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Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-21951 November 27, 1964

IN THE MATTER OF THE PETITION OF THE MINOR CHARLES JOSEPH BLANCAFLOR WEEKS. UGGI LINDAMAND THERKELSEN and ERLINDA G. BLANCAFLOR, petitioners-appellants,

vs. REPUBLIC OF THE PHILIPPINES, respondent-appellee.

Campos, Mendoza & Hernandez for petitioners-appellants. Office of the Solicitor General and J. Domingo de Leon for respondent-appellee.

REYES, J.B.L., J.:

This appeal was taken against a decision of the Manila Juvenile and Domestic Relations Court, in its special Proceedings, No. D-00007, denying appellants' application for adoption of the minor Charles Joseph Blancaflor Weeks.

The factual background of the case is stated in the decision appealed from to be as follows:

In this adoption proceeding, the petitioners are husband and wife who were married on June 2, 1962, or barely a year ago. The minor sought to be adopted, born on February 16, 1960, is the natural child of petitioner wife. His father was Charles Joseph Week, who abandoned mother and child after the latter's birth. He is said to have gone back to the United States.

Except for the legal impediment hereinafter to be mentioned, the facts before the Court may warrant the approval of the adoption sought herein. Petitioner husband is a Danish subject, who has been granted permanent residence in the Philippines (Exhs. "D" and "E"). A former employee of Scandinavian Airlines System, he is now Manager of M. Y. Travel International Hongkong Ltd., with a monthly salary of P1,200.00. plus allowances. It does not appear that either petitioner has been convicted of a crime involving moral turpitude. On the other hand, the minor sought to be adopted has been living with them ever since the marriage of petitioners.

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Petitioner husband has treated the minor as his son, and the latter calls him "Daddy." Although the possibility exists that petitioners may yet have their own children, the adoption at this time, before any such children are begotten, may strengthen, rather than disrupt, future domestic relations.

The court a quo denied the adoption sought, saying:

In Sp. Proc. No. D-00011, adoption of Benigno Lim, this Court has had occasion to rule that a Filipino cannot adopt an alien (Chinese) minor about 19 years old. The adoption would not confer Philippine citizenship on the Chinese, but could definitely legalize his stay in this country. It was also stated that conversely, an alien cannot adopt a Filipino unless the adoption would make the Filipino minor a citizen of the alien's country. As petitioner husband in this case is a Danish subject, it has to be held that he cannot legally adopt the minor Charles Joseph Blancaflor Weeks, whose citizenship is of this country, following that of his natural mother.

If we understand the decision correctly, the adoption was denied solely because the same would not result in the loss of the minor's Filipino citizenship and the acquisition by him of the citizenship of his adopter. Unfortunately, the Juvenile and Domestic Relations Court did not expound the reasons for its opinion; but it is clear that, if pursued to its logical consequences, the judgment appealed from would operate to impose a further prerequisite on adoptions by aliens beyond those required by law. As pointed out by the Solicitor General in his brief, the present Civil Code in force (Article 335) only disqualifies from being adopters those aliens that are either(a) non-residents or (b) who are residents but the Republic of the Philippines has broken diplomatic relations with their government. Outside of these two cases, alienage by itself alone does not disqualify a foreigner from adopting a person under our law. Petitioners admittedly do not fall in either class.

The criterion adopted by the Court a quo would demand as a condition for the approval of the adoption that the process should result in the acquisition, by the person adopted, of the alien citizenship of the adopting parent. This finds no support in the law, for, as observed by this Court in Ching Leng vs. Galang, G.R. No. L-11931, promulgated on 27 October 1958, the citizenship of the adopter is a matter political, and not civil, in nature, and the ways in

which it should be conferred lay outside the ambit of the Civil Code. It is not within the province of our civil law to determine how or when citizenship in a foreign state is to be acquired. The disapproval of the adoption of an alien child in order to forestall circumvention of our exclusion laws does not warrant, denial of the adoption of a Filipino minor by qualified alien adopting parents, since it is not shown that our public policy would be thereby subverted.

IN VIEW OF THE FOREGOING, the decision appealed from is reversed, and the court a quo is directed to allow the adoption sought. Without costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Parades, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

The Lawphil Project - Arellano Law Foundation

IMPLEMENTING RULES

AND REGULATIONS

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Pursuant to the authority of the Department of Social Welfare and Development under Article VIII, Section 24 of Republic Act 8552, otherwise

known as "The Domestic Adoption Act of 1998", the following Rules and Regulations are hereby promulgated to govern the adoption of Filipino

children within the Philippines.

ARTICLE I GENERAL PROVISIONS

SECTION 1. Affirmation of Policy. – It is the policy of the State to ensure

that every child remains under the care and custody of his/her biological parents and be provided with love, care, understanding and security toward the full development of his/her personality. When care of the biological parents is unavailable or inappropriate and no suitable alternative parental care or adoption within the child’s extended family is available, adoption by an unrelated person shall be considered. However, no direct placement of a child to a non-related shall be countenanced.

Adoption is the most complete means whereby permanent family life can be restored to a child deprived of his/her biological family.

The child’s best welfare and interest shall be the paramount consideration in all questions relating to his/her care and custody.

SECTION 2. Applicability. – These Rules shall apply to the adoption in the

Philippines of a Filipino child by a Filipino or alien qualified to adopt under Article III, Section 7 of RA 8552.

Adoption of a child by any member of his/her extended family shall likewise be governed by these Rules.

ARTICLE II DEFINITION OF TERMS

SECTION 3. Definition of Terms. – As used in these Rules, unless the context otherwise requires, the following terms shall mean:

"Act" shall refer to Republic Act No. 8552 otherwise known as the "Domestic Adoption Act of 1998."

"Department" shall refer to the Department of Social Welfare and Development.

"Child" shall refer to a person below eighteen (18) years of age.

"A child legally available for adoption" shall refer to a child who has been voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the

parental authority of his/her biological parent(s) or guardian or adopter(s)

in case of rescission of adoption.

"Voluntarily committed child" shall refer to one whose parent(s) knowingly and willingly relinquishes parental authority to the Department.

"Involuntarily committed child" shall refer to one whose parent(s), known or unknown, has been permanently and judicially deprived of

parental authority due to abandonment; substantial, continuous or rejected

neglect; abuse; or incompetence to discharge parental responsibilities.

"Abandoned child" shall refer to one who has no proper parental care or legal guardianship or whose parent(s) has deserted him/her for a period of

at least six (6) continuous months and has been judicially declared as

such.

