Part 13 - Adoption

7/30/2019 Part 13 - Adoption

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SPECPRO DIGESTS RDS 5-6 A2010 PROF. BATTAD

SINCO v LONGA51 Phil 507

STREET; 1928INA

FACTS- Hacienda Rosario was owned by EscolasticoSinco, who was married to Saturnina Lopez. Theyhad 3 children, Sergio, Maria Paz, and Coloma.Coloma had 3 children of her own, Vicente, Pilar,and Desemparados. Colomas children are theplaintiffs in this case.- When Escolastico died, his estate was indebtedfor P14k. In order to pay for this, Saturnina andtheir children leased the hacienda for 7 years toLonga & his sister-in-law (Longa). The leaseagreement was such that the lessees wouldassume the indebtedness and the rentals wouldbe applied to the payment of the estates debts.The lease was extended for 2 years.- Coloma predeceased Saturnina. When Saturninadied, she left a will acknowledging the

encumbrance of the hacienda. Sergio and MariaPaz tried to question the right of Colomaschildren (plaintiffs) to inherit, but the oppositionwas abandoned (kasi medyo obvious diba).- After Saturninas death, Sergio was hard-pressed for money to sustain his huge family, sohe offered to sell his 1/3 undivided share in thehacienda to Longa. Longa wanted to buy thewhole property because he was trying to borrowmoney from the Tabacalera Company to pay thepurchase price of the hacienda and the companywasnt secure in having a 1/3 undivided share assecurity for the loan. Maria Paz got on board.They sold their undivided shares to Longa. Sowhat was left to sell was the share of Colomas

children, who at that time were all minors underthe guardianship of Emilio Tevez, which couldntbe sold without court approval.- Before the approval of the court to sell, uncleand auntie executed a document, guaranteeingto Longa that (1) they will not take back their 2/3,regardless of the decision of the court; and (2)they will not oppose the sale of the childrensshare, once approved by the court.- The court approved the sale. And so thechildrens share was sold to Longa. The childrenbrought a case, questioning the regularity of thesale of their property.

ISSUE

WON the sale of the property of the minors wasattended with fraud (of Longa).

HELDNO.- In passing upon controversies of this characterexperience teaches the danger of acceptinglightly charges of fraud made many years after

the transaction in question was accomplished,when death may have sealed the lips of theprincipal actors and changes effected by timemay have given a totally different color to thecause of controversy. In the case before us theguardian, Emilio Tevez, is dead. The same is trueof Trinidad Diago, mother of the defendantAgueda Longa; while Agapito Longa is now livingin Spain. It will be borne in mind also that, in sofar as oral proof is concerned, the charge of fraudrests principally of the testimony of a singlewitness who, if fraud was committed, was aparticipant therein and who naturally would nowbe anxious so far as practicable, to put the blameon others. In this connection it is well to bear in

mind the following impressive language of Mr.Justice Story:

xxx But length of time necessarily obscures allhuman evidence; and as it thus removes from theparties all the immediate means to verify thenature of the original transactions, it operates byway of presumption, in favor of innocence, andagainst imputation of fraud. It would beunreasonable, after a great length of time, torequire exact proof of all the minutecircumstances of any transaction, or to expect asatisfactory explanation of every difficulty, real orapparent, with which it may be incumbered. Themost that can fairly be expected, in such cases, if

the parties are living, from the frailty of memory,and human infirmity, is that the material factscan be given with certainty to a common intent;and, if the parties are dead, and the cases rest inconfidence, and in parol agreements the mostthat we can hope is to arrive at probableconjectures, and to substitute generalpresumptions of law, for exact knowledge. Fraud,or breach of trust, ought not lightly to be imputedto the living; for, the legal presumption is theother way; and as to the dead, who are not hereto answer for themselves, it would be the heightof injustice and cruelty, to disturb their ashes,and violate the sanctity of the grave, unless theevidence of fraud be clear, beyond a reasonable

doubt. (Prevost vs. Gratz, 6 Wheat. [U. S.], 481,498.)- The attorneys for the appellees criticize theorder of the court of November 16, 1910,authorizing the sale of the share of the minors inthe hacienda as irregular and beyond thejurisdiction of the court. We are unable to concurin this view. The petition presented by the

guardian stated a case, we think, for a sale of aportion of the guardianship estate forreinvestment, as contemplated in section 569 ofthe Code of Civil Procedure. In the petition it wasclearly set forth that the income of the children'sproperty was insufficient property to maintainand educate them and that it was for their benefitthat their share should be sold. It was also thereinstated that the property was encumbered.Admitting that these statements of the petitionwere untrue the jurisdiction of the court toauthorize the sale was not thereby affected,because the jurisdiction of the court rests on theaverments of the petition and not upon the truthof those averments. The suggestion that the

order was irregular and beyond the jurisdiction ofthe court because publication was not made overthe whole period required by law losses its forcein view of the fact that the next of kin of theminors are stated in the order to have personallyappeared in court.* The court here said that the minors here werereally in a dangerous position since no oneintervened in the sale who was really looking outfor the minors interests. Uncle and Auntie wereprotecting theirs. Even the guardian was after thecash that would be realized from the sale to applyto his own uses, instead of reinvesting it.Especially considering that the minors were not indire need of the proceeds as was reflected in the

petition for the authorization to sell. They hadsufficient properties aside from the 1/3 share inthe hacienda to support them (as evidenced bythe fact that they got by without even using theproceeds kasi nga kinuha ni Tevez). Tsk tsk tsk.

MARGATE V RABACAL7 SCRA 894

PAREDES; April 30, 1963APPLE

FACTS-This is an application for the registration of aresidential land, with a house, containing an area

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of 465 square meters, situated in Iriga,Camarines Sur, by Jose Margate, who claims tohave purchased the property from Julia Rabacalfor P4,000.00.-Rabacal and her minor children opposed theapplication, on the ground that the property wasunder guardianship proceedings when sold; thatthe sale was not authorized by the court;

that the purchase price of P4,000.00 was not fullypaid, as there was a remaining balance ofP500.00 and that the market price of the lot andhouse was P10,000.00.-After due hearing, the registration courtconfirmed the title of the applicant, and orderedthat the same be registered in the name ofMargate-Oppositors appealed to the Court of Appealswhich certified the case to SC stating that theissues involved are purely legal in character.**(facts as found by trial court)-the parcel of land and house, was owned by Dr.

