Cite as 2014 Ark. App. 734
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-722
Opinion Delivered December 17, 2014
TARA RUSSELL APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
V. [NO. JV-12-322]
ARKANSAS DEPARTMENT OF HONORABLE JIM SPEARS, JUDGE
HUMAN SERVICES and MINOR
CHILD
APPELLEES AFFIRMED
WAYMOND M. BROWN, Judge
The Sebastian County Circuit Court terminated appellant Tara Russell’s parental rights
to her minor child, T.R. Russell appeals the termination, arguing that the trial court lacked
jurisdiction to reopen a prior, closed dependency-neglect case. Alternatively, appellant argues
that the trial court erred by rejecting her request to voluntarily relinquish her parental rights.
We find no error and affirm.
The Arkansas Department of Human Services (DHS) became involved with the family
in May 2012 due to appellant’s drug use and her leaving the young child unattended for at
least two hours. Appellant successfully completed the case plan, and T.R. was returned to
appellant’s custody on June 14, 2013. The case was closed by an order filed on October 23,
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2013.1 Prior to the closure date, a no-contact order was put in place, preventing David
Russell, appellant’s then husband, from having contact with the child.2 DHS took emergency
custody of the child on November 15, 2013, after it became aware that David, who has true
findings for sexual and physical abuse, was in violation of the no-contact order. Additionally,
appellant tested positive for marijuana and admitted to smoking “pot.” DHS petitioned the
court for emergency custody on November 18, 2013.3 The court issued an ex parte order for
emergency custody that same day. T.R. was adjudicated dependent-neglected by an order
filed on February 28, 2014, due to parental unfitness and failure to protect. The court
established a goal of reunification with a concurrent plan of adoption.
DHS filed a petition for the termination of appellant’s parental rights on April 10,
2014, listing six separate grounds for termination. The termination hearing took place on
May 12, 2014. At the start of the hearing, appellant’s attorney informed the court that
appellant had decided to consent to the termination because she could not handle the anxiety
and that he would get the consent prepared for appellant.4 However, counsel agreed to
proceed with the hearing.
Nicole Simon of DHS testified that the department was seeking an involuntary
termination because appellant “doesn’t really want to give [up] her parental rights. It
1
The actual closure date was September 9, 2013.
2
DNA testing revealed that David was not T.R.’s biological father.
3
This petition and the orders that followed were filed under the case number of the
closed case.
4
Appellant did not attend the termination hearing.
2
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wouldn’t be a voluntary termination for her. It would basically be a coerced termination.”
She further stated that a voluntary termination was “not a genuine decision. It’s just the facts
are not in her favor.” Appellant’s counsel objected to this testimony and the court sustained
the objection. However, the court stated that it had already surmised that this would be an
involuntary termination.
Counsel argued that appellant “just wanted the dignity of knowing that she did what
she thought was best for her child, and that’s why she decided to do a consent.” The court
responded that based on appellant’s past credibility and the circumstances of the case, the
termination was going to be involuntary. According to the court, appellant had “squandered
whatever positive she may have gained by her efforts [due to] her untruthfulness and her
inability to follow through.” The termination order was filed on May 28, 2014. This timely
appeal followed.
Appellant does not challenge the statutory grounds for termination. Instead, citing
Young v. Arkansas Department of Human Services,5 appellant argues that the trial court was
without jurisdiction to reopen the prior closed case and thus, the resulting termination order
is null and void. In Young,6 appellant filed a petition for a change in custody after her child,
S.S., had been placed in the permanent custody of Tim and Danielle Sexton. The prior
dependency-neglect case was reopened to address the custody matter. Our supreme court
held that a circuit court may not reopen a closed dependency-neglect case because once that
5
2012 Ark. 334 (where a dependency-neglect case was reopened for an action
under child-custody law).
6
Id.
3
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case is closed, the child is no longer dependent-neglected. However, the court also held that
the circuit court had jurisdiction to hear the custody case even though it was outside the
subject of proceedings in the juvenile division because circuit courts are the trial courts of
general jurisdiction. Unlike the situation in Young, this case concerns a subsequent
dependency-neglect proceeding, not a custody issue.
