(dissenting):
I dissent. The trial judge did not rule that the petitioners were “ineligible” to adopt the children. He did not purport to add to the statutory qualifications of persons who may adopt. Although he stated in his memorandum decision that the petitioners “do not qualify as persons to whom these children should be placed for adoption,” the petitioners concede that his decision was not based on failure to qualify under our adoption statutes.
The intervenors, who are aunts and a grandfather of the subject children, moved the trial court to dismiss the adoption petition based on certain uncontested facts and findings of fact previously entered by the trial court. In response to the motion, the petitioners submitted the affidavit of their religious leader and a home study. With those facts and documents before him, the trial judge assumed for the purposes of the motion that the petitioners were fit and proper persons to adopt the children in all respects except that they were living in polygamy. In making his ruling, he articulated that the basic issue before him was whether the “interest of the child will be promoted by the adoption ...” as required by Utah Code Ann. § 78-30-9. He concluded that it would not be in the best interest of these children to be reared in a home where polygamy was taught and practiced. I find no error in this ruling. The judge had before him all the facts which both parties desired to present, and by his assumption he gave the petitioners the benefit of every doubt. In essence, his ruling was that in this case, the petitioners’ teaching and practicing polygamy in their home outweighed the factors which ran in favor of the petitioners. He did not purport to announce a rule that would be binding on other judges in other cases where the facts might be different. The extreme examples posed by the majority opinion simply are not present in this case and are not even suggested by the petitioners. His ruling was made, as it had to be made, only for the purposes of the case before him.
No one has a right to adopt; it is the extension of a privilege, see 2 Am.Jur.2d Adoption § 3 (1962). Determination of “the interests of the child” requires the weighing of factors favorable to the proposed adoption against any unfavorable considerations. In the instant case, the trial judge assumed that the petitioners were “fit and proper persons” to adopt except that in their home, where the children would be raised, plural marriage was taught and practiced in contravention of a criminal statute of this state. Utah Code Ann. § 76-7-101 provides:
*1089(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, he purports to marry another person or cohabits with another person.
(2) Bigamy is a felony of the third degree.
Utah’s constitution also prohibits plural marriages. Article III provides:
The following ordinance shall be irrevocable without the consent of the United States and the people of this State:
[[Image here]]
First: — Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.
Petitioner Vaughn Fischer was already married to the other petitioner, Sharane Fischer, when he purported to marry Katrina Stubbs. The three of them live in the same household together with children of Mr. Fischer born by both Sharane and Katrina. If the adoption were granted, the six Thornton children would be permanently added to this family, where on a daily basis they would be exposed to the teachings and practice of plural marriage. It would be, difficult to conceive of a factor which works more against the “interests of the child[ren]” than ongoing criminal conduct by the adoptive parents in the home where the children are being nurtured and raised. 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. Teaching and demonstrating to children on a daily basis that the statute proscribing bigamy may be ignored and flaunted may well breed in the children a disrespect for observance of other laws. Since the children will probably spend their lives in this nation where the voluntary observance of all laws by its citizens is necessary, these six children may never be taught that valuable lesson of citizenship. The state in its role as parens patriae of the children owes a high duty to them in approving whoever shall adopt them. In re Simaner’s Petition, 15 U1.2d 568, 155 N.E.2d 555 (1959); Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364 (1951). That duty would not be met in granting the privilege to adopt to the petitioners, who live on a daily basis outside the law.
The majority now orders an evidentiary hearing which will be fruitless because the trial judge has already made an assumption which is as favorable to the petitioners as can be had. The fact remains, and they have not attempted to deny it, that polygamy is taught and practiced in the home in which these children will be raised. That fact will not change on remand. We have previously held in Wilson v. Family Services Division, 572 P.2d 682 (Utah 1977), that we will not interfere with a trial court’s judgment in an adoption unless the action was clearly arbitrary or capricious or was not based on the evidence. No such showing has been made. I would affirm the dismissal.
HALL, C.J., concurs in the dissenting opinion of HOWE, A.C.J.