[Cite as In re H.M., 2011-Ohio-6376.]

                              STATE OF OHIO, NOBLE COUNTY

                                 IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

IN THE MATTER OF:                                )
                                                 )
H.M.                                             )
                                                 )
                                                 )          CASE NO. 11-NO-381
                                                 )
                                                 )              OPINION
                                                 )
                                                 )

CHARACTER OF PROCEEDINGS:                        Civil Appeal from Court of Common
                                                 Pleas, Juvenile Division of Noble
                                                 County, Ohio
                                                 Case No. 209-3044

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Jamie Riley
                                                 Assistant Prosecutor
                                                 508 North Street
                                                 Caldwell, Ohio 43724

For Defendant-Appellant                          Attorney Lindsey K. Donehue
                                                 P.O. Box 464
                                                 116 Southgate Parkway
                                                 Cambridge, Ohio 43725




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                 Dated: December 9, 2011
[Cite as In re H.M., 2011-Ohio-6376.]
DONOFRIO, J.

        {¶1}    Appellant, Sheena M., appeals from a Noble County Common Pleas
Court Juvenile Division decision granting permanent custody of her daughter to
appellee, the Noble County Department of Job and Family Services, and terminating
her parental rights.
        {¶2}    Appellant gave birth to H.M. in April 2009.     The trial court granted
appellee temporary custody of H.M. on September 25, 2009, based on allegations
that she was neglected and dependent. The court appointed counsel for appellant at
that time. The court also appointed a guardian ad litem (GAL) for H.M. A case plan
was put into place for appellant with the goal of reunification. The court subsequently
adjudicated H.M. a dependent child upon a voluntary admission by appellant.
        {¶3}    On December 10, 2010, appellee filed a motion for permanent custody
of H.M. The court held a hearing on appellee’s motion. Appellant appeared at the
hearing. The court noted that H.M.’s father was unknown and failed to appear. It
found that H.M. had been in appellee’s temporary custody for at least 12 of the last
22 months and it was in her best interest that it grant her custody to appellee.
Therefore, the court terminated appellant’s parental rights and granted H.M.’s
permanent custody to appellee.
        {¶4}    Appellant filed a timely notice of appeal on March, 29, 2011.
        {¶5}    Appellant's counsel has filed a no merit brief and request to withdraw as
counsel pursuant to State v. Toney (1970), 23 Ohio App.2d 203. In Toney, this court
set out the procedure to be used when appointed counsel finds that an indigent
criminal defendant's appeal is frivolous.       This court has held that the Toney
procedure also applies in cases where appointed counsel seeks to withdraw in a
parental rights case. In re K.B., 7th Dist. No. 09-BE-24, 2010-Ohio-1015.
        {¶6}    The Toney procedure is as follows:
        {¶7}    “3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is frivolous and
that there is no assignment of error which could be arguably supported on appeal, he
should so advise the appointing court by brief and request that he be permitted to
                                                                                   -2-


withdraw as counsel of record.
       {¶8}   “4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and the indigent
should be granted time to raise any points that he chooses, pro se.
       {¶9}   “5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the arguments pro se of
the indigent, and then determine whether or not the appeal is wholly frivolous.
       {¶10} “ * * *
       {¶11} “7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of
record should be allowed, and the judgment of the trial court should be affirmed.” Id.
at the syllabus.
       {¶12} This court informed appellant that her counsel filed a Toney brief.
Appellant did not file a pro se brief. Additionally, appellee has not filed a brief.
       {¶13} Despite filing a Toney brief, counsel has raised one “arguable” issue on
appeal. We will consider this issue in our review of the record. It states:
       {¶14} “THE JUDGMENT OF THE TRIAL COURT TO GRANT PERMANENT
CUSTODY OF H.M. MUST BE REVERSED BECAUSE IT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
       {¶15} A parent's right to raise his or her children is an essential and basic civil
right. In re Murray (1990), 52 Ohio St.3d 155, 157, citing Stanley v. Illinois (1972),
405 U.S. 645, 651. However, this right is not absolute. In re Sims, 7th Dist. No. 02-
JE-2, 2002-Ohio-3458, at ¶23. In order to protect a child's welfare, the state may
terminate parents' rights as a last resort. Id.
       {¶16} We review a trial court's decision terminating parental rights and
responsibilities for an abuse of discretion.      Sims, 7th Dist. No. 02-JE-2, at ¶36.
Abuse of discretion connotes more than an error of law or judgment; it implies that
the court's attitude was arbitrary, unreasonable, or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219.
                                                                                 -3-


