Johanson v. Fischer

808 P.2d 1083, 157 Utah Adv. Rep. 26, 1991 Utah LEXIS 23

• Court: Utah Supreme Court
• Decided: March 26, 1991
• Docket: No. 890053
• Status: Published

Opinions

DURHAM, Justice:

This is an appeal from an order of the district court dismissing petitioners’ petition to adopt six children, five of whom are minors, on the ground that petitioners have organized their family according to their religious belief in plural marriage. We reverse.

Petitioners Vaughn Fischer and Sharane Fischer are legally married and reside in Washington County with their four children. Also residing with them is Katrina Stubbs, whom Vaughn also “married” in accordance with petitioners’ religious belief and practice of plural marriage. Two children have been born to Vaughn and Katrina. On June 17,1987, Vaughn “married” a third “wife,” Brenda Thornton. On June 30, 1987, petitioners filed the instant petition, seeking to adopt six children born to Brenda and Joseph Phil Thornton.¹ The Thorntons were members of the same fundamentalist church² as petitioners, and Brenda was a plural “wife” of Joseph. The Thorntons appeared in the court below on the day the petition was filed and, in accordance with Utah Code Ann. § 78-30-8, gave their written consent to the proposed adoption. Petitioners claim that Brenda knew she was dying at that time. Brenda died on August 15, 1987.

Intervenors Janet and Patricia Johanson, half-sisters of Brenda, and Calvin Johan-son, father of Brenda, moved to dismiss the adoption petition. The trial judge carefully articulated that the only issue before him was whether petitioners’ teaching and practicing polygamy “disqualified” them from adopting the Thornton children. Petitioners admitted that Vaughn knew his “marriage” to Katrina was in violation of Utah law proscribing bigamy. The trial court “assumed for the purposes of the motion” that petitioners were fit and proper persons to adopt the children in all respects other than their practice of plural marriage and that they were sincere in their religious belief in that practice. The court ruled as a matter of law that petitioners’ criminal conduct in teaching and practicing plural marriage made them ineligible to adopt the children. In essence, the court held that the “interests of the child” standard by which Utah adoptions are to be measured can never be met when the adoption places the child in a home where polygamy is taught and practiced. The court granted the motion to dismiss and ordered petitioners to turn the minor children over to the Utah State Division of Family Services for placement in another home, but stayed that order pending an appeal to the court of appeals, which has appellate jurisdiction over adoption cases. See Utah Code Ann. § 78-2a-3(2)(g) (now codified at § 78-2a-3(2)(h) (1987)). After the appeal was filed, the court of appeals certified the case to us for “original appellate review and determination.” Id. at § 78-2a-3(3). Petitioners appeal, assailing the dismissal on several grounds.³

At the outset, it is important to reiterate that this is not an appeal from an order denying a petition for adoption. It is an appeal from an order dismissing a petition for adoption. The only issue before us is whether petitioners, who are legally married, may be denied a hearing and specific factual findings on their adoption petition on the sole ground that they believe in and practice plural marriage, a doctrine espoused by their religious group.

Section 78-30-1 of Utah Code Annotated says, “Any minor child may be adopted by any adult person.” The governing standard and procedure are set forth as follows:

78-30-8. Procedure — Agreement of adopting parents.

The person adopting a child and the child adopted, and the other persons whose consent is necessary, must appear before the district court of the county where the person adopting resides, and the necessary consent must thereupon be signed and an agreement be executed by the person adopting to the effect that the child shall be adopted and treated in all respects as his own lawful child.... 78-30-9. Order of adoption.

The court must examine all persons appearing before it pursuant to the preceding provisions, each separately, and, if satisfied that the interests of the child will be promoted by the adoption, it must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting.

(Emphasis added.)

The statutes governing adoption contain certain minimum requirements to be met by adopting petitioners; for example, a single person (or one member of a married couple) must be at least ten years older than the child adopted, and married people cannot adopt without consent of their spouses. Utah Code Ann. §§ 78-30-2, 78-30-3. Aside from these technical requirements, there are virtually no restrictions on or exceptions to the right to petition contained in the statute. The sole standard for permitting adoption itself is that the trial court, after a hearing, must “be satisfied that the interests of the child will be promoted by the adoption....” Utah Code Ann. § 78-30-9.

The result of the trial court’s dismissal of this petition is to engraft upon the statute a type of “public policy” requirement that prohibits certain kinds of “wrongdoers” from judicial review of the merits of their petitions for adoption. The trial court justified its modification of the statute by the language in Utah’s constitution announcing that “polygamous or plural marriages are forever prohibited." Utah Const, art. Ill, § 1. We emphasize that this is not a case in which the courts have been asked to review a legislative determination that a specific status or specific acts should render one ineligible to petition for adoption. Rather, the trial court in this case has itself undertaken such a determination. We find no justification in the language of the state constitution or criminal statutes for overstepping the proper prerogatives of the courts in this fashion.