Julio Berina, who died on October 15, 1945,survived by his widow, Julia Rabacal, and his

minor children, the oppositors herein.-Rabacal was appointed guardian of her minorchildren and letters of guardianship was issued inher favor. She filed a petition alleging that it wasnecessary to sell parcel 4 of the inventory, inorder to defray the expenses in the prosecutionof Civil Case No. 919 and for the support andeducation of the wards. This petition wasapproved by the court, authorizing the guardianto sell the residential lot and its improvements.-Rabacal offered to sell to Margate the residentiallot in question, for P5,000.00. After negotiations,the parties agreed on the selling price ofP4,000.00. After the agreement, Rabacal begangetting money from Margate, such that when

Rabacal secured the authority to sell from thecourt, she had already obtained from Margate thesum of P500.00, and after having secured theorder of authority to sell, Rabacal showed toMargate a copy of the order. On May 27, 1948, adeed of sale was executed by Julia Rabacal,acknowledged before a Notary Public, selling theland in question to Margate for P4,000.00, onwhich date Margate paid the balance ofP3,500.00 to Rabacal.-Notwithstanding the fact that Rabacal hadsold parcel 4 of the inventory, and executeda deed of sale on May 27, 1948, Rabacal, inthe guardianship proceedings, assertedthat despite her efforts, she was unable to

find a buyer for said parcel of land, leadingthe court to cancel the granted authority tosell

ISSUEWON the sale of the land to Margate was valid

HELDYes.-Appellants argue that the deed of sale executedby Rabacal had no binding effect because theauthority to sell was cancelled and the sale wasnot approved by the guardianship Court.-the cancellation of the authority to sell did not,and could not, affect, the rights of the buyer,because at the time that the order cancelling theauthority to sell was entered, the guardian, JuliaRabacal, had already acted in accordance withauthority, and sold the land to Jose F. Margate.-The authority of the Court had already beenexhausted, after it was fulfilled by the guardian,and there was nothing to cancel.

-Moreover, the cancellation of the order to sellwas entered by the Court due to the deception ofthe guardian. If the court had been informed ofthe sale, the court would certainly not haverevoked the authority.-Moreover, the revocation was entered withoutnotice to the purchaser Jose F. Margate-With respect to the lack of approval of the saleby the court, the law merely requires that theguardian should be authorized, and that theauthority to sell did not impose the condition thatthe deed of sale executed by the guardian shouldbe approved by the Court. The approval of thesale by the court, under the facts andcircumstances obtaining in this case, would then

be merely pro-forma, since the appellants werenot able to show any reason why theguardianship would have refused to approve thesale which was already a fait accompli and withinthe authority given by said court.-Being the petitioners-vendors, appellants cannotvalidly attack the proceedings had in the sale, oncertain formal technicalities, considering the factthat they were the very persons who requested,obliged and prayed the court in the guardianshipproceedings to approve the said sale, and thatthey had derived the utmost advantage andbenefit out of the proceeds thereof.

LICHAUCO VS TAN PHOROMUALDEZ; November 21, 1923

ATHE

NATUREAppeal from the judgments of the CFI of Manila

FACTS- Galo Lichauco, Geronimo Jose as guardian of thespendthrift Zacarias Lichauco, and Amparo N.Jose as guardian of the minors Luis and JulitaLichauco entered into a contract of lease of landwith Tan Pho in his capacity as general atorney-in-fact of Tan-U, widow of the late Chua Piengco,and administrator of all of the property of thelatters heirs. The contract of lease provided forthe erection of a building of strong materials forthe period of twenty years, from the date of theexecution of the contract, for the price or rent ofP1,560 monthly. Upon the termination of theperiod of the lease, all the improvements orbuildings constructed on the leased land shall

become the property of the owners of the land,without the lessee being entitled to payment orcompensation of any kind, either by reason ofsaid building or by the improvements on the land.- At the time the contract of case was executed,the owners of this and were: Galo Lichauco, ofone-third pro indiviso; Zacarias Lichauco, at thattime incapacitated, of another one-third proindiviso; and Luis Lichauco then a minor and JulitaLichauco also at that time and still a minorcoowners of the remaining one-third part proindiviso.- Faustino Lichauco, the new guardian ad litemboth of the minors Luis and Julita Lichauco, and ofthe incapacitated Zacarias Lichauco, filed a case

against the lessee Tan Pho, his principal Tan U(alias Tan O), the children of the latter andagainst Galo Lichauco one of the lessors. In saidcase, the Court of First Instance of Manilarendered judgment finding, among other things,that said contract of lease is valid. From thisjudgment plaintiff appealed. Faustino assailed thecontract as void raising the following issues:

ISSUES1. WON the contract of lease is valid

a. WON the guardians of the incapacitatedperson and of the minors could not execute it

b. WON the contract was not, and could nothave been authorized by the court;

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c. WON Tan Pho had no power to enter intoit.2. WON the registration of the said lease in theregistry is final and conclusive.

HELD1. NO. That the contract of lease is void asregards the plaintiffs, and the effects of this

declaration of partial nullity retroacts toSeptember 17, 1920, the date on which thecomplaint for nullity was presented.

a. YES. Article 1548 of the Civil Code providesthat No lease for a term of more than six yearsshall be made by the husband with respectto the property of his wife, by the father withrespect to that of his children, by the guardianwith respect to that of his ward, or by a managerin default of special power with respect to theproperty entrusted to him for management.Reasoning:- The lease was for a period greater than sixyears and the respective guardians of the

incapacitated Zacarias Lichauco and the minorsLuis and Julita Lichauco lacked the special powerrequired by this legal provision.

b. Although the lease in question could beapproved by the court, nevertheless, suchapproval was neither obtained in due time, norsubsequently.Reasoning- There was an allegation that Amparo Nableverbally requested the presiding Judge Crossfieldto execute said lease. Judge Crossfield alsoexecuted an affidavit stating that he approved ofthe lease, in the presence and with the completeapproval of all the parties interested and he

ordered that clerk to prepare orders for entry inthe record. However, F. Canillas, the deputy clerkdenied that Crossfield ordered him to prepareorders for entry in the record nor did the judgegive him any orders or instructions with referenceto the approval of the lease. Thus, the allegedapproval signed by Judge Crossfield was notattached to the court records of the case, nor didever form part thereof. Consequently, theapprobatory nunc pro tunc1 order impliedly

1 The office of a judgment nunc pro tunc is to recordsome act of the court done at a former time which wasnot then carried into the record, and the power of acourt to make such entries is restricted to placing upon

entered in the judgment appealed from, is invalidon account of having been entered without asufficient legal basis therefor.

c. NO. If Tan Pho was the administrator of theestate of Chua Piengco, then he had the power tomanage to manage the property of said estate.The employment of funds of the latter for the

construction of a building on leased land, for thepurpose of obtaining rents from such building isan investment of capital which may beconsidered as included in the powers of anadministrator of a decedent's estate. We cannotforce ourselves to believe that, in view of thefacts of the case, Tan Pho took part in this leaseas direct attorney-in-fact of the heirs of thedeceased Chua Piengco. If at the time, the estatehad not been partitioned, as it appears in thecase, such heirs had as yet no hereditaryproperty to dispose of, nor to answer for theiracts, seeing that the estate was legally in thehands of the administrator.

2. NO.

the record evidence of judicial action which has beenactually taken. It may be used to make the record speakthe truth, but not to make it speak what it did not speakbut ought to have spoken. If the court has not rendereda judgment that it might or should have rendered, or if ithas rendered an imperfect or improper judgment, it hasno power to remedy these errors or omissions byordering the entry nunc pro tunc of a proper judgment.Hence a court in entering a judgment nunc tunc has nopower to construe what the judgment means, but only toenter of record such judgment as had been formerlyrendered, but which had not been entered of record as

rendered. In all cases the exercise of the power to enterjudgments nunc pro tunc presupposes the actualrendition of a judgment, and a mere right to a judgmentwill not furnish the basis for such an entry. (15 R. C. L.,pp. 622-623.)

