IN THE MAGISTRATE COURT OF COBB COUNTYSTATE OF GEORGIA

IN RE:GERMAN SHEPHERD SEIZED FROM 886 WANDA CIRCLE, MARIETTA, GEORGIA 30008 ON APRIL 10, 2013,

Defendants.

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CIVIL ACTIONFILE NO. _____________

PETITION SEEKING AUTHORIZATION TO DISPOSE OF ANIMAL PURSUANT TO O.C.G.A. § 4-11-9.3 (d)

COMES NOW Cobb County Police Lieutenant Cheryl Shepard, director of

Cobb County Animal Control (hereinafter “CCAC”), the agency having custody of

the animal, and files this Petition Seeking Authorization To Dispose of Animal

Pursuant to O.C.G.A. § 4-11-9.3(d), showing this Honorable Court as follows:

I. INTRODUCTION

On April 10, 2013, a German Shepherd named Luther entered the physical

custody of Cobb County Animal Control after his owners were arrested for cruelty

to children and cruelty to animals. Luther was scared, malnourished, almost

entirely hairless, and suffering from painful skin and ear infections that had not

been treated. Luther has resided at Animal Control for over five (5) months. Due to

the high cost of maintaining impounded animals that are evidence in the crime of

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animal cruelty, and considering the best interest of the animals, which are unlike

the inanimate objects that usually serve as evidence in a case, it is best to dispose

of animals prior to the criminal trial, and the law provides for such disposition.

Under O.C.G.A. § 4-11-9.3, the agency having custody of an animal that was

seized as the object or instrumentality of a crime, with the consent of the

prosecuting attorney, may apply to the court having jurisdiction over the case for

disposition of the animal prior to the trial of the case. Cobb County Animal Control

desires to utilize the provisions of Title 4; therefore, Lt. Shepard, through counsel,

hereby petitions the Court for authorization under O.C.G.A. § 4-11-9.3(d) to

dispose of Luther prior to trial by placing him with a German Shepherd rescue.

Assistant District Attorney Sherwin Figueroa, who is responsible for prosecution

of the criminal case, consents to the bringing of this action.

II. STATEMENT OF FACTS

On April 10, 2013, a concerned citizen reported seeing a five year old girl

and four-year-old boy crossing Windy Hill Road near Milford Elementary School.

(Affidavit of Lt. Cheryl Shepard hereinafter “SHEPARD AFF.,” attached hereto as

Exhibit “1,” at ¶ 4).1 After Cobb County firefighters located the children, Cobb

1 The police reports serving as a basis for Lt. Shepard’s affidavit testimony are confidential under O.C.G.A. § 49-5-40; therefore, should the Court wish to review the confidential documents, Petitioner will produce the reports under seal, pursuant to the Court’s subpoena, as required by O.C.G.A. § 49-5-41(a)(2).

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County police officers returned the children to their home at 886 Wanda Circle.

(Id.)

A man, later identified as 58-year-old John Galczynski, opened the door and

exited the house. (SHEPARD AFF., ¶ 5). He said “when he woke up, the children

were gone and he had been looking for them.” (SHEPARD AFF., ¶ 6). Mr.

Galczyniski said the mother’s name was Amy Barnes and she was at work.

(SHEPARD AFF., ¶ 7). When asked, the man stated that no one was in the house,

other than the dog. (SHEPARD AFF., ¶ 8). According to police reports, “[a]fter

approximately one and a half hours at the residence, Barnes emerged… She

advised that she did not know the police were outside.” (SHEPARD AFF., ¶ 9 and

Exhibit “A”). John Galczyniski was arrested for obstruction and the deprivation of

children. (SHEPARD AFF., ¶ 10). Amy Barnes was arrested for the deprivation of

children. (SHEPARD AFF., ¶ 11).

Because both adults were being arrested, Cobb County Animal Control was

dispatched to obtain custody of the dog, a German Shepherd later identified as

“Luther,” that was inside the residence. (SHEPARD AFF., ¶ 12). Amy Barnes gave

police and animal control officers permission to enter her home and secure the dog.