"Foundling" shall refer to a deserted or abandoned infant or a child found, with parents, guardian, or relatives being unknown, or a child committed in an orphanage or charitable or similar institution with

unknown facts of birth and parentage and registered in the Civil Register

as a "foundling".

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"Deed of Voluntary Commitment" shall refer to the written and notarized instrument relinquishing parental authority and committing the child to the

care and custody of the Department executed by the child’s biological parent(s) or by the child’s legal guardian in their absence, mental

incapacity or death, to be signed in the presence of an authorized

representative of the Department after counseling and other services have

been made available to encourage the child’s biological parent(s) to keep the child. A minor, after proper counseling by a licensed social worker,

may also execute the deed of voluntary commitment.

"Child Study Report" shall refer to a study of a child’s legal status, placement history, psychological, social, spiritual, medical, ethno-cultural

background, and that of his/her biological family as basis in determining

the most desirable placement for him/her.

"Home Study Report" shall refer to a study of the motivation and capacity of the prospective adoptive parents to provide a home that meets

the needs of a child.

"Matching" shall refer to the judicious selection from the regional or interregional levels of a family for a child based on the child’s needs and in his/her best interest as well as the capability and commitment of the

adoptive parents to provide such needs and promote a mutually satisfying

parent-child relationship.

"Supervised trial custody" shall refer to the period during which a social worker oversees the adjustment and emotional readiness of both adopting parents and adopted child in stabilizing their filial relationship

"Licensed Social Worker" shall refer to one who possesses a bachelor of science in social work degree as a minimum education requirement and

must have passed the government licensure examination for social

workers as required by Republic Act 4373.

"Child-placing agency" shall refer to a private non-profitable or charitable institution or government agency licensed and accredited by the

Department to provide comprehensive child welfare services including but

not limited to, receiving applications for adoption/foster care, evaluating

the prospective adoptive/foster parents preparing the home study and all other processes as provided for in Article V of the Rules.

"Child-caring agency" shall refer to a private non-profitable or charitable institution or government agency licensed and accredited by the

Department that provides twenty-four (24) hour residential care services

for abandoned, orphaned, neglected or voluntarily committed children

"Simulation of birth" shall refer to the tampering of the civil registry making it appear in the birth records that a certain child was born to a

couple or a person who is not his/her biological mother and/or his/her

biological father, causing such child to lose his/her true identity and

status.

"Extended Family" shall refer to a relative of a child both at the paternal and maternal side within the fourth degree of consanguinity.

"Biological Parents" shall refer to the child’s mother and father by nature or the mother alone if the child is unacknowledged illegitimate child.

"Prospective Adoptive Parent(s)" shall refer to person mentioned under Section 7 of the Act who have filed an application for adoption.

"Prospective Adoptee" shall refer to one who is legally available for adoption as defined in Section 3 (d) of this Rule or one who falls under the

enumeration in Section 8 of the Act.

"Pre-Adoption Services" shall refer to psycho-social services provided by professionally trained social workers of the Department, the social

services units of local government, private and government health

facilities, Family Courts, licensed and accredited child-caring and child-

placing agency and such other individuals or entities involved in adoption

as may be authorized by the Department.

"Post-Adoption Services" shall refer to psychosocial services and support services provided by professionally trained social workers from offices

above-mentioned after the issuance of the Decree of Adoption.

"Residence" shall refer to a person’s actual and legal stay in the Philippines for three (3) continuous years immediately prior to the filing

of application for adoption and maintains such residence until the adoption decree is entered; Provided that temporary absences for professional,

business or emergency reasons not exceeding sixty (60) days in one (1)

year shall not be considered as breaking the continuity requirement;

Provided further that the Department may extend this period in meritorious cases.

"Alien" shall refer to any person, not a Filipino citizen, who enters and remains in the Philippines and in possession of a valid passport or travel

documents and visa.

ARTICLE III PRE-ADOPTION SERVICES

SECTION 4. Pre-Adoption Services. – Pre-Adoption Services including

counseling shall be provided by professionally trained social workers of the Department, the social services units of local government, private and government health facilities, Family Courts, licensed and accredited child-caring and child-placing agency and such other individuals or entities involved in adoption as may be authorized by the Department to the following:

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1. Biological Parent(s)

1. Biological Parents shall be counseled regarding their options:

o to keep the child and avail of services and assistance;

o avail of temporary child care arrangements such as

foster care; or o relinquish the child for adoption

2. Counseling shall be provided in a language and manner understandable to the biological parent(s)/legal guardian on the implications of relinquishing his/her parental authority over the child focusing on:

o the loss of parental rights over the child and as a rule,

not having further contact with the child;

o the importance of providing relevant information on the child, their own medical history and family

background;

o the possibility that the child may be placed for

adoption within the Philippines or in a foreign country;

o the possibility that in the future, there may be

communication with the child at their or the child’s

initiative. o the right to reconsider his/her decision to relinquish

his/her child within six (6) months from signing the

Deed of Voluntary Commitment (DVC) subject to

assessment by the Department.

3. Continuing services shall be provided after relinquishment to cope with feelings of loss, etc. and other services for his/her reintegration to the community.

4. The biological parent(s) who decided to keep the child shall be provided with adequate services and assistance to fulfill parental responsibilities.

2. Prospective Adoptive Parent(s)

1. Biological Parents shall be counseled regarding their options:

to disseminate basic information about adoption including the adoption process and procedures and

the effects of adoption.

to inform them of the general background of children in need of adoptive homes including children with

special needs;

to develop among prospective adoptive parents a respect for the child’s biological origin and an

awareness of the importance of telling the child that he/she is adopted.

To provide a support group for adoptive parents which shall give them a venue for sharing their

adoption experiences.

2. A certificate shall be issued by the Department to the prospective adoptive parents attesting that they have undergone pre-adoption services.

The certificate shall be made a pre-requisite of the homestudy.

3. Prospective Adoptee

A prospective adoptee shall be provided with counseling and other support services appropriate to his/her age and maturity,

and in a manner and language that the child comprehends,

especially to enable him/her to understand why he/she has been

relinquished for adoption.

In the case of a prospective adoptee whose consent to his/her own adoption is necessary, the social worker/counselor shall

consider the child’s wishes and opinions, ensure that his/her

consent is voluntary and duly inform him/her of the effects of

such consent.

