dissenting. I dissent because the chancery court had no jurisdiction to enter its September 17, 1998, order terminating Betty Ann Parker’s parental rights to her four-year-old daughter, Megan.
This proceeding was initiated by Megan’s putative father, David Allen Sebourn. David filed a petition on March 24, 1998, alleging he had the sole care and custody of Megan and requesting an order terminating the parental relationship between Betty and Megan. David requested the court to appoint a guardian ad litem to represent Megan, pursuant to Ark. Code Ann. § 16-13-304 (1997).1 In March of 1998, David’s attorney obtained a waiver of service and entry of appearance from Betty, wherein she averred that she had no attorney and she was aware that she agreed to a complete and final order terminating her parental rights. In May of 1998, the chancery court purportedly appointed a guardian ad litem under § 16-13-304, and, on September 17, 1998, granted David’s petition terminating Betty’s parental rights to Megan, stating it was doing so based on Betty’s consent, an oral report of the attorney ad litem,2 and all other evidence.
On February 2, 2002, Betty moved to set aside the chancery court’s September 17, 1998 order, stating that David had never filed a paternity case giving the court jurisdiction to terminate parental rights. Betty argued that the court’s September 17 order was void and subject to collateral attack. Betty is exactly correct.
When David initiated his action in March of 1998, the chancery court was designated with the power to terminate parental rights in matters properly before it, and the court in such proceedings was required to appoint a guardian ad litem for the juvenile. See Ark. Code Ann. § 16-13-304(d)(l) and (2) (1997). However, the chancery court was given power to terminate parental rights only to the Department of Human Services (DHS) or a court-appointed attorney ad litem. See Ark. Code Ann. § 9-27-341 (a) (B), which expressly provides that such an action “shall not be available for private litigants or other agencies.”3
Here, neither the Department of Human Services nor an attorney (guardian) ad litem petitioned to terminate Betty’s parental rights — David did. Clearly, David was a private litigant who sought the termination of Betty’s rights, and the chancery court had no authority to award David such a remedy. Arkansas law, in particular § 9-27-341, is to be used to terminate parental rights only in cases when DHS is attempting to clear a juvenile for permanent placement. Thus, although the chancery court in this matter had statutory authority to terminate parental rights, it was required to do so under the terms provided by law. Here, the chancery court unquestionably exceeded its statutory authority. See State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001); Ark. Dep’t of Human Servs. v. State, 319 Ark. 749, 894 S.W.2d 592 (1995); see also Ark. Dep’t of Human Servs. v. Thomas, 71 Ark. App. 348, 33 S.W.3d 514 (2000).
Our court has the authority to grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Dawson, 343 at 693. That is the situation in the present case, and while this case comes to us on appeal, our court has the discretion to treat an appeal from an order, judgment, or decree which lacks judicial support as if it were brought up on certiorari. Id. Because jurisdiction is the power or authority of a court to hear a case on its merits, lack of subject-matter jurisdiction is a defense that may be raised at any time. Id. Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. State v. Circuit Court of Lincoln County, 336 Ark. 122, 984 S.W.2d 412 (1999).
In sum, the record now before our court clearly reflects the chancery court had no authority to award David the termination-of-parental-rights relief he sought in this case and, accordingly, a writ of certiorari should issue for this reason. See Arkansas Pub. Defender Comm’n v. Greene County Cir. Court, 343 Ark. 49, 32 S.W.3d 470 (2000) (a writ of certiorari granted where lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy); Pope v. Pope, 213 Ark. 321, 210 S.W.2d 319 (1948) (Jurisdiction is defined to be “the right to adjudicate concerning the subject matter in the given case. To constitute this there are three essentials. First, the court must have cognizance of the class of cases to which the one to be adjudged belongs. Second, the proper parties must be present. And third, the point decided must be, in substance and effect, within the issue. Howell v. Howell and Stevens v. Stevens, 213 Ark. 298, 208 S.W.2d 22 (1948).
In this case, David not only was (and is) unavailed of the statutory authority to initiate the termination of Betty’s parental rights to Megan, but also his action placed Megan in the precarious position of having no parent legally responsible for her support, health, safety, or welfare. Moreover, while DHS is statutorily obliged to clear a juvenile for permanent placement under § 9-27-341, DHS was never mentioned in this proceeding.
At the very least, this case should be remanded for the trial court to require compliance with the law that provides for a parent’s termination of parental rights, since that court had no authority to render such a remedy to a private litigant like David. Nor was DHS involved as is contemplated by Arkansas law. If David is interested in Megan’s welfare, as a putative father, he can certainly establish his paternity by filing suit under Ark. Code Ann. § 9-10-104 and 109 (Repl. 2002), and, after obtaining such a determination, have his support and custody obligation decided. Under all of the statutory laws mentioned above, Megan’s rights are very much in issue, and as I read Arkansas law, both Betty and David will likely have the legal responsibility to ensure Megan’s best interests and welfare will be met.
Because Megan is before the trial court, the court should direct that DHS be included in any following proceedings to ensure her best interests and welfare will be determined and protected. Although no court-appointed attorney ad litem has petitioned to terminate Betty’s parental rights in accordance with the requirements set out in § 9-27-341, the court should appoint an ad litem to represent Megan’s best interests. See Ark. Code Ann. § 9-27-316 (Repl. 2002).
In conclusion, the concurring opinion states that, under § 16-13-304(d)(l), the chancery court had authority to terminate parental rights, while only a juvenile court had such authority under § 9-27-341. That opinion reveals a misunderstanding of the statutory provisions involved.
Arkansas law only allows termination of parental rights in adoption cases under Ark. Code Ann. § 9-9-220 (Repl. 2002), and in dependent-neglect cases under § 9-27-341. Neither of these statutory procedures empower any courts — chancery, juvenile, or circuit — to award a putative father the relief to terminate the rights of the child’s mother.
Over the years, Arkansas laws, statutory and constitutional, have referred to chancery and juvenile courts as having authority to terminate parental rights, and, more recently, those courts under Amendment 80 to the Arkansas Constitution are now designated as circuit courts. Nonetheless, whatever nomenclature is used to identify our courts empowered to terminate parental rights, none has been endowed with the authority to grant a putative father, or other private litigant, the relief to terminate parental rights. Certainly, the case of Summers v. Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994), relied on by the concurring opinion is inapposite, since it is an adoption case involving a legal father.
Because the chancery court had no statutory authority to grant David the remedy to seek termination of Betty’s parental rights, that court’s September 17, 1998, order was void, and should be set aside.
Imber, J., joins this dissent.This section was amended in 2001, deleting paragraph (d).
In entering its order, the trial court used the term attorney ad litem for the first time.
The court of appeals noted the remedy under § 9-27-341 (a), as amended by Act 1227 of 1997, that the termination of parental rights is available only to DHS and a court-appointed guardian ad litem. See M. T. v. Arkansas Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997).