                                  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,
                                  Cite as 2014 Ark. App. 734

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.

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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.

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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.

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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.

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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.

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