SECTION 5. Location of Unknown Parent(s). – It shall be the duty of the

Department or the child-caring or child-placing agency which has custody of the child to exert all efforts to locate his/her unknown biological parents.

The following shall be sufficient proof that such efforts to locate the biological parents, guardians or relatives have been made:

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Certification from radio and/or TV stations that the case was aired on three (3) different occasions; and

Publication in newspapers of general or local circulation whichever is appropriate to the circumstances.

If the biological parent(s) is located, he/she will be assessed to determine their willingness to keep the child and their parenting capability. If reunification is desired it shall be effected after the parent(s) and child undergo counseling.

If efforts to locate child’s parent/s fail, the child shall be registered as a foundling and within three (3) months from the time he/she is found, be the subject of legal proceedings where he/she shall be declared abandoned. If the child’s parents are located but reunification is not desired, the parent(s) shall execute a deed of voluntary commitment to the department.

SECTION 6. Support Services. – the Department and other authorized

agencies shall organize and assist groups for adoptive parents, biological parents and adoptees, provide parent and family life education sessions and referral for specialized services.

ARTICLE IV ELIGIBILITY

SECTION 7. Who May Adopt. – any Filipino citizen or alien residing in the

Philippines who has the qualification and none of the disqualifications under the Act may be eligible to adopt if he/she:

o is of legal age. o is at least sixteen (16) years older than the adoptee; Provided,

however that the minimum age gap between the adopter and the

adoptee may not be required if the adopter is the biological

parent or sibling of the adoptee or the spouse of the adoptee’s parent;

o has the capacity to act and assume all the rights and duties

incident to the exercise of parental authority;

o is of good moral character and has not been convicted of any crime involving moral turpitude;

o is in a position to support, educate and care for his/her legitimate

and illegitimate children and the child to be adopted in keeping with the means of the family;

o has undergone pre-adoption services as required in Section 4 of

the Act.

In addition to these qualifications, an alien may adopt if he/she:

is a citizen of a state which has diplomatic relations with the Philippines;

has been certified by his/her diplomatic or consular office or any

appropriate agency that:

o he/she is qualified to adopt in his/her country; and

o his/her government will allow the adoptee to enter the adopter’s country and reside there permanently as an

adopted child;

has submitted the necessary clearances and such other certifications as may be required by the Department.

SECTION 8. Who May Be Adopted – the following may be adopted:

a. any person below eighteen (18) years of age who has been

administratively or judicially declared available for adoption in

accordance with the procedures as indicated in Articles 142 to 155 of the P.D. 603: The Child and Youth Welfare Code;

b. the legitimate son/daughter of one spouse by the other spouse.

c. the illegitimate son/daughter by a qualified adopter to improve

his/her status to that of legitimacy; d. a person of legal age if, prior to the adoption, said person has

been consistently considered and treated by the adopter(s) as

his/her own child since minority.

e. a child whose adoption has previously been rescinded; or f. a child whose biological or adoptive parent(s) has died:

Provided, that no proceedings shall be initiated within six (6)

months from the time of death of said parent(s)

SECTION 9. Persons Whose Consent Is Necessary To The Adoption. – In addition to the Consent to Adopt by the Department under Section 22 of these Rules, the written consent of the following persons to the adoption

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shall be given in the required legal form and attached to every petition for adoption:

a. the prospective adoptee, if ten (10) years of age or over.

b. the prospective adoptee’s biological parents of the child or legal

guardian;

c. the prospective adopter’s legitimate and adopted sons/daughters who are ten (10 years of age or over and, if any illegitimate

sons/daughters living with them;

d. the prospective adopter’s spouse in appropriate cases; and

prospective adopted in appropriate cases.

The foregoing consent shall be given freely after they have been properly counseled as required under Section 4 by a social worker who shall attest in the same document that the required counseling and information have been given.

ARTICLE V PROCEDURE

SECTION 10. Hurried Decision. – In all proceedings for adoption, a comprehensive study report prepared by a licensed social worker shall be submitted to the court as proof that the biological parent(s) has been properly counseled and provided other support services:

1. to exhaust all measures to strengthen family ties and keep the child; 2. to ensure that their decision to relinquish their child for adoption is not

caused by stress, anxiety or pressure; and

3. to ascertain that such decision does not result in improper financial gain

for those involved in it.

SECTION 11. Attendance In Adoption Fora and Seminar. – In

accordance with Section 4.2 of these Rules, prospective adoptive parents shall attend adoption fora and seminars prior to filing their application to adopt.

SECTION 12. Fees and Charges. – Pursuant to Section 23 (d) of the Act,

child-caring and child-placement agencies may charge reasonable fees as determined by the Department to cover expenses in providing adoption

services. The applicant(s) shall be apprised of the fees at the start of the adoption process.

SECTION 13. Application for Adoption. – A person eligible to adopt under

Article III, Section 7 of the Act who desires to adopt a child in the Philippines whether a relative or not has attended adoption fora and seminar, shall file his/her application for adoption with the Department directly or with a social service office of a local government unit, or with any licensed accredited child placing agency. Spouses shall file their application jointly.

1. Authenticated birth certificate

2. Marriage Contract or Divorce, Annulment, Declaration of Nullity, or Legal Separation documents;

3. Written consent to the adoption by the legitimate and adopted

sons/daughters, and illegitimate sons/daughters if living with the

applicant, who are at least ten (10) years old; 4. Physical and medical evaluation by a duly licensed physician

and psychological evaluation by a psychologist;

5. NBI/Police Clearance

6. Latest income tax return or any other documents showing financial capability, e.g. Certificate of Employment, Bank

Certificate or Statement of Assets and Liabilities;

7. Three (3) character references, namely from the local

church/minister, the employer, and a non-relative member of the immediate community who have known the applicant(s) for at

least three (3) years;

8. 3x5 sized pictures of the applicant(s) and his/her immediate

family taken within the last three (3) months; 9. Certificate of attendance to pre-adoption fora or seminars.

In addition, foreign nationals shall submit the following:

10. Certification that the applicant(s) have legal capacity to adopt in

his/her country and that his/her country has a policy, or is a signatory of an international agreement, which allows a child

adopted in the Philippines by its national to enter his/her country

and permanently reside therein as his/her legitimate child which

may be issued by his/her country’s diplomatic or consular office or central authority n intercountry adoption or any government

agency which has jurisdiction over child and family matters; or

in the absence of any of the foregoing, the Philippine

Intercountry Adoption Board may also certify that the Philippines and the applicants’ country have an existing

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agreement or arrangement on intercountry adoption whereby a

child who has been adopted in the Philippines or has a pre-adoption placement approved by the Board is allowed to enter

and remain as permanent resident in the applicant’s country as

his/her legitimate child.

