                                                                  NO. 07-10-0477-CV

                                                               IN THE COURT OF APPEALS

                                               FOR THE SEVENTH DISTRICT OF TEXAS

                                                                     AT AMARILLO

                                                                        PANEL E

                                                                      JULY 7, 2011

                                                          ______________________________

                                                                  In the Interest of B.Y.,

                                                                                        A Child

                                                          ___________________________

                          FROM THE 100TH DISTRICT COURT OF DONLEY COUNTY;

                         NO. DFC-09-06665; HON. PHIL N. VANDERPOOL, PRESIDING

                                                        _______________________________

                                                  Order for Appointment of New Counsel

                                                        _______________________________

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1

              Appellant Latazha Youngblood Sanchez had her parental rights to B.Y.

terminated and has appealed from that order.                                          Her appointed counsel has filed a

motion to withdraw, together with an Anders2 brief wherein he certified that, after

diligently searching the record, he has concluded that the appeal is without merit. Along

with his brief, appellate counsel has attached a copy of a letter sent to appellant

informing her of her right to file a response pro se. By letter dated April 19, 2011, this



                                                            
              1
                  John T. Boyd, Senior Justice retired, sitting by assignment. 
 
              2
                  Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 
court also informed appellant of her right to tender her own response and set May 19,

2011, as the deadline to do so. Appellant filed a response on May 18, 2011.


       Appellate counsel has noted in his brief that the termination order was signed on

October 28, 2010, and that the statement of appellate issues was filed by trial counsel

on November 15, 2010, outside of the fifteen days required by statute. See TEX. FAM.

CODE ANN. §263.405(b)(2) (Vernon 2008). Therefore, any error that could be reviewed

allegedly was waived.      Appellate counsel, then, discussed the legal and factual

sufficiency of the evidence to support the trial court's statutory findings resulting in

termination and the effectiveness of trial counsel.


       In In the Interest of J.O.A., 283 S.W.3d 336, 347 (Tex. 2009), the Texas

Supreme Court affirmed this court’s decision stating an “ineffective assistance of

counsel claim raises due process concerns and that section 263.405(i) of the Family

Code is unconstitutional to the extent it prevents a court from considering those claims.”

We find it problematic when appellate counsel determines appellant received effective

assistance of counsel even though issues were waived because trial counsel failed to

timely file a motion for new trial or statement of points on appeal.


       Accordingly, the motion to withdraw of appellate counsel is granted, and the

cause is abated and remanded to the trial court for the appointment of new counsel.

The trial court shall further order the newly appointed counsel to file an appellant’s brief,

as per the Texas Rules of Appellate Procedure, developing the aforementioned ground

pertaining to the effectiveness of counsel per In the Interest of J.O.A., supra, and all

other grounds that might support reversal or modification of the judgment. The deadline


                                             2 
 
for filing appellant’s brief with the clerk of this court is August 30, 2011. Any responding

brief which the State wishes to file shall be filed within thirty days after the filing of

appellant’s brief. Finally, the trial court shall cause the name, address, and state bar

number of the newly appointed counsel to be included in a supplemental clerk’s record,

which record shall be filed with the clerk of the court by August 1, 2011.


                                          Per Curiam




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