Vaughn and Sharane Fischer of Hildale, Washington County, would like to adopt the six children of Brenda Thornton, who died in August 1987. And the Thornton children would like to be adopted by the Fischers, with whom they have lived for the last 18 months.
But what may appear to be a simple adoption case is anything but simple. The Fischers are no average Utah family. They are polygamists, or "fundamentalists," as they prefer to be called.And that's the focal point of a landmark custody dispute that comes to a head Monday as a judge in Washington County begins hearing motions: Can parents who practice polygamy in violation of Utah law and teach those beliefs to their children be considered proper parents to adopt children?
Blood relatives of the children say absolutely not.
The state says yes. In fact, according to court documents filed in the case, an "informal" policy states polygamy is not to be considered when Utah social workers make their recommendations.
And it isn't. A home study by a state social worker recommends the Fischers be allowed to adopt the children, ranging in age from 5 to 19, calling the Fischers "highly qualified to take care of these children," "a good family for adoption," a family where "the children are taught good principles," and a family that is very organized and busy.
The state report mentions the polygamous relationship but does not evaluate it. Nor does it make a finding of "moral fitness," as required by law.
State adoption law specifies that only two general criteria should be considered: the moral fitness of the applicants and their financial ability. By defining polygamy as a religious and not a moral practice, the state of Utah has determined that plural marriage does not disqualify a person, said Terry Twitchell, public information officer for the Department of Social Services.
"We are dealing with children raised in a fundamentalist home being adopted into a fundamentalist home," she said. "It's no different than a Jewish child going to a Jewish home or a Mormon child going to a Mormon home. Religion probably won't be mentioned (in the report) in detail."
Tim Anderson, the attorney for two aunts of the children who are opposing the adoption, said the "informal" state policy crosses the line between tolerance of illegal behavior and actual ratification of that behavior.
"We're not talking about the enforcement of bigamy statutes," Anderson said. "We're not talking about the state sitting on the fence. In this case, the state is an accomplice in creating an illegal polygamist family relationship."
Currently, the "informal state policy" applies only to religious fundamentalists, not to individuals who share similar lifestyles without the religious convictions.
An Oct. 27 letter to 5th District Judge Philip Eves from the Department of Social Services specifically states, "It is our informal policy when we are dealing with so-called fundamentalist or polygamist families that this issue (polygamy) is not to be dealt with in depth in our evaluation, but is to be left to the court to determine as a legal matter."
The implications disturb Anderson. "When you or I go to adopt, it (moral fitness) is dealt with in depth. The larger issue here is why does the state have a policy that treats the claims of religious fundamentalists differently than you or I or anyone else?" Anderson said.
"It doesn't," responded Jean Nielsen, director of the Division of Family Services.
"We don't run this place on informal policy."
But in fact, there is such a policy, admits Twitchell.
"The legality of polygamy is not at issue in a home study," Twitchell said. "The issue is the legality of the home, not their religious practices."
Said Steven Snow, a St. George attorney representing the Fischers, "The court weighs all the factors: What kind of home is it? What do the children want? Does the family have the financial means? Then the court makes a decision based on what's best for the children. This is an adoption case, not a polygamy case."
The overriding factor, all parties agree, is what is in the best interests of the child. "That is why an alternative lifestyle does not rule out someone from being an adoptive parent," Nielsen said. But if that lifestyle is illegal? "Then it's probably not in the best interests of the child," she said.
Twitchell disagreed, saying the Department of Social Services is not going to "get involved" in the legality of polygamy. Nor will the state treat polygamist practices differently than any other religious practices.
Added Snow, "Polygamy is a crime. But so is adultery and fornication, and those laws are not enforced either. There are matters far more important in this case than religious lifestyle.
"There's misperception, legend and myth surrounding the polygamists, and then there's reality. The truth is they are very patriotic, law-abiding Christian people with a strong sense of family and helping one another. Plural marriage is the one and only aspect of their lifestyle that puts them at odds with the state."
The Fischers maintain that because the Thornton children were born and reared in a polygamist family and have since bonded with the Fischers' polygamist families, "what's best for the children" means leaving them in the Fischer home.
But Pat and Janet Johanson, sisters of Brenda Thornton, the mother who died, disagree, contending the fundamentalist lifestyle deprives the children of a "good and wholesome upbringing by a person who loves and cares for them greatly."
Janet, who was herself involved with the same polygamist sect for seven years, said that polygamy is anything but a moral environment in which to raise children. "They don't teach their children to obey the law. They teach them to break the law, to evade taxes. I left because I couldn't put up with the lying and the hypocrisy and the deception any longer."
*** Brenda Johanson Thornton died on Aug. 15, 1987, at 36, convinced that God had stricken her with cancer, that he had cursed her for disobedience.