11. Certificate of Residence in the Philippines issued by the Bureau of Immigration or Department of Foreign Affairs, as

appropriate;

12. Two (2) character references from a non-relatives who knew the

applicant(s) in the country of which he/she is a citizen or was a resident prior to residing in the Philippines, except for those who

have resided in the Philippines for more than fifteen (15) years;

13. Police Clearance from all places of residence in the past two

years immediately prior to residing in the Philippines.

In the case of an applicant who is residing abroad, but is otherwise qualifies to adopt in the Philippines under the provisions of the Act, the Homestudy report shall be prepared by an accredited foreign adoption agency. However, a certification from the Intercountry Adoption Board shall be required to ensure that said agency is accredited.

SECTION 15. Disapproval of Adoption Application. – the applicants shall

be informed as soon as possible about the approval or disapproval of the adoption application. In case of disapproval, the social worker shall help them understand the reasons for their disapproval and shall assist or refer them for appropriate services in areas where they need to be helped. Except when found by the social worker that such application can no longer be considered, there shall be no prejudice to future application of said applicants.

SECTION 16. Certificate Of Availability Of Child For Adoption. – No child

shall be placed for adoption unless a clearance has been obtained from the Department that said child is available for adoption. The Department shall not issue such certification unless the child Study Report prepared by a duly licensed and accredited social worker of the Department, or of a child caring agency recommends that the child’s best interest will be served by adoption.

The Department shall issue the Certificate of Availability for Adoption not later than fifteen (15) days after expiration of the six (6) month period after execution of Deed of Voluntary Commitment by the child’s parents or legal guardian required under PD No. 603 or the Child and Youth Welfare Code or after receipt of entry of judgement in case of involuntary commitment. Copy

of the Certificate of Availability for Adoption and Child Study Report shall be sent to the Child Welfare Specialist Group (CWSG) for purpose of placement of the child for adoption.

SECTION 17. Supporting Documents Of Child Study Report. – The child

study report shall be prepared only by a licensed and accredited social worker of the Department or child caring agency not involved in child placement. Such child study report shall include assessment and recommendations of the social worker as to the alternative child custody and care appropriate for the child.

The following documents shall accompany the child report:

1. Authenticated birth or foundling certificate, when appropriate;

2. Written Consent to adoption by the biological parent(s) or the

legal guardian and the written consent of the child if at least ten

(10) years old, signed in the presence of the social worker of the Department or child caring agency after proper counseling as

prescribed in Section III of these Rules;

3. Death Certificate of biological parents, Decree of abandonment

or Deed of Voluntary Commitment, as appropriate; 4. Medical evaluation of the child and his/her parent(s), if

available;

5. Psychological Evaluation when appropriate;

6. Picture of the child

SECTION 18. Submission Of Case Records Of Prospective Adoptees

and Prospective Adoptive Parents. – Case Records of prospective adoptees and prospective adoptive parents shall be submitted to the concerned Adoption Resource and Referral Office (ARRO) which was established according to Section 23 of the Act for matching.

SECTION 19. Matching. – The matching of the child to an approved

adoptive parent(s) shall be carried out during the regular matching conference by the Matching Committee otherwise called the Child Welfare Specialist Group (CWSG) in the regional level where the social workers of the child and family are present. Subject to approval of the Department, the CWSG shall fix its own internal rules and procedures in accordance with the rules of Court; Provided, however, that records of children and approved adoptive parent/s not matched within thirty (30) days in the regional level shall be forwarded to the Department’s Central Office for interregional

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matching; Provided further that children with special needs shall be immediately forwarded if not matched in the first meeting, except under special circumstances.

The matching proposal made by the CWSG shall be approved by the Department.

SECTION 20. Interregional Matching. – Records of prospective adoptees and approved adoptive parent/s not matched in the regional level shall be forwarded to the Department’s Central Office for interregional matching by the Interregional Adoptive Placement Committee whose internal rules and procedures shall be established by the Department.

SECTION 21. Pre-Placement. – The respective social worker who prepared

the reports shall also prepare the adoptive family and the child, physically and psychologically before actual placement.

SECTION 22. Placement. – The physical transfer of a child from a child caring agency or foster home to the prospective adoptive parents who shall be responsible for his/her care and custody shall be made after the necessary form are accomplished and the Pre-Adoption Placement Authority (PAPA) has been issued after approval of the Regional Director for placement within the region or by the Department Secretary or his/her duly authorized representative in cases of interregional placements.

SECTION 23. Supervised Trial Custody. – The placement of the child shall

take effect upon issuance of the Pre-Adoption Placement Authority by the Department after which the supervised trial custody shall commence.

During the supervised trial custody, the social worker shall conduct monthly home visits to monitor adjustment of the prospective adopter(s) and child to each other and submit progress report to the Department. A copy of these reports shall be given to the child caring agency where the child came from.

The court may upon its own motion or on motion of the petitioner, reduce or dispense with the trial period if it finds that it is to the best interest of the child. In such case, the court shall state its reasons for reducing said period.

SECTION 24. Disruption of Pre-Adoptive Placement. – If the

placement/relationship is found unsatisfactory by the child or the adopter(s), or both, or if the social worker finds that the continued placement of the child is not in the child’s best interest, said relationship/placement shall be

suspended by the Department which shall recommend to the Adoption Resource and Referral Office to consider another possible placement. Should there be no available prospective adoptive family, the Department shall arrange for the child’s temporary care. No termination of placement shall be made unless it is shown that the social worker has exhausted all efforts to remove the cause of the unsatisfactory relationship/placement within a reasonable period of time.

SECTION 25. New Placement. – In the event of the disruption of the pre-

adoptive placement, the Department shall arrange without delay a new placement of the child, or, if inappropriate, other alternative long term care. The consent of the child to the measures taken under this section shall be obtained having regard to his/her age and level of maturity in particular.

SECTION 26. Consent to Adoption. – If the adjustment of the

child/adopter(s) is satisfactory, the social worker shall forward to the Department the final supervisory report which shall include the recommendation for the issuance of the written consent to adoption to be executed by the Department.

SECTION 27. Filing Of Petition For Adoption. – the prospective adoptive parent(s) shall initiate judicial proceeding by filing the petition to adopt not later than 30 days from date of receipt of the Department’s written consent to adoption.

