A judge ordered the city Friday to to relocate a lead-poisoned child from an Amity apartment after four months of denied requests.
The order came Friday at the end of the second day of testimony at the state courthouse on Church Street in a civil suit filed by New Haven Legal Assistance Association’s (NHLAA) on behalf of the family of Jacob Guaman, a nonverbal, autistic 5-year-old.
NHLAA filed the suit against the city and two Health Department employees in October, claiming that they’d violated state statutes and local ordinances when test results from Jacob showed severe lead poisoning. The litigation, which does not seek any monetary damages, asks the judge to grant a preliminary injunction forcing the city to move the family and fix up any remaining lead.
Friday afternoon Superior Court Judge Sheila Ozalis granted the first part of the request.
After the city conceded lead-based paint on the exterior is in bad shape — “jaw-dropping,” as one lawyer described it, with chips falling onto the ground — Ozalis ordered the city to move the Guaman’s five-person family out of 1323 Whalley Ave., a building that has left two children sickened with lead in the last decade.
“To be paid for by the city?” Corporation Counsel John Rose, Jr., asked in disbelief.
Yes, that’s the city’s responsibility, the judge said, as she flipped to the laws that municipal health departments must follow in responding to a lead-poisoning.
Rose protested that the city is trying to move as quickly as possible under the circumstances. He said an uncooperative landlord and an absent tenant have made it tough to apply for the federal funds needed to abate the exterior. (The landlord testified Wednesday that the city had recommended he hire a bad contractor in a bid-rigging scheme.)
“I understand, but you also have the ability to go in on your own,” Ozalis said, citing a city ordinance that allows the health director to take control of the building. “I assume that’s why this ordinance is here. Where you have an owner that’s not cooperating, this allows you to do the abatement you think is necessary and put a lien on the property.”
Ozalis also said it was too late for Rose to make those arguments, citing a state statute that mandates the local health director to “utilize such community resources as are available” to relocate a family if a lead hazard won’t be removed “within a reasonable time.”
“This problem has been in existence since at least August,” Ozalis said. “Something has to be done immediately.”
Even though NHLAA has moved tenants out within hours, as it did when mold and other dangerous conditions threatened residents of Church Street South, the judge gave the city a couple extra days to make arrangements. When the case resumes on Monday, Ozalis said, she wants a report about the city’s progress in finding a temporary home.
Testimony from Health Department employees will continue next week, as both sides debate about the completeness of clean-up efforts on the apartment’s interior.
After both sides submitted dozens of photographs over the last two days in court, Ozalis said she is contemplating whether she needs to see the apartment’s condition for herself. She plans to hear arguments about making an in-person visit to 1323 Whalley Ave.
Before testimony started, Rose sought to convince Ozalis to put the trial on hold and send the case to another judge for mediation.
“I’ve looked at this case a lot, and I think we can craft a solution in this matter,” Rose said. The one procedural issue: “I don’t know if we can do it with a trial judge, but with a judge who brings all parties to the table.”
Ozalis wouldn’t stop both sides from trying to compromise, but she added they don’t need a judge to do so. “I just don’t see the complexity that would require a judge,” she said. “The ordinances are clear, the state statutes are clear, and the evidence on Wednesday was clear from the landlord that the abatement is not fully done.”
Marx — whom the judge reprimanded Friday for side commentary, as she had reprimanded Rose on Wednesday — said she is open to a deal. But she added she is “extremely frustrated” that the city offered a deal only now, months after she sent the Health Department a demand letter asking for a sit-down. “There was nothing new [now], nothing they didn’t know,” she said. “I’m hesitant to lose our moment here before your Honor.”
“Oh, you’re not going to,” Ozalis said. She refused to call off the hearing, arguing that there had already been far too many delays. “We’re going forward with evidence.”
During the day-long questioning of a lead inspector that followed, the city staked out contradictory assessments of the repairs by the landlord, Jong Hee Heo. In cross-examination, the city said that Heo had done such a good job that the unit passed every inspection but also such a bad job that he deserved to be thrown in jail.
On the inside, Rose and his witness, inspector Jomika Bogan, explained, the landlord had made the apartment livable. After he stripped door-frames, repainted baseboards and dust-wiped windowsills, the unit passed all their tests.
But on the outside, they continued, the landlord had let the clapboard exterior fall into disrepair. They said he’d taken too long to apply for abatement funds, leading the Health Department to seek an arrest warrant. (Prosecutors rejected that application; on Monday, a spokeswoman for the state’s attorney’s office said a revised version is still being reviewed.)
In an interview after the hearing ended, Marx argued that the city can’t have it both ways. “The city appears to be talking out of both sides of its mouth, because if it were to speak straight, it would have to speak the truth,” she said. “It would have to acknowledge that this is an unsafe place for children and take responsibility for it.”
The incongruous depictions of the landlord’s work became even cloudier on Friday, as Bogan revealed that key parts of the paper trail had gone missing or had been submitted years late. Other documents, it turned out, also hadn’t been provided to legal aid lawyers, despite a subpoena and multiple Freedom of Information Act (FOIA) requests.
Bogan has tested the Whalley Avenue apartment repeatedly over the past decade, shortly after she first started the job. She’s taken an X-ray gun “to look into the bones of the building” and see the layers of lead paint underneath the surface. She’s wiped up dust from the floors and windowsills to find trace amounts of easily ingestible lead. She’s visually inspected the walls to find cracks, questioned the family, tested the soil and sampled water from the kitchen faucet.
On the stand on Friday, she could verify almost all of those inspections, except one that NHLAA now claims was never done properly. In 2008, after a girl was poisoned that year, Heo hired a contractor to fix up the apartment. The workers were supposed to strip all the lead paint from the door-frames, where repeated opening and closing could generate lead dust. Legal aid suspects they never did.
Bogan said they tested the bare wood on all the door frames, but she lost the reinspection report that proves it.
“I would be the only one to have those,” she said. “I don’t have it.” Trusting her own report, she never tested the door-frames with her X-ray gun again, she said.
Bogan also couldn’t produce a signed copy of the abatement plan, an essential document that federal and state regulations require to start any work. Other documents, like the clearance letter verifying 1321 Whalley Ave. was lead-safe, weren’t issued until January 2016, even though Bogan said she wrote it in December 2008. That’s when lawyers started asking about the property, as Heo tried to refinance a mortgage and the Guamans sought damages.
The problem of missing documents was compounded by the Health Department’s failure to supply the full case-file to NHLAA’s attorneys. Despite Marx’s near-weekly FOIA requests and a subpoena for inspection reports, abatement plans and correspondence with the landlord, the records provided were far from complete, as new documents kept showing up in court on Friday morning.
The judge noted the discrepancy. “I’ll note for the record [that file Bogan brought up to the witness stand] looks about double the size of the records turned over to counsel on Wednesday,” Ozalis said. “That’s just my observation. Maybe when they were copied, they came out thinner.”
Around noon, she called off cross-examination to give NHLAA’s lawyers time to look over the entire stack of papers that Bogan had in front of her. A few new documents, including the results of soil sampling, will be introduced in Bogan’s reexamination, Marx said.