The phrase nunc pro tunc signifies "now for then,"or that a thing is done now that shall have the samelegal force and effect as if one at the time it ought tohave been done. A court may order an act done nunc

pro tunc when it, or some one of its immediateministerial officers, has done some act which for somereason has not been entered of record or otherwisenoted at the time the order or judgment was made orshould have been made to appear on the papers orproceedings by the ministerial officer. (Secou vs. Leroux,1 N. M., 383, 389.)

DISPOSITION: the judgment appealed from isreversed and it is hereby declared and ordered:1. That the contract of lease here in questionexecuted by Galo Lichauco and the respectiveguardians of Zacarias Lichauco and the minorsLuis and Julita Lichauco on the one side, and byTan Pho on the other, is void as regards theplaintiffs, and the effects of this declaration of

partial nullity retroacts to September 17, 1920,the date on which the complaint for nullity waspresented.2. Without prejudice to any contract or contractswhich the interested parties herein may desire toexecute in accordance with the law and inharmony with this opinion, the plaintiffs, from thetime Tan Pho is notified of this decision, shall beentitled to appropriate two-thirds part proindiviso of the buildings and improvementsconstructed by the party represented by said TanPho on the property in question, upon payment ofthe proper indemnity, according to the provisionsof articles 361, 453, and 454 of the Civil Code inforce or said plaintiffs shall have the right to

compel the party represented by the defendantTan Pho to pay to the plaintiffs the value of two-thirds pro indiviso of the land.3. The plaintiffs shall be entitled to demand andto receive from the party represented by thedefendant Tan Pho a rental for the occupation oftwo-thirds part pro indiviso of the land, fromSeptember 17, 1920, until said two-thirds part

pro indiviso of the buildings and improvementsconstructed by said Tan Pho becomes theproperty of the plaintiffs, as aforesaid, or until thetwo-thirds part pro indiviso of the land belongingto the plaintiffs becomes the property of theparty represented by said Tan Pho in the mannerspecified in the preceding paragraph. The amount

of this rental mentioned in this paragraph shall befixed by the interested parties, reserving themthe right to resort to the courts for itsdetermination, in case they cannot reach anagreement; provide that the rents, which byvirtue of the lease in question the plaintiffs mayhave received or may receive from Tan Pho fromSeptember 17, 1920, shall be applied upon saidrent to be agreed upon by the interested partiesor judicially fixed.4. The registrar of deeds of Manila is herebyordered to amend the certificate of title to theland in question issued under decree No. 17729in registration proceeding No. 9667, as also thecorresponding books of registry, as well as the

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copies of said certificate of title, to the effect thatsaid lease therein registered, as far as theplaintiffs are concerned, has been extinguishedand rendered void and of no effect by virtue ofthis decision.

IN RE GUARDIANSHIP OF

INCHAUSTI, V MANUEL SOLERG.R. No. L-15119STREET, J.; January 19, 1920

TERRY

FACTS- On January 18, 1915, CFI Manila ordered the

appointment of Maria Consuelo Rico, mother of

Inchausti, as guardian of the person and

property of her son Jose R. de Inchausti, as he

had become demented and incapable of properly

caring for himself and estate, after which he was

sent to Barcelona, Spain, where he has continued

to reside.

- On August 30, 1915, Manuel Soler, Inchaustis

friend, petitioned the court to rehabilitate him

and end the guardianship.

- This was opposed by the guardian, on the

grounds (1) that the ward had not been given

sufficient notice of the hearing and (2) that it had

not been satisfactorily shown that he is now

capable of taking care of himself and property.

- Upon hearing the petition the trial judge

overruled both of these objections and adjudged

the ward, Jose R. de Inchausti, to be of sound

mind, notwithstanding an ordering to the

guardian for an accounting of the estate of

Inchausti

ISSUES1 WON the proper procedure of due notice toward was followed2 WON there was a sufficient showing thatInchausti was already capable of taking care ofhimself

HELDYES- The clerk, by order of the court, sent a

cablegram to the United States Consult at

Barcelona, requesting him to notify Jose R. de

Inchausti that the petition for his restoration to

capacity would be heard in the Court of First

Instance of Manila on October 19, 1918. [a] In

reply to this, a cablegram was received from

Barcelona on October 14, 1918, signed by the

Consul General of the United States in that city,

advising that Inchausti had been duly notified

according to instructions. [b] The trial judge held

that notice to the ward had been given asrequired by law, and he proceeded, on the

appointed day, to dispose of the petition upon its

merits in accordance with the proof then

submitted.

- The notification of the ward required in section

562 of the Code of Civil Procedure is not intended

as a personal service of process in the sense

necessary to give the court jurisdiction over the

ward. It is, therefore, of no moment that the

person to be notified was living in a foreign

country and thus beyond the territorial

jurisdiction of the Manila court. Nor is the manner

in which the court procured service of the noticeof any importance. It is sufficient that the notice

was given.

- Rationale of notification upon petition by

friend: Notification to the ward ? where the

petition to rehabilitate him is presented by a

friend ? is required merely as an assurance that

the individual chiefly concerned shall have

cognizance of what is being done. It at least gives

him an opportunity to advise the court in case

action taken by the mover of the petition was

officious or unauthorized. That the messages

were sent and received by cable, as above

stated, affords sufficient evidence, in the absenceof anything to the contrary, that notification was

duly effected, as reported in the return of the

Consul General.

2 YES- The violent access of dementia which

manifested itself prior to the original appointment

of the guardian passed off after Inchausti was

taken away from Manila in 1915 and the same

extreme manifestations of derangement have not

reappeared. Furthermore, the evidence shows

that at the time the petition for his rehabilitation

was heard, the ward was in normal mental state

and had been in this condition for a period

sufficiently long to justify the belief that he is

permanently restored

- The opposition to the termination of the

guardianship seems to be based chiefly on the

fear, entertained by his mother, that Inchausti, if

placed in control of the large property to which

he is heir, will prove to be a spendthrift. Eventhough this fear should be well-founded, it affords

no reason for maintaining a guardianship which

had its origin in his mental incapacity. Anyway,

proper proceedings can be instituted to protect

him from wasteful proclivities in the event the

derangement reoccurs. But present mental

capacity being proved, he is entitled to be

discharged from tutelage.

IN THE MATTER OF THE ADOPTIONOF THE MINOR, EDWIN VILLALUIS & EDIPOLA SANTOS V

REPUBLIC OF THE PHILIPPINESGR L-22523

ANGELES; September 29, 1967MAIA

NATUREAppeal from decision of Juvenile and DomesticRelations Court dismissing the petition foradoption of Edwin Villa

FACTS- Santos spouses filed the petition on January 8,1963, to adopt minor Edwin Villa y Mendoza, 4years old, and brother of petitioner-wife Edipola.- the spouses are both 32 years old, Filipinos,residing in Manila. They were married in 1957and have maintained a conjugal home of theirown. They do not have a child of their own blood.Neither spouse has any legitimate, legitimated,illegitimate, acknowledged natural child, ornatural child by legal fiction, nor has any one ofthem been convicted of a crime involving moralturpitude.- Edwin is a child of Francisco Villa and FlorenciaMendoza (Edwin is the younger brother ofEdipola). Luis E. Santos, Jr., is a lawyer, withvarious business interests. His income is

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approximately P600/month. His wife Edipola, is anurse, with an average monthly earning of P300- Edwin was born on May 22, 1958 and was asickly child since birth. Due to the child'simpairing health his parents entrusted him to thepetitioners who reared and brought him up forthe years thereafter, and as a result, theredeveloped between the petitioners and the child,

a deep and profound love for each other. Thenatural parents of the minor testified that theyhave voluntarily given their consent to theadoption of their son by the petitioners, andsubmitted their written consent and conformity tothe adoption, and that they fully understand thelegal consequences of the adoption of their childby the petitioners.- trial court dismissed the petition, saying thatthe adoption will result in an incongruoussituation where the minor Edwin Vil la, alegitimate brother of the petitioner-wife, will alsobe her son. In the opinion of the court, thatincongruity not neutralized by othercircumstances absent herein, should prevent the

adoption.