For 15 years, Brenda had been a dutiful polygamist wife, bearing her husband six children. But in 1984, Brenda took her children and left. Terminal cancer was discovered a short time later.
While Brenda managed to flee her polygamist husband, she could not leave behind the polygamist lifestyle in which she had been raised. After learning she had cancer, she and her children moved to the polygamist community of Hildale.
Seeking reconciliation with God before her death, she became the third wife of Vaughn Fischer, a man she had met only three hours before. Two months later, she died, leaving behind six children: Wayne Allen Thornton, 19; Vonnie Eliza Thornton, 16; John Taylor Thornton, 14; Julia Snow Thornton, 12; Janelle Lona Thornton, 9; and Brenda Deanne Thornton, 5.
On June 30, 1987, Brenda signed a document "fully, freely and voluntarily surrendering" her children to Vaughn Fischer and his plural wife, Sharane. Joseph Phil Thornton, the natural father of the children, also consented to the adoption.
Snow is trying to keep the case from evolving into a polygamy trial. The issue, he said, is adoption: The mother wanted the children adopted by the Fischers, the children want to be adopted by the Fischers and the Fischers want to adopt them. Polygamy is not at issue, he says.
In an affidavit by state social worker Charles Sullivan, he states, "The children are in turmoil and apprehensive about the possibility of being removed from the home of the (Fischers), which they consider to be their home."
One of the children even said that if their aunts really loved them, they would leave the children alone.
Janet Johanson is heartbroken over the "brainwashing" she said has occurred. "Right after my sister died, those kids were begging us (Pat and Janet Johanson) not to lose contact with them. One month later they wanted nothing to do with us."
Attorney Anderson is particularly concerned that 16-year-old Vonnie Eliza Thornton will soon be married off to a polygamous husband. It is customary in the fundamentalist lifestyle of Hildale for teenage girls to be married off to older men, he said.
"Every 16-year-old should have the chance to go to the junior prom," he said.
If Vonnie is adopted into the Fischer home, nothing would prevent Fischer from giving her away in marriage _ or marrying her himself, Anderson said, which would repeat an incestuous cycle started with Vonnie's mother.
According to documents filed with the court, Brenda Johanson Thornton was reared by her mother and her stepfather, Phil Thornton. Phil Thornton made several sexual advances toward her during her teenage years, after which, "When I was 17 years old, Phil and I met with President LeRoy Johnson. He asked me if I would be willing to marry Phil. Hoping it was a test and that he would not actually ask me to marry my stepfather, I said, `If that's what the Lord wants me to do.' He immediately proceeded to marry us."
Despite the publicity the custody dispute has generated, the Fischers make no apologies or excuses for their polygamous practices. They acknowledge those practices are against the law but claim religious exemption _ something not recognized by the courts. They have also stated their intent to rear the Thornton children in the fundamentalist faith.
In a sworn deposition, Fischer was asked if he intended to marry any other women.
"I suppose if the Lord reveals it to me," he answered.
"Does that mean yes?" the attorney asked.
"Yes."
The attorney then asked, "Is it your understanding that you are in some way exempt from complying with this (bigamy) law?"
"I feel that I have to comply with the higher law, which is the law of God," Fischer said. And that law, Fischer added, requires him to teach the doctrine of plural marriage to his children.
While it is Vaughn and Sharane Fischer who are legally trying to adopt the Thornton children, Vaughn's other plural wife, Katrina Stubbs, also plays a key role in the adoption.
At 26, Katrina is 25 years younger than Vaughn Fischer, putting her in the same age range as Sharane Fischer's children. She lives in the Fischer home, has had one child of her own by Fischer and cares for the six Thornton children as well.
Katrina signed a court document stating she "expressly consents that said children shall be treated in all respects as (Katrina's) own lawful children." In fact, the younger Thornton children call Katrina "mother."
When Vaughn Fischer was asked whether he considered Katrina Stubbs to be as much a mother to the adopted children as Sharane, Fischer responded, "That's right."
Even if the court should award custody of the children to their aunts, there is no guarantee the children will go to live with them. Current adoption laws require any child 12 or older to consent to the adoption.
The children have voiced their desire to stay together as a family. The children's desires, like the state's home study report, carry heavy weight in a judge's decision. But if the older children do not consent to a court-ordered adoption by their aunts, it could force the family to split up.
The 19-year-old is free to do whatever he chooses and is not bound by an adoption order.
Anderson admits that keeping the Fischer children together might mean leaving them all with the Fischers. But if that happens, the state will have been a direct accessory to a crime as those children perpetuate an illegal lifestyle.
"Religious freedom should not be carried on the backs of the children (in fundamentalist groups)," Anderson said. "The line of religious freedom should not be drawn there. We're not going to change the fact that children grow up over there (in Hildale). But I know of five who shouldn't."