dissenting. The majority opinion tice, circuit court established by Amendment 80 to our constitution does not have jurisdiction to terminate the parental rights of Mr. Hudson, who is not the biological or adoptive father of the child, K.H. Mr. Hudson’s only relationship to K.H.1 is based on the fact that for a short time, more than a year after the child was born, Mr. Hudson was married to the child’s mother, and that the decree of divorce referred to him as the child’s father.2
The trial court heard evidence that the brief marriage of Mr. Hudson to Ms. Kyle was violent, with physical attacks by Mr. Hudson sending his wife to the hospital for an extended period of time before she filed for divorce. Further, the trial court found that Mr. Hudson’s relationship with the child was abusive. The trial court quoted with approval evidence that K.H. had been sexually abused by Mr. Hudson and found that the best interest of the child required termination of Mr. Hudson’s parental rights.
Exercising its jurisdiction over the divorce decree handed down in 1997, the trial court set aside provisions of that divorce decree relating to paternity rights and responsibilities. Specifically, the trial court ordered that provisions of the divorce decree imposing upon Mr. Hudson an obligation to pay child support be set aside, and ruled that Mr. Hudson owes no further duty of support to K.H. This exercise of jurisdiction to modify the 1997' divorce decree is not challenged.3
Mr. Hudson now appeals the order of the trial court in a one-brief appeal. We need not speculate as to why the prevailing parties did not brief the issue on appeal, but it seems that a good brief might have helped avoid today’s untenable holding by the majority, from which I most respectfully dissent.
Mr. Hudson’s first point on appeal is that the trial court lacked jurisdiction to terminate his parental rights, and the majority writes, “[W]e agree that the trial court had no jurisdiction to terminate Mr. Hudson’s parental rights . . . [.]” Further, we are told by the majority that, notwithstanding the fact that a circuit court has all jurisdiction formerly invested by the constitution and laws of Arkansas in circuit, chancery, probate, and juvenile courts, as well as part of the constitutional jurisdiction formerly assigned to county courts over juvenile and illegitimacy proceedings, that this circuit court does not have jurisdiction to terminate parental rights of a noncustodial, non-biological, and nonadoptive father in the best interest of the child.
The majority also proceeds sua sponte to reach out and overrule a decision of our court of appeals’ holding in Office of Child Support Enforcement v. Lawrence, 57 Ark. App. 300, 944 S.W.2d 566 (1997), which provides:
[T]he authority to terminate parental rights is specifically granted to the juvenile and probate courts. See Ark. Code Ann. §§ 9-9-220, 9-27-341 (1987). However, in the context of a divorce, where child custody is at issue, the chancellor is vested with broad discretion to make decisions that are in the best interests of the minor child. See Ark. Code Ann. § 9-13-101 (1987).
Lawrence, supra.
This eminently correct statement of law by the court of appeals falls victim to the confusion attending this one-brief appeal. Presumably the majority’s opinion will also require reversal of our decision in Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999), where Patterson, the father, filed a petition for change in custody, and in response, Judkins, the mother, filed a petition for paternity testing to determine that Patterson was not the biological father of the child. We held: “The chancery court had exclusive jurisdiction under § 9-10-101(a)(2) to determine the issue of paternity.” Id. We reversed the decision to the contrary by the juvenile court. Id. Regardless of the disposition of that case, it is beyond question that the circuit court does indeed have jurisdiction to determine the matter.
The majority may also be required to overturn our decision in Parker v. Sebourn, 351 Ark. 453, 95 S.W.3d 762 (2003), handed down less than á month ago where we held that a chancery court had subject-matter jurisdiction to terminate parental rights of a biological mother to her own child. Id.
The crux of the argument in Parker, supra, was whether jurisdiction was in the chancery court or in the juvenile court. It was not disputed that subject-matter jurisdiction was in one or the other of those two courts. Id.4 It is clear that the jurisdiction of both these courts, as well as that of the probate court and the circuit courts, are now conferred by Amendment 80 upon the circuit court in .the case under advisement.
We only need look to our constitution to become informed about jurisdiction. Section 6(a) of Amendment 80 confers upon circuit courts “jurisdiction of all justiciable matters not otherwise assigned pursuant to the constitution.” Amendment 80, section 6(a). Section 19(B) of Amendment 80 confers “to circuit courts jurisdiction over all matters previously cognizable by circuit, chancery, probate, and juvenile courts” and other related provisions.
I am bewildered by the majority’s holding that issues of paternity and the termination of parental rights are not justiciable matters assigned to the circuit court by the constitution. If this constitutional grant of jurisdiction requires statutory language to become effective, plenty can be found, and perhaps would have been cited if we had the other side of the issue briefed in the matter before us.
For example, Ark. Code Ann. § 16-13-304 confirms jurisdiction in chancery (now circuit) courts and provides in pertinent part:
(a) Chancery court shall have original jurisdiction in all matters in equity as fully as that exercised by the circuit courts of this state in counties where no separate chancery courts have been established prior to April 27, 1903.
(b) Notwithstanding the provisions of the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., or any other enactment which might be interpreted otherwise, the chancery court or any division of chancery court shall have jurisdiction for all cases and matters relating to paternity.