(SHEPARD AFF., ¶ 13). A police sergeant and three animal control officers

entered the residence. (SHEPARD AFF., ¶ 14). Inside the home, the officers

located the German Shepherd who “appeared to be under weight and had severe

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hair loss all over [his] body.” (SHEPARD AFF., ¶ 15). Once outside the house,

animal control officers informed police that the dog appeared to have an extreme

skin condition and was malnourished. (SHEPARD AFF., ¶ 16).

Animal control officers also informed police that the interior of the home

was deplorable and in disarray. (SHEPARD AFF., ¶ 17). According to officers,

“there was a heavy chain on the front porch and a heavy stench coming from the

cracked door. It smelled heavy of Amonia [sic] and feces.” (SHEPARD AFF., ¶

18). Another officer reported, “[w]e immediately heard a dog barking but could not

see where it was. I did see a great deal of garbage, clutter and debris, all over the

floor and the furniture. The house smelled of feces and urine.” (SHEPARD AFF., ¶

19). A police sergeant noted that, “[j]ust in front of the bathroom there appeared to

be an open sewage line with a grate over it.” (SHEPARD AFF., ¶ 20).

Because of the unsanitary condition of the home, police obtained a search

warrant for the house. (SHEPARD AFF., ¶ 21). The detailed search of the home

revealed “trash, clothing and other assorted items completely covering the floor.”

(SHEPARD AFF., ¶ 22). “The air inside of the residence had the odor of dirty

animals and animal urine.” (SHEPARD AFF., ¶ 23). There was also a light switch

with exposed wiring, an electric hedge trimmer with a blade in the middle of the

living room floor and an electric leaf blower. (SHEPARD AFF., ¶ 24). There was

“grating on the floor in front of the bathroom that contained standing water,” and,

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throughout the house, several computers with exposed wiring. (SHEPARD AFF., ¶

25). On the floor of the laundry room was a kerosene heater surrounded by dirt,

paper and trash “which appeared to be saturated with kerosene.” (SHEPARD

AFF., ¶ 26). In the kitchen, the police located several bowls of moldy dog food and

other “unidentifiable moldy food particles.” (SHEPARD AFF., ¶ 27).

Cobb Police charged John Galczynski and Amy Barnes with two counts of

Cruelty to Child 2nd degree (O.C.G.A. § 16-5-70(c)), two counts of Deprivation of

a Minor (O.C.G.A. § 16-12-1(b)(3)), and one count of Cruelty to Animals

(O.C.G.A. § 16-12-4(b)). (SHEPARD AFF., ¶ 29; SHEPARD AFF., ¶ 28 and

Exhibits “A” and “B”). The final charge of the warrants state that John Galczyniski

and Amy Barnes did:

on 4/10/2013 at 11:00 AM commit the offense of CRUELTY TO ANIMALS(M) violating O.C.G.A. Section 16-12-4(b), for that said accused did cause death or unjustifiable physical pain or suffering to any animal by an act, an omission, or willful neglect, to wit: on April 10, 2013, the Cobb County Police Department, Crimes against Children Office conducted a search warrant #13-SW-0367 for the residence of 886 Wanda Circle; the search warrant permitted me to photograph the interior and exterior of the residence; inside the residence there were several inches of clothes, dirt, feces, paper, moldy food, and moldy dog food on the floors throughout the house; there [was] also standing water in a vent area on the floor near the bathroom, and it appeared the water was raw sewage; there was an [sic] strong odor o[f] feces and mold throughout the house; the dog was a German Shepherd and had no hair on its body except the head and upper torso; the dog appeared to have an obvious serious skin infection; the dog was in dire need of medical care; the dog was taken to Cobb County Animal Control; and affiant makes this affidavit that a warrant may issue for the arrest of the accused.

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(SHEPARD AFF., ¶ 30 and Exhibits “A” and “B;” SHEPARD AFF., ¶ 35 and

Exhibit “G”).

Animal Control officers took Luther to the Cobb County Animal Control

facility in Marietta, Georgia, where he was examined by veterinarian Amy Belew.

