dissenting on rehearing.
The Concurring Opinion issued August 12, 2007 is withdrawn and this Dissenting Opinion On Rehearing is substituted in its place.
On August 15, 2007, the three members of this court, sitting as the panel, issued four opinions to dispose of this appeal. The Per Curiam Opinion, supported by two concurring opinions, affirmed the judgment of the trial court which ordered termination of the parental rights of the biological mother of D.M. and W.M. I was the author of one of the concurring opinions and Justice Reyna authored the other. Justice Vance authored a dissenting opinion.
In my concurring opinion I noted that I would vote to affirm the judgment only because it functionally reached the same result as a dismissal because we had no jurisdiction. And as I also previously stated, if I had voted to dismiss, Justice Reyna had voted to affirm, and Justice Vance had voted to reverse, there would have been no result supported by a majority vote. As I also pointed out in my concurring opinion, if Justice Vance would consider the merits of the due process argument and determine that it should be overruled (or if sustained, that the underlying issue should be overruled), he could then have cast the second direct vote to affirm the trial court judgment. Because he has now done that, I no longer need to modify my vote for the Court to reach a judgment in the proceeding supported by a majority of the vote. Accordingly I withdraw my concurring opinion issued August 12, 2007. I issue this dissenting opinion as my only opinion in this proceeding. The judgment of the court issued on August 12, 2007 is now supported by a majority vote, as it should have been before, by the votes of Justices Reyna and Vance. Indeed the only operative opinions in this proceeding are the Opinion On Rehearing and this Dissenting Opinion on Rehearing.
Jurisdiction
Notice of appeal of a judgment which terminates the parent-child relationship, as an accelerated appeal, Tex. Fam.Code Ann. §§ 109.002(a), 263.405(a) (Vernon 2002 & Supp.2007), must be given within 20 days of the date of the judgment. Tex.R.App. P. 26.1(b). While a late filed notice implies a motion for extension of time, Verburgt v. Domer, 959 S.W.2d 615, 616-617 (Tex.1997), a reasonable explanation for the late filing must still be provided. Id.; In the Interest of B.G., 104 S.W.3d 565, 567 (Tex.App.-Waco 2002, no pet.) (reasonable explanation given); see In the Interest of K.A.J., No. 10-07-00110-CV, 2007 WL 1704815, *1, 2007 Tex.App. LEXIS 4629, *1-2 (Tex.App.-Waco June 13, 2007, no pet.) (mem. op.) (no reasonable explanation given; appeal dismissed); In the Interest *418of A.L.B., 56 S.W.3d 651, 652 (Tex.App.Waco 2001, no pet.) (same).
In this appeal, the notice was filed late but, because it was filed within 15 days of the due date, a motion for extension was properly implied. The explanation provided for the late filing is that the attorney was not advised of the client’s desire to appeal until the date the notice was filed, whereupon the notice was immediately prepared and filed. The full text of the “explanation” is attached as an appendix. A close reading will disclose that the entire explanation, other than a generic reference about parties not generally understanding deadlines, a “problem” that is not at all common in my experience, is based on the date the client communicated the desire to appeal to the attorney, and does not in any way try to explain or account for why the decision to appeal was not made at an earlier date. I do not find this explanation a reasonable explanation for late filing.1
The purpose of the deadline is to require a decision regarding appeal and pursuit of it within the time period provided. The extension is not to simply allow more time to make the decision. If some event had occurred which had delayed the ability to make the decision, the communication of the decision to the attorney, or the attorney’s preparation and filing of the notice of appeal, a description of that event may suffice as a reasonable explanation. But we have none of that. All we have is that the notice of appeal was filed on the date the decision to appeal was communicated to the attorney. That date was late for the filing of the notice of appeal. Accordingly, I would dismiss this appeal because the late notice of appeal does not invoke our appellate jurisdiction.2
To accept the explanation given as reasonable is to give any party an extension of time in which to file the notice of appeal just because they are tardy in communicating their desire to appeal to their attorney. I cannot accept this as a reasonable explanation for the late filing. We have been provided no explanation of what the client thought or knew about her appellate rights. Because the strong presumption is that counsel was effective and there is nothing in this record to indicate otherwise, we should presume that trial counsel had communicated the client’s appellate rights to her and communicated to her the deadlines and the effect of missing those deadlines. We have been provided no ex*419planation that would rebut the presumption or that would indicate the delay was anything other than deliberate or intentional noncompliance because we have no explanation of what went on as to anything in connection with this proceeding between the date of the judgment and the date the notice of appeal was filed. The majority’s holding means that no matter what the party’s trial attorney told the client, no matter what the trial court told the client, and no matter what the client might otherwise know or have been advised about the deadline, the delay is still reasonable because any delay until the client communicates the decision to appeal to the attorney apparently does not have to be explained and the explanation that the notice of appeal was filed the day the client told the attorney to pursue an appeal is therefore reasonable.
My Vote and The Judgment
If we have jurisdiction, and we do not, if we considered her due process issue, which we could if we had jurisdiction, and if we sustained her due process issue, which we should not, we would then have to decide the merits of her sole issue which is: the trial court erred in failing to extend the final disposition date for 180 days (so that she could have another six months in which to bring herself into compliance with the service plans which she had failed to do during the twelve months prior to the requested extension). And there is nothing, however, to be achieved by further delay in this already tardy disposition of a termination proceeding by me conducting a full-blown discussion and analysis of the argument and authorities cited by the parties and now by the majority. It is sufficient to state that, after careful consideration of the issue, as ably presented and argued in the briefs of the parties, I would overrule the sole issue and affirm the trial court’s judgment — if I ever reached this point in the analysis.