ISSUEWON an elder sister may adopt a younger brother

HELDYESRatio There is no provision in the law thatrelatives, by blood or by affinity, are prohibitedfrom adopting one another.Reasoning The only objection raised is thealleged incongruity that will result in therelation of the adopter and the adopted, in thecircumstance that the adopted who is the brotherof the adopter, will also be her son by adoption.The theory is, therefore, that adoption among

people who are related by nature should not beallowed, in order that dual relationship should notresult- It cannot be stated as a general proposition thatthe adoption of a blood relative is contrary to thepolicy of the law, for in many states of the US, norestriction of that sort is contained in the statutesauthorizing adoption, although laws of otherjurisdiction expressly provide that adoption maynot take place within persons within a certaindegree of relationship (1 Am. Jur. 628-629).Courts in some states hold that in the absence ofexpress statutory restriction, a blood relationshipbetween the parties is not a legal impediment tothe adoption of one by the other, and there may

be a valid adoption where the relation of parentand child already exists by nature (2 Am. Jur. 2d869). Principles vary according to the particularadoption statute of a state under which any givencase is considered. It would seem that in thosestates originally influenced by the civil lawcountries where adoption originated, the rulesare liberally construed, while in other states

where common law principles predominate,adoption laws are more strictly applied becausethey are regarded to be in derogation of thecommon law.- Art.335, CC enumerates those persons who maynot adopt, and it has been shown that adoptersherein are not among those prohibited fromadopting. Art.339 names those who cannot beadopted, and the adoptee here is not one ofthose excluded by the law. Art. 338, on the otherhand, allows the adoption of a natural child bythe natural father or mother, of other illegitimatechildren by their father or mother, and of astepchild by the stepfather or stepmother. Thislast article is, of course, necessary to remove all

doubts that adoption is not prohibited even inthese cases where there already exist arelationship of parent and child between them bynature. To say that adoption should not beallowed when the adopter and the adopted arerelated to each other, except in these casesenumerated in Article 338, is to precludeadoption among relatives no matter how farremoved or in whatever degree that relationshipmight be, which in our opinion is not the policy ofthe law. The interest and welfare of the child tobe adopted should be of paramount consideration. Adoption statutes, being humaneand salutary, and designed to provide homes,care and education for unfortunate children,

should be construed so as to encourage theadoption of such children by person who canproperly rear and educate them- wrt objection that the adoption here will resultin a dual relationship between the parties, thatthe adopted brother will also be the son of theadopting elder sister, that fact alone should notprevent the adoption. One is by nature, while theother is by fiction of law. The relationshipestablished by the adoption is limited to theadopting parents and does not extend to theirother relatives, except as expressly provided bylaw. Thus, the adopted child cannot beconsidered as a relative of the ascendants andcollaterals of the adopting parents, nor of the

legitimate children which they may have after theadoption except that the law imposes certainimpediments to marriage by reason of adoption.Neither are the children of the adoptedconsidered as descendants of the adopter. Soeven considered in relation to the rules onsuccession which are in pari materia, theadoption under consideration would not be

objectionable on the ground alone of the resultingrelationship between the adopter and theadopted. Similar dual relationships also resultunder our law on marriage when persons who arealready related, by blood or by affinity, marryeach other. But as long as the relationship is notwithin the degrees prohibited by law, suchmarriages are allowed notwithstanding theresulting dual relationship. And as there is noprovision in the law that expressly prohibitsadoption among relatives, they ought not to beprevented.Disposition Decision reversed.Adoption granted

REPUBLIC VS HONORABLERODOLFO TOLEDANO & SPOUSES

CLAVE233 SCRA 9

Puno ; June 8, 1994MEL

NATUREPetition for review on certiorari of the decisionofRTC Zambales (Iba) in Special Proceedingentitled, "In the Matter of the Adoption of theMinor named Solomon Joseph Alcala

FACTS

- In a verified petition filed before the RTC of Iba,Zambales, private respondents spouses Clousesought to adopt the minor, Solomon JosephAlcala, the younger brother of private respondentEvelyn A. Clouse. The petition was set forhearing.- The principal evidence disclose that privaterespondent Alvin A. Clouse is a natural borncitizen of the United States of America. Hemarried Evelyn, a Filipino on June 4, 1981 atOlongapo City. On August 19, 1988, Evelynbecame a naturalized citizen of the United Statesof America in Guam. They are physically,

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mentally, morally, and financially capable ofadopting Solomon, a twelve (12) year old minor.- Since 1981 to 1984, then from November 2,1989 up to the present, Solomon Joseph Alcalawas and has been under the care and custody ofprivate respondents. Solomon gave his consent tothe adoption. His mother, Nery Alcala, a widow,likewise consented to the adoption due to poverty

and inability to support and educate her son.- Mrs. Nila Corazon Pronda, the social workerassigned to conduct the Home and Child Study,favorably recommended the granting of thepetition for adoption.- Finding that private respondents have all thequalifications and none of the disqualificationsprovided by law and that the adoption willredound to the best interest and welfare of theminor, respondent judge rendered a decisiongranting the petition for adoption- Petitioner, through the Office of the SolicitorGeneral appealed

ISSUE

WON petitioners argument is correct (won Alvinand Evelyn are qualified to adopt under Phil law)

HELDYESRatioArticle 184, paragraph (3) of Executive Order No.209 expressly enumerates the persons who arenot qualified to adopt, viz.:(3) An alien, except:(a) A former Filipino citizen who seeks to adopt arelative by consanguinity;(b) One who seeks toadopt the legitimate child of his or her Filipinospouse; or(c) One who is married to a Filipinocitizen and seeks to adopt jointly with his or her

spouse a relative by consanguinity of thelatter.Aliens not included in the foregoingexceptions may adopt Filipino children inaccordance with the rules on inter-countryadoption as may be provided by law.- There can be no question that privaterespondent Alvin A. Clouse is not qualified toadopt Solomon Joseph Alcala under any of theexceptional cases in the aforequoted provision. Inthe first place, he is not a former Filipino citizenbut a natural born citizen of the United States ofAmerica. In the second place, Solomon JosephAlcala is neither his relative by consanguinity northe legitimate child of his spouse. In the thirdplace, when private respondents spouses Clouse

jointly filed the petition to adopt Solomon JosephAlcala on February 21, 1990, private respondentEvelyn A. Clouse was no longer a Filipino citizen.She lost her Filipino citizenship when she wasnaturalized as a citizen of the United States in1988.- Private respondent Evelyn A. Clouse, on theother hand, may appear to qualify pursuant to

paragraph 3(a) of Article 184 of E.O. 209. Shewas a former Filipino citizen. She sought to adopther younger brother. Unfortunately, the petitionfor adoption cannot be granted in her favor alonewithout violating Article 185 which mandates ajoint adoption by the husband and wife. It reads:Article 185. Husband and wife must jointly adopt,except in the following cases:(1) When one spouse seeks to adopt his ownillegitimate child; or(2) When one spouse seeks to adopt thelegitimate child of the other.- Article 185 requires a joint adoption by thehusband and wife, a condition that must be readalong together with Article 184. 3

