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In Re Estate of Becton





Appeal from the Circuit Court of Cook County; the Hon. Robert Sweeney, Judge, presiding.


Appellant, Stanley Becton, the putative father of Jamila Beatrice Becton, and appellee, Mamie Sanders, the child's maternal grandmother, each filed a petition for guardianship of the estate and person of the child born on January 4, 1983. Following denial of appellant's petition, the court granted the grandmother's petition. Further orders awarded care, custody and control of the minor child to the grandmother and T.J. Sanders, the maternal grandfather, and provided limited visitation to the appellant.

Appellant appeals from the orders which denied his petition and awarded both custody and guardianship to the maternal grandmother. Appellant's brief presents three specific issues for our review: (1) whether the appellant's superior right as father was overcome to warrant the award of custody to the maternal grandparents, (2) whether evidence about drug use or possession by him was properly admitted into evidence, and (3) whether permitting limited visitation was an abuse of discretion.

On May 23, 1983, appellant filed his petition requesting appointment as guardian. That petition stated that the child's mother had died and requested that he be named guardian of the estate and of the person of the child. He stated that he was a 32-year-old postal clerk. In an attachment to the petition, he stated that he was the child's father and had lived with the child's mother for six years. Also attached was the child's birth certificate, which listed appellant as the baby's father and "Linda Fay Sanders," 28, as the child's mother. An attached death certificate showed that "Linda Fay Ivy," 28, and "divorced," died as a result of a fall on April 21, 1983; that the fatal accident occurred on a Chicago street on March 24, 1983; and that she had sustained a pulmonary embolism as a result of an ankle fracture.

At the initial hearing, appellant testified that the child was his daughter and that Linda was the child's mother. The two had lived together for six years until her death. At that time, he moved into his parents' first-floor apartment. His two sisters lived together on the second floor of the same building, and an aunt lived in a third-floor apartment. He testified that he was employed as a janitor and that his compensation was set at $550 a month. On cross-examination, it was established that he had worked at the post office until December 1979. Since then, he had been employed six months in 1980 by the Chicago Boys Club and two months in 1981 as a telephone salesperson. He testified that he had only been working at his present position for one week. During these years of intermittent employment, he had received unemployment compensation and general assistance benefits.

Additional testimony was taken at a June 2, 1983, hearing at which the maternal grandparents testified. T.J. Sanders testified that he and Mamie were Linda's parents and had lived in their four-bedroom home for 25 years. Appellant, whom he had known for six years, had not worked for several years, but had received public aid benefits. The child was placed in the grandparents' home about two months before Linda's death because the baby had been born with medical problems. The grandfather stated that appellant first mentioned his interest in guardianship of the child after talking with a lawyer about filing a lawsuit against a hospital and the police department concerning Linda's death.

According to the grandfather, appellant had previously indicated that he wanted them to raise the child because, after Linda's death, appellant had no permanent home. The grandfather testified that he had retired from Inland Steel after 35 years, but still worked as a mechanic and a minister. When examined by the court, he stated that appellant was not fit to be the guardian of the child because of his poor employment record; that "if a man loves his family he will work and take care of them"; that appellant "smokes reefers, and all that dope, and stuff"; and that his presence around the baby at times caused her to have breathing difficulty. He also expressed his fears that if the child grew up inhaling her father's marijuana smoke she might "become a dope addict herself."

Mamie Sanders corroborated her husband's testimony. They first took custody of the child on February 20, 1983, at their daughter's request because the baby had difficulty breathing due to a lung condition. The grandmother attributed the problem to the child's being around smokers. She identified a physician's report which characterized the baby as a high-risk infant. She had asked appellant not to smoke around the baby, but he had not acquiesced. She stated that his habit of smoking "reefer cigarettes" was damaging the baby's health and that his smoking was her only objection to his having custody.

Billie Mathews, a friend of Linda, testified that although she had limited contact with the appellant, the few times she was in his presence, "[h]e was always high. He also was under the influence of marijuana."

The appellant was recalled as a witness. He testified that the grandparents took the child about two days before Linda's death. Although the child had been born with fluid on the lungs, she had fully recovered and her physician had given her a "clean bill of health." He denied ever telling the grandparents that he wanted them to raise the child. In fact, he stated that he had gone to their home and demanded the child but the grandparents refused on the grounds that the baby was in poor health. On one occasion, T.J. Sanders had displayed a gun and demanded that he leave. Appellant had offered the Sanders $100 towards the child's expenses, which they refused. While he lived with Linda, he contributed $100 monthly towards her rent payment.

Under examination by the court, appellant testified that he had smoked marijuana on "one occasion," but never smoked marijuana or cigarettes in the grandparents' home because they did not allow it. Linda had asked him not to smoke in her parents' home because of their strong feelings about the matter.

Gloria Becton, appellant's mother, testified that her son was capable of managing his own affairs, holding a job and taking care of the baby. She further testified that his two sisters, ages 25 and 28, who lived in the same building, would also care for the baby.

Linda's landlord testified that although she had never seen appellant smoke marijuana, she had seen "some seeds" and "what they call roaches" in Linda's apartment.

On June 3, 1983, an order was entered which denied appellant's petition for guardianship, awarded custody to the grandparents, and granted appellant visitation twice a month. A judgment order entered June 6, 1983, found that appellant and the grandparents were each fit and proper persons and that it is in the best interest of the child to remain under the care, custody and control of the grandparents. It ordered that the child remain under the care, custody and control of the grandparents, Mamie Sanders and T.J. ...

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