(Affidavit of Dr. Amy Belew, hereinafter “BELEW AFF.,” attached hereto as

Exhibit “2,” at ¶¶ 3-4). Dr. Belew determined that he had significant alopecia

(hairloss), crusts (dried fluid exuded from the skin), hyperpigmentation (darkened

skin) and lichenification (thickening and roughening of the skin). (BELEW AFF., ¶

5; See SHEPHERD AFF., ¶ 31 and Exhibit “C”). Dr. Belew found all symptoms

to be indicative of chronic skin inflammation which usually results from pyoderma

(skin infection). (BELEW AFF., ¶ 6). According to Dr. Belew, it would have taken

at a minimum two (2) months for Luther’s skin to thicken, roughen and darken

after the onset of the skin infection. (BELEW AFF., ¶ 7).

Luther also exhibited signs of seriously infected and itchy ears by shaking

his head often. (BELEW AFF., ¶ 8). In his first days at Animal Control, Luther’s

ears were too painful for examination by Dr. Belew. (BELEW AFF., ¶ 9). She

began treatment using oral antibiotics, oral antifungal medications and medicated

baths. (BELEW AFF., ¶ 10). Dr. Belew also started Luther on a feeding schedule

to help encourage weight gain. (BELEW AFF., ¶ 11). When Dr. Belew attempted

to examine Luther’s ears several days later, they were still so painful that he began

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crying, thrashing and rolling on the ground, kicking with his legs. (BELEW AFF.,

¶ 12). Dr. Belew was forced to sedate the dog in order to conduct an oral and ear

exam. (BELEW AFF., ¶ 13). On otoscopic examination, both ears had excessive

dry, flaky, tan/grey debris and the canals of both ears had erythema,

hyperpigmentation, and ulceration of the skin. (BELEW AFF., ¶ 14). Dr. Belew

diagnosed Luther with yeast and bacterial infection in his ears, and prescribed a

steroid treatment for pain, and a topical antibiotic antifungal medication for

infection. (BELEW AFF., ¶ 15).

In response to veterinary treatment, Luther’s skin began to improve within

five days. (BELEW AFF., ¶ 16). On April 22, 2013, Dr. Belew conducted another

exam on Luther and determined that he showed signs of an upper respiratory

infection (URI). (BELEW AFF., ¶ 17). In addition, all the claws on all four of

Luther’s feet were overgrown, resulting in abnormal pressure being applied to each

digit as each foot bore weight. (BELEW AFF., ¶ 18).

In Dr. Belew’s medical opinion, Luther’s skin and ear infections began as

simple flea allergies that could have been prevented by regular routine flea

treatment. (BELEW AFF., ¶ 19). Failure to provide such routine treatment caused

damage to the skin and made it susceptible to secondary yeast and bacterial

infections. (BELEW AFF., ¶ 20). Once Luther received flea treatment followed by

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antibiotics and antifungals, his skin began to improve. (BELEW AFF., ¶ 21; See

SHEPARD AFF.,¶¶ 32-34 and Exhibits “D,” “E,” and “F”).

While at Animal Control, Luther is held in a 69” x 48” kennel for at least

twenty-two and a half (22.5) hours a day. (SHEPARD AFF., ¶ 37). At most,

Luther may receive a thirty (30) minute walk, three times a day, totaling one and a

half hours (1.5) outside of a cage. (SHEPARD AFF., ¶ 38). He cannot run, play or

meaningfully interact with other dogs. (SHEPARD AFF., ¶ 38). Also, despite the

best intentions of Animal Control staff (who have a unique fondness for Luther),

he receives little quality human interaction. (SHEPARD AFF., ¶ 39).

The German Shepherd is a strong and highly intelligent breed, which is why

Shepherds often serve as police dogs and service animals. (BELEW AFF., ¶ 22).

They require a great deal of exercise to channel their mental and physical energy.

(BELEW AFF., ¶ 23). As a result, few environments could be more frustrating to a

German Shepherd than to be locked in a kennel for hours on end. (BELEW AFF.,

¶ 24). According to Dr. Belew, otherwise passive dogs can become so stressed by

kennel confinement that they become “cage aggressive.” (BELEW AFF., ¶ 25).

