Opinion
No. CV 06-4021640
November 1, 2006
MEMORANDUM OF DECISION
The plaintiff in this case is the State of Connecticut acting through Richard Gregan, Animal Control Officer. Mr. Gregan in accordance with Conn. Gen. Stat. § 22-329a filed a verified petition alleging that numerous cats owned and kept by Christine Koczur in her home were neglected, sick and not properly cared for. Ms. Koczur was represented by counsel and denied the allegations of the verified petition. The matter was tried before the court on August 1, 2, and 8 of 2006. The plaintiff presented seven witnesses and forty-nine exhibits of which thirty-three were photographs of the interior of Ms. Koczur's home and four were photographs of the exterior of the home. The plaintiff's witnesses were: Mr. Rob Rubbo, a Torrington public health officer; Ms. Karen Mears, a foster person to many cats; Richard Gregan, State Animal Control Officer; Dr. Richard O'Grady, a licensed veterinarian; Ms. Diane Dodge, in charge of the Harwinton Animal Shelter; Ms. Melanie Mead, a volunteer of the Alliance for Animal Rescue; and Ms. Laurie Buccieri, a volunteer for the Alliance for Animal Rescue. The defendant presented seven witnesses, and twenty-three exhibits of which eight were photographs. The defendant's witnesses were: Mr. Whittlesey, a neighbor; Ms. Betty Fioria, a volunteer for the Alliance for Animal Rescue; Dr. Edward Dimmick, a veterinarian; Mr. Robert Koczur, Ms. Koczur's father; and Ms. Christine Koczur, the owner of the 47 cats involved in this case; and Mr. Willy Schmit, a friend.
The court ordered post-trial briefs and a transcription of a large portion of the testimony. The court having heard the parties and having read the briefs of counsel and examined and re-examined the transcript of large portions of the testimony, finds the following facts. On January 11, 2006, Officer Richard Gregan received a complaint from Laurie Buccieri alleging that Ms. Koczur had multiple cats in her home that were neglected, sick and not receiving proper care and attention and that the conditions of the home were unsanitary and flea infested and further that Ms. Koczur had admitted to her that she has found dead cats in her home, that Ms. Koczur made these admissions during the period that Ms. Buccieri was a volunteer for the Alliance for Animal Rescue Society, i.e. from October 2004 through January 2006. At Officer Gregan's request Mrs. Buccieri made a written complaint and had it notarized.
On January 12, 2006, Officer Gregan received a second complaint of sick cats in Ms. Koczur's home from Ms. Karen Mears, another volunteer for the Alliance. This complaint pertained to a request by Ms. Koczur that Ms. Mears foster two kittens for the Alliance because, according to Ms. Koczur, her house was infested with fleas that could be fatal to the kittens; that when Ms. Koczur turned these kittens over to Ms. Mears she provided her with an antibiotic in the event that the animals became ill. In fact, they did become ill and despite requests by Ms. Mears, Ms. Koczur never had them taken care of by a veterinarian which forced Ms. Mears to take the cats to her own veterinarian who diagnosed them with respiratory infection and prescribed stronger antibiotics. These two kittens were subsequently adopted by Mr. and Mrs. Gordes and one of the kittens died shortly thereafter. This statement, at the request of Mr. Gregan, was also in writing and notarized.
On January 17, 2006, Officer Gregan received a third complaint of sick and neglected cats at Ms. Koczur's home. This complaint came from Melanie Mead, another volunteer for the Alliance. This complaint alleged that Ms. Koczur had over forty cats in her care, that some of the cats were sick and that she could not afford medical treatment for them. It further stated that some cats were so sick that some had died in the home and that Ms. Koczur would find them days later and Ms. Koczur admitted to her that some cats had fleas so bad that they died from flea infestation. This statement was also in writing and notarized at the request of Mr. Gregan.
Christine Koczur was the president of the Alliance for Animal Rescue Society (AARS). When cats are found and rescued AARS attempts to find foster homes for the animals until they can have a veterinary examination and then put them up for adoption. They operated through the PETCO pet store in West Hartford.
On February 9, 2006, Officer Gregan went to 2470 Newfield Road, Torrington, Connecticut accompanied by Officer Barbara Godejohn. After some delay Ms. Koczur came out of the house to talk to Officer Gregan. In response to his questions she maintained that there were no sick cats in her home and that there was some neighbor harassing her. She denied access to the house and refused to provide Officer Gregan with the rabies certificates for the cats.