Id. (emphasis added). This statute resonates with Amendment 80’s grant of jurisdiction for the trial court to hear paternity cases.5
Turning to other statutory resonance with the constitutional grant of jurisdiction, it is notable that Arkansas Code Annotated § 9-9-220 (c) (Repl. 2002), relating to adoption, provides in pertinent part:
(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:
(3) The court may terminate parental rights of the non-custodial parent upon a showing that:
(ii) It would be in the best interest of the child to terminate the parental relationship.
Id. (emphasis added).
It should-be noted that this grant of jurisdiction does not depend upon the pendency of an adoption proceeding. Arkansas Code Annotated § 9-9-220(a) states in pertinent part that “parental rightfs] to control the child or to withhold consent to an adoption may be relinquished and the relationship of parent and child terminated in or prior to an adoption proceeding as provided in this section.” Id. (emphasis added). The plain language of the statute provides jurisdiction for termination of parental rights before an adoption proceeding commences.
Not only does the circuit court have authority to determine parental rights under Ark. Code Ann. § 16-13-304(b) and under Ark. Code Ann. § 9-9-220(c), the circuit court has jurisdiction to terminate parental rights as provided by Ark. Code Ann. § 9-10-115(d). We held in Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998):
By its terms, § 9-10-115(d) (Supp. 1995) directs the chancellor, upon scientific proof that the “adjudicated or presumed father” is not the “biological father,” to do the following two things: (1) set aside a previous finding of paternity, and (2) “relieve the adjudicated or presumed father of any future obligation of support or any back child support as authorized under § 9-14-234 as of the date of entry of the order of modification.” Thus, an “adjudicated father” who proves that he is not the “biological father” may receive two forms of relief. He is entitled to have the paternity judgment set aside and to be relieved of future child-support obligations.
Littles, supra (emphasis supplied).
As previously stated, it is not clear whether the results of DNA testing establishing that Mr. Hudson is not the biological parent of K.H. have ever been considered by the court. It remains unclear from the record in this one-brief case what principles of law or statutory authority the trial court relied upon. But while the abstract and brief before us do not disclose the basis upon which the trial court proceeded, no adequate showing was made that the trial court lacked jurisdiction to make a decision.
In the matter before us, the trial court was reviewing a divorce decree, as it had jurisdiction to do, and it set aside the provisions of the divorce decree relating to child support. It noted the existence of Ark. Code Ann. § 9-10-115(d)(l) that provides in pertinent part that
a person may challenge a paternity establishment pursuant to a voluntary acknowledgment of paternity or an order based on an acknowledgment of paternity only upon an allegation of fraud, duress, or material mistake of fact.
Id.
Notwithstanding whether the trial court based its order setting aside provisions of the divorce decree upon Ark. Code Ann. § 9-10-115(d)(1), the trial court determined that there was no proof of duress. However, that finding did not deprive the trial court of jurisdiction. Indeed the trial court exercised its jurisdiction in setting aside portions of the divorce decree. The trial court was also appraised that an effort to adopt K.H. had been frustrated by Mr. Hudson’s refusal to consent, and the trial court clearly had jurisdiction to inquire further into the showing of the DNA evidence. For the purpose of determining jurisdiction, it does not matter whether the trial court correctly or incorrectly interpreted the statutes, or correctly weighed the evidence. It is clear to me that the trial court had jurisdiction of the subject matter of paternity rights.
Mr. Hudson does not make an argument that the trial court lacked jurisdiction because there was no grant of jurisdiction by our constitution. He cites no authority for such a proposition, and presents no persuasive argument. Neither does Mr. Hudson address the issue whether the circuit court has jurisdiction formerly accorded to juvenile and probate courts. His contention is predicated upon the incorrect assumption that the only possible source of jurisdiction was that granted to DHS under the provisions of Ark. Code Ann. § 9-27-341, which does not confer jurisdiction to terminate parental rights upon private litigants. However, no one contends that the trial court relied upon that statute for jurisdiction or that the trial court acted under that statute.
Mr. Hudson did not address the question whether the trial court had jurisdiction pursuant to other laws. In a departure from precedent, the majority proceeds to review issues and statutes not raised by appellant below or in his brief in order to reverse the trial court. I cannot agree with this procedure or with the result.
I respectfully dissent. I am authorized to state that Chief Justice Arnold joins in this dissent.A DNA test of K.H. and Mr. Hudson excluded Mr. Hudson as K.H/s parent. The test was performed before the marriage.
There is no showing that the trial court granting the divorce was cognizant of the results of the DNA test.
The majority asserts that the trial court did not exercise its jurisdiction to modify the 1977 divorce decree, and claims that the dissent is in error in stating that the trial court “set aside” provisions of that divorce decree.
The trial court order reads in pertinent part as follows:
3. The previous Court’s orders with regard to Defendant’s obligation to pay child support to Plaintiff are hereby withdrawn, and Defendant owes no further duty of support as to [K.H.].
The majority contends that the trial court’s modification of the earlier divorce decree by ordering that appellant’s obligations to pay child support “are hereby withdrawn” is different fiom setting aside such obligations.
The fine distinction between withdrawing an order and setting it aside eludes me. Both require the exercise of jurisdiction over the previous divorce decree.
The statutory basis upon which Parker, supra was decided has been replaced by Ark. Code Ann. § 16-13-304(b) (Supp. 2001), which is set out below.
On March 28, 2001, a later section of this statute expressing limitations upon the exercise of authority to terminate parental rights, as set out in subparagraph (d), was repealed. The repealing statute did not address the grant of jurisdiction to decide issues relating to paternity as set out in Ark. Code Ann. § 16-13-304(b).