- This was so crafted to protect Filipino childrenwho are put up for adoption. The Family Codereiterated the rule by requiring that husband andwife "must" jointly adopt, except in the casesmentioned before. Under the said new law, jointadoption by husband and wife is mandatory. Thisis in consonance with the concept of jointparental authority over the child, which is theideal situation. As the child to be adopted iselevated to the level of a legitimate child, it is butnatural to require the spouses to adopt jointly.The rule also insures harmony between thespouses.

DISPOSITION: Petition granted

REPUBLIC VS MILLERG.R. No. 125932

PARDO; April 21, 1999EVA

NATURECA certified the case to the SC because thepetition raised only questions of law. SC treatedthe appeal as one via certiorari from a decision ofthe RTC.

FACTS- July 29, 1988, the spouses Claude A. Miller andJumrus S. Miller, filed with the RTC Angeles City a

verified petition to adopt the minor MichaelMagno Madayag.- At the hearing spouses Miller adduced evidenceshowing that:1. Claude A. Miller, 38 years old and Jumrus S.Miller, 40 years of age, both American citizens,are husband and wife, having been married onJune 21, 1982.

2. They were childless and "do not expect to havesibling out of their union on account of a medicalproblem of the wife."3. Claude A. Miller was a member of the US AirForce assigned at Clark Air Base. The familymaintains their residence at Angeles City, since1985.4. The minor Michael has been in the custody ofrespondents since the first week of August 1987.Poverty and deep concern for the future of theirson prompted the natural parents who have novisible means of livelihood to have their childadopted by respondents. They executedaffidavits giving their irrevocable consent to theadoption by respondents.

5. DSWD recommended approval of the petition.- RTC rendered decision granting the petition foradoption petitioners.- Solicitor General interposed an appeal

ISSUEWON aliens may adopt a Filipino child despite theprohibition under the Family Code, effective onAugust 3, 1988 when the petition for adoptionwas filed on July 29, 1988, under the provision ofthe Child and Youth Welfare Code which allowedaliens to adopt.

HELDYES. The SC has ruled that an alien qualified to

adopt under the Child and Youth Welfare Code,which was in force at the time of the filing of thepetition, acquired a vested right which could notbe affected by the subsequent enactment of anew law disqualifying him.Consequently, the enactment of the Family Code,effective August 3, 1988, will not impair the rightof respondents who are aliens to adopt a Filipinochild because the right has become vested at thetime of filing of the petition for adoption and shallbe governed by the law then in force.- As long as the petition for adoption wassufficient in form and substance in accordancewith the law in governance at the time it wasfiled, the court acquires jurisdiction and retains it

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until it fully disposes of the case. The jurisdictionof the court is determined by the statute in forceat the time of the commencement of the action.Such jurisdiction of a court, whether in criminal orcivil cases, once it attaches cannot be ousted bya subsequent happenings or events, although ofa character which would have preventedjurisdiction from attaching in the first instance.

Therefore, an alien who filed a petition foradoption before the effective of the Family Code,although denied the right to adopt under Art. 184of said Code, may continue with his petitionunder the law prevailing before the Family Code.- Adoption statutes, being humane and salutary,hold the interests and welfare of the child to be ofparamount consideration. Every reasonableintendment should be sustained to promote andfulfill these noble and compassionate objective ofthe law.DISPOSITIVE Affirmed.

SANTOS VS. ARANZANSO16 SCRA 345

BENGZON; February 28, 1966JP

FACTS- Eight years after the order of adoption of thenminors Paulina and Aurora Santos, one of theiradoptive parents, Juliana Reyes, died leavingsubstantial properties.- In the settlement of her estate, her cousins,respondents Gregoria Aranzanso and DemetriaMendoza intervened alleging the invalidity of themarriage of Juliana Reyes to Simplicio Santos,and the adoption decree of the two minors.

ISSUES1 WON adoption is valid adoption2 WON adoption can be attacked collaterally

HELD1 YES.- After holding that it matters not whether themarriage was valid or invalid, the deceased canstill adopt, the Court addressed the allegations ofthe respondents upholding the adoption decree.- Parental Consent. Consent of parents not anabsolute requisite if child was abandoned.Consent by the parents to the adoption is not anabsolute requisite. If the natural parents have

abandoned their children, consent by theguardian ad litem suffices. (Simplicio wasguardian ad litem)- Meaning of abandonment. In adoptionproceedings imports any conduct on the part ofthe parent which evidences a settled purpose toforgo all parental duties and relinquish allparental claims to the child. It means neglect or

refusal to perform the natural and legalobligations of care and support which parentsowe to their children.- The Court further said that adoptionproceedings being proceedings in rem,constructive notice, such as the publication dulymade in a newspaper of general circulation, isenough where the residence of the parents isunknown. Notice is not required in adoption casesin regard to the abandoning parent.

2 NO, adoption cannot be attacked collaterally.- On the MR, the Court said that the adoptioncannot be attacked collaterally, and that theaction appealed with the CA was not the adoption

decree but the settlement, the adoption cannotbe attacked collaterally there being no evidenceto be re-examined in the present action. Thecourt also declared that leaving children in thecustody of others constitutes abandonmentespecially when permanently and indefinitely.

DSWD v. BELEN275 SCRA 645 (1997)

DIANNA

FACTS- Administrative complaint initiated by Corazon M.Layug, Social Welfare Officer IV of the DSWS Field

Office in La Union.- Respondent Judge Antonio M. Belen is chargedwith rendering an erroneous decree of adoptionin violation of Article 33 of Presidential DecreeNo. 603 and the corresponding SC Circular No.12.- Respondent Elma P. Vedaa, Social WelfareOfficer II, Office of the Clerk of Court, RegionalTrial Court of Lingayen, Pangasinan is chargedwith disregarding the provisions of the sameCircular No. 12.

1. Spouses Desiderio Soriano and AuroraBernardo-Soriano, both naturalized American

citizens, filed a verified petition for adoption oftheir niece, the minor Zhedell Bernardo Ibea.2. Judge Belen granted the petition after findingthat petitioner spouses were highly qualified toadopt the child as their own.3. Belen based his decree primarily on thefindings and recommendation of the DSWD thatthe adopting parents on the one hand and the

adoptee on the other hand have alreadydeveloped love and emotional attachment andparenting rules have been demonstrated to theminor.4. On these considerations, respondent judgedecided and proceeded to dispense with trialcustody. Judge says the DSWD findings andrecommendations are contained in the AdoptiveHome Study Report and Child Study Reportprepared by the local office of the DSWD throughrespondent Vedaa.5. However, when the minor Zhedell BernardoIbea sought to obtain the requisite travelclearance from the DSWD in order to join heradoptive parents in the United States, it turned

out that the DSWD did not have any record in itsfiles regarding the adoption and that there wasnever any order from respondent judge for theDSWD to conduct a Home and Child StudyReport in the case.6. FURTHER, there was no directive fromrespondent judge for the social welfare officer ofthe lower court to coordinate with the DSWD onthe matter of the required reports for said minorsadoption.7. ARTICLE 33, PD 603 states: Petitions foradoption shall be granted only after the DSWDhas conducted and submitted a case study of theadoptee, the natural parents and the adoptiveparents.

