Opinion
No. CV 10-6006563-S
January 15, 2010
MEMORANDUM OF DECISION
The plaintiff, State of Connecticut, ex rel Raymond Connors, State of Connecticut Animal Control Officer, has brought a verified petition pursuant to Connecticut General Statutes § 22-329a in which it seeks temporary and permanent custody of nineteen horses, three mules (the "equine") as well as one goat, two guinea pigs, two rabbits, two doves, one parakeet, two ferrets and four dogs which the plaintiff seized from a farm known as Rambling River Ranch, 138 Spring Road, North Haven, Connecticut (the "Property"). The Property is owned by Gina-Lee Rapuano.
After a hearing the court finds as follows. Agents of the plaintiff, Animal Control Division of the State of Connecticut Department of Agriculture have been monitoring the Property since February 17, 2005 when they visited the Property after receiving an animal cruelty complaint. Since that date agents of the plaintiff have visited the Property on two occasions in 2005, once in 2006, twice in 2008 and on six occasions in 2009. On each visit, the animal control officers have observed that the horses on the Property were thin, did not have enough food and were living in filthy conditions and each time they have advised Ms. Rapuano to feed the horses more, to provide them more care and clean their stalls more thoroughly.
On December 9, 2009, an animal control officer, ACO Godejohn, visited the Property and observed that the equine had no hay and that approximately half of the equine were standing up to their ankles in stalls that were filled with feces, urine and mud. On December 11, 2009, agents of the plaintiff received a complaint stating that there was no hay at the Property for the equine to eat. They visited the Property and observed that there was only one-half bale of hay on the Property, no hay available for the equine to eat and no water available for them to drink. In addition to the lack of food and water for the animals on the Property and the filthy living conditions of the animals, the plaintiff's agents were aware that Ms. Rapuano was hospitalized. Not knowing whether a very poor condition would become even worse, ACO Godejohn and other animal control officers of the plaintiff determined to take immediate physical custody of the animals for their own safety and welfare.
After seizing the animals the plaintiff filed the verified petition in this case. Prior to the hearing in this case, Ms. Rapuano and Thomas Jermine appeared through their attorneys.
Paul Novicki, Crystal Kelly, Ashley Rodriguez, David Rusgrove and Margaret Blancato, who claimed to own various horses, appeared pro se. The hearing lasted for three days. On the first day of the hearing, Ashley Rodriguez relinquished her rights to the horses she owned and on the third day, Ms. Rapuano also relinquished her rights to all of her animals. On the third day of the hearing, the only defendant present, other than Ms. Rapuano's attorney, was Thomas Jermine and his attorney. As the court had not received any continuance request from the other defendants, the court found that their animals were neglected within the meaning of § 22-329a and Connecticut General Statutes § 53-247 and ordered them to post a bond of $500 per animal within 24 hours. With respect to Mr. Novicki, the plaintiff's attorney indicated that Mr. Novicki had been arrested and was in custody as a result of the condition of the animals at the Property. The court gave Mr. Novicki a week to post his bonds.
By the final day of the hearing, the only animals which remained subject to the hearing were Cashmere and Rosy. Thomas Jermine testified that he had owned Rosy since April 2009 and that he purchased Cashmere for $100 on December 19, 2009, three days after Cashmere and all the other animals at the Property had been seized by the plaintiff.
The court finds that on July 8, 2009 animal control officers from the town of North Haven and the State of Connecticut weight-taped and scored the horses at the Property, including Cashmere and Rosy. Weight-taping is a method of determining the approximate weight of an animal, like a horse, since it is difficult to place such animals on a scale without bringing them to a veterinary clinic. Scoring refers the so-called Henneke method of describing the condition of a horse. Under the Henneke scoring system, a horse is rated from 1 (poor) to 9 (extremely fat) based on a visual inspection of the neck, withers, loin, tailhead, ribs and shoulder of the horse.
A horse with a score of 4 or more is considered well nourished. A horse with a score of less than three is considered undernourished. On July 8, 2009, Cashmere had a Henneke score of 3.5 and Rosy had a Henneke score of 4.5. The animal control officers advised Ms. Rapuano and Mr. Jermine that the horses needed more food.
Mr. Jermine was present at the Property every Tuesday, Wednesday and Thursday to feed and groom his horses and other horses. He did not provide any veterinary care for his horses from July 2009 until the date on which they were seized. On the day that Rosy and Cashmere were seized, they were examined by a licensed veterinarian, Dr. Hyypa, at the request of the plaintiff. Dr. Hyypa rated Cashmere a 2.5 on the Henneke scale and stated that his opinion was that she had not been fed enough. He also found that she had chronic inflammation due to a skin condition, untreated Lyme disease and thrush. In July 2009, Cashmere had scored a 3.5 on the Henneke scale. In just six months she had gone from a moderately thin condition to an emaciated condition.