Subject-matter jurisdiction is a court’s authority to hear and decide a particular type
of case.7 A court lacks subject-matter jurisdiction if it cannot hear a matter under any
circumstances and is wholly incompetent to grant the relief sought.8 The question of
subject-matter jurisdiction is always open for review, cannot be waived, can be questioned
for the first time on appeal, and can even be raised by the appellate court.9
Here, the circuit court had the authority to hear the petition for termination. Circuit
courts are established as the trial courts of original jurisdiction of all justiciable matters not
otherwise assigned.10 Under Administrative Order No. 14, the creation of divisions shall in
no way limit the powers and duties of the judges to hear all matters within the jurisdiction of
the circuit court. Accordingly, we conclude that the circuit court had subject-matter
jurisdiction. Any other alleged error regarding the reopening of the closed dependency-
neglect case is not properly before us. Appellant failed to raise any argument concerning the
7
Tripcony v. Ark. Sch. for Deaf, 2012 Ark. 188, 403 S.W.3d 559.
8
Id.
9
Duffy v. Little, 2011 Ark. 160.
10
Ark. Const. amend. 80, § 6(A); Young, supra.
4
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reopening of the closed case to the circuit court. It is well established that an appellant must
raise an issue and make an argument to the circuit court for it to be preserved on appeal.11
Alternatively, appellant argues that the circuit court abused its discretion when it
refused to allow her to execute a consent to termination. Citing Rhine v. Arkansas Department
of Human Services,12 appellant contends that by allowing her to voluntarily terminate her
parental rights, T.R. would have received permanency and stability much sooner. In Rhine,13
this court held that it was error for the circuit court to deny Rhine a continuance so that
Rhine could execute a consent in order for her mother to adopt the child in question. Here,
there was no one waiting to adopt T.R. Additionally, appellant was not present at the
hearing to execute a consent or to express her intent to do so.
Consent operates as a ground for termination under our Juvenile Code.14 A parent
may consent to termination of parental rights, subject to the court’s approval.15 Consent does
not, however, carry the same onus as involuntary termination where a parent still has other
children in his or her custody.16 Only a prior involuntary termination of parental rights in
11
See Sanderson v. Ark. Dep’t of Human Servs, 2012 Ark. App. 481.
12
101 Ark. App. 370, 278 S.W.3d 118 (2008).
13
Id.
14
Ark. Code Ann. § 9-27-341(b)(3)(v)(a) (Supp. 2013).
15
Id.
16
Jordan v. Ark. Dep’t of Human Servs, 2011 Ark. App. 592.
5
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one child serves as a ground to terminate a parent’s rights in another child.17 For that reason,
the involuntary termination of appellant’s parental rights in this case may have future
implications that voluntary termination may not.18
The facts of this case are more akin to Jordan.19 In Jordan, the circuit court refused
Jordan’s request to execute a consent on the grounds that the case had already been continued
once, that the hearing had been set for a month, and that Jordan had been afforded ample
time in which to consent to the termination but appeared ambivalent to do so. Our court
affirmed the circuit court, holding that Jordan offered no concrete intention of consenting to
termination and that she seemed to condition her consent on the outcome of the hearing.
Here, appellant was not present at the hearing to even voice her intent to consent; however,
the court heard evidence from Simon that appellant was not genuine. Additionally, the court
had already concluded that the case would be an involuntary termination based on appellant’s
credibility and the circumstances of the case. We cannot say that the trial court abused its
discretion by going forward with a decision based on the evidence presented at the
termination hearing. Therefore, we affirm.
Affirmed.
HARRISON and VAUGHT, JJ., agree.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
Tabitha Baertels McNulty, Office of Policy & Legal Services; and Chrestman Group,
PLLC, by: Keith Chrestman, for appellees.
17
Id. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) (Supp. 2013).
18
Jordan, supra.
19
Supra.
6