SECTION 28. Issuance of Decree of Adoption and Entry of Judgement. – If, after considering the recommendation and reports of the social worker and other evidence, the Court is satisfied that the adopter(s) are qualified to adopt, then an adoption decree and an Entry of Judgement shall be issued stating the name by which the child is to be known. A copy of the decree of adoption shall be forwarded to the Department. The effectivity of the decree shall be as of the date of the original petition was filed.

SECTION 29. Travel Authority of Adopted Child. – No adoptee shall be

issued a travel authority unless a decree of adoption has already became final and executory. In this respect, the amended birth certificate shall be presented. If for any valid reason the same cannot be presented, the application for travel authority shall be accompanied by the duplicate original or certified true copy of the decree of adoption and entry of judgement issued by the court which promulgated the decision and a certification from the Office of the Solicitor General at the decision is final and executory and that no appeal there from has been filed by the said office.

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SECTION 30. Recording Of The Court Decision. – A court decision on

adoption as well as the finality of decision shall be submitted by the clerk of court or in his default, by the adopting parent(s), to the Local Civil Registry Office of the City/municipality where the court issuing the same is situated, for entry in the Register of Court Decrees, not later that thirty (30) days after the court decision has become final and executory. Such Local Civil Registry Office shall submit one copy of the court decision to the Local Civil Registrar of the city or municipality where the birth of the adopted child was registered and the latter office shall have the duty to prepare the amended certificate of live birth of the adopted child.

SECTION 31. Civil Registry Record. – The adopted child shall be entitled

to the issuance of a new certificate of live birth. Amendment to the certificate of live birth shall be done in accordance with the rules and regulations promulgated by the Office of the Civil Registrar General and Section 14 of the Act.

A copy of the new birth certificate shall be transmitted by the local civil registrar to the National Statistics Office within 30 days from registration.

SECTION 32. Post Adoption Services. – Post Adoption Services which shall include counseling shall be made available by the social workers of the Department, social services unit of the local government, child placing and child caring agencies to develop the adoptee, adopter and the biological parents.

ARTICLE VI EFFECTS OF ADOPTION

SECTION 33. Effects of Adoption. – Adoption shall have the following effects:

1. sever all legal ties between the biological parents and the adoptee, except

when the biological parent is the spouse of the adopter;

2. Deem the adoptee as a legitimate child of the adopter; 3. Give adopter and adoptee reciprocal rights and obligations arising from

the relationship of parent and child, including but not limited to:

i. the right of the adopter to choose the name, the child’ is to be

known; and

ii. the right of the adopter and adoptee to legal and compulsory

heirs of each other

SECTION 34. Benefits. – the adoptive parents shall, with respect to the

adopted child, enjoy all the benefits to which biological parents are entitled. Maternity and paternity benefits and other benefits given to biological parents upon the birth of a child shall be enjoyed if the adoptee is below seven (7) years of age as of the date the child is placed with the adoptive parents thru the Pre-Adoptive Placement Authority issued by the Department.

ARTICLE VII RESCISSION OF ADOPTION

SECTION 35. Grounds for Rescission. – Adoption being in the best

interest of the child, shall not be subject to rescission by the adopter(s). The adoption may be rescinded only upon the petition of the adoptee with the assistance of the Department, if a minor or if over eighteen (18) years of age but is incapacitated, on any of the following grounds committed by the adopter(s):

1. Repeated physical and verbal maltreatment by the adopter(s) despite

having undergone counseling;

2. Attempt on the life of the adoptee;

3. Sexual assault or violence; or 4. Abandonment and failure to comply with parental obligations

SECTION 36. Disinheritance of Adoptee. – the adopter(s) may disinherit

the adoptee for cause provided in Article 919 of the Civil Code.

SECTION 36. Disinheritance of Adoptee. – the adopter(s) may disinherit the adoptee for cause provided in Article 919 of the Civil Code.

SECTION 37. Effects of Rescission. – Rescission of Adoption shall have

the following effects.

1. Restoration of parental authority of the adoptee’s biological parent(s), if known or the legal custody of the Department of the adoptee if still a

minor or incapacitated.

11

2. The reciprocal rights and obligations of the adopter(s) and the adoptee to

each other shall be extinguished. 3. Cancellation of the new birth certificate of the adoptee by the Civil

Registrar as ordered by the court and restoration of the adopter’s original

birth certificate.

4. Succession rights shall revert to its status prior to adoption but only as of the date of judgement of judicial rescission.

5. Vested rights acquired prior to judicial rescission shall be respected.

All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Penal Code if the criminal acts are properly proven.

ARTICLE VIII ADOPTION RESOURCE AND REFERRAL OFFICE

SECTION 38. Functions. – The Adoption Resource and Referral Office

(ARRO) shall be under the supervision of the Department’s Central Office and Regional Office Director.

The functions of the ARRO shall include the following:

1. Monitor the existence, number and flow of children legally

available for adoption and prospective adopter(s), so as to

facilitate their matching;

2. Maintain a nationwide/regional information and educational campaign o domestic adoption;

3. Keep records of adoption proceedings;

4. Generate resources to help child-caring and child-placing

agencies and maintain viability; 5. Do policy research in collaboration with the Intercountry

Adoption Board and other concerned agencies; and

6. Act as the Secretariat to the Child Welfare Specialist Group

(CWSG) during Interregional/regional matching conferences.

SECTION 39. Composition Of the CSWG. – The CWSG shall have five (5)

members composed of a social worker of the Department, a lawyer specializing on child and youth welfare cases, a physician, a psychiatrist or psychologist, and a representative of a non-government organization of adoptive parents or child welfare agencies who shall be selected in

consultation with the recognized association or organization of adoptive parents and child caring agencies.

The Department shall appoint qualified persons who shall serve in the CWSG for a term of two (2) years which may be renewed for another term.

Only CWSG members who are not with the Department shall be entitled to a per diem for every meeting attended but not to exceed four (4) meetings a month.

SECTION 40. Functions Of The CWSG. – The CWSG shall have the

following functions:

1. Match children for adoption 2. Implement an integrated system and network of selection and matching of

applicants and children;

3. Initiate, review and recommend changes in policies concerning child

placement and other matters related to child welfare;

4. Perform such other functions and duties as may be prescribed by the

Department.