         {¶17} The trial court may grant permanent custody of a child to the agency if
the court determines by clear and convincing evidence that it is in the child's best
interest to grant permanent custody to the agency and that the child has been in the
temporary custody of one or more public children’s services agencies for 12 or more
months of a consecutive 22-month period.           R.C. 2151.414(B)(1)(d).     Clear and
convincing evidence is evidence that produces in the mind of the trier of fact a firm
belief or conviction as to the facts sought to be established.         In re Adoption of
Holcomb (1985), 18 Ohio St.3d 361, 368.
         {¶18} In determining whether it is in the child's best interest to grant custody
to the agency, the court shall consider:
         {¶19} “(a) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster caregivers and out-of-home providers, and any
other person who may significantly affect the child;
         {¶20} “(b) The wishes of the child, * * * with due regard for the maturity of the
child;
         {¶21} “(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive twenty-two-
month period, * * *;
         {¶22} “(d) The child's need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of permanent
custody to the agency;
         {¶23} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.” R.C. 2151.414(D)(1).
         {¶24} The trial court made the following findings.      H.M. has been in the
temporary custody of a public children services agency for 12 or more months of a
consecutive 22-month period and a grant of permanent custody is in her best
interest. Appellant has continuously and substantially failed to comply with the case
plan. She has failed to utilize psychological and social services required by the case
                                                                                -4-


plan. She has not been able to maintain stable housing. She has been unwilling to
meaningfully visit with the child at times and she is unwilling to provide the child with
an adequate permanent home. The court also expressed concern with appellant’s
chronic mental and emotional condition and how it affects her ability to provide for her
child. Based on these considerations, the court granted permanent custody of H.M.
to appellee.
        {¶25} The evidence supports the trial court's grant of permanent custody to
appellee. The witnesses testified as follows.
        {¶26} Jennifer Myers, the clinical records manager for Six County, Inc.,
testified first. Myers stated that appellant had been referred to her agency for crisis
intervention in September 2009.       (Tr. 3-4).   Appellant attended one counseling
session and then failed to appear for the subsequently-scheduled sessions. (Tr. 4).
As a result of her failure to appear, the agency terminated its services with appellant
in June 2010. (Tr. 4-5).
        {¶27} Judy Weisend works in the public assistance eligibility department of
the Noble County Department of Job and Family Services. She testified that as a
function of her job, she is notified of individuals’ addresses. (Tr. 7). Weisend stated
that from September 2009 through November 2010, appellant had reported 12
different addresses in various towns in Ohio and West Virginia. (Tr. 8-9).
        {¶28} Kristine Schoeppner is the caseworker who was assigned to appellant’s
case.    She testified that appellee was granted emergency custody of H.M. on
September 18, 2009, and that H.M. had been in appellee’s temporary custody
continuously since that time. (Tr. 11-12).
        {¶29} Schoeppner stated that a case plan was put into place for appellant that
included: a psychological evaluation; attending counseling to address past domestic
violence, possible substance abuse, and mental health issues; following through with
the recommendations of the counselors; signing releases for information; taking any
prescribed medications; attending parenting programs; using visitation time for
visiting with H.M.; and obtaining stable housing and income. (Tr. 12-13).
                                                                              -5-