“Cage aggression” is often displayed through barking, growling, snarling, or

biting. (BELEW AFF., ¶ 26). Luther has yet to exhibit signs of cage aggression;

however, every additional day he spends in confinement puts him at risk of

developing hostile behavior. (BELEW AFF., ¶ 27). Should he develop dangerous

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tendencies as a result of his frustration and stress, it could jeopardize his chances of

eventually being adopted into a new home. (BELEW AFF., ¶ 28).

Cobb County Animal Control is funded by the County’s general fund, as a

branch of the County’s Department of Public Safety. (SHEPARD AFF. ¶ 40).

CCAC does not have the financial resources or the physical space to house animals

for extensive periods of time. (SHEPARD AFF. ¶ 41). Animal Control currently

houses approximately 474 animals. (SHEPARD AFF., ¶ 42). On average, it costs

$340.00 a month to care for a dog at CCAC. (SHEPARD AFF., ¶ 43). The County

has expended roughly $1,880.78 to feed and house Luther for the past five months.

(SHEPARD AFF., ¶ 44). In addition, the cost for treating Luther’s various medical

needs has risen to over $1,107.38. (BELEW AFF., ¶ 29). According to Dr. Belew,

Luther has developed signs of seasonal and/or food allergies, which require a $250

monthly treatment going forward. (BELEW AFF., ¶ 30). If Luther remains in the

physical custody of Animal Control, the cost of his food, housing, and medical

care will continue to be borne by Cobb County taxpayers. (SHEPARD AFF., ¶ 45).

Approximately 18 dogs are brought to CCAC on a given day, while the

facility only has 127 available dog kennels. (SHEPARD AFF., ¶ 46). If a dog is

brought to Animal Control and there are no available kennels, the dog is turned

away or must be euthanized. (SHEPARD AFF., ¶ 47).

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Assistant District Attorney Sherwin K. Figueroa of the Cobb County

District Attorney’s Office will be prosecuting the animal cruelty charge against

Amy Barnes and John Galczyniski. (Affidavit of Sherwin K. Figueroa, hereinafter

“FIGUEROA AFF.,” attached hereto as Exhibit “3,” at ¶¶ 2-3). According to ADA

Figueroa, following notice and a reasonable opportunity for defense counsel to

examine Luther, he will no longer be needed as physical evidence in the criminal

trial and, instead, the State will tender photographs taken of Luther following his

seizure. (FIGUEROA AFF., ¶ 4; See SHEPARD AFF., ¶¶ 31-34 and Exhibits “C,”

“D,” “E,” and “F”). As such, ADA Figueroa has granted permission for Lt.

Shepard to bring the above-styled Petition and consents to placing Luther with a

rescue organization. (FIGUEROA AFF., ¶ 5).

By all indications, Luther would flourish with a German Shepherd rescue

and would ultimately make a great pet. (SHEPARD AFF. ¶ 48). According to Lt.

Shepard, Midwest Animal Rescue (MARS) has agreed to assume custody of

Luther and to further aid in his rehabilitation so that he may placed for adoption.

(SHEPARD AFF.,¶ 36).

II. ARGUMENT & CITATIONS TO AUTHORITY

In 2000, the Georgia General Assembly passed a comprehensive revision of

this state’s animal protection laws, known as the “Animal Protection Act of 2000.”

Ga. L. 2000, p. 754, §1. The 2000 legislation identified two procedures that could

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be used by state or local authorities to lawfully seize an animal. See O.C.G.A. §§

4-11-9.2, 4-11-9.3. The first procedure allows an official to impound an animal if

the official believes the animal did not receive humane care, was subjected to

cruelty, etc. See O.C.G.A. 4-11-9.2. However, to impound an animal under Section

9.2, the official must satisfy a series of steps which include obtaining an inspection

warrant, providing notice to the animal’s owner, and allowing the animal’s owner a

hearing in accordance with the Administrative Procedures Act. Id.

