In re B.A.

Filed 6/16/08 In re B.A. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

This appeal has been taken by the minor from the denial of her petition for modification of the visitation order and the dismissal of this dependency proceeding. Appellant complains that the juvenile court erred by terminating the action without granting her overnight visitation with her mother. We find that the dismissal of the dependency and visitation order were not an abuse of discretion, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Ana M. is the mother of appellant, B.A., and her half-sister Z. P. Amin A. is the father of appellant; Armando P. is the father of Z. P. Before this dependency proceeding began, appellant and Z. P. lived with Ana, although the family had six prior referrals with the San Francisco County Department of Human Services (respondent or the Department) between March of 1998 and December of 2005, and had received family preservation services.

Appellant and Z. P. were ages 10 and 14, respectively, when appellant called 911 on December 29, 2005, to report that Ana gratuitously began hitting Z. P., who was then eight months pregnant. When appellant attempted to intervene, Ana hit her as well. After Z. P. struck Ana in the head with a glass object, the girls ran outside, where police officers found them. Both girls suffered minor injuries, and appeared fearful and traumatized by the occurrence of physical violence inflicted by Ana, which they stated was aberrational. They were taken by social workers to the child protection center, then released to the custody of their fathers.[1]

Ana was bleeding from a cut on her forehead, angry, incoherent and resistant, to the point of chasing one of the police officers who responded to the 911 call. She was involuntarily hospitalized (Welf. & Inst. Code,   5150)[2] for 72 hours for observation and treatment. The examining physicians determined that Ana had been diagnosed as psychotic and suffering from Bipolar 1. Her behavior was due to being off her medication.[3]

This action commenced on January 18, 2006, with a petition filed pursuant to section 300, subdivisions (a) and (b), that alleged Ana inflicted inappropriate physical injury on the minors, obstructed a police officer, and suffered from mental illness for which she was not taking her prescribed medication. Following a hearing the minors were detained. Appellant was placed with her father Amin; Z. P. was placed with her maternal grandmother in Southern California.

The dispositional report filed by the Department on February 24, 2006, recommended that the court sustain the petition, declare both minors dependent children, and place appellant in the home of her father. The report also recommended that Ana receive reunification services while she resided in Ashbury House, a residential mental health facility. It was further ordered that she complete individual therapy, a parenting education program, psychological evaluation and care by a qualified mental health professional, and maintain regular visitation with the minors. Ana was reported to be compliant with her treatment program, responding to therapy, aware of the need to take her prescribed medication, and motivated to obtain custody of her children. She maintained regular telephone contact with the minors. Both appellant and Z. P., along with her new baby born in February 2006, were reported to be doing well in their placements, but expressed that they wanted to return to the custody of their mother. As a condition to obtain dismissal of the proceeding, the disposition report recommended that Amin ensure appellants regular attendance at therapy and cooperate with appellants visitation with her mother and half-sister.

The disposition hearing was held on April 14, 2006. The court found the allegations of the petition, as amended, to be true, and found appellant to be a minor described in section 300. Appellant was ordered to reside with her father under the supervision of the Department, and remain in therapy. While in the program at Ashbury House, Ana was granted visitation with appellant every other weekend, and on a weekday every other week. The six-month review hearing was set for October 12, 2006.

The six-month review report filed by the Department on September 26, 2006, recommended dismissal of the petition, joint legal custody of appellant to Ana and Amin, and physical custody to Amin. The report stated that Ana continued to reside at the Ashbury Residential Program. She continued to be fully compliant with her therapy program and medication regimen. She was reported to be doing great in the program, and was considered functional on her medication. She was also pronounced ready to reside on her own if medicated, but a concern was expressed that Ana would deteriorate significantly if she did not continue to take her medication. Thus, monitoring measures along with continued therapeutic services were specified to be necessary to ensure any successful reunification with appellant.