On February 14, 2006, Dr. Dimmick, a veterinarian with an unusual practice wherein he operated from his home and drove to various clients throughout the state, drove from Norwich to Torrington to vaccinate the cats at the request of Ms. Koczur. He was able to vaccinate only twenty-nine because he ran out of vaccination. He claims to have examined all but seven of the cats on the same day. The excluded seven were too feral to handle. He admitted that all twenty-nine of the cats that he vaccinated were behind on their vaccinations, some as long as two years.
On February 14, 2006, based on the written statements by the three complainants and his own failed attempt to see the cats, Officer Gregan applied for and obtained a search and seizure warrant and an February 15, 2006, accompanied by a policeman from the Torrington Police Department, he executed a search and seizure warrant bringing with him various animal control officers from around the state to assist him. The testimony of Officer Rubbo and Officer Gregan in explanation of the thirty-six photographs of the interior of the house were more than sufficient to convince the court of the truth of the allegations of neglect. This testimony left little to the imagination. The premises were found to be in deplorable, filthy, unsanitary, unhealthy and badly cluttered. The small house was no more than 950 sq. ft. The kitchen, livingroom, bedrooms and bath were cluttered with trash and garbage, some of the clutter being stacked as high as the ceiling in certain rooms and left only narrow walkways in the rooms. The officers found forty-six live cats plus in the freezer a dead cat. There was a strong odor of ammonia consistent with cat urine which could be detected from outside the property. There was flea dust on top of the trash especially in the kitchen area. Stacks of trash prevented the doors to the bedrooms and the bathroom from being opened more than a few inches. The officers could not gain access to these rooms but were able to take a photograph through the door into one of the rooms which appeared to be full of clutter. Officer Rubbo, public health officer for the City of Torrington, declared the condition of the house to be unsanitary in violation of Connecticut Public Health Code, Section 19-13-B(j).
There were in excess of ten open bags of raw garbage which was accessible to the cats and they were allowed to wander freely throughout the house. There were several cat litter boxes some filled with feces. Not enough boxes had been provided for the number of cats on the property. There was evidences of feces, vomit and urine scattered throughout the house within reach of the cats. Feces and dried up urine were scattered on the floor where cats would have to walk through it and also diarrhea. Dried up urine was also found in shelves next to and on bottles of medicines. Dried up feces and vomit and diarrhea were found next to the feeding dishes. There were two feeding dishes and an automatic feeder but these were not at all sufficient for food for forty-six cats. A feeding dish was found in the microwave with old food in it, some of which appeared to be molding. Another was found in the refrigerator with mold on it. While it was true that there were unopened bags of food found on the property, there was not sufficient food available to the cats. The bags of food were sealed and not accessible to the cats.
The claim of the defendant that the condition of the litter boxes and some feces on the floor were due to the fact that she had not been able to clean up as usual that morning and the tremendous amount of clutter was due to her collecting material for a tag sale were both belied by the fact that the volume of the feces and the dried urine and the dried and dehydrated feces on the floor had obviously been there for more than an overnight and that the clutter was clearly shown on the photographs to be trash, junk and not anything that one would be saving for a tag sale.
When the forty-six cats were seized on February 15, 2006, the animals were put into individual cages and taken to a licensed veterinarian, Richard O'Grady, DVM, a veterinarian of over thirty years experience with small animals. He examined each cat that was not too feral to handle of which there were approximately five. The animals were identified by numbers, given a brief description of their sex, color and weight. Dr. O'Grady further gave a brief description of his findings as he examined each cat. He dictated these findings to an animal control officer and his findings were written down. He read the document thereafter and then finding it to be consistent with what he examined, he signed the document which was made an exhibit.
Of the thirty-six cats examined on February 15, 2006, thirty-two had ear mites. Three cats had upper respiratory infections, one was categorized as "chronic upper respiratory infection." Six cats had "runny" or "crusty" eyes. Two suffered from conjunctivitis. Four cats had bad teeth, one had no teeth. Dr. O'Grady found one cat with fleas. He also found another cat with tapeworms. Two cats were found to be thin. One cat had scabby skin.
He testified at trial that most of the cats suffered from some kind of ailment that required further medical treatment and that all of the conditions the cats suffered from were treatable and required additional medical care.
Dr. O'Grady testified as to several of the general cat diseases. For example Bartonella which is a contagious disease spread by fleas from one cat to another and is also infectious to humans and may cause gingivitis, stomatitis, oral ulcers, respiratory diseases, ocular diseases, conjunctivitis, diarrhea, and vomiting. Most of the cats examined had one or more of these symptoms.
He also testified about Feline Infectious Perintonitis (FIP). According to him, FIP is a contagious disease that may be fatal. The disease is not curable, but a cat may live with the condition for some time. This disease is transmitted from one cat to another by bite wounds, and may be transmitted by one cat stepping on another infected cat's feces or vomit and then grooming itself.
