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State12/2/2004
For Official Publication
D.P.A. appeals the juvenile court's order terminating his parental rights. We affirm.
BACKGROUND
On June 11, 2002, D.P.A. drove his vehicle in a reckless manner, causing the vehicle to overturn. D.P.A.'s pregnant wife, who was a passenger in the vehicle, and her unborn child were killed as a result of the rollover. D.P.A.'s minor children, W.P.O. and E.P.O., were also passengers in the vehicle and were seriously injured after being ejected from the vehicle during the rollover. As a result of the rollover, D.P.A. was convicted of automobile homicide, driving under the influence of alcohol, child abuse and neglect, and an open container violation.
Following a shelter hearing, the Division of Child and Family Services (DCFS) made a failed attempt to place the children with a maternal uncle in California. This placement fell through after the uncle was arrested for driving under the influence of alcohol. DCFS then placed the children with Utah foster parents.
On several occasions, D.P.A. expressed to the juvenile court his desire that his mother in Mexico be considered as a kinship placement. Although D.P.A.'s mother sent a belated letter to the State indicating her willingness to take custody of the children, the mother never petitioned the juvenile court for custody.
The State filed a petition for termination of D.P.A.'s parental rights. After the termination trial, the juvenile court ordered the termination of D.P.A.'s parental rights and awarded custody of the children to DCFS, pending their adoption by foster parents. D.P.A. now appeals the termination order.
ISSUES AND STANDARDS OF REVIEW
D.P.A. argues that the juvenile court erred in terminating his parental rights because the State failed to adequately consider his mother as a possible kinship placement under Utah Code section 78-3a-307. See Utah Code Ann. § 78-3a-307(5)(a) (2002). In addition, D.P.A. contends that termination was erroneously granted because the juvenile court lacked jurisdiction under the federal Immigration and Nationality Act. See 8 U.S.C. § 1101(a)(27)(j) (2004).
Determination of these issues is a matter of statutory interpretation, "which presents a 'question of law [that] we review for correctness, according no particular deference to the [juvenile] court's interpretation.'" In re S.Y., 2003 UT App 66, , 66 P.3d 601 (first and final alterations in original) (quoting State v. Coleman, 2001 UT App 281, , 34 P.3d 790).
ANALYSIS
I. Utah Code section 78-3a-307(5)(a)
D.P.A. contends that the juvenile court could not terminate his parental rights without first considering his mother as a possible kinship placement under Utah Code section 78-3a-307(5)(a). See Utah Code Ann. § 78-3a-307(5)(a) (2002). This statute requires the juvenile court, at the time of a shelter hearing, to "determine whether there is a relative who is able and willing to care for the child." Id.
However, following the mandate of section 78-3a-307(5)(a) is not a prerequisite to terminating parental rights. The termination of parental rights is governed by the Termination of Parental Rights Act (the Act). See id. §§ 78-3a-401 to -415 (2002). Under the Act, the decision to terminate parental rights hinges on whether the parent is "unfit or incompetent" and whether termination is in the "best interest of the child." Id. § 78-3a-402.
D.P.A. argues that the juvenile court could not decide whether termination was in the best interest of the children without first evaluating a possible kinship placement with D.P.A.'s mother. However, no
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