ARTICLE IX ADOPTION RESOURCE AND REFERRAL OFFICE

SECTION 41. Procedure for Rectification. – A person who has under his

care and custody a child whose birth registration has been simulated to make it appear that the child is his/her own son or daughter shall file in the appropriate court an application for correction of the birth registration and for adoption of the child. For the purpose of availing of the benefit under Section 22 of the Act, said person shall initiate said proceedings within five (5) years from the effectivity of the Act and shall thereafter complete said proceedings wherein he/she shall prove that the simulation of birth was made for the best interest of the child, and the child has been consistently considered and treated as his/her own son/daughter. The Department shall conduct its own child and home study reports through a licensed and duly accredited social worker to determine if said conditions exist.

In all cases of rectification of simulated birth and adoption of said child, the Department shall secure a deed of voluntary commitment executed by the child’s biological parent(s) or a judicial declaration of abandonment

12

transferring legal custody of the child to the Department; Provided that if adoption by the person who has custody of the child is recommended, said person shall retain custody of the child unless the court decided otherwise.

Any publication to determine the whereabouts of the child’s biological parents and relatives shall be limited to the circumstances at the time the child was found without revealing the present identity of the child and his/her current custodian. Any inquiries regarding the child shall be directed to the Department.

ARTICLE X REGISTRATION OF BIRTH

SECTION 42. Registration of Birth. – All hospitals, attending physicians

and midwives in attendance at the birth of a child shall register such birth of a child not later than 30 days from the date of said birth as required under the Civil Register Law.

ARTICLE XI CONFIDENTIALITY OF ADOPTION RECORDS

SECTION 43. Confidentiality. – All records, documents and court

proceedings relating to the adoption shall be confidential. No copy thereof shall be released without determination that it is for reasons substantially connected with or arising out of the adoption.

In such event, records and information shall be disclosed in a way that will prevent persons who do not have a legitimate interest, from learning the fact that a person has been adopted or, if that is revealed, the identity of his/her biological parents.

ARTICLE XII REPORTING VIOLATIONS

SECTION 44. Office In Charge of Handling Violations. – The CWSG,

child caring/placing agency and every person who has knowledge of any violation under the Act or related laws shall immediately report the same to the nearest police station, local government unit or office of the Department who shall act thereon within twenty-four (24) hours from receipt of the report. Any delay or negligence in acting on the violations shall be dealt with criminally and administratively.

Failure of adopters to initiate legalization of the adoption of children placed in their care and custody within six (6) months from the end of supervised trial custody shall be considered an act not in the best interest of the child.

ARTICLE XIII VIOLATIONS AND PENALTIES

Any person who shall violate any of the provisions of the act shall be dealt with accordingly pursuant to Article VII Section 21 of the Act.

ARTICLE XIV FINAL PROVISIONS

SECTION 45. Interpretation Of The Provisions Of The Rule. – Any doubt

or ambiguity in the provisions of these Rules shall be interpreted in the best interest of the child.

SECTION 46. Repealing Clause. – All rules and regulations, orders,

resolutions, and parts thereof inconsistent with the provisions of this Rules are hereby repealed or modified accordingly.

SECTION 47. Separability Clause. – If for any reason, any section or

provision of these Rules is declared unconstitutional or invalid, the other sections or provisions hereof which are not affected shall continue in full force and effect.

13

SECTION 48. Effectivity. – These Rules shall take effect fifteen (15) days after its publication in two (2) newspapers of general circulation, except those which pertain to self-executing provision of this Act.

Approved in _____________________________ this _____ day of _______ in the year of our Lord, Nineteen Hundred and Ninety Eight.

FIRST DIVISION

IN RE: PETITION FOR G.R. Nos. 168992-93

ADOPTION OF MICHELLE P. LIM, Present:

MONINA P. LIM, PUNO, C.J., Chairperson,

Petitioner. CARPIO,

x - - - - - - - - - - - - - - - - - - - - - - - x CORONA, LEONARDO-DE CASTRO, and

IN RE: PETITION FOR BERSAMIN, JJ.

ADOPTION OF MICHAEL JUDE

P. LIM, Promulgated:

MONINA P. LIM, Petitioner. May 21, 2009

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review on certiorari filed by Monina P. Lim (petitioner)

seeking to set aside the Decision[1] dated 15 September 2004 of the Regional Trial

Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258

and 1259, which dismissed without prejudice the consolidated petitions for adoption

of Michelle P. Lim and Michael Jude P. Lim.

The Facts

The following facts are undisputed. Petitioner is an optometrist by profession.

On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor

children, whose parents were unknown, were entrusted to them by a certain Lucia

Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim

registered the children to make it appear that they were the children’s parents. The

children[2] were named Michelle P. Lim (Michelle) and Michael Jude P. Lim

(Michael). Michelle was barely eleven days old when brought to the clinic of

petitioner. She was born on 15 March 1977.[3] Michael was 11 days old when

Ayuban brought him to petitioner’s clinic. His date of birth is 1 August 1983.[4]

The spouses reared and cared for the children as if they were their own. They

sent the children to exclusive schools. They used the surname “Lim” in all their

school records and documents. Unfortunately, on 28 November 1998, Lim died. On

27 December 2000, petitioner married Angel Olario (Olario), an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the

amnesty[5] given under Republic Act No. 8552[6] (RA 8552) to those individuals

14

who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate

petitions for the adoption of Michelle and Michael before the trial court docketed as

SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the

petitions for adoption, Michelle was 25 years old and already married, while

Michael was 18 years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by

their Affidavits of Consent.[7] Michael also gave his consent to his adoption as

shown in his Affidavit of Consent.[8] Petitioner’s husband Olario likewise executed

an Affidavit of Consent[9] for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and

Development (DSWD), Michelle was considered as an abandoned child and the

whereabouts of her natural parents were unknown.[10] The DSWD issued a similar

Certification for Michael.[11]

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the

petitions. The trial court ruled that since petitioner had remarried, petitioner should

have filed the petition jointly with her new husband. The trial court ruled that joint

adoption by the husband and the wife is mandatory citing Section 7(c), Article III of

RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion

was denied in the Order dated 16 June 2005. In denying the motion, the trial court

ruled that petitioner did not fall under any of the exceptions under Section 7(c),

Article III of RA 8552. Petitioner’s argument that mere consent of her husband

would suffice was untenable because, under the law, there are additional

requirements, such as residency and certification of his qualification, which the

husband, who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint

adoption is merely for the joint exercise of parental authority, the trial court ruled

that joint adoption is not only for the purpose of exercising parental authority

because an emancipated child acquires certain rights from his parents and assumes

certain obligations and responsibilities.

