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 Youngbl ood 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 Anders 2 brief wherein he certified that, after diligently searching the record, he has concl uded that the appeal is without merit. Along with his brief, appellate counsel has attac hed 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).2 court also informed appellant of her right to tender her ow n 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 t hat 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, out side of the fifteen days required by statute. See T EX
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. §263.405(b)(2) (Vernon 2008). T herefore, any error that could be reviewed allegedly was waived. Appellate counsel , then, discussed the legal and factual sufficiency of the evidence to support the tria l court's statutory fi ndings resulting in termination and the effectivene ss 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 decisi on stating an “ineffe ctive 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 coun sel determines appellant received effective assistance of counsel even though issues we re waived because trial counsel failed to timely file a motion for new tria l 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 appoint ment of new counsel. The trial court shall further order the newly a ppointed counsel to file an appellant’s brief, as per the Texas Rules of Appellate Procedure, develop ing 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 deadline3 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 th irty days after the filing of appellant’s brief. Finally, the trial court shall cause the name, address, and state bar number of the newly appoi nted counsel to be included in a supplemental clerk’s record, which record shall be filed with the cl erk of the court by August 1, 2011.
Per Curiam