Skelton v. Davis

Decision Date01 December 2021
Docket NumberNo. CV-20-475,CV-20-475
Citation2021 Ark. App. 473,639 S.W.3d 373
Parties Samantha Ann SKELTON (Now Frye), Appellant v. Colton Scott DAVIS; Scott and Sheri Davis; and Joshua Cole Frye, Appellees
CourtArkansas Court of Appeals

Cullen & Co., PLLC, by: Tim Cullen, for appellant/cross-appellee.

Lancaster Law Firm, PLLC, Benton, by: Clinton W. Lancaster, for separate appellees/cross-appellants Scott Davis and Sherri Davis.

Taylor & Taylor Law Firm, P.A., by: Jennifer Williams Flinn, Andrew M. Taylor, and Tasha C. Taylor, for separate appellee/cross-appellant Colton Davis.


This case involves a young girl named R.F., who was approximately six years old during the legal proceedings giving rise to this appeal. Her mother, Samantha Frye, and stepfather (now adoptive father), Josh Frye, appeal the Washington County Circuit Court's order granting Sheri and Scott Davis (the parents of Colton Davis, who is R.F.’s biological father) grandparent visitation. Samantha and Josh also contend that it was erroneous for the court to allow the Davises to intervene in the adoption case in which Josh Frye successfully petitioned to adopt R.F. Colton Davis and Sheri and Scott Davis have cross-appealed the court's order granting Josh's petition to adopt R.F. and terminating Colton's parental rights.

We affirm the adoption because there was sufficient evidence that Colton's consent was not required and that the adoption was in R.F.’s best interest. We must reverse the court's orders allowing the grandparents to intervene and providing for grandparent visitation because the adoption severed the Davises’ familial relationship with R.F., and they no longer qualify as grandparents for the purposes of enforcing visitation.

This appeal involves three consolidated cases. R.F. was born on February 6, 2013, to Colton Davis and Samantha Skelton (now Frye). The couple was never married, and they separated soon after R.F.’s birth. Sheri and Scott Davis are Colton's parents. They exercised regular visitation with R.F. after Colton and Samantha separated. In fact, Samantha coordinated alternate weekend visitation with the Davises.

The first case, Colton Davis v. Samantha Ann Skelton , case No. 72DR-14-2043 (pet. filed Dec. 11, 2014), began in 2014 with Colton Davis's petition to establish paternity. On May 1, 2015, the circuit court entered an agreed order of paternity with the parties agreeing that Samantha would have primary custody of R.F. subject to Colton's visitation. The court also ordered Colton to pay child support. On November 29, 2016, Samantha filed an emergency motion to suspend Colton's visitation privileges, alleging that Colton had been arrested for possession of a controlled substance, among other offenses. On December 15, 2016, the circuit court entered an agreed order pursuant to which Colton agreed to submit to an observed-collection drug test upon Samantha's request if she had a good-faith belief that he was under the influence of drugs or alcohol during her interactions with him. In May 2017, Samantha requested that Colton submit to a drug test. He tested positive for marijuana, and Samantha terminated all visitation between Colton and R.F.

On August 15, 2017, Colton filed a petition to reestablish visitation after taking a second drug test and testing negative for controlled substances. Samantha responded that the drug test taken by Colton was unobserved and therefore did not meet the requirements of the December 15, 2016, agreed order. Colton subsequently asked that his petition be voluntarily dismissed, and the dismissal order was entered on October 30, 2017.

The second case, In re Adoption of [R.F. ], a Minor , case No. 72PR-18-907, began on November 1, 2018, with a petition for adoption filed by Samantha's husband, Josh Frye. On November 13, Colton filed a second petition to reestablish visitation with R.F. An order consolidating the two cases was entered on November 14. On November 20, the Davises filed a motion seeking leave to intervene, and on March 7, 2019, the Davises filed a petition to establish visitation rights as paternal grandparents. On May 16, the circuit court entered an order granting the Davises’ motion to intervene in the adoption case, and on May 24, the Davises filed a "Petition for Intervention to Establish Visitation Rights for Paternal Grandparents."

Finally, the third case, Scott and Sheri Davis v. Samantha Ann Skelton and Colton Davis , case No. 72DR-19-395 (pet. filed Mar. 7, 2019), began in 2019 when the Davises filed a petition to establish grandparent visitation rights to R.F.