       {¶30} Schoeppner testified that appellant did not follow through with the
agencies to which appellee recommended her. (Tr. 13). Appellant did not complete
her psychological evaluation. (Tr. 14). Appellant reported to Schoeppner at one
point that she was taking her prescribed medications and at another point that she
was not. (Tr. 14-15). And appellant did not complete the parenting services that
appellee offered to her. (Tr. 15). Appellant had obtained employment at two different
McDonald’s restaurants but was fired. (Tr. 17-18). As to housing, appellant reported
30 different residences since September 2009, including living on the streets and
with several different boyfriends. (Tr. 19).
       {¶31} Schoeppner stated that appellant had been visiting with H.M., but since
the beginning of the year, she had only visited once. (Tr. 21). She also testified that
there were many times appellant failed to show up for a visit or canceled. (Tr. 21).
And during some visits, appellant became upset and requested that she just sign
over her rights to H.M. (Tr. 22). Additionally, appellant spent time during her visits
texting her friends or yelling at the staff. (Tr. 23). Appellant also told Schoeppner
that she did not want to be around H.M. and requested that she not have any more
visits. (Tr. 24). Schoeppner stated that H.M. did not appear to have a connection
with appellant. (Tr. 25).
       {¶32} Schoeppner further testified that no father was listed on H.M,’s birth
certificate and that appellant was not able to provide her with the name of H.M.’s
father. (Tr. 15-16).
       {¶33} Finally, Schoeppner testified that H.M. had been in appellee’s
temporary custody for 12 or more months of a consecutive 22-month period. (Tr. 25).
She also opined that H.M.’s best interest required permanency and that it was in
H.M.’s best interest that the court grant her permanent custody to appellee. (Tr. 25-
26).
       {¶34} Appellant was the last witness to testify. She stated that she currently
lives with a woman named Emily for whom she babysits. (Tr. 31). Appellant earns
$60 to $120 per week and also receives food stamps. (Tr. 32). She stated that she
                                                                                -6-


does not have a driver’s license but is in the process of trying to obtain one. (Tr. 33).
Appellant stated that she attended some appointments where she was diagnosed as
having bipolar disorder, depression, and severe anxiety. (Tr. 34). She stated that
she was prescribed two medications, which she had to stop taking because she
became pregnant. (Tr. 34). Since then, appellant stated that she takes Prozac. (Tr.
34). She stated that she started parenting classes. (Tr. 36). As to why she had not
been visiting with H.M., appellant stated that she had a case of head lice and had not
been permitted to visit until it was all cleared up, which it was at the time of the
hearing. (Tr. 38).
       {¶35} Appellant also expressed to the court her desire to have custody of
H.M. (Tr. 37). And she stated that she believed it was in H.M.’s best interest to come
home with her. (Tr. 39).
       {¶36} In addition to the testimony, the court noted that the GAL filed a report,
which it would consider. (Tr. 44). Neither party wished to cross examine the GAL.
(Tr. 44). And although the GAL did not testify, she argued to the court that it was in
H.M’s best interest for the court to grant permanent custody to appellee because she
needed permanency. (Tr. 47).
       {¶37} The applicable statutory best interest factors support the trial court’s
decision.
       {¶38} First, Schoeppner testified that H.M. does not appear connected to
appellant.
       {¶39} Second, H.M. has been in appellee’s temporary custody since she was
just five months old.      She is now over two years old.      Thus, she has been in
appellee’s custody for well over 12 of the last 22 months. And she has spent most of
her life living apart from appellant.
       {¶40} Third, both Schoeppner and the GAL opined that H.M. was in need of
permanency.
       {¶41} In addition to the applicable statutory factors, other evidence further
supports the court’s grant of permanent custody. Appellant failed to comply with
                                                                             -7-


most of the case plan requirements. She did not go for her required psychological
evaluation. She did not complete a parenting program. She did not obtain stable
housing. According to the testimony of several witnesses, she moved as few as 12
and as many as 30 times in an 18-month period. At times she took her prescribed
medications and at other times she did not. She was terminated from her counseling
sessions for failing to appear. Furthermore, she missed numerous visits with H.M.
and spent some time during the visits she did attend texting her friends or yelling at
the staff.
       {¶42} Moreover, both appellant's caseworker and H.M.’s guardian ad litem
opined that it was in H.M.’s best interest that the court grant her permanent custody
to appellee.
       {¶43} Based on these factors, we cannot conclude that the trial court abused
its discretion in granting permanent custody of H.M. to appellee.
       {¶44} For the reasons stated above, the trial court's judgment is hereby
affirmed. Counsel’s motion to withdraw is granted.

Vukovich, J., concurs.

Waite, P.J., concurs.