Hence, the present petition.

Issue

Petitioner appealed directly to this Court raising the sole issue of whether or

not petitioner, who has remarried, can singly adopt.

The Court’s Ruling

15

Petitioner contends that the rule on joint adoption must be relaxed because it is

the duty of the court and the State to protect the paramount interest and welfare of

the child to be adopted. Petitioner argues that the legal maxim “dura lex sed lex” is

not applicable to adoption cases. She argues that joint parental authority is not

necessary in this case since, at the time the petitions were filed, Michelle was 25

years old and already married, while Michael was already 18 years of age. Parental

authority is not anymore necessary since they have been emancipated having

attained the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner

had already remarried. She filed the petitions by herself, without being joined by her

husband Olario. We have no other recourse but to affirm the trial court’s decision

denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7,

Article III of RA 8552 reads:

SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full

civil capacity and legal rights, of good moral character, has not

been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children,

at least sixteen (16) years older than the adoptee, and who is in a

position to support and care for his/her children in keeping with

the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be

waived when the adopter is the biological parent of the adoptee,

or is the spouse of the adoptee’s parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has

diplomatic relations with the Republic of the Philippines, that

he/she has been living in the Philippines for at least three (3)

continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree

is entered, that he/she has been certified by his/her diplomatic or

consular office or any appropriate government agency that

he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as

his/her adopted son/daughter: Provided, further, That the

requirements on residency and certification of the alien’s

qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt

a relative within the fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate

son/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen

and seeks to adopt jointly with his/her spouse a relative

within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or

(c) The guardian with respect to the ward after the

termination of the guardianship and clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the

following cases:

(i) if one spouse seeks to adopt the legitimate

son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own

illegitimate son/daughter: Provided, however, That the

other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from

each other.

16

In case husband and wife jointly adopt, or one spouse

adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)

The use of the word “shall” in the above-quoted provision means that joint

adoption by the husband and the wife is mandatory. This is in consonance with the

concept of joint parental authority over the child which is the ideal situation. As the

child to be adopted is elevated to the level of a legitimate child, it is but natural to

require the spouses to adopt jointly. The rule also insures harmony between the

spouses.[12]

The law is clear. There is no room for ambiguity. Petitioner, having remarried

at the time the petitions for adoption were filed, must jointly adopt. Since the

petitions for adoption were filed only by petitioner herself, without joining her

husband, Olario, the trial court was correct in denying the petitions for adoption on

this ground.

Neither does petitioner fall under any of the three exceptions enumerated in

Section 7. First, the children to be adopted are not the legitimate children of

petitioner or of her husband Olario. Second, the children are not the illegitimate

children of petitioner. And third, petitioner and Olario are not legally separated

from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit

of Consent does not suffice. There are certain requirements that Olario must comply

being an American citizen. He must meet the qualifications set forth in Section 7 of

RA 8552 such as: (1) he must prove that his country has diplomatic relations with

the Republic of the Philippines; (2) he must have been living in the Philippines for at

least three continuous years prior to the filing of the application for adoption; (3) he

must maintain such residency until the adoption decree is entered; (4) he has legal

capacity to adopt in his own country; and (5) the adoptee is allowed to enter the

adopter’s country as the latter’s adopted child. None of these qualifications were

shown and proved during the trial.

These requirements on residency and certification of the alien’s qualification

to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees

are not relatives within the fourth degree of consanguinity or affinity of petitioner or

of Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since

the children have been emancipated having reached the age of majority. This is

untenable.

Parental authority includes caring for and rearing the children for civic

consciousness and efficiency and the development of their moral, mental and

physical character and well-being.[13] The father and the mother shall jointly

exercise parental authority over the persons of their common children.[14] Even the

remarriage of the surviving parent shall not affect the parental authority over the

children, unless the court appoints another person to be the guardian of the person or

property of the children.[15]

17

It is true that when the child reaches the age of emancipation — that is, when

he attains the age of majority or 18 years of age[16] — emancipation terminates

parental authority over the person and property of the child, who shall then be

qualified and responsible for all acts of civil life.[17] However, parental authority is

merely just one of the effects of legal adoption. Article V of RA 8552 enumerates

the effects of adoption, thus:

ARTICLE V

EFFECTS OF ADOPTION

SEC. 16. Parental Authority. - Except in cases where the

biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed

and the same shall then be vested on the adopter(s).

SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and

purposes and as such is entitled to all the rights and obligations

provided by law to legitimate sons/daughters born to them

without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means

of the family.

SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of

succession without distinction from legitimate filiation.

However, if the adoptee and his/her biological parent(s) had left

a will, the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the

biological parent(s) and the adoptee, except when the biological parent is the spouse

of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give

adopter and adoptee reciprocal rights and obligations arising from the relationship of

parent and child, including but not limited to: (i) the right of the adopter to choose

the name the child is to be known; and (ii) the right of the adopter and adoptee to be

legal and compulsory heirs of each other.[18] Therefore, even if emancipation

terminates parental authority, the adoptee is still considered a legitimate child of the

adopter with all the rights[19] of a legitimate child such as: (1) to bear the surname

of the father and the mother; (2) to receive support from their parents; and (3) to be

entitled to the legitime and other successional rights. Conversely, the adoptive

parents shall, with respect to the adopted child, enjoy all the benefits to which

biological parents are entitled[20] such as support[21] and successional rights.[22]

We are mindful of the fact that adoption statutes, being humane and salutary,

hold the interests and welfare of the child to be of paramount consideration. They

are designed to provide homes, parental care and education for unfortunate, needy or

orphaned children and give them the protection of society and family, as well as to

allow childless couples or persons to experience the joys of parenthood and give

them legally a child in the person of the adopted for the manifestation of their

natural parental instincts. Every reasonable intendment should be sustained to

promote and fulfill these noble and compassionate objectives of the law.[23] But, as

we have ruled in Republic v. Vergara:[24]

We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children.