Because I have determined we have no jurisdiction for the reasons stated, I would dismiss this proceeding. Because there is now, on rehearing, a majority to directly vote to affirm the judgment of the trial court, and I would vote to dismiss the proceeding because we have no jurisdiction, I can now properly record my vote as a dissent.
APPENDIX
LETTER IN RESPONSE TO THE COURT’S INQUIRY
January 15, 2007
Tenth Court of Appeals
Sharri Roessler, Clerk
McLennan County Courthouse
501 Washington Ave., Rm 415
Waco, Texas 76701
Re: In the Interest of D.M. and W.M., Children; 10-06-407-CV; 2005-3801-3 Dear Ms. Roessler,
This letter is in response to the Tenth Court’s letter to me dated January 5, 2007. Background,
The history of the present case with pertinent deadlines is:
11-7-06 Final Order of Termination signed (2 CR 248); Final Order filed-marked on 11-21-06 (2 CR 248)
11-22-06 deadline for filing Points of Appeal (Family Code sec. 263.405(b))
11-27-06 deadline for filing Notice of Appeal (TRAP 26.1(b))
12-8-06 trial counsel informed of Respondent’s desire to appeal (2 CR 256; copy attached)
12-8-06 Notice of Appeal filed-marked; request for appointment of appellate counsel (2 CR 254)
*42012-12-06 end of 15-day extension period for filing Notice of Appeal (TRAP 26.8)
12-13-06 Order signed appointing Richard Ferguson as appellate counsel (2 CR 263); Order filed-marked on 12-15-06 (2 CR 263)
The Notice of Appeal was filed within the 15-day extension period. The Points of Appeal, however, were not filed.
Late-Filed Notice of Appeal
The Respondent/Appellant, biological mom Rhonda Moncrief, did not inform trial counsel, Galen Edwards, of her desire to appeal until Friday afternoon, December 8, 2006. 2 CR 256; copy attached. Mr. Edwards immediately drafted a Notice of Appeal and filed it that same day (2 CR 258), and moved the trial court that same day to appoint appellate counsel. 2 CR 256. Thus the reason for the delay in filing the Notice was the fact that the Respondent did not inform trial counsel to appeal until December 8, 2006. It is not unusual for a party to not understand the importance of deadlines in legal proceedings. Once trial counsel became aware that an appeal was desired, he filed for it at once, still within the extension period. Thus this delay is excusable.
Points of Appeal Not Filed
As for the non-filing of the Points of Appeal, again, trial counsel was not informed of Respondent’s desire to appeal until well after the deadline had expired. Trial counsel, who does not do appellate work (2 CR 256), immediately moved for the appointment of appellate counsel, but that did not occur until five days later. 2 CR 263. Appointed appellate counsel had no knowledge of the proceedings in the trial court on which to determine Points of Appeal, not to mention the fact that he was not appointed until twenty-one days after the Points were supposed to be filed.
The Family Code apparently does not contemplate a set of circumstances like these. These circumstances make it a practical impossibility for the filing of the Points, and the statutory procedures deny the Respondent/Appellant due process, because she is denied the same appellate rights and opportunities as other litigants. This problem has been recognized by this Court, e.g., In the Interest of E.A.R., 201 S.W.3d 813 (Tex.App.-Waco 2006) (Vance, B. concurring).
In addition, and alternatively, Subsection 263.405(b) and (i) are not jurisdictional. See In the Interest of S.J.G., 124 S.W.3d 237, 240, 243 (Tex.App.-Fort Worth 2003). Rather, they operate more like preservation-of-complaint rules. Those rules, however, have exceptions for fundamental errors. In the Interest of J.F.C., 96 S.W.3d 256, 286 et seq. and n. 1 (Tex.2002) (referencing numerous examples of fundamental error). Thus, in addition to the due process argument, any fundamental errors that occurred in the trial court are appealable even without their inclusion in Points of Appeal.
In summary, in the interest of due process, the necessity of filing of Points of Appeal in the present case should be waived. In addition, any fundamental errors should be allowed to be raised. Sincerely,
/&/
Richard G. Ferguson
. The client’s late notice to her attorney of her desire to pursue the appeal is consistent with the apparent lack of interest in doing what was necessary to prevent the termination of her parental rights as disclosed by the record in this proceeding.
. On the merits of the due process argument she does not prevail for the same reasons we have no jurisdiction. It was not that she did not have a procedure to use, that the procedure was unworkable on the facts of this case, or that she did not have the effective assistance of counsel to assist her. The reason no statement of points was timely completed was because a decision to challenge the trial court’s judgment was not timely made and communicated to her attorney. She has not raised, identified, or presented any reason why she could not have decided to appeal, communicated that decision, and have had the statement of points prepared and filed within the 15 day period. Therefore, while her new attorney and the majority want to focus on what allegedly was wrong in the timing of the hand-off between the trial and appellate attorney, I would focus on the failure of the client to timely implement the process that was available and adequate, rather than hold that the process as applied was inadequate to meet minimum due process requirements. Further, there is no explanation at all given for the total failure to ever file the statement of points by the appointed appellate attorney. Inability to file the statement of points timely, even if the late filing is excused by a due process violation, is not an excuse for the complete failure to file it.