Wednesday, February 22, 2012

Mothers charged with abuse over condition of Jefferson County home

Written by Jason Riley

The house was, by all accounts, filthy and unfit for children to live in, filled with dog feces, urine, rotting garbage and other hazards.

It was the type of home from which the state routinely removes children, at least until the the dangers are eliminated.

But more than two years after two toddlers were removed from the home in eastern Jefferson County and placed with a family member, prosecutors entered into what some local officials say is uncharted terrority in so-called “dirty house” cases: prosecuting twin sisters for raising the children in such a hazardous environment.

Local officials say the state Cabinet for Health and Family Services routinely investigates dirty-house cases, but it’s rare for them to wind up in Family Court — and unheard of for anyone to face criminal charges where no child was injured in the home, as is the situation for Jeanette Allen and Janet Doughty, who are charged with criminal abuse and wanton endangerment over the home’s condition.

“It is our belief that these are the only two people in Jefferson County that have ever been prosecuted” in a case like this, Allen’s attorney, Brian Butler, said during a recent court hearing, where he argued that the case should be dismissed for selective prosecution.

“This never happens. ... These people are being treated differently and unfairly.”

The defense claims that Allen and Doughty, in their early 20s, are being singled out because of what happened to their children after they were removed from the home.

Christopher Allen, 2, was beaten to death and Wyatt Allen, his half brother, also then 2, was injured within days of being removed on Aug. 25, 2008, and placed with their aunt, Nereida Allen.

Jeanette Allen is Christopher's mother, and Doughty is Wyatt's mother.

Nereida Allen and her former boyfriend, Joshua Peacher, were convicted last year of wanton murder, assault and criminal abuse and sentenced to 47 and 70 years in prison, respectively, for the death and abuse.

Timing questioned

A day before they were sentenced, the sisters were indicted over the condition of their home. They have pleaded not guilty.

“The timing is suspicious,” said J. Clark Baird, Doughty’s attorney. “These girls were not charged until after this trial was finished.”

Assistant Commonwealth’s Attorney David Scott has said prosecutors didn't seek charges sooner because they didn't wish to interfere with the murder case, and Kentucky has no statute of limitations on felonies.

And as unique as the 2011 indictment appears to be, defense attorneys have gone to equally unheard of lengths in trying to get the cases dismissed.

Butler has filed a subpoena for one of the prosecutors, asking a judge to order him to turn over any similar criminal cases ever handled by the Jefferson commonwealth’s attorney’s office; a family law attorney who served as court-appointed guardian for the two children testified that she had never heard of this type of prosecution; and, most recently and most surprisingly, the defense brought a longtime Jefferson Family Court judge in to testify in front of the circuit judge in the case.

On Jan. 30, Judge Joan Byer testified that she has handled thousands of cases, many involving dirty homes where children lived, but had never seen a family member criminally prosecuted over the condition of a home.

In fact, Byer testified, social workers typically keep dirty-home cases out of Family Court, giving the parents a chance to clean up and fix problems — such as a lack of electricity — in order to get the children back.

“The goal is not to send the case to (Family) Court except in the most extreme or extraordinary circumstances,” Byer told Judge Barry Willett.

But prosecutors argue that Allen and Doughty’s case is, in fact, extreme and extraordinary.

“This is more than a dirty-house case,” Assistant Commonwealth’s Attorney Dorislee Gilbert told Willett on Oct. 31. “The behavior they engaged in was much more than that.”

Not only was the home a health hazard — the prosecution will have an expert testify at trial that the exposure to the feces could have caused long-lasting physical problems for the children — but the sisters admitted that they would lock the children in a room by tying an electric cord from the door handle to a heavy piece of furniture, according to court records.

A social worker told police that the sisters were putting their children “in danger” and that the home was a “safety hazard.” Both sisters, who are out of jail on their own recognizance, admitted to social workers that the home was unfit for their children, according to court records.

Yet the social worker also said in an interview with police that the children were not ill and that the sisters could have gotten them back once the house was cleaned, without any court involvement, according to a transcript of the interview.

The sisters inherited the home, which has been been sold, from their mother.

Butler said in court records that he has subpoenaed Scott to force prosecutors to “admit that they have never prosecuted a dirty-house case despite the fact that they are relatively routine.”

In an interview, Scott said this “case is not simply about a dirty house but the criminal conduct of a parent exposing their children to hazardous conditions, and that constitutes abuse.”

Scott declined to say if the state had tried similar cases, saying the issue was pending before Willett and he couldn’t discuss it.

The newspaper could not find any similar felony cases in Jefferson County. But the county attorney’s office, which handles District Court cases, said criminal prosecution in dirty-house cases is rare but not unheard of.

And there have been similar cases prosecuted outside Jefferson County.

Warren Commonwealth's Attorney Chris Cohron, past president of the Commonwealth’s Attorneys Association, said he had similar cases, including one in which a man pleaded guilty to criminal abuse after being charged with allowing a 4-year-old to be locked in a room with feces on the wall and with urine-soaked carpet.

“We’ve had cases with children living in abject squalor that we believe rose to the level of criminality,” he said.

In the sisters’ case, Butler said that he will argue that Child Protective Services found Christopher and Wyatt were healthy and without any evidence of abuse when they were removed from the home. The agency determined that the children should be temporarily relocated to allow their mothers time to clean the residence.

Prosecutors, Butler said, are creating law, a scenario no different than if they tried to prosecute a parent for smoking around their children or for giving them too much fast food.

“The commonwealth has in fact created a novel crime without any injury to the child,” Butler said in a motion to dismiss. “... Simply put, a prosecutor does not and should not have the power to create law.”

Byer testified that she had reviewed the particulars of the case and found it was not unlike others she had seen.

“Unfortunately ... this type of scenario is not an unusual scenario for the court to get,” she said. “I could give example after example of similar types of situations. ... I have never in 16 years been aware of a criminal prosecution” in a case where the child was not injured in the dirty house.

The judge told Willett that she had a recent case in which a dead dog lay in a bathroom for weeks and another where a man locked a child in a basement, forcing him to urinate in a bottle. Neither led to criminal charges.

Scott questioned Byer, however, on whether she has seen homes so bad that she felt that someone should be charged for putting children’s safety at risk.

Byer said she couldn’t answer that question but believed it would require an intent to do harm.

Susan Meschler, a family law attorney who was appointed guardian for the boys, testified that the uncleanliness of the house was just a minor part of the case and that she has never seen a case where someone has been criminally prosecuted for a dirty home.

Willett has not ruled on whether to dismiss the case before trial, but senior status Judge Geoffrey Morris, sitting in for Willett during a November hearing, said the fact that Byer hadn’t heard of any of these type of cases wouldn’t sway him to dismiss the case, at least before trial.

“It doesn’t make any difference whether another judge had never seen a case like this,” Morris said. “Wouldn’t mean a thing to me.”


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