concurring. I concur in the judgment reached by the majority that Appellant Betty Ann Parker’s challenge to the order terminating her parental rights is untimely. At the time of the termination in this case, Ark. Code Ann. § 16-13-304(d) (Repl. 1999) provided chancery courts with concurrent jurisdiction to hear termination cases; however, where the parties to the chancery court proceedings are also parties to a juvenile proceeding, the juvenile court has exclusive jurisdiction. Because chancery’s jurisdiction over termination cases is concurrent, Parker’s challenge to the court’s subject-matter jurisdiction brought some four years after the fact is barred.
It is well settled that subject-matter jurisdiction may not be stipulated by the parties and, “if lacking, cannot be induced simply because there is no objection.” J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352, 836 S.W.2d 853, 858 (1992). However, that general rule applies only where jurisdiction does not exist under any circumstances. Id. (citing Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984)). In Crittenden County, this court explained:
It is true our cases hold that since jurisdiction of the subject matter cannot be conferred by consent of the parties, the absence of an objection on that basis is not ordinarily fatal. However, it must be said the rule applies only in those instances where such jurisdiction could not, under any circumstances, exist.
Id. at 291, 675 S.W.2d at 633 (citations omitted) (emphasis added). See also Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985). Because section 16-13-304(d) gave chancery courts concurrent jurisdiction to hear termination cases, it cannot be said that the chancery court in this case lacked subject-matter jurisdiction under any circumstances. Accordingly, Parker may not raise this issue for the first time some four years after the fact.
Moreover, I agree with the majority that under Ark. R. Civ. P. 60, Parker was required to file her motion to set aside the order of termination within ninety days from the date that the order was entered. Rule 60(a) provides that the trial court may modify or vacate an order within ninety days of the date that the order is entered. The only exceptions to the ninety-day limit are set out in provisions (b) and (c) of the rule. Provision (b) provides that, after the ninety-day deadline, a court only has jurisdiction to correct clerical errors, while provision (c) enumerates seven different grounds, including fraud and newly discovered evidence, by which a court may set aside or modify a judgment. See also Blackwood v. Floyd, 342 Ark. 498, 29 S.W.3d 694 (2000). None of the seven grounds listed in provision (c) involve an allegation of improper exercise of concurrent subject-matter jurisdiction. As such, under the plain language of Rule 60, the trial court in this case lost the power to vacate the termination order ninety days after it was entered.
A similar issue was considered by this court in Summers v. Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994), cert. denied, 514 U.S. 1065 (1995). There, the father filed a motion to set aside an adoption decree, which was entered four years earlier, on the ground that the probate court lacked subject-matter jurisdiction. This court held that the motion was barred under both Ark. Code Ann. § 9-9-216 (Repl. 1993) (prohibiting any attack on an adoption decree after the expiration of one year) and Rule 60. This court held: “In addition, Summers did not allege that extrinsic fraud occurred which is required in these circumstances in order to vacate or modify a decree which had been entered for more than ninety days. Rule 60(c)(4).” Id. at 406, 878 S.W.2d at 402.
In sum, at the time of the termination in this case, the legislature had specifically empowered chancery courts to hear and determine cases involving a termination of parental rights. Section 16-13-304(d)(l) specifically provided that chancery courts “shall have the power to terminate parental rights in matters properly before the chancery court,” unless the parties to the termination action are also parties to an action in the juvenile division of chancery court, in which case the juvenile court shall have exclusive jurisdiction. Given this concurrent jurisdiction, it cannot be said that the chancery court is ever wholly lacking in subject-matter jurisdiction over termination cases. As such, Parker was required to raise any objection of jurisdiction in the trial court either before the order of termination was entered or, at a minimum, within ninety days from the date it was entered, as provided in Rule 60. Because she failed to do so, I agree with the majority that her argument is now barred.
I disagree with the dissent that under section 16-13-304(d) the chancery court may only terminate parental rights in favor of DHS or a court-appointed attorney ad litem, regardless of whether there is another parent willing and available to take sole custody of the child. The dissent relies on Ark. Code Ann. § 9-27-341 (Repl. 2002), which provides in pertinent part:
(a)(1)(A) This section shall be a remedy available only to the Department of Human Services or a court-appointed attorney ad litem.
(B) It shall not be available for private litigants or other agencies.
(2) It shall he used only in such cases when the department is attempting to clear a juvenile for permanent placement.
(3) The intent of this section is to provide permanency in a juvenile’s life in all instances where the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. [Emphasis added.]
This section is part of the Juvenile Code and only applies when the termination proceeding is before the juvenile division of chancery court. Because the present case was not before the juvenile court, this section is not applicable.
From my reading, this section provides a remedy available to DHS when a child has been removed from the home, z'.e., as a result of the filing of a family-in-need-of-services (FINS) petition, and DHS is attempting to permanently place the child, z'.e., somewhere other than a foster home. It does not govern termination proceedings brought in the chancery court. For example, this statute would not govern a divorce proceeding in chancery court where one of the parents wished to terminate his or her rights in favor of the other parent. In such a situation, DHS simply would not be involved.
Practically speaking, however, I share the concern expressed by the dissent that Appellee David Sebourn has not legally been determined to be Megan’s natural father or otherwise been appointed as her legal guardian. In this respect, I encourage Parker to file a petition to establish paternity of the child. Arkansas Code Annotated § 9-10-102(b) (Repl. 2002) provides that an action brought in this state “to establish paternity may be brought at any time.” See also Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995). Parker, as the child’s biological mother, may petition for a paternity determination under Ark. Code Ann. § 9-10-104(1) (Repl. 2002). The fact that her parental rights have been legally terminated does not alter the fact that she is Megan’s biological mother. As such, I believe that she may file a petition in the trial court seeking a legal determination that Sebourn is Megan’s natural father and thereby responsible for Megan’s support.