The Utah Supreme Court has ruled that practicing polygamy doesn't automatically make a couple ineligible to adopt children even though plural marriage is against the law.
In a 3-2 opinion, the state's high court found that " . . . neither the statute, the Constitution, nor good public policy justifies a blanket exclusion of polygamists from eligibility as adoptive parents."The ruling, released Tuesday, reversed a 5th District decision in 1988 dismissing a petition by a Hildale, Washington County, couple to adopt the six children of the husband's third wife.
The high court ruling does not mean the six children will be adopted by the polygamist family, only that the family has a right to an adoption hearing the same as any other applicant.
"It's a decision that speaks of freedom," said David Nuffer, one of the attorneys who represented the couple, Vaughn and Sharane Fischer. "It means people who practice plural marriage still have civil rights."
The Fischers sought to adopt the children of Brenda Johanson Thornton, who died of cancer two months after becoming Vaughn Fischer's third wife.
Thornton had signed over custody of her children with their father's consent shortly before she died in 1987. But Thornton's two sisters and her father, who are not polygamists, went to court to stop the adoption.
Fifth District Judge Dean E. Conder sided with Thorn-ton's family, ruling that "the practice of polygamy constitutes immoral conduct" and it would not be "in the best interests of the children to be raised in such an atmosphere."
The children, who range in age from 8 to 21, have lived with the Fischers and Katrina Stubbs, Vaughn Fischer's second wife, throughout the court battle.
Tuesday's decision by the state Supreme Court means that the Fischers' adoption petition will again be considered by the 5th District Court in Washington County, according to Nuffer.
This time, however, Nuffer said, the religious beliefs held by the Fischers will be only one of the factors taken into account by the judge in deciding whether they are suitable adoptive parents.
"It does not mean they are automatically qualified to adopt. It just means they're not disqualified from adopting," the St. George attorney said. One of those factors will be what type of home the Fischers can provide.
"We are now looking forward to going to trial and dealing with some of the very serious issues in this case," said Tim Anderson, attorney for the Thornton family.
"Obviously the effects of polygamy relative to the adoption of children, and the state allowing the inappropriate placement of children into that environment, will be addressed at that time. Polygamy in Utah will be put on trial."
Social workers from the state Division of Family Services rated the Fischers "highly qualified" to adopt the children in a home study report issued at the time of the petition.
The Supreme Court ruling, written by Justice Christine Durham, states that even though bigamy is illegal, it is not reason enough to disqualify all practitioners of plural marriage from adopting children.
"It is not the role of trial courts to make threshold exclusions dismissing without consideration, for example, the adoption petitions of all convicted felons, all persons engaging in fornication or adultery, or other persons engaged in other illegal activities," Durham wrote.
Justice Michael Zimmerman concurred with Durham's opinion, and Justice I. Daniel Stewart filed an opinion concurring with the result but disagreeing with how polygamy should be viewed in adoption proceedings.
The issue, Stewart said, is "whether children subject to adoption should be adopted by adults who are living in a continuous, ongoing violation of the law concerning one of the most fundamental institutions in society."
Associate Chief Justice Richard Howe filed the dissenting opinion, with Chief Justice Gordon Hall concurring. "I cannot conceive of any factor or combination of factors favorable to an adoption or qualities which proposed adopting parents could offer which would outweigh the detrimental effect of felonious conduct engaged in by them," Howe wrote.
Anderson, while admitting the Supreme Court had difficult decisions to wrestle with, was nonetheless critical of the lengthy delay in getting a decision. The matter was first addressed by the district court in 1988, and by the Supreme Court in 1989.
Some of the children are no longer children. All are being raised in the Fischer's polygamist home. "That certainly presents a problem," he said.