In contrast, the latter of the two procedures, which is applicable in Luther’s

case, is specifically recognized in O.C.G.A. §§ 4-11-9.3(d) and 4-11-9.5(c).

Section 9.3(d) states:

An agency having custody of an animal that was seized as an object or instrumentality of a crime may, with the consent of the prosecuting attorney, apply to the court having jurisdiction over the offense for an order authorizing such agency to dispose2 of the animal prior to trial of the criminal case as provided by law.

O.C.G.A. § 4-11-9.3(d)(emphasis added). Similarly, § 4-11-9.5(c) states, “the

provisions of this Code section shall not apply to an animal that was an object or

instrumentality of a crime nor shall any such animal be returned to the owner or

disposed of without the approval of the prosecuting attorney.” Furthermore, the

provisions of the section make all other provisions of O.C.G.A. § 4-11-9.5

inapplicable, including the civil hearing provisions under O.C. G.A. § 4-11-9.5 (b).

2 “Disposal” is not synonymous with euthanasia. (See O.C.G.A. § 4-11-9.6).

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As recognized by the Animal Protection Act of 2000, when agencies seize

animals as evidence or as instrumentalities, they face the financial burden of

providing adequate food, shelter and medical care to the animals. This burden

motivated legislators to create a mechanism under which a seizing agency could

dispose of the animals once the prosecuting attorney determined that the actual

animal would not be needed as physical evidence at trial. The General Assembly

did so through O.C.G.A. § 4-11-9.3(d).

The alleged criminal acts of Amy Barnes and John Galczynski occurred at a

home in Cobb County, Georgia. The charges are felony and misdemeanor crimes

of cruelty to children, deprivation of a minor, and animal cruelty.  Jurisdiction of

the related charges is therefore in the Superior Court of Cobb County. As stated

previously herein, the Assistant District Attorney who will prosecute John

Galczynski and Amy Barnes for their cruelty against Luther, as well as cruelty and

deprivation of their two young children, has affirmatively acknowledged via

affidavit that the State does not need Luther as physical evidence at trial, once

defense counsel has the opportunity to examine him. In lieu of Luther’s appearance

at trial, the State will proffer photographs taken of Luther following his seizure by

Cobb County Animal Control and throughout his gradual recuperation under care

of Animal Control’s veterinarian. As such, pursuant to O.C.G.A. § 4-11-9.3(d), Lt.

Shepard seeks permission from the Court having jurisdiction over the animal

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cruelty charges filed against Galcynzski and Barnes for permission to dispose of

Luther (through placement with a German Shepherd rescue) for the foregoing

reasons and Assistant District Attorney Sherwin Figueroa consents to such

disposition.

I. Luther’s best interests necessitate his release to a German Shepherd rescue so he may continue recovering from his physical and emotional injuries and eventually be placed for adoption.

Unlike typical “evidence,” Luther cannot be placed in a box on a shelf at the

police precinct, awaiting a trial that may not commence for months or years.

Instead, he is confined at Animal Control in a 69” x 48” kennel at least twenty-two

and a half (22.5) hours a day. On a good day, Luther may spend one and a half

hours (1.5) outside the confines of a cage, but cannot run, play or meaningfully

interact with other dogs or people. This is torturous for a smart and energetic

German Shepherd, like Luther, and could easily result in “cage aggression.” While

Luther has yet to exhibit signs of cage aggression, Dr. Belew advises that every

additional day he spends in confinement puts him at risk of developing hostile

behavior which could endanger his odds of adoption.

While Cobb County Animal Control is a drastic improvement from Luther’s

previous residence, it is not a proper long-term home for any animal, especially a

highly intelligent and active dog. At the same time, it would be hazardous to return

Luther to Amy Barnes and John Galcynzski given their apparent neglect of the

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animal’s serious medical needs and willingness to allow Luther, as well as their

children, to live in deplorable, unhealthy and unsafe conditions.

