane officer.

Denise Clark, 61, and Rebecca Clark, 41, both of Rock Cave, were arrested Oct. 6, 2022, for allegedly failing to register a kennel and for animal cruelty. Upshur County Sheriff’s deputies and Upshur County Animal Control-Humane Officer John Slaughter seized approximately 80 dogs being kept in “deplorable conditions” inside a single-wide trailer, according to a press release issued by the sheriff’s office.

Denise Clark and her daughter, Rebecca Clark, were each charged with one count of animal cruelty, one count of operating an unregistered kennel and one count of conspiracy, all misdemeanors, according to the release.

During a Dec. 13 hearing for Denise Clark, Upshur County Magistrate Alan Suder denied a motion entered by Clark’s attorney asking him to modify a $10 daily fee Clark must pay while the county has custody of the dogs that were taken from her home. Magistrate court records show that since the seizure of the animals, $22,415 has been paid to the Lewis-Upshur Animal Control Facility to care for the animals for the month of October. Clark’s defense attorney, Elkins-based lawyer Morris C. Davis said they received an invoice, which covered the care of the dogs for December 2022 that amounted to approximately $23,000.

“We’re dealing with extremely large amounts of money, and we’re under the belief the vast majority of the dogs have been in foster care, so the Upshur County Animal Control (Lewis-Upshur Animal Control Facility) is no longer in actual possession of the dogs, so my question to you is, how exactly can you charge my client $10 a day for boarding a dog that isn’t in possession of the Lewis-Upshur Animal Control Facility?” Davis said.

He said the invoice listed the daily fee for 75 dogs, despite the fact that the majority of them are living in foster homes instead of at the Mud Lick Road facility. Assistant Upshur County Prosecuting Attorney Kelley J. Cunningham cited West Virginia Code, 7-10-4, section C1, which states, “during this period, the humane officer is authorized to place the animal in a safe private home or other safe private setting in lieu of retaining the animal in an animal shelter. The person whose animal is seized is liable for all costs of the care of the seized animal.”

Cunningham said she knew they were dealing with large amounts of money, but there were a lot of dogs under LUAC’s care. She also said it would be very hard for LUAC to house all 75 dogs and continue to take in other animals.

“The shelter was not built to provide for just these dogs,” Cunningham replied. “This fee has been calculated on what the cost is for the county to manage these dogs on a daily basis.”

She said that calculation includes the Upshur and Lewis County humane officers’ time and that of Jan Cochran, the director of LUAC.

Cochran took the stand and testified about the work she has done for the dogs and why they were placed in foster homes.

“Our shelter is not large enough to house 80 dogs; it would not be humane for us to keep all the dogs at the shelter,” Cochran said.

Davis asked how many dogs were currently at LUAC and how many were living in foster homes temporarily. Cochran said 18 of the seized dogs still reside at LUAC while the rest have been sent to foster homes. Davis asked if the $10 daily fee was specifically for boarding animals at LUAC.

“It is expressly for us to take care of the dogs, but you would have to ask the Upshur County Commission if that was meant to be just for boarding,” Cochran said.

She also testified that having so many of the dogs living in foster homes is more work for her because she is constantly fielding phone calls, texts and emails about the dogs 24/7. Cochran said all the veterinary work done on the dogs must be signed off on by her, so the foster homes will ask her if any of the dogs need to go to the vet due to certain symptoms.

Davis, however, said his client is being taken advantage of because she is paying a boarding fee while the dogs are being held off LUAC premises.

“I think that the court needs to take a deeper look at this – we need to figure out when these dogs were taken out of the custody of the animal shelter and what dogs are still there and what are the expenses associated with that, but it’s not just to expect this woman to pay $23,000 a month because the vast majority of dogs are being fostered out, and that’s not fair,” Davis said.

Cunningham said the county is still responsible for the dogs and the only other option besides placing them in private foster homes would be to house the dogs in another boarding facility, which would most likely cost $20 to $25 per day.

“We’re trying to do what’s best for the animals themselves; I think we all can agree that animals being kept in a shelter in a kennel is not an appropriate environment,” Cunningham said. “Even though these animals are in foster homes, Ms. Cochran is still responsible for the care of these animals.”

Upshur County magistrate Alan Suder ruled that the $10 a day was a fair amount to take care of each dog.

“I feel that Ms. Cunningham and the animal control facility have presented all the documentation necessary, and I feel that they are willing to provide you with any other additional information if it’s requested,” Suder said. “I feel that $10 a day was assessed by the county commission, and I feel it’s fair.”

Steven Nanners, Rebecca Clark’s defense attorney, addressed the court and filed a motion to consolidate Denise and Rebecca Clark’s cases into one case so there could be just one trial with one magistrate presiding. Cunningham said a conference would need to be scheduled to see if Davis and his client, Denise Clark, agreed to the motion, and then Davis would have to file a written motion.

Davis said he did not object to the motion, but he would like time to review Nanners’ motion and write something to submit to the court and then a hearing can be set to go over the motion. A date for the hearing was not set during the Dec. 13 hearing.

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