B.L.M. and B.A.M. v. A.M., L.M., L.S.M., et al, Ky Court of Appeals, Sibling Visitation Following Adoption

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B.L.M. and B.A.M. v. A.M., L.M., L.S.M., et al

No. 2011-CA-000333-ME

Published: Opinion Reversing and Remanding

County: Jefferson

Appellants appeal from the Jefferson Circuit Court’s denial of a CR 60.02 motion to set aside an order in an adoption case requiring visitation between adopted children and their biological siblings.

In 2007, A.M., L.M., and L.S.M. were placed in Appellants’ foster care by the Cabinet for Health and Family Services.  Parental rights to the children had been terminated by judgments entered earlier that year.  The children have three older biological siblings who were not placed with Appellants.

In January, 2009, Appellants filed petitions for adoption of all three children.  At a hearing, the GAL and the family court opined that the adoption was in the best interest of the children so long as Appellants agreed to reasonable visitation with their biological siblings.  The family court granted the adoption petitions and entered into the record a statement from Appellants agreeing to siblings visitation after the adoption and a notation that violation is punishable by contempt.

 In June, 2010, the GAL filed a motion to hold Appellants in contempt for violating the sibling visitation order.  When family court scheduled a contempt hearing, Appellants filed a CR 60.02 motion to set aside the visitation order arguing that family court exceeded its jurisdiction in entering and attempting to enforce the order.  When family court passed the motion to the contempt hearing, Appellants filed a petition for a writ of prohibition and a motion for emergency relief in the Court of Appeals.  Both were denied on the basis that extraordinary relief was not required because the parties had a remedy by appeal from the contempt hearing.  No ruling was made concerning the validity of the visitation agreement.  When the family court denied Appellants’ CR 60.02 motion, this appeal followed.

KRS 405.021 provides that grandparent visitation, if already established by court order, could be enforced even after the termination of parental rights.  Our legislature has not provided for visitation by family members except grandparents following such termination.

In this case, once the judgment of adoptions was entered, there were no legal ties between A.M., L.M., and L.S.M. and their biological siblings.  The Appellants, as the adoptive parents, could have allowed sibling visitation but to judicially require such visitation in the absence of any statutory authority contravenes the legislative intent and Kentucky law.

Therefore, Jefferson Family Court lacked authority to order sibling visitation and Appellants were entitled to CR 60.02 relief.  The Order was vacated and remanded to family court for any additional action required.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

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