By all indications, Barnes and Galcynszski failed to provide Luther with

routine flea treatment as any responsible dog owner would have done. This lack of

flea preventative ultimately led to Luther’s painful skin and ear infections which

also went untreated. According to Dr. Belew, it would have taken two months at

the very least for Luther’s infection to cause roughening, thickening and darkening

to his skin. Therefore, Barnes and Galcynzski appear to have sat idly by for a

minimum of 60 days watching Luther’s condition go from bad to worse but sought

no veterinary care to alleviate his suffering. The fact that Luther’s skin showed

swift improvement once properly treated serves as evidence that, had medical care

been sought for the anguished dog, his condition was fully treatable. Luther’s

living conditions while in physical custody of Barnes and Galcynski further reveals

the owners’ lack of concern for his health and well-being. It is in Luther’s best

interests that the Court grant this Petition and allow him the chance to have a

content and healthy future.

II. Cobb County Animal Control’s financial and spatial constraints justify relocating Luther so the facility can provide food, shelter and medical care to other animals in need.

Cobb County would likewise benefit from the granting of this Petition.

CCAC, funded by Cobb County’s general fund, does not have the financial

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resources or the physical space to house animals for extensive periods of time,

especially when those animals are more properly suited to reside elsewhere. A

great deal of money has already been expended to feed, house, and medically treat

Luther. He now requires an allergy treatment that costs $250 per month. This is the

same amount of money it costs to feed and shelter a dog at the CCAC for five

months.

CCAC also faces constant space constraints. As a result, the facility strives

to relocate animals to new homes as soon as possible, to make room for other

needy animals. According to Lt. Shepard, it appears that Luther would flourish

with a German Shepherd rescue and would ultimately make a great pet.

Unfortunately, for every day that Luther spends at Animal Control, there is one

less space for another dog in immediate need of assistance and an otherwise

adoptable dog could be turned away or euthanized due to lack of space. It is the

best interests of Cobb County taxpayers and other animals in need that Luther be

released to a rescue organization.

III. CONCLUSION

As of the date of this filing, Luther has been confined at Animal Control for

169 days and has spent at least 3,800 hours in a cage. Accordingly, the CCAC,

through Lt. Shepard, and with the consent of Assistant District Attorney Sherwin

Figueroa, respectfully petitions this Court to order the dog, Luther, disposed of

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prior to trial and that the dog become the property of Cobb County, Georgia to be

released for adoption to a permanent home and to order that the dog shall not be

returned to any or all of the Defendants.

RESPECTFULLY SUBMITTED this 26th day of September, 2013.

COBB COUNTY ATTORNEY’S OFFICEAttorneys for Lt. Shepard and CCAC

___________________________________LAUREN S. BRUCEAssociate County AttorneyState Bar No. 796642DEBORAH L. DANCECounty AttorneyState Bar No. 203765

100 Cherokee Street, Suite 350Marietta, GA 30090770-528-4000Facsimile 770-528-4010

Consented to by:

________________________________Sherwin K. FigueroaAssistant District AttorneyState Bar No. 761756

Cobb County District Attorney’s Office70 Haynes Street, SuiteMarietta, GA 30090

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IN THE MAGISTRATE COURT OF COBB COUNTYSTATE OF GEORGIA

IN RE:GERMAN SHEPHERD SEIZED FROM 886 WANDA CIRCLE, MARIETTA, GEORGIA 30008 ON APRIL 10, 2013,

Defendants.

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CIVIL ACTIONFILE NO. _____________

CERTIFICATE OF SERVICE

It is hereby certified that I have this day served a true and correct copy of

Petition Seeking Authorization to Dispose of Animal by causing a copy of the same

to be deposited in the mail with proper postage affixed thereto and addressed as

follows:

Arthur H. Marateck, PC241 Lemon Street, Suite AMarietta, GA 30060

Catherine Lerow, PC840 Kennesaw Avenue, Suite 7Marietta, GA 30060

This the 26th day of September, 2013.

COBB COUNTY ATTORNEY’S OFFICEAttorneys for Cobb County

________________________________LAUREN S. BRUCE

100 Cherokee Street, Suite 350 Associate County AttorneyMarietta, GA 30090-7000 Georgia Bar No. 796642770-528-4000

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