Circular No. 12 directs Regional Trial Courtshearing adoption cases: (1) to NOTIFY theMinistry of Social Services and Development, thruits local agency, of the filing of adoption cases orthe pendency thereof with respect to those casesalready filed; (2) to strictly COMPLY with therequirement in Article 33 of the aforesaiddecree The Staff Assistant V (Social Worker) ofthe Regional Trial Courts, if any, shall coordinatewith the Ministry of Social Services andDevelopment representatives in the preparationand submittal of such case study.8. It was also alleged by the DSWD thatrespondent Elma P. Vedaa had asked for anundisclosed amount of money from the adopting

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parents in order to expedite the adoption casewith the DSWD.9. Respondent judge, in compliance therewith,claimed that he directed respondent Vedaa toconduct the home and case study, and thereaftersubmit the required reports thereon. Belencontends that, except only for direct coordinationwith the DSWD in the preparation of said reports,

no approval from the DSWD is necessary for thehome and case study reports and it need not befurnished therewith.10. The OCA recommended that respondentjudge be administratively punished for violatingCircular No. 12 and Article 33 of PD 603.11. Vedaa meanwhile, pointed out that therenever was any directive from respondent judgefor her to coordinate with the DSWD concerningthe adoption in question. She was only ordered toconduct the case study and submit her reportthereon to the court at least one week before theinitial hearing of the case, as was also thepractice in the other RTCs.

ISSUEWON approval from the DSWD is necessary forthe home and case study reports (and whether ajudge may decide based on such report).HELDNO.- Belen definitely rendered the adoption decree inderogation of the provisions of Article 33 andCircular No. 12 and Vedaa should havecoordinated with the DSWD in connection withthe preparation of the home and case studyreports.Ratio1. Pursuant to Circular No. 12, the proper course

that respondent judge should have taken was tonotify the DSWD at the outset about thecommencement of the Special Proceeding so thatthe corresponding case study could have beenaccordingly conducted by said department.2. DSWD has the necessary competence, morethan that possessed by the court social welfareofficer, to make the proper recommendation.3. Belen should never have merely presumed thatit was routinary for the social welfare officer tocoordinate with the DSWD regarding the adoptionproceedings. It was his duty to exercise cautionand to see to it that such coordination wasobserved in the adoption proceedings, togetherwith all the other requirements of the law.

4. Belen may well have wittingly or unwittinglyplaced in jeopardy the welfare and future of thechild whose adoption was under consideration.Adoption, after all, is in a large measure a legaldevice by which a better future may be accordedan unfortunate child.5. As for Vedaa, she has compromised theprescribed process in the administration of justice

in proceedings such as the one underconsideration.6. Belen acted in good faith however inpresumably believing that it was standardprocedure for the Social Welfare Officer II of aRegional Trial Court to do so in coordination withthe DSWD. Also, there is no evidence whatsoeverthat respondent Vedaa sought to obtain anyamount from the adopting parents.

DUNCAN V CFI OF RIZAL69 SCRA 298

February 10, 1976; ESGUERRA, J.LORA

FACTS- Petitioners Robin Francis Radley Duncan andMaria Lucy Christensen are husband and wife, theformer a British national residing in thePhilippines for the last 17 years and the latter anAmerican Citizen born in and a resident of thePhilippines.- A child, only 3 days old was given to petitionersfor them to adopt, by Atty. Corazon de LeonVelasquez. The child was later on baptized asColin Berry Christensen Duncan with theaforementioned spouses appearing in the recordsof said baptism as the parents of said child- Atty. Corazon de Leon Velasquez received the

infant from the child's unwed mother who told theformer never to reveal her (the mother's) identitybecause she wanted to get married and did notwant to destroy her future. The mother instructedAtty. Corazon de Leon Velasquez to look for asuitable couple who will adopt the child. Themother did not provide for the maintenance andsupport of her child- In the petition for adoption filed by petitionersAtty. Velasquez, as the de facto guardian or locoparentis of the child subject of the adoptionpetition, gave the written consent required by law- Learning from the testimony of witness Atty.Velasquez that the natural mother of the childsought to be adopted was still alive, the court

then pressed upon the witness to reveal theidentity of said mother. The witness refused todivulge the same on the ground that thereexisted an attorney and client relationshipbetween them. She had been instructed by herclient not to reveal the latter's identity. She couldnot now violate such privileged communication.- The petition for adoption was dismissed. The

principal reason given for the dismissal of thepetition was that ". . . the consent given in thispetition Exhibit "J" is improper and falls short ofthe express requirement of the law."- CFI: The contention that for her (Atty. Corazonde Leon Velasquez, the witness for the petitionerswho gave the written consent to the adoption ofthe child in her capacity as loco parentis to saidchild) to reveal the identity of the mother wouldbe violative of the client-attorney relationshipexisting between her and the mother cannot holdwater, because in the first place, there was nosuch relationship existing between them in so faras this case is concerned and secondly, it is notonly a question of revealing the identity of the

mother but rather, of giving consent to theadoption by that alleged unwed mother.

ISSUEWON the person who gave the consent foradoption, which in this case is Atty. Corazon deLeon Velasquez, is the proper person required bylaw to give such consent.

HELDYES.- Art. 340 of the Civil Code. The written consent ofthe following to adoption shall be necessary:(1) The person to be adopted, if fourteen years ofage or over;

(2) The parents, guardian or person in charge ofthe person to be adopted.- Rule 99, Sec. 3.Consent to adoption. There shallbe filed with the petition a written consent to theadoption signed by the child, if fourteen years ofage or over and not incompetent, and by thechild's spouse, if any, and by each of its knownliving parents who is not an insane or hopelesslyintemperate or has not abandoned such child, orif there are no such parents by the generalguardian, or guardian ad litem of the child, or ifthe child is in the custody of an orphan asylum,children's home, or benevolent society or person,by the proper officer or officers of such asylum,home or society, or by such person; but if the