According to the six-month report, appellant had overnight visits with her mother at the Ashbury Program facility every other weekend, and during the day every other week. The visits reportedly went well, with no concerns. Appellant stated that she enjoyed visiting with her mother and speaking with her on the phone. She also had regular telephone contact and holiday visits with Z. P., who continued to reside in Southern California. Amin was cooperative with visitation. He also ensured that appellant received her weekly therapy sessions, which were beneficial. Although appellant had an increased bonding relationship with her father and advised the social worker that living with her father was okay, she expressed that she wanted to reside with her mother.

The report recommended that appellant continue to reside with her father, who was providing a stable and nurturing home. Due to Anas mental health history and the ongoing risk of significant deterioration or decompensation if she failed to take her medication, as occurred in the past, the report indicated that the mothers physical custody of the minor was not considered in the best interests of appellant. Overnight visitation by appellant with her mother every other weekend at the Ashbury Program facility, and on Saturday during the day on the other weekends, was recommended.

Before the six-month review hearing was held, appellant filed a section 388 petition on April 10, 2007, that requested overnight visitation with Ana at her new apartment. Ana had completed the Ashbury House residential program, and as of March 30, 2007, was residing in a subsidized apartment in Chinatown. She had also reunified with appellants sibling Z. P. and her baby. The petition asserted that the Department and appellants therapist agreed the continuation of unsupervised overnight visitation in Anas new residence would be in the minors best interests. Amin opposed modification of the visitation order on grounds that Ana was now living independently in an unsupervised setting, and the minor no longer had the protection of the Ashbury House staff during visits.

An addendum to the six-month report submitted on April 19, 2007, continued to recommend dismissal of the dependency, termination of jurisdiction, joint legal custody to both parents and physical custody only with the father. Ana had been granted reunification with Z. P. and her daughter. She was reported to have adjusted well to living in her apartment with [Z. P.] and her child in the home. Ashbury House indicated that Ana did very well in the program, and her overnight visits with the children had been loving and appropriate. Anas individual therapist stated that she was compliant with her medication and aware of the need to continue to do so. Appellants therapist reported that appellant was well connected to her mother and Z. P., to the extent that cessation of visits between appellant and Ana would be a detriment to the minor. Amin expressed concerns that unsupervised visits by appellant with Ana in the apartment may jeopardize the minors welfare if Ana did not continue to take her medication. He also wanted to severely limit appellants exposure to Z. P., for fear that she would end up like her sister or become a prostitute. The Department recommended that Ana first adjust to the presence of Z. P. and her child in the apartment, then commence overnight visits with appellant every other weekend. The proposed aftercare plan for Ana, Z. P. and appellant included: Anas attendance at Ashbury House groups and individual therapy sessions on a bi-weekly basis; telephone contact by Ana with Ashbury House twice weekly to report on how things are doing in the home with Z. P. and the baby; Anas continued monthly visits with her psychiatrist for evaluation and monitoring of medication; monitoring of the home by a family support services worker; and, individual therapy for Z. P. and appellant.

A contested hearing on appellants section 388 petition and the Departments request for dismissal began on April 25, 2007. At the hearing, protective services worker Claudia Sepulveda continued to recommend dismissal of the petition, with joint legal custody, physical custody to the father, and overnight visits by appellant to Anas home every other weekend on an interim basis while Ana adjusted to her new living situation. After a period of 60 to 90 days to assess Anas adjustment to her current apartment living situation, a more long-term visitation plan could be devised. Sepulveda offered her opinion, based upon conversations with the minors therapist, that overnight contact with Ana every other weekend was in appellants best interests. Appellant has a good bond and good communication with her mother. Appellants therapist informed Sepulveda that appellant likes the contact with her mother and sibling. Appellant also expressed in a recent conversation with Sepulveda that she wanted to live with her mother, or at least to have overnight visits with her. According to Sepulveda, to restrict appellants interaction with Ana and Z. P. would be emotionally damaging to the minor, perhaps causing her to become depressed or withdrawn.

