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

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.