WAILUKU - Although Child Welfare Services recommended that a Wailuku woman be reunified with the child she is accused of injuring, 2nd Circuit Judge Richard Bissen said he had to consider mental health reports on the risk of danger.
He denied a defense request for unsupervised visitation between Joy Tobise, 24, and her 1-year-old daughter.
"The court appreciates the very difficult position Child Welfare Services is in, in all cases involving harm brought to young children, and the difficult decisions they must make," Bissen said in ruling Friday. "They're criticized if they take someone out of the home. They're criticized if they don't take someone out of the home and something happens. Unfortunately, it's the court's opinion that Child Welfare Services has not taken into account all the information that's available."
The judge referred to reports by three psychologists or psychiatrists who examined Tobise for a court-ordered mental examination.
Based on her mental health condition at the time of the offense, the three provided opinions that Tobise was not criminally responsible in a felony second-degree assault case. The examiners also found that she had recovered from the condition and was symptom free by the time of the examinations.
Tobise was charged after she took her daughter, then 3 months old, to the emergency room Feb. 21, 2011, and the infant was diagnosed with a skull fracture, rib fractures and healing fractures to her upper and lower left leg.
Police said Tobise confessed to hurting the baby at least three separate times by grabbing and squeezing her ribs, stomping on her leg and dropping her on her head while she was the infant's primary caregiver.
Bissen said the three professionals who examined Tobise had different opinions about her criminal responsibility in another incident several months later on Oct. 16, 2011, when she alone was caring for her daughter and two older sons. Tobise has pleaded not guilty to abuse in that case.
Tobise reported that the child scraped her face in an accident when she lost her footing while playing on a balcony with her two brothers and fell onto a concrete slab with a slipper on it.
But Dana Kaya, who was a foster parent to the girl at the time, testified the child's face was red and bruised when Tobise returned the girl to the foster home that afternoon. Kaya called the Child Welfare Services hotline, and she and her husband took the girl to the hospital emergency room.
Dr. William Kepler, testifying Friday as an expert in child abuse, said the bruising on the girl's left cheek was "very likely" caused by a slap.
"I don't think it's consistent with what the defense claimed," said Kepler, who examined about a dozen photos of the girl's injury taken the next day. "I can see no way that a fall onto a concrete slab with a slipper on it could cause this kind of pattern of bruising."
Dr. Martin Blinder, a psychiatrist who had concluded in a January report on Tobise that there was no further need for supervision, "did a 180" in a July 27 letter after reviewing reports of the October 2011 incident, Bissen said. He said Blinder's opinion was that "for the foreseeable future contact with her children should be supervised."
Bissen read a portion of Blinder's letter describing Tobise as "emotionally volatile," and "intolerant." Blinder also reported that Tobise should see a psychologist weekly for an "underlying personality disorder," the judge said.
In earlier testimony Friday, Malia Kealoha, Child Welfare Services case manager for Tobise since mid-July, said the state agency was preparing to end the agency's supervision of the family after Tobise and her fiance had successfully completed parenting education and counseling sessions. Kealoha said Tobise continued to see a therapist regularly.
Kealoha said the decision to end intervention was made after consulting with others, including a guardian ad litem appointed by the court to represent the best interests of the child.
"We reached the conclusion it is time to close the case," Kealoha said. "There are no risks.
"We feel that full contact is appropriate."
Under questioning by Deputy Prosecutor Kristin Coccaro and the judge, Kealoha acknowledged that she hadn't seen the court-ordered mental health reports on Tobise, although Kealoha said "it would have been helpful" to review the reports. Kealoha said she didn't know about Dr. Kepler's report on the October 2011 incident.
Artemio Sabas Jr., the child's father, said he is living in a studio unit at Ka Hale A Ke Ola Homeless Resource Center with his daughter, while Tobise lives with their two older sons and her mother in Wailuku. He said he and his daughter would move into Tobise's mother's house if the court would allow unsupervised visitation, which he supported.
As it is now, Sabas said he and his daughter visit with Tobise and the other two children nightly after Tobise's mother gets home, having dinner together. He said he takes his daughter back to the shelter after the children fall asleep.
Deputy Public Defender Shelly Miyashiro said she was making the request for unsupervised visits on behalf of Tobise and her fiance.
"There have been no subsequent incidents involving her daughter or even the two boys that she does have full custody of," Miyashiro said.
But Coccaro opposed the change. "There is an obvious danger to this child," she said.
Coccaro said Child Welfare Services advocated for reunification of the family even when the second injury to the girl occurred, seeming to accept Tobise's account of what happened even though others didn't believe her version.
"It is extremely premature that she have complete access to this child," Coccaro said, noting that two criminal cases involving injury to the child are pending. She said the second injury occurred the first time Tobise was allowed to have an unsupervised visit with her daughter.
Bissen said he was "somewhat discounting" the argument that there have been no new instances of abuse.
"That's like saying someone who's in custody hasn't committed any new crime," Bissen said. "She hasn't had the opportunity. All of the visits have been supervised. The allegations are that she's committed these offenses when they were unsupervised. That's the difference. As long as the supervised visits have been made, there have been no problems."
The judge said the main argument for allowing unsupervised visits was the hardship on the family.
"For the court to grant this motion would be to completely ignore the reports that these doctors were specifically asked to review," Bissen said. "The court has no other alternative. As difficult as it is for the current situation, it would be far worse for the court to allow an unsupervised visit and any harm to come to this child."
He said the court decision is unrelated to any action Child Welfare Services decides to take.
A Dec. 10 trial is scheduled for Tobise.
* Lila Fujimoto can be reached at firstname.lastname@example.org.