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child is illegitimate and has not been recognized,the consent of its father to the adoption shall notbe required.- Going by the set of facts in this case, only one oftwo persons particularly described by law may beconsidered here as legally capable of giving therequired written consent. They are:1. Under Art. 340 of the Civil Code: parent,

guardian or person in charge of the person to beadopted2. Rule 99.3 of the Rules of Court: each of theknown living parents who has not abandonedsuch child.- The father's consent here is out of the questionas the child is illegitimate and unrecognized.- The natural and unwedded mother, from thatdate on to the time of the adoption proceedingsin court which started in mid-year of said 1967,and up to the present, has not bothered toinquire into the condition of the child, much lessto contribute to the livelihood, maintenance andcare of the same.- In short, this parent is the antithesis of that

described in the law as "known living parent whois not insane or hopelessly intemperate or has notabandoned such child."- Said mother had completely and absolutelyabandoned her child. Abandonment imports anyconduct on the part of the parent which evinces asettled purpose to forego all parental claims tothe child. Applying this legal yardstick, theunidentified mother of the child in this case canbe declared, as she is hereby declared, as havingabandoned her child with all legal consequencesattached thereto.- Having declared that the child was anabandoned one by an unknown parent, thereappears to be no more legal need to require the

written consent to such parent of the child to theadoption.- Santos vs. Aranzanso: the parental consentrequired by the law in adoption proceedingsrefers to parents who have not abandoned theirchild.- Since there had been no showing that theidentity of the natural mother was made knownto the trial court or to the herein petitioners, norhad said mother seen fit to present herself beforethe court despite the public notice given to theproceedings as required by law, there clearlyappears only one person who could be consideredas the guardian exercising patria potestas oversuch abandoned child. Since there was no

guardian ad litem appointed by the court and thechild not being in the custody of an orphanasylum, children's home or any benevolentsociety, there could not have been anyone otherthan Atty. Corazon de Leon Velasquez who could,with reason, be called the guardian of said infant.- It was she who had actual physical custody ofthe infant and who, out of compassion and

motherly instinct, extended the mantle ofprotection over the hapless and helpless infantwhich otherwise could have suffered a tragic fate,like being thrown into some garbage heap as hadoften happened to some unwanted illegitimatebabies.- Court stated that the least that it could do is torecognize and acknowledge her good Samaritandeed is to extend, as it hereby extends, to herthe recognition that she was a de facto guardianexercising patria potestas over the abandonedchild.- The trial court in its decision had sought refugein the ancient Roman legal maxim "Dura lex sedlex" to cleanse its hands of the hard and harsh

decision it rendered. While this old adagegenerally finds apt application in many otherlegal cases, in adoption of children, however, thisshould be softened so as to apply the law withless severity and with compassion and humaneunderstanding, for adoption is more for thebenefit of unfortunate children, particularly thoseborn out of wedlock, than for those born with asilver spoon in their mouths.- The herein petitioners appear to be qualified toadopt the child. There is no showing that theysuffer from any of the disqualifications under thelaw. Above all, they have the means to providethe child with the proper support, care, educationand love that a growing child needs, even if they

have previously adopted another child as theirs.- The fact that even before they have applied forlegal custody and adoption of the infant theyhave already showered it with love and care andhad it baptized, with them appearing in therecords of the baptism as the parents of the child,speaks well of the genuine desire of petitioners tohave the child as their very own. The child wasborn in May, 1967, and he will be at this time,1976, about 9 years of age. In all the years, fromthe time he was turned over to the hereinpetitioners when he was only about a week old,(there is no showing that the said child was everplaced at any time in the care and custody ofsome other persons) he had been cared for and

loved by the spouses Robin Francis RadleyDuncan and Maria Lucy Christensen. He musthave known no other parents than these persons.- To sustain the decision of the court below,Court will be doing a graver injustice to allconcerned particularly to said spouses, andworse, it will be imposing a cruel sanction on thisinnocent child and on all other children who

might be similarly situated.- Court considered it to be justifiable and morehumane to formalize a factual relation, that ofparents and son, existing between the petitioningspouses and the minor child baptized by them asColin Berry Christensen Duncan, than to sustainthe hard, harsh and cruel interpretation of the lawthat was done by the respondent court and Judge.Disposition Decision annulled and the minorColin Berry Christensen Duncan declared theadopted child and the heir of petitioners RobinFrancis Radley Duncan and Maria LucyChristensen.

CANG V. COURT OF APPEALS [&

SPS. CLAVANO]296 SCRA 128; ROMERO; Sept 25, 1998

MARGE

FACTS:-Spouses Herbert Cang and Anna Marie Clavanobegot 3 children: Keith, Charmaine and JosephAnthony. During the early years of their marriage,the Cang couples relationship was undisturbed.Not long thereafter, however, Anna Marie learnedof her husbands alleged extramarital affair withWilma Soco, a family friend of the Clavanos.-Upon learning of her husbands alleged illicitliaison, Anna Marie filed a petition for legal

separation with alimony pendente lite with thethen JDRC of Cebu which rendered a decisionapproving the joint manifestation of the Cangspouses providing that they agreed to liveseparately and apart or from bed and board.They further agreed that their children shall beentitled to a monthly support of P1,000,constituting constitute a first lien on the netproceeds of the house and lot jointly owned bythe parties.-Herbert Cang then for Nevada, USA where hesought a divorce from Anna Marie. The divorcedecree was granted. Sole custody of the threeminor children was granted to Anna Marie,

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reserving rights of visitation at all reasonabletimes and places to Herbert.-Thereafter, Herbert took an American wife andthus became a naturalized American citizen. In1986, he divorced his American wife and neverremarried. While in US, a portion of his incomewas remitted to the Phils for his childrensexpenses and/or deposited in the bank in the

name of his children.-Sept 25, 1987: Sps. Ronald and Maria ClaraClavano [brother and sister-in-law of Anna Marie]filed Spec Proc No. 1744-CEB for the adoption ofthe three minor Cang children before RTC Cebu.The petition bears the signature of then 14-yr-oldKeith signifying consent to his adoption. AnnaMarie likewise filed an affidavit of consentalleging that her husband had evaded his legalobligation to support his children; that herbrothers and sisters including Ronald V. Clavano,had been helping her in taking care of thechildren; that because she would be going to theUS to attend to a family business, leaving thechildren would be a problem and would naturally

hamper (her) job-seeking venture abroad; andthat her husband had long forfeited his parentalrights over the children.-Upon learning of the petition for adoption,Herbert immediately returned to the Phils andfiled an opposition thereto, alleging that,although the Sps Clavano were financiallycapable of supporting the children, he could notin conscience, allow anybody to strip him of hisparental authority over his beloved children.-Pending resolution of the petition for adoption,Herbert moved to reacquire custody over hischildren alleging that Anna Marie had transferredto the US thereby leaving custody of theirchildren to Sps Clavano.

-Jan 11, 1988: RTC Cebu City Br. 19 issued anorder finding that Anna Marie had, in effect,relinquished custody over the children and,therefore, such custody should be transferred tothe father. The court then directed the Clavanosto deliver custody over the minors to Herbert.-March 27, 1990: RTC Cebu City Br. 14 issued thedecree of adoption, citing as impelling reasonsthe ff:(1) the Cang childrens close filial ties with theClavano family;(2) the childless Clavano spouses had substantialassets and income;(3) the natural mother Anna Marie approved ofthe adoption;

(4) the Clavanos could provide the children moraland spiritual direction;(5) the children manifested their desire to beadopted by the Clavanos.-RTC further ruled that Herberts oppositionrested on a very shaky foundation because ofits findings that:(1) Herbert is morally unfit to be the father of his

children(2) Authenticity of joint deposit of around $10,000could not be verified(3) Possibility of reconciliation w/ Anna Marie wasdim if not nil(4) as US citizen, his attachment w/ Filipinochildren is an open question-RTC quoted with approval theevaluation/recommendation of the RTC SocialWorker in her Child Study Report, that theoppositor Herbert Cang has abandoned hischildren thereby dispensing with his consent tothe adoption.-CA affirmed the decree of adoption, ruling that:(1) Consent of the parent who has abandoned the

child is not necessary. In adoption cases,abandonment connotes any conduct on the partof the parent to forego parental duties andrelinquish parental claims to the child, or theneglect or refusal to perform the natural andlegal obligations which parents owe their childrenor the withholding of the parents presence, hiscare and the opportunity to display voluntaryaffection.(2) Oppositors argument that he has beensending dollar remittances to the children isbelied by the fact that he was woefully in arrearsunder the terms of the divorce decree. His claimthat he has maintained bank accounts in thechildrens name is negated when we consider

that such bank accounts were withdraw-able byhim alone.-Herbert filed MFR but CA denied the same.