Sepulveda testified that in conjunction with appellants therapist she developed a safety plan for visitation with Ana which included providing telephone numbers for appellant and Z. P. to call in the event any conflict occurred. The safety plan was communicated to Ana and Z. P., who seemed to understand and appreciate it.

Sepulveda further testified to her impression that while Amin has allowed visits between appellant and Ana thus far, he may be resistant to proceed with visitation at Anas apartment residence if the dependency case is dismissed. Unless Ana is in Ashbury House, Amin stated that he does not want appellant to spend the night with her. Amin expressed to Sepulveda that he fears for appellants safety if Ana were to discontinue her medication, and asserted that Ana does not have an appropriate household for appellant. He also offered his belief that Z. P. is a bad influence on appellant due to her history of running away from home, having contact with an older boyfriend, and becoming a teen-age mother. He is anxious that appellants contact with Ana and Z. P. may cause her to end up on the streets as a prostitute dependent on the system. Amin has also made comments about calling I.N.S. to report Ana if overnight visits are permitted.[4] He has indicated to Sepulveda his dissatisfaction and anxiety with the safety plan for visitation proposed by Sepulveda, and instead wants an official guarantee from the Department that the prior incident of physical abuse by Ana will not be repeated.

Sepulveda testified that she does not share Amins apprehension of a risk of harm to appellant while in her mothers care. Ana successfully completed the Ashbury House program, and the Department did not receive any reports of concerns during her aftercare plan. Ana seems very loving and attentive toward her daughters, and was taking the right measures to support them. From her conversations with Z. P., Sepulveda formed the impression that she is a nice girl who learned her lesson, and would not want to influence her sister in a negative way.

Alisa Birgy, the director of the Ashbury House mental health residential treatment program for mothers and children, testified that Ana completed her treatment goals and was compliant with all aspects of the program. She was very helpful and cooperative during her tenure at the facility. Her overnight visits with the children were always appropriate and positive. As part of her aftercare plan, Ana appears for day treatment at Ashbury House twice a week, and checks in with the staff by phone twice a week. The aftercare program may continue for an indefinite period. After leaving the facility, Ana had overnight visits with the children at her apartment without any reports of problems. She has remained stable and maintained medication compliance. The aftercare plan does not have a component to monitor or administer medication to Ana, however. Birgy testified that Ana has a good relationship with both girls. Birgy continued to believe that Ana should have appellant in her custody.

Dimas Moncada, a licensed psychiatric social worker, testified that he has treated Ana since 1998, in conjunction with her treating psychiatrist. Moncada described Ana as a very active and engaged client who was presently very stable and very compliant with treatment, appointments and medication. He continues to see her weekly and regularly consult with her psychiatrist. Ana is now in a much better state than in the past nine years, with no indication of psychosis or depression. He thought Ana had a good understanding of the event that resulted in the dependency and the measures she needed to take to regain custody of her children. Moncada had only minimal concern that Ana would stop taking her medication, and if she did he would be able to quickly tell from her behavior and symptomology. He also had no concern at all with Anas ability to parent her children. Moncada expressed his opinion that overnight visits by appellant with Ana in her apartment did not carry any risk of harm to appellant. Appellant and Ana have a very strong bond. He agreed with Sepulveda that reduced contact with Ana would be detrimental to appellant.

Ana testified that as part of her aftercare program she visits Ashbury House twice a week and calls twice a week. She also visits her therapist once a week. She has not missed any scheduled appointments. Ana added that she has not failed to take her medication, and knows to contact her therapist or social worker to ask for help if problems arise. According to the aftercare plan arranged for her, Ana is scheduled to continue to attend the Ashbury House programs until September of 2007, but will stop going to Ashbury before then if she is able to find a job or start going to school. Ana indicated that she is willing to sign a release to grant Amin the right to obtain her medical records to determine if she is compliant with her medication. While Ana testified that Z. P. has been doing well in school and at home, on one occasion within the past two weeks she failed to return home directly after school, whereupon Ana contacted the police.[5]