Although Mr. Jermine purchased Cashmere on December 19, 2009, he had an ownership interest in the horse for several years pursuant to a lease.
Dr. Hyypa rated Rosy a 3 on the Henneke scale. Six months before she had rated a 4.5. This meant that in six months time Rosy had gone from being in basically healthy condition to being too thin. Dr. Hyypa found that Rosy's teeth were sharp. Sharp teeth impede a horse's ability to eat. He also found that Rosy had a chronic lung condition, thrush, and cellulitis over her right hind leg and had hair loss over her left caudal thoracic region.
When the animals were seized from the Property the animal control officers found that all of the stalls, including those occupied by Rosy and Cashmere were filthy, with large amounts of feces, urine and generally wet conditions. Wet conditions cause a malady of the hooves known as thrush. The horses at the Property had no food and no water. One feed bucket contained feces. Some of the horses were standing in more than 4 inches of manure and mud.
Mr. Jermine was present at the Property at least three days each week from July through December 2009. He knew that one of his horses had thrush and believed that Rosy had colic, yet never had them examined by a veterinarian during that period. He knew about the chronic lack of hay and grain for the horses. He claims that he adequately fed his horses on the three days of the week when he was present at the Property. However, the horses still declined dramatically in condition in a 6-month period. Mr. Jermine clearly should have seen this decline and should have inferred that it was caused by a lack of adequate food on the four days a week when he was not at the Property. While some people removed their horses from the Property due to the poor conditions, Mr. Jermine allowed his horses to remain on the Property where they received insufficient food and lived in stalls which were not properly cleaned and which presented conditions unhealthy to Rosy and Cashmere and the other equine.
Discussion of the Law and Ruling
Connecticut General Statutes § 22-329a provides in pertinent part:
(a) The Chief Animal Control Officer, any animal control officer or any municipal or regional animal control officer may take physical custody of any animal when such animal control-officer has reasonable cause to believe that such animal is in imminent harm and is neglected or is cruelly treated in violation of section 53-247 . . .
(d) If physical custody of an animal has been taken pursuant to subsection (a) or (b) of this section and it appears from the allegations of the petition filed pursuant to subsection (c) of this section and other affirmations of fact accompanying the petition, or provided subsequent thereto, that there is reasonable cause to find that the animal's condition or the circumstances surrounding its care require that temporary care and custody be immediately assumed to safeguard its welfare, the court shall either (1) issue an order to show cause why the court should not vest in some suitable state, municipal or other public or private agency or person the animal's temporary care and custody pending a hearing on the petition, or (2) issue an order vesting in some suitable state, municipal or other public or private agency or person the animal's temporary care and custody pending a hearing on the petition . . .
(f) If the court issues an order vesting the animal's temporary care and custody in some suitable state, municipal or other public or private agency or person, the owner or owners shall either relinquish ownership of the animal or post a surety bond or cash bond with the agency or person in whom the animal's temporary care and custody was vested. The surety bond or cash bond shall be in the amount of five hundred dollars and shall secure payment for the reasonable expenses of the agency or person having temporary care and custody of the animal in caring and providing for such animal until the court makes a finding as to the animal's disposition under subsection (g) of this section. The requirement that a bond be posted may be waived if such owner provides satisfactory evidence that such owner is indigent and unable to pay for such bond.
(g)(1) It after hearing, the court finds that the animal is neglected or cruelly treated, it shall vest ownership of the animal in any state, municipal or other public or private agency which is permitted by law to care for neglected or cruelly treated animals or with any person found to be suitable or worthy of such responsibility by the court.
(2) If, after hearing, the court finds that the animal is so injured or diseased that it should be destroyed, the court may order that such animal be humanely destroyed.
(3) If, after hearing, the court finds that the animal is not neglected or cruelly treated, it may cause the animal to be returned to its owner or owners or person having responsibility for its care or, if such owner or owners or person is unknown or unwilling to resume caring for such animal, it may vest ownership of the animal in any state, municipal or other public or private agency or person found to be suitable or worthy of such responsibility.
(4) If the court makes a finding under subdivision (1) or (2) of this subsection less than thirty days after the issuance of an order of temporary care and custody and the owner of the animal has posted a bond, the agency or person with whom the bond was posted shall return the balance of such bond, if any, to the owner. The amount of the bond to be returned to the owner shall be calculated at the rate of fifteen dollars per day per animal or twenty-five dollars per day per animal if the animal is a horse or other large livestock for the number of days less than thirty that such agency or person has not had temporary care and custody of the animal less any veterinary costs and expenses incurred for the welfare of the animal.