All three cases were consolidated and heard together.

The circuit court held a final hearing on August 30, 2019, to address both the adoption petition and the Davises’ request for grandparent visitation. The evidence revealed that while Colton and the Davises had exercised visitation with R.F. early in her life and had, in fact, formed a bond with her at that point, their contact with her essentially ceased after Colton was arrested and his visitation was terminated. Samantha testified that Sheri had not been honest with her about Colton's drug use and arrest. Samantha testified that from October 2017 to November 2018, Colton did not make any effort to have any contact with R.F.

Samantha also testified that she sometimes ignored text messages from the Davises but that they had texted her only five times in twenty-eight months and that they had requested contact with R.F. in only two of those text messages. It is undisputed that neither Colton nor the Davises attended R.F.’s school events, such as her kindergarten graduation ceremony, and Samantha testified that Colton had not contacted her by phone, text message, email, or any other form of communication since May 2017. The record also showed that while Colton initially made a legal effort to resume visitation, he abandoned that pursuit nearly two years before the adoption hearing when he learned that he would be required to take a drug test and pay attorney's fees. Since that time, he made no effort to communicate with R.F. or be a part of her life. He admitted in his testimony that he missed three of R.F.’s birthdays and had not sent cards or gifts and that his complete lack of a relationship with R.F. was his own fault, not Samantha's.

Likewise, the evidence at the hearing demonstrated that the Davises had not had significant contact with R.F. in the two years leading up to the adoption hearing. While they did provide some financial assistance for R.F., they did not seek to establish visitation, and they did not spend time with her. There was also evidence that Colton lived with the Davises and that they wanted to help Colton maintain a relationship with R.F.

In contrast, there was testimony that Josh has formed a very close bond with R.F. By all accounts, he has had a hands-on role in caring for R.F. daily for the four years prior to the hearing, she calls him "dad," and she has a happy and stable home life with Samantha and Josh.

Dana Watson, the attorney ad litem, recommended that the court grant the adoption petition and deny the Davises’ petition for grandparent visitation.

On November 6, 2019, the circuit court announced a ruling from the bench. Specifically, the circuit court granted the Davises’ petition for grandparent visitation and ordered that they be awarded visitation with R.F. on the first and third weekends of every month. In addition, the circuit court granted the petition for adoption, finding that Colton's consent to the adoption was not required because he had failed significantly without justifiable cause to communicate with R.F. for more than a year.

The circuit court then formalized its ruling by entering a series of written orders. On November 15, the circuit court entered an order denying Colton's petition to reestablish visitation. On December 11, the circuit court entered an order granting the Davises’ petition for grandparent visitation and also entered a final decree of adoption in which it found that Colton's consent to the adoption was not required and that the adoption was in R.F.’s best interest because Josh was the only father figure R.F. has ever known.

On January 10, 2020, Samantha filed notices of appeal in each of the three cases. On January 17, the Davises cross-appealed the adoption order, and on January 21, Colton cross-appealed all three orders.

On appeal, Colton argues that the court erred in determining that his consent was not required for Josh to adopt R.F. The court found that Colton's consent was not required due to his failure to communicate with R.F. for at least a year. We have previously held that a circuit court's decision regarding parental consent to adopt a child will not be reversed unless it is clearly erroneous. Newkirk v. Hankins , 2016 Ark. App. 186, 486 S.W.3d 827. In affirming a circuit court's finding that consent was not needed in an adoption, the Newkirk court specifically held that a "circuit court's finding that consent is unnecessary due to a failure to support or communicate with the child will not be reversed unless clearly erroneous." Id. at 8, 486 S.W.3d at 832 (citing Courtney v. Ward , 2012 Ark. App. 148, 391 S.W.3d 686 ). A failure to communicate is specifically defined by statute:

(a) Consent to adoption is not required of:
(2) a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree ....

Ark. Code Ann. § 9-9-207(a)(2) (Repl. 2020).

In this case, Samantha testified that from October 2017 to November 2018, Colton did not make any effort to have contact with R.F., who was five years old at the time. On appeal, Colton attempts to place blame for his failure to communicate with R.F. on Samantha by pointing to brief...

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