Z. P. testified at the hearing that she and her baby had been living with Ana in the apartment for more than a month, and their relationship has been good. Their communication is much better than in the past. She regrets that she failed to listen to her mothers advice to stay in school. She counsels appellant to stay in school and get a job. She hopes to be a good influence on her sister. Z. P. realizes that Ana must continue to take her medication daily, and if her mother fails to do so she knows to call a social worker or someone else listed on her safety plan. Appellant has conveyed to Z. P. that she prefers to live with Ana rather than Amin. Z. P. expressed that she would be sad if appellant was not able to stay the night.

Amin testified that appellant began living with him in December of 2005. She has her own bedroom in Amins home in Berkeley, which is also occupied by Amins parents. Amin offered his view that the living arrangement is going extremely well. He transports appellant to and from school and to therapy appointments, monitors her progress with her teachers, and checks to make sure she has done her homework. He wants to teach appellant to act and speak appropriately with others, and avoid the problems her sister encountered.

Amin is not willing to accept visitation with Ana for more than six hours at a time. He is concerned that Ana is still under medication, and the physical abuse incident may be repeated with longer visits. He also does not want appellant to encounter the same mistakes that befell her sister. Amin believes that appellant is receiving influence from too many sources her mother, her attorney, the social worker, and her sister which is an unstable condition and extremely dangerous in raising children. Amin has noticed that after overnight visits with Ana appellant is in a troubled state for a few days, seems depressed, sleeps excessively, and withdraws to her room. He will accept visitation for six or seven hours, and unlimited telephone contact.

Amin wants appellant to live with him until she graduates from college, then she can go wherever she wants. He is also willing to financially assist Z. P. if she decides to go to college. Amin testified that he recognizes the importance of Ana and Z. P. to appellant, and is agreeable to overnight visitation or even more in the future if conditions improve or appellant matures enough to deal with any situation.

Following the hearing, the trial court denied appellants section 388 petition for modification, dismissed the dependency petition, awarded joint legal custody of appellant to Ana and Amin, and sole physical custody to Amin. Ana was granted one eight-hour unsupervised visit per week and telephone contact with appellant. This appeal followed.

DISCUSSION

I. The Exclusion of Z. P. from the Courtroom.

We first confront appellants contention that the trial court erred by granting the objection of Amin to Z. P.s continued presence in the courtroom following her testimony in the case. During the cross-examination of social worker Sepulveda, Amins counsel requested that Z. P. not be present.[6] The court observed that Z. P. was not a party to the case, and suggested its just better for her to leave the courtroom and remain outside while other witnesses testified. Appellant complains that Z. P., as her half-sibling and a dependent of the court, had the right to receive notice of the proceedings and to be present at the contested hearing. She further argues that the denial of due process was a structural defect which is reversible per se, or at least should be presumed prejudicial.

We agree that as appellants sibling Z. P. was entitled to notice of the dependency proceeding. ( 290.1, 290.2.) Further, pursuant to section 349, as a person entitled to notice of the hearing under the provisions of Sections 290.1 and 290.2, Z. P. was also entitled to be present at the hearing and to be represented by counsel.

The trial court was correct, however, in recognizing that Z. P. was not a party to the dependency case before us. Appellant and Z. P. were parties to separate dependency actions (JD-06-3028 and JD-06-3029, respectively). The fact that the present appeal was ostensibly filed on behalf of both appellant and Z. P., does not change the critical facts that only appellant was named in the dependency petition, Z. P. was never formally added as a party to the action, nor was she named as a party in the order from which this appeal was taken.[7]

