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.”

Source http://www.courier-journal.com/article/20120219/NEWS01/302190064/house-conditions-child-abuse?odyssey=mod%7Cnewswell%7Ctext%7CHome%7Cs

Judge orders Kentucky to release records on child-abuse deaths

Written by Deborah Yetter

For the second time in 18 months, a Franklin Circuit Court judge has ordered the state to release records pertaining to child-abuse deaths and serious injuries, finding that there is “no legal basis” for withholding them.

“The court must conclude that the (Cabinet for Health and Family Services) is so immersed in the culture of secrecy regarding these issues that it is institutionally incapable of recognizing and implementing the clear requirement of the law,” Judge Phillip Shepherd said in his ruling, issued Thursday.

The decision comes after a lengthy court fight by The Courier-Journal and the Lexington Herald-Leader to obtain the records — and more than a year after Shepherd first ruled that the cabinet must disclose the material.

After that decision, the cabinet released some information about the death of a Wayne County toddler who drank drain cleaner at an alleged methamphetamine laboratory. But the cabinet refused to provide the newspapers with information about other child-abuse deaths.

A 2009 Courier-Journal investigation found that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.

Thursday’s ruling is a major open-records victory for the newspapers and the public because it forces the cabinet to disclose details of how well the state does its job of protecting children from severe abuse, said Jon Fleischaker, a lawyer for The Courier-Journal.

“It’s about time the cabinet recognizes that it is not above the law,” Fleischaker said. “It has to comply with the mandate of state and federal law. This is not a difficult issue.”

Cabinet officials released a brief statement Thursday saying that they are reviewing the ruling. They gave no indication when they would release the records.

Fleischaker said the cabinet could appeal but added that he doubts it would succeed because Shepherd found for the newspapers in the virtually identical case last year. The cabinet did not appeal that ruling, making the decision final.

Fleischaker called on Gov. Steve Beshear to direct officials at the cabinet to comply with the court’s ruling.

“We now have a judge talking about the inability of the cabinet to understand its legal obligations,” Flesichaker said. “Maybe the governor needs to step in. He probably should have stepped in before this.”

Beshear spokeswoman Kerri Richardson didn’t respond to a question about whether Beshear will get involved. She said in a statement only that the cabinet is reviewing the decision.

Terry Brooks, executive director of Kentucky Youth Advocates, said Thursday’s ruling has important ramifications.

“It’s not just a win for the press,” Brooks said. “It’s a win for kids and for citizens who are taking a look at this issue.”

In his opinion, Shepherd had harsh words for cabinet officials who have consistently fought releasing material the newpapers sought after several highly publicized child abuse or neglect deaths, including the 2009 case of the Wayne County toddler.

His order said the cabinet “misinterpreted” state law and “continues to flatly ignore” provisions that require it to disclose the records.

“The release of these records will help to keep the cabinet accountable to prevent future tragedies and to answer to taxpayers who fund the cabinet,” it said.

State law — conforming to federal law — says such records may be “publicly disclosed” in cases in which a child was killed or severely injured from abuse or neglect if the cabinet had involvement with the family. But in recent years, cabinet officials have refused to release such material, citing the need for confidentiality.

Shepherd’s order noted the “exact issues” in the current case were already addressed in the initial lawsuit filed by the newpapers in 2009.

In that case, Shepherd ruled in May 2010 that the cabinet must release records related to the death of Kayden Daniels, the 20-month-old Wayne County boy who died at the home of his teenage parents, the site of the alleged meth lab. Both the child and his mother, then 14, had been under supervision of the cabinet before the death.

Records sought by the newspapers included a “fatality report” that the cabinet is required by law to conduct, examining the circumstances of the child’s death and actions of cabinet officials involved with the family. After Shepherd ordered the cabinet to release the report, agency officials acknowledged they had never conducted the review or produced such a report.

Shepherd ordered the release of other cabinet records in the case, such as documents relatging to state contacts with the family, the cabinet disclosed.

But it refused subsequent requests for information about other child-abuse deaths. That prompted the newspapers to file a second lawsuit in January, asking Shepherd to order the cabinet to comply with his previous order.