The fact that our constitution requires the state to prohibit polygamy does not necessarily mean that the state must deny any or all civil rights and privileges to polygamists. It is true that bigamy is a crime in Utah and that one of the petitioners here is concededly a bigamist. The same portion of the criminal code (“Offenses Against the Family”) which makes bigamy a crime, however, also criminalizes adultery, fornication, nonsupport of children, surrogate parenthood contracts, and unauthorized abortions. See generally Utah Code Ann. §§ 76-7-101 to -325. Innumerable other acts are of course defined as crimes by other portions of the criminal code. 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. There is likewise no legitimate basis for the courts to disqualify all bigamists (polygamists) as potential adopters. As noted above, only one of the petitioners in this case, Vaughn Fischer, is guilty of bigamy. Sharane Fischer is legally married to him and is not alleged to have violated any criminal statutes.

The role of the trial court in this highly sensitive area of child adoption is to hold a hearing, review all evidence regarding the specific characteristics of the petitioning parents and the child or children to be adopted, evaluate that evidence, and make a careful factual determination regarding whether the placement will best promote the interests of the child or children at issue. See § 78-30-9. The trial judge in this instance skirted this legislatively mandated judicial obligation by concluding that the alternative lifestyle of these prospective adoptive parents per se made them ineligible to petition for adoption.

A New Jersey court addressed an analogous situation in Jn re Adoption of a Child by I.T., 164 NJ.Super. 476, 397 A.2d 341 (1978). The trial court dismissed an adoption complaint on the sole ground that the prospective adoptive parents had participated in the illegal placement of the child.⁴ The court recognized both the trial judge’s dilemma in seeking to enforce the legislative policy against commercial traffic in babies and the judge’s efforts to maintain the judicial system’s integrity by denying an adoption tainted by illegality of placement. Id,., 397 A.2d at 344. Nevertheless, the court found no legal warrant under the state’s controlling legislation or judicial precedents to apply any standard other than the best interests of the child. Id. The court stressed that the equitable doctrine of “clean hands” has no place in such a proceeding, where the paramount focus must be on the best interests of the child. Id.

We agree with the New Jersey court that enforcing criminal laws is a matter wholly separate from the function of the court in an adoption proceeding. The fact that the petitioning prospective parents engage or have engaged in activities prohibited by statute or the constitution is one factor the court must consider when determining whether the specific placement at issue would promote the interest of the child to be adopted. Prospective adoptive parents’ illegal or unconstitutional conduct, however, is not properly considered as a threshold determination in an adoption petition; rather, such conduct is subsumed by the interest of the child standard.

In this case, the trial court improperly and prematurely considered the interests of the child test on a motion to dismiss. We acknowledge that a fully developed record may in fact indicate that the interests of these children will not be promoted by permitting their adoption by these petitioners for any number of reasons that may emerge upon investigation and hearing, including their polygamous familial and religious lifestyle. The result of the trial court’s decision, however, is that no children may ever be adopted by any people who associate themselves with this practice, regardless of the particular circumstances surrounding the adoption issue. Other relevant circumstances could include the alternatives available to the children, the actual nature and content of the adopter’s lifestyle, the existence and quality of an ongoing relationship between the adopter and the child, and any special needs of the child.

To illustrate the possible relevance of such factors, we pose the following hypothetical questions. What if there were no willing relatives or other suitable adopters and dismissing a petition meant foster placement and separating siblings? What if the practicing polygamists seeking to adopt were unwilling to abandon their commitment to the lifestyle but strongly opposed promoting it to their children? What if the child to be adopted were so severely physically or mentally handicapped that he or she could never participate in plural marriage but facts indicated that a polygamous family could provide optimal specialized care? We do not suggest that any of the foregoing circumstances exist here; we cite them only to demonstrate that the adoption decision is fact-specific, and neither the statute, the constitution, nor good public policy justifies a blanket exclusion of polygamists from eligibility as adoptive parents.

The Utah adoption statute, Utah Code Ann. §§ 78-30-8, -9, requires a full-scale evidentiary hearing and evaluation hearing, a process petitioners were entitled to but did not receive. We therefore reverse the decision of the trial court and remand for a specific factual determination regarding whether the interests of the Thornton children would be promoted by granting the Fischers’ adoption petition.

ZIMMERMAN, J., concurs.

1 . The polygamous relationship between Brenda and Joseph Phil Thornton was dissolved prior to the filing of the adoption petition.

2 . This religious organization, referred to by Vaughn as the Church of Jesus Christ of Latter-Day Saints and the Kingdom of God, continues practicing polygamy as originally advocated by the Church of Jesus Christ of Latter-Day Saints in the late nineteenth century. At present, the Church of Jesus Christ of Latter-Day Saints prohibits the practice of polygamy by its members. Doctrine and Covenants, Official Declaration-1 (September 24, 1890) (declaration by Wilford Woodruff, President of the Church of Jesus Christ of Latter-Day Saints, in which he submits to the laws enacted by Congress forbidding plural marriages).

3 . Because we decide this case on the ground that the trial court improperly denied petitioners a comprehensive evaluation hearing as the statute requires, we need not reach their other arguments on appeal.

4 . The record in the New Jersey case was apparently considerably more developed than the record the trial judge had before him in this case, as indicated by the appellate court’s conclusion that it was "evident from the record and the DYFS [Division of Youth and Family Services] that plaintiffs [were] eminently qualified to undertake parenthood of the child and that it [was] to the best interest of the child that he remain in their custody for ultimate adoption.” Id., 397 A.2d at 342.