The effect of Z. P.s status as a non-party to the present action is that appellant has no standing to seek review of the ruling that excluded her half-sibling from the courtroom during some of the presentation of testimony. The general rule of appellate standing is this:  Any aggrieved party may appeal from an adverse judgment. [Citations.] The same rule applies in dependency cases. (In re Paul W. (2007) 151 Cal.App.4th 37, 55.) Without standing there is no justiciable controversy for a court to entertain. (In re P.L. (2005) 134 Cal.App.4th 1357, 1361.) To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the courts decision. (In re H.G. (2006) 146 Cal.App.4th 1, 9; see also In re Barbara R. (2006) 137 Cal.App.4th 941, 952.) To have standing, a person must have rights that may suffer injury. (In re P.L., supra, at p. 1361.)  [A] party must have a legally cognizable immediate and substantial interest which is injuriously affected by the courts decision. A nominal interest or remote consequence of the ruling does not satisfy this requirement. [Citation.] (In re Valerie A. (2007) 152 Cal.App.4th 987, 1000.) A party may not claim errors on appeal which only affect another party. (Ibid; see also In re Crystal J. (2001) 92 Cal.App.4th 186, 189.) [A] would-be appellant lacks standing to raise issues affecting another persons interests. [Citation.] (In re Paul W., supra, at p. 56.)

Appellant has no legally cognizable interest that was injuriously affected by the courts decision to exclude Z. P. from the courtroom. (In re Paul W., supra, 151 Cal.App.4th 37, 58.) While a child normally has standing to appeal a juvenile dependency judgment, case law has established that an appellant must demonstrate error affecting his or her own interests in order to have standing to appeal. (In re Crystal J., supra, 92 Cal.App.4th 186, 189.) The interest of appellants sibling to be present in court is separate from that of appellant. (See In re Frank L. (2000) 81 Cal.App.4th 700, 703; In re Devin M. (1997) 58 Cal.App.4th 1538, 1541; In re Nachelle S. (1996) 41 Cal.App.4th 1557, 1561.) Any prejudicial effect on appellants interest from the absence of Z. P. in this proceeding is at most nominal and speculative, and thus does not furnish appellant with standing to assert the issue on appeal. (In re Valerie A., supra, 152 Cal.App.4th 987, 1000; In re Daniel D. (1994) 24 Cal.App.4th 1823, 18351836; In re Vanessa Z. (1994) 23 Cal.App.4th 258, 260261.) Simply stated, appellant cannot appeal the exclusion of Z. P. from the hearing because her legal rights were not impacted. (In re P.L., supra, 134 Cal.App.4th 1357, 13611362; In re Vanessa Z., supra, at p. 261.)

And in any event, even if we were to grant appellant standing to complain and determine that error was committed, we would not find cause for reversal of the judgment. An appellant must show prejudicial error affecting his or her interest in order to prevail on appeal. (In re Vanessa Z., supra, 23 Cal.App.4th 258, 261.) We disagree with appellants assertion that this is a case that demands reversal per se. We typically apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se. This practice derives from article VI, section 13 of the California Constitution, which provides: No judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (In re Jesusa V. (2004) 32 Cal.4th 588, 624.) As the United States Supreme Court explained, violations of the right to be present during all critical stages of the proceedings and the right to be represented by counsel . . . as with most constitutional rights, are subject to harmless error analysis . . . . [Citations.] (People v. El (2002) 102 Cal.App.4th 1047, 1050.) Where, as here, the right to be present at trial is a statutory rather than constitutional mandate, error is reversible only if it is reasonably probable the result would have been more favorable to appellant absent the error. (In re Jesusa V., supra, at p. 625, citing People v. Riel (2000) 22 Cal.4th 1153, 1196; People v. Ayala (2000) 24 Cal.4th 243, 268269.) Nothing in the record indicates that the absence of Z. P. from the courtroom had any possible effect on the outcome of the case.