Accordingly, the law should be construed liberally, in a manner

that will sustain rather than defeat said purpose. The law must

also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care

and education for less fortunate children. Regrettably, the Court

is not in a position to affirm the trial court’s decision favoring

adoption in the case at bar, for the law is clear and it cannot be

modified without violating the proscription against judicial

legislation. Until such time however, that the law on the matter

is amended, we cannot sustain the respondent-spouses’ petition

for adoption. (Emphasis supplied)

18

Petitioner, being married at the time the petitions for adoption were filed, should

have jointly filed the petitions with her husband. We cannot make our own

legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that

joint adoption could no longer be possible because Olario has filed a case for

dissolution of his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between

petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution

of marriage. Until and unless there is a judicial decree for the dissolution of the

marriage between petitioner and Olario, the marriage still subsists. That being the

case, joint adoption by the husband and the wife is required. We reiterate our ruling

above that since, at the time the petitions for adoption were filed, petitioner was

married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15

September 2004 of the Regional Trial Court, General Santos City, Branch 22 in

SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

Chairperson

Republic of the Philippines SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 164948 June 27, 2006

DIWATA RAMOS LANDINGIN Petitioner,

vs. REPUBLIC OF THE PHILIPPINES, Respondent.

D E C I S I O N

19

CALLEJO, SR., J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision

1 of the Court of Appeals in CA-G.R. CV No. 77826

which reversed the Decision2 of the Regional Trial Court (RTC) of Tarlac

City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein.

The Antecedents

On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition

3 for the adoption of minors Elaine Dizon Ramos who

was born on August 31, 1986;4 Elma Dizon Ramos, who was born on

September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5,

1989.6 The minors are the natural children of Manuel Ramos, petitioner’s

brother, and Amelia Ramos.

Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,

7 the children were left to their paternal grandmother, Maria

Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent

8 to the adoption;

she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent

9 to the adoption of the minors.

Petitioner’s brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioner’s custody.

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:

WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene

Dizon Ramos by the petitioner, and ordering that the minor children’s name follow the family name of petitioner.

Petitioner prays for such other reliefs, just and equitable under the premises.

10

On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.

11 The Office of the Solicitor General (OSG) entered its

appearance12

but deputized the City Prosecutor of Tarlac to appear in its behalf.

13 Since her petition was unopposed, petitioner was allowed to

present her evidence ex parte.14

The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.

15 The petitioner marked in evidence the Affidavit of Consent

purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.

16

On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following recommendation:

In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons:

1. Minors’ surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached.

2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent.

20

3. The minors are present under the care of a temporary guardian who has also family to look after. As young adolescents they really need parental love, care, guidance and support to ensure their protection and well being.

In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close attachments was already developed between the petitioner and the 3 minors.

17

Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal interview concerning the adoption of her children.

The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended the wake of their mother were very much concerned about the well-being of the three minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian.

The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.

18

However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to the adoption.

On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads:

WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children relationship has long been established between the children and the adoptive parents. Let the surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin."

Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth certificates of the above-mentioned minors.

SO ORDERED.19

The OSG appealed20

the decision to the Court of Appeals on December 2, 2002. In its brief

21 for the oppositor-appellant, the OSG raised the following

arguments:

I

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES’ BIOLOGICAL MOTHER.

II

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONER’S CHILDREN AS REQUIRED BY LAW.

III

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONER’S FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES.

On April 29, 2004, the CA rendered a decision22

reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary

consent of Amelia Ramos, the children’s natural mother. Moreover, the affidavit of consent of the petitioner’s children could not also be admitted in

21

evidence as the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the

children. The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET ASIDE.

SO ORDERED.23

Petitioner filed a Motion for Reconsideration24

on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.

25

Petitioner, thus, filed the instant petition for review on certiorari26

on September 7, 2004, assigning the following errors:

1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE.

2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.

27

The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioner-adopter’s children sufficiently complies with the law; and (c) whether or not petitioner is financially capable of supporting the adoptees.

The Court’s Ruling

The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,

28 that adoption statutes, being humane and salutary,

hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.

29

However, in Cang v. Court of Appeals,30

the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Court’s position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.

31

Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides:

Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;

(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latter’s souse, if any;

22

(e) The spouse, if any, of the person adopting or to be adopted.

The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.

32

Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption.

We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition.

Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelia’s husband died in 1990, she left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the children’s financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children by the petitioner.

Petitioner’s contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian.

Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.

33 The term means neglect and refusal to perform the filial

and legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.

34

Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.

35To dispense with the requirement of

consent, the abandonment must be shown to have existed at the time of adoption.

36

In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia Ramos had abandoned her children. Petitioner’s testimony on that matter follows:

Q Where is the mother of these three children now?

A She left for Italy on November 20, 1990, sir.

Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family?

A None, sir.

Q How about with her children?

A None, sir.

Q Do you know what place in Italy did she reside?

A I do not know, sir.

Q Did you receive any news about Amelia Ramos?

A What I know, sir, was that she was already married with another man.

Q From whom did you learn that?

A From others who came from Italy, sir.

23

Q Did you come to know whether she has children by her second marriage?

A Yes, sir, she got two kids.37

Elaine, the eldest of the minors, testified, thus:

Q Where is your mother now?

A In Italy, sir.

Q When did your mother left for Italy?

A After my father died, sir.

Q How old were you when your mother left for Italy in 1990?

A Two years old, sir.

Q At the time when your mother left for Italy, did your mother communicate with you?

A No, sir.38

However, the Home Study Report of the DSWD Social Worker also stated the following:

IV. Background of the Case:

x x x x

Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.

39

x x x x

V. Background Information about the Minors Being Sought for Adoption:

x x x x

As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.

40

x x x x

In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death of her husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her husband’s relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper.

When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000.

While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is amenable to it. He is providing his legitimate family regular support.

Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.

41

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was

merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations

24

of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send financial support to the

children, though in minimal amounts as compared to what her affluent in-laws provide.

Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.

42 It would thus be against the spirit of the law if financial

consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.

43 Again, it is the best interest of the child that takes

precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.

44

Petitioner failed to offer in evidence Pagbilao’s Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioner’s children

45 was notarized on January 16, 2002 in Guam, USA; for it to be

treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,

46 which

states:

Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements:

(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, chargé d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting

within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, chargé de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine.

As the alleged written consent of petitioner’s legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.

47

Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is inadmissible in evidence.

In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.

48 Petitioner

contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the

25

need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family.

Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family.

According to the Adoption Home Study Report49

forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioner’s main intention in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings.

Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the records do not prove nor support petitioner’s allegation that her siblings and her children are financially able and that they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the CA on this issue.

While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors.

WHEREFORE, premises considered, the petition is hereby DENIED.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

Chief Justice Chairperson

CONSUELO YNARES-SANTIAGO

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Asscociate Justice

MINITA V. CHICO-NAZARIO