Most of the cats were suffering from ear mites which Dr. O'Grady testified are spread from one cat to another by body contact. They may jump from one cat to another and exist in a dirty environment. It is treatable and preventable. It causes the animals to scratch themselves, sometime to the point of causing the animals to mutilate themselves.
In Dr. O'Grady's professional opinion, after seeing the photographs presented as evidence, the cats would not be able to get healthy in the environment because of the condition of the property and the number of cats living in that condition. One cat would get the other sick and so on. There were too many cats in the home. The court believes the doctor.
The forty-six live cats, after the examination by Dr. O'Grady, were transported to four shelters throughout the state after the seizure. Seventeen were taken to the Harwinton animal shelter, sixteen were taken to the East Haven animal shelter, five were taken to the North Haven animal shelter and eight were taken to the Milford animal shelter and put in isolation. With the exception of the Milford shelter, only cats seized from Koczur's property were housed in those shelters.
Ms. Diane Dodge, animal control officer for the town of Harwinton, a woman of considerable experience, requested that certain cats be seen by a veterinarian at the Litchfield Hills Veterinary Hospital. Five cats tested "very strong positive" for Bartonella. They were treated for the disease.
Two cats housed at the Harwinton shelter tested positive for FIP. These cats had such poor prognosis that it was determined by the veterinarian who examined them and the Bureau Director of the Regulation and Inspection Division of the Department of Agriculture, Dr. Bruce Sherman, a licensed veterinarian, that the cats should be euthanized.
Ms. Dodge also noticed tapeworm sickness on the animals and treated the ones she could handle for this parasite disease. She also had to treat the cats she could handle for fleas because as the weather became warmer the eggs hatched.
Three of the sixteen cats in the East Haven shelter were found to have Bartonella and had to be treated for same. These cats were also diagnosed with severe peritonitis, foucilus and stomatitis. At the East Haven shelter two cats were found dead. One was found dead on March 4, 2006 and the other on April 25, 2006.
The defendant speculated that these various diseases for which these cats had to be treated may well have been contracted while in the state controlled shelters. Considering the nature of the various infections and diseases, the short period of time after the seizure and the fact that these cats were not subjected to any other cats except those from Ms. Koczur's home during the seizure, the court is of the opinion that any diseases they had were most probably contracted while in her care. The issue before the court is whether the evidence presented supports a finding that the forty-six live cats, the subject of this action, were neglected or cruelly treated in violation of Conn. Gen. Stat. § 22-329a. That section does not define neglect and there is no case law directly addressing the issue. However, Black's Law Dictionary defines neglect as "[m]ay mean to omit, fail, or forbear to do a thing that can be done, or that is required to be done, but it may also import the absence of care or attention in the doing or omission of a given act. And it may mean a designed refusal, indifference or unwillingness to perform one's duty." Black's Law Dictionary, Abridged Sixth Edition, p. 716. Webster's New World Dictionary defines neglect as: "ignore or disregard, to fail to care for or attend to sufficiently or properly, lack of sufficient or proper care." Webster New Universal Unabridged Dictionary defines neglect as "1. to pay no attention or too little attention to; disregard or slight; 2. to be remiss in the care or treatment of; 3. to omit, through indifference or carelessness, 4. to fall to carry out or perform (orders, duties, etc.) . . ." p. 1285.
In the opinion of this court there is substantially more than enough evidence adduced at this trial to establish that the plaintiff had met its burden of proof. The forty-six and probably forty-seven cats were neglected and they were deprived of proper care, deprived of proper food and proper medical attention. They were allowed to live in conditions that were injurious to their well-being. The state of Connecticut since the seizure has provided all of the cats that were not too feral to handle, with proper veterinary care and treatment. The state has spent as of the conclusion of trial, $6,248.60 in veterinary bills. The bills and notes are exhibits. Section 22-329a provides that if the court finds that the cats were neglected or cruelly treated, the court "may vest ownership of the animals in any state, municipal or other public or private agency . . ." Conn. Gen. Stat. § 22-329a(e)(1).
The court finds that there was insufficient evidence to rule that these cats were cruelly treated. Webster's Dictionary defines cruelty among other things as deliberately seeking to inflict pain and suffering. In general cruelty implies wilfulness; an intentional act.
In the opinion of the court there is more than a fair preponderance of evidence in this case to find that the cats were neglected. The court therefore awards permanent custody of the cats to the Department of Agriculture and awards the statutory requirement of $15 per day per animal since they were seized as well as the amount spent on veterinary bills.