II. The Dismissal of the Dependency Action without an Order for Overnight Visitation.

We turn to appellants claim that the trial court erred by dismissing the dependency action without granting her overnight visits with her mother. She argues that upon termination of a dependency proceeding under section 361.2, the court must make a custody and visitation order for a dependent child that considers the best interests of the child. Appellant points out that the Department recommended overnight unsupervised visitation every other weekend. She also directs our attention to the opinions expressed by social worker Sepulveda, appellants therapist, and the licensed psychiatric social worker, all of whom agreed that continuation of unsupervised overnight visitation in Anas apartment residence would be in the minors best interests, and restriction of visitation would be detrimental to her emotional welfare. Appellant maintains that the court expressed concern for the childs safety, but improperly ignored the evidence of substantial risk of emotional harm associated with a dismissal order that did not grant overnight visitation to Ana. She therefore argues that the dismissal and visitation order lacks the support of substantial evidence.

As the parties agree, the standards which govern the termination of jurisdiction and the associated custody and visitation orders in the case are found in section 361.2, which provides that when a court assumes jurisdiction of a minor, it must determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If so, the court must place the child with that parent unless it finds that doing so poses a risk of harm to the child. ( 361.2, subd. (a).) Under that section, when the court orders removal of a child from a parents home and determines that another parent, with whom the child did not previously reside, is available, it may choose two options. First, it may simply terminate jurisdiction and give the other parent legal and physical custody of the child. ( 361.2, subd. (b)(1).) Second, it may have the other parent assume custody of the child, and may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child. ( 361.2, subd. (b)(3).) When deciding whether to terminate jurisdiction, the court must determine whether there is a need for continued supervision, not whether the conditions that justified taking jurisdiction in the first place still exist, as required under section 364. (In re Janee W. (2006) 140 Cal.App.4th 1444, 1451, fn. omitted.)

Subdivision (b) of section 361.2 further specifies that if the court places the child with the parent with whom the child did not previously reside, it may do any of the following: [] . . . Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents. (Italics added.)

Here, we have no doubt that the court properly terminated jurisdiction and gave physical custody of appellant to her father Amin. Clear and convincing evidence established that placement with him was not detrimental to the safety, protection, or physical or emotional well-being of the child. (See In re Isayah C. (2004) 118 Cal.App.4th 684, 699700.) The evidence before the court met the standard of proof that, with custody given to the nonoffending parent, continuing supervision of the minor was no longer required. (In re Janee W., supra, 140 Cal.App.4th 1444, 1451.) The juvenile court acted in accordance with section 361.2, subdivision (b)(1), by ordering the father, as the nonoffending parent, to become the legal and physical custodian of the child, and terminating its jurisdiction. (In re Patricia T. (2001) 91 Cal.App.4th 400, 406.) Therefore, the order terminating jurisdiction was proper under section 361.2. (In re Janee W., supra, at p. 1453.)

The critical dispute in the case before us focuses on the visitation order which denied overnight visits to the mother in her apartment upon termination of jurisdiction. In making the visitation order as one of the exit orders in the case, the juvenile court was obligated to define the noncustodial parents right to visit and make an informed decision that looked at the best interests of the child.(In re John W. (1996) 41 Cal.App.4th 961, 973; see also In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373.) The best interests of the child is the primary factor the court considers in exercising its discretion to determine the nature and extent of visitation. (In re J.N. (2006) 138 Cal.App.4th 450, 459; see also In re Elizabeth M. (1991) 232 Cal.App.3d 553, 569.) A court must consider the totality of the childs circumstances when making decisions regarding the child. (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095.)

The same standard governs the ruling on appellants petition for modification. Modification of a custody or visitation order pursuant to section 388 requires a showing that the best interests of the child may be promoted by the proposed change. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 516; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.)

The juvenile court has broad discretion in crafting a disposition pursuant to a childs best interest. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) Orders regarding visitation may be reversed only upon a clear showing of an abuse of discretion.   []The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.  [Citation.] [Citations.] (In re Alexandria M., supra, 156 Cal.App.4th 1088, 10951096.)