Shepherd, in Thursday’s ruling, also struck down “emergency regulations” that cabinet officials enacted in January seeking to sharply restrict the information it must release about child deaths and injuries. Shepherd’s order found no basis in state law for the regulations.

Because the newspapers had requested records related to child deaths for the past several years, such records are likely to be voluminous and could impose a “substantial administrative burden on the cabinet,” Shepherd’s order said.

For that reason, Shepherd ordered the cabinet to meet with the newspapers within the next 10 days to try to reach an agreement on the “orderly and timely production of the records.”

If the parties can’t agree, Shepherd’s order said he will hold a hearing on the matter and spell out the “time, place and manner of production.”

Shepherd also reserved a ruling on the newspapers’ request for attorneys fees until the other issues are resolved.

He already has awarded the newspapers $20,700 in legal costs from the first round of litigation. The cabinet has appealed that order.

Fleischaker called on Gov. Steve Beshear to direct officials at the cabinet to comply with the court’s ruling.

“We now have a judge talking about the inability of the cabinet to understand its legal obligations,” Flesichaker said. “Maybe the governor needs to step in. He probably should have stepped in before this.”

Beshear spokeswoman Kerri Richardson didn’t respond to a question about whether Beshear will get involved. She said in a statement only that the cabinet is reviewing the decision.

Terry Brooks, executive director of Kentucky Youth Advocates, said Thursday’s ruling has important ramifications.

“It’s not just a win for the press,” Brooks said. “It’s a win for kids and for citizens who are taking a look at this issue.”

In his opinion, Shepherd had harsh words for cabinet officials who have consistently fought releasing material the newpapers sought after several highly publicized child abuse or neglect deaths, including the 2009 case of the Wayne County toddler.

His order said the cabinet “misinterpreted” state law and “continues to flatly ignore” provisions that require it to disclose the records.

“The release of these records will help to keep the cabinet accountable to prevent future tragedies and to answer to taxpayers who fund the cabinet,” it said.

State law — conforming to federal law — says such records may be “publicly disclosed” in cases in which a child was killed or severely injured from abuse or neglect if the cabinet had involvement with the family. But in recent years, cabinet officials have refused to release such material, citing the need for confidentiality.

Shepherd’s order noted the “exact issues” in the current case were already addressed in the initial lawsuit filed by the newpapers in 2009.

In that case, Shepherd ruled in May 2010 that the cabinet must release records related to the death of Kayden Daniels, the 20-month-old Wayne County boy who died at the home of his teenage parents, the site of the alleged meth lab. Both the child and his mother, then 14, had been under supervision of the cabinet before the death.

Records sought by the newspapers included a “fatality report” that the cabinet is required by law to conduct, examining the circumstances of the child’s death and actions of cabinet officials involved with the family. After Shepherd ordered the cabinet to release the report, agency officials acknowledged they had never conducted the review or produced such a report.

Shepherd ordered the release of other cabinet records in the case, such as documents relatging to state contacts with the family, the cabinet disclosed.

But it refused subsequent requests for information about other child-abuse deaths. That prompted the newspapers to file a second lawsuit in January, asking Shepherd to order the cabinet to comply with his previous order.

Shepherd, in Thursday’s ruling, also struck down “emergency regulations” that cabinet officials enacted in January seeking to sharply restrict the information it must release about child deaths and injuries. Shepherd’s order found no basis in state law for the regulations.

Because the newspapers had requested records related to child deaths for the past several years, such records are likely to be voluminous and could impose a “substantial administrative burden on the cabinet,” Shepherd’s order said.

For that reason, Shepherd ordered the cabinet to meet with the newspapers within the next 10 days to try to reach an agreement on the “orderly and timely production of the records.”

If the parties can’t agree, Shepherd’s order said he will hold a hearing on the matter and spell out the “time, place and manner of production.”

Shepherd also reserved a ruling on the newspapers’ request for attorneys fees until the other issues are resolved.

He already has awarded the newspapers $20,700 in legal costs from the first round of litigation. The cabinet has appealed that order.

Source http://www.courier-journal.com/article/20111103/NEWS01/311030033/Judge-orders-Kentucky-release-records-child-abuse-deaths?odyssey=nav%7Chead