(5) If the court makes a finding under subdivision (3) of this subsection after the issuance of an order of temporary care and custody and the owner of the animal has posted a bond, the agency or person with whom the bond was posted shall return such bond to such owner.
(h) If the court finds that the animal is neglected or cruelly treated, the expenses incurred by the state or a municipality in providing proper food, shelter and care to an animal it has taken custody of under subsection (a) or (b) of this section and the expenses incurred by any state, municipal or other public or private agency or person in providing temporary care and custody pursuant to an order vesting temporary care and custody, calculated at the rate of fifteen dollars per day per animal or twenty-five dollars per day per animal if the animal is a horse or other large livestock until the date ownership is vested pursuant to subdivision (1) of subsection (g) of this section shall be paid by the owner or owners or person having responsibility for the care of the animal. In addition, all veterinary costs and expenses incurred for the welfare of the animal that are not covered by the per diem rate shall be paid by the owner or owners or person having responsibility for the animal.
In the recent case of State v. Koczur, 287 Conn. 145, 947 A.2d 282 (2008), our Supreme Court interpreted Connecticut General Statutes § 22-329a. In Koczur, the State of Connecticut, brought an action pursuant Connecticut General Statutes § 22-329a, seeking orders declaring that the defendant had neglected or cruelly treated certain cats in her possession and vesting permanent custody of the cats with the department of agriculture. The trial court rendered judgment for the state and the defendant appealed, claiming that the court improperly determined that she had neglected the cats under § 22-329a; and that § 22-329a is unconstitutionally vague. The Court affirmed the judgment of the trial court.
The Court in Koczur explained the interpretation of the meaning of "neglect" in § 22-329a as follows:
It is clear from this language that § 22-329a does not contain an independent standard of neglect but, instead, incorporates by reference the standards of the specific statutes enumerated therein. As the defendant recognizes, § 53-247 is the only statute listed in § 22-329a that applies to her conduct. Accordingly, to determine what constitutes neglect under § 22-329a under the circumstances of this case, we must look to the language of § 53-247. Section 53-247 provides in relevant part: "(a) Any person who . . . deprives of necessary sustenance . . . any animal, or who, having impounded or confined any animal, fails to give such animal proper care or . . . fails to supply any such animal with wholesome air, food and water, or . . . having charge or custody of any animal . . . fails to provide it with proper food, drink or protection from the weather . . . shall be fined not more than one thousand dollars or imprisoned not more than one year or both . . ." It is reasonable to conclude, therefore, that the neglect referred to in § 22-329a includes the failure to provide necessary sustenance, proper care, wholesome air, food and water under § 53-247(a).
State v. Koczur, supra, at 153-54 (emphasis added).
The court finds that Rosy and Cashmere were neglected within the meaning of § 22-329a.
Mr. Jermine relied on State v. Yorczyk, 167 Conn. 434, 356 A.2d 169 (1974), for the proposition that he could not be held liable for neglect because he did not have custody of Rosy and Cashmere at the time the neglect occurred. The reliance is misplaced. Yorczyk was a criminal case and the criminal statute applied only to a defendant who had custody of the animals. This is not a criminal case and neither Thomas Jermine nor any other owner is, technically, a defendant. The statute requires a finding of neglect as a prerequisite to vesting ownership of the animal in the State. Under § 22-329a, an animal is either neglected (§ 22-329a(g)(1)) or not neglected (§ 22-329a(g)(3)), regardless of who has ownership or custody of the animal. The purpose of the statute is to protect animals, and not to impose criminal penalties on their owners.
It would probably be easier for the court to consider allowing Mr. Jermine to regain custody of his horses had he not established such an intimate knowledge of the horses' conditions from July 2009 through December 2009. Rosy and Cashmere were clearly neglected and in terrible conditions during that period and Mr. Jermine failed to appreciate their neglected condition and place them in a better environment. The legislature has determined that animals who are neglected or cruelly treated must be taken from their owners. Section 22-329a has no provision for an owner to retain ownership of a neglected or cruelly treated animal if he proves an intent to treat the animal better in the future.
Based on the foregoing, the Court vests permanent custody of Rosy and Cashmere in the Connecticut Department of Agriculture and orders Thomas Jermine to pay the plaintiff for its expenses incurred in caring for Cashmere from December 19, 2009 until the date hereof and expenses in caring for Rosy from December 16, 2009 until the date hereof in accordance with § 22-329a(g) at the rate of $25 per day per animal and also to pay all veterinary costs and expenses incurred for the welfare of Rosy and Cashmere until the date hereof.