It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] Issues of fact and credibility are questions for the trial court. [Citations.] It is not an appellate courts function, in short, to redetermine the facts. [Citation.] Absent indisputable evidence of abuseevidence no reasonable trier of fact could have rejectedwe must therefore affirm the juvenile courts determination. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199200; see also In re Nada R., supra, 89 Cal.App.4th 1166, 1177.)

With recognition of our exceedingly limited reviewing function, we find that denial of overnight visitation was not an abuse of discretion here. We acknowledge that the recommendations of the social worker and therapists uniformly considered overnight visitation to be in appellants best interest, and suggested that undue restriction of visitation may result in emotional detriment to her.[8] We discount Amins opinions to the contrary, which we view to be based solely upon his conjecture and at least some measure of bias.[9] We also agree with the assessment of the director of Ashbury House and the mothers therapist that Ana made great strides to improve her mental condition and parenting. All of these factors were considered by the juvenile court.

We cannot, however, discount the thoughtful evaluation of the juvenile court, which we find was properly based upon the evidence presented. The court recognized that Anas mental instability was a long-standing condition, and the December 2005 event that precipitated the dependency was part of a pattern of incidents dating back to 1998 which included six prior referrals. The juvenile court also expressed dissatisfaction with the safety plan proposed by the Department for appellant, which the court noted had no requirement or anything enforceable and improperly placed the burden of contacting someone on the children. The court also took into account a significant factor pertinent to appellants best interests and her risk of harm: her mother had only recently left the Ashbury House residential facility to make the transition to life in her own apartment. Added to the stress of leaving the protective environment of Ashbury House is the even more recent return of Z. P. and her baby to live with the mother. The court was justifiably concerned with the ability of Ana to adjust to all of the changes in her life, given her history of mental instability, and declared that while overnight visitation may be appropriate in the future, at least a brief track record of success was necessary to ensure appellants safety.[10]

We find that the court did not act capriciously or without reason in denying overnight visitation every other week in favor of eight-hour visits one day every weekend. While we may not have reached the same decision if given the power to act in the first instance, we cannot find that the juvenile courts determination was arbitrary, capricious, or lacking in evidentiary support. (See Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 786; ABS Institute v. City of Lancaster (1994) 24 Cal.App.4th 285, 295296.)  The abuse-of-discretion standard requires us to uphold a ruling which a reasonable judge might have made, even though we would not have ruled the same and a contrary ruling would also be sustainable. We cannot substitute our own judgment. [Citations.] (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 428.) We thus conclude that the visitation order is neither an abuse of discretion nor unsupported by the evidence. Absent indisputable evidence of abuseevidence no reasonable trier of fact could have rejectedwe must therefore affirm the juvenile courts determination. (In re Sheila B., supra, 19 Cal.App.4th 187, 200.)

Accordingly, the judgment is affirmed.

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[1] Z. P. was subsequently placed in the home of her paternal grandmother.

[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[3] The district attorneys office decided not to prosecute Ana for physical abuse of the minors due to her mental illness.

[4] Ana is undocumented, and may face deportation if her status is brought to the attention of the I.N.S.

[5] Z. P. came home around 8:30 that night.

[6] The basis for counsels request is not entirely comprehensible from the record. Counsel complained that Z. P. would be hearing testimony, and may report it back or may not report it back to someone.

[7] We realize that Z. P. was named in some of the Departments reports, but that does not make her a party to this action. Reference to Z. P. is given in the reports in connection with a separate, specified dependency case number (JD-06-3029).

[8] We note that the addendum to the six-month report suggested that Ana should adjust to her new apartment and the reunification with Z. P. before overnight visits occurred.

[9] We observe that Amin expressed his unwillingness to accept overnight visitation that is not his decision to make. He also reportedly made threats to facilitate the deportation of appellants mother if overnight visitation was granted, which is hardly in the minors best interests.

[10] And if the mother exhibits continued success over time the visitation order is subject to modification by a subsequent order upon a showing of changed circumstances. (In re John W., supra, 41 Cal.App.4th 961, 970.)