ISSUE:WON the minor children be legally adoptedwithout the written consent of their naturalparent

HELD: NO.Both RTC and CA failed to appreciate facts andcircumstances that should have elicited adifferent conclusion on the issue of WONpetitioner has so abandoned his children, thereby

making his consent to the adoption unnecessary.But here, there was no abandonment.[guys, sorry ang haba ng digest. ang dami kasingdoctrines, eh.. _^]-Written consent of natural father is required byArt.31(2) of PD No. 603, the Child and YouthWelfare Code2, and Art.188(2) of the FamilyCode3.

-Jurisdiction being a matter of substantive law,the established rule is that the statute in force atthe time of the commencement of the actiondetermines the jurisdiction of the court. As such,when Clavano spouses filed the petition foradoption on September 25, 1987, the applicablelaw was the PD 603, as amended by EO91.-During the pendency of the petition for adoptionor on Aug 3, 1988, the Family Code took effect.Article 256 of the Family Code provides for itsretroactivity insofar as it does not prejudice orimpair vested or acquired rights in accordancewith the Civil Code or other laws.-Notwithstanding the amendments to the law, thewritten consent of the natural parent to the

adoption has remained a requisite for its validity.

2PD 603, Child and Youth Welfare Code, as amended by

EO 91:Art. 31. Whose Consent is Necessary. - The writtenconsent of the following to the adoption shall benecessary:

(1) The person to be adopted, if fourteen years of ageor over;

(2) The natural parents of the child or his legalguardian after receiving counselling and appropriatesocial services from the Ministry of Social Services andDevelopment or from a duly licensed child-placementagency;

(3) The Ministry of Social Services and Development orany duly licensed child-placement agency under whosecare and legal custody the child may be;

(4) The natural children, fourteen years and above, ofthe adopting parents.3

Family Code. Art. 188. The written consent of the

following to the adoption shall be necessary:(1) The person to be adopted, if ten years of age or

over;(2) The parents by nature of the child, the legal

guardian, or the proper govt instrumentality;(3) The legitimate and adopted children, 10 yrs of age

or over, of the adopting parent or parents;(4) The illegitimate children, 10yrs of age or over, of

the adopting parents, if living with said parent and thelatters spouse, if any; and

(5) The spouse, if any, of the person adopting or to beadopted.

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Notably, such requirement is also embodied inRule 99.3 of the RoC.GenRule: The written consent of the naturalparent is indispensable for the validity of thedecree of adoption.Exception: if the parent has abandoned the childOR

if such parent is insane or hopelessly

intemperate>In these cases, the court may acquirejurisdiction over the case even without thewritten consent of the parents or one of theparents provided that the petition for adoptionalleges facts sufficient to warrant exemption fromcompliance therewith. This is in consonance withthe liberality with which this Court treats theprocedural aspect of adoption.>In the instant case, only the affidavit of consentof the natural mother was attached to thepetition for adoption. Herberts consent, as thenatural father is lacking. Nonetheless, the petitionsufficiently alleged the fact of abandonment ofthe minors for adoption by the natural father.

This allegation vested the court with jurisdiction.-However, in cases where the father opposes theadoption primarily because his consent theretowas not sought, the matter of whether he hadabandoned his child becomes a proper issue fordetermination. The issue of abandonment by theoppositor natural parent is a preliminary issuethat an adoption court must first confront. Onlyupon failure of the oppositor natural father toprove to the satisfaction of the court that he didnot abandon his child may the petition foradoption be considered on its merits.-In its ordinary sense, the word abandon meansto forsake entirely, to forsake or renounce utterly.xxx The dictionaries trace this word to the root

idea of putting under a ban. The emphasis is onthe finality and publicity with which a thing orbody is thus put in the control of another, hence,the meaning of giving up absolutely, withintent never to resume or claim ones rightsor interests. In reference to abandonment of achild by his parent, the act of abandonmentimports any conduct of the parent which evincesa settled purpose to forego all parental dutiesand relinquish all parental claims to the child. Itmeans neglect or refusal to perform the naturaland legal obligations of care and support whichparents owe their children. Physicalestrangement alone, without financial and

moral desertion, is not tantamount toabandonment.-In the case at bar, while admittedly, Herbert wasphysically absent as he was then in the US, hewas not remiss in his natural and legal obligationsof love, care and support for his children. Hemaintained regular communication with his wifeand children through letters and telephone. He

used to send packages by mail and catered totheir whims. Herbert also presented certificationsof banks in the US showing that even prior to thefiling of the petition for adoption, he haddeposited amounts for the benefit of his children.This is further evidenced by copies of checks sentby Herbert to the children from 1985 to 1989.-The courts below attached a high premium tothe prospective adopters financial status buttotally brushed aside the possible repercussion ofthe adoption on the emotional and psychologicalwell-being of the children. True, Keith hadexpressed his desire to be adopted by his uncleand aunt. However, his seeming steadfastness onthe matter as shown by his testimony is

contradicted by his feelings towards his father asrevealed in his letters to him. It is not at allfarfetched to conclude that Keiths testimony wasactually the effect of the filing of the petition foradoption that would certainly have engenderedconfusion in his young mind as to the capabilityof his father to sustain the lifestyle he had beenused to.-The courts below emphasized respondentsemotional attachment to the children. This ishardly surprising for, from the very start of theiryoung lives, the children were used to theirpresence. Such attachment had persisted andcertainly, the young ones act of snuggling closeto Ronald was not indicative of their emotional

detachment from their father. The Clavanospouses, being the uncle and aunt of the children,could not but come to their succor when theyneeded help as when Keith got sick and Ronaldspent for his hospital bills.-Parental authority cannot be entrusted to aperson simply because he could give the child alarger measure of material comfort than hisnatural parent. It is enough that the naturalparent is earning a decent living and is able tosupport his children according to his means. Inascertaining the welfare and best interests of thechild, courts are mandated by the Family Code totake into account all relevant considerations. The

welfare of the child is the paramountconsideration.-The record of the case bears out the fact that thewelfare of the children was not exactly theparamount consideration that impelled AnnaMarie to consent to their adoption. The adoptionappears to be a matter of convenience for herbecause Anna Marie herself is financially capable

of supporting her children but is often out of thecountry leaving her children to the care of herrelatives. When the family first discussed theadoption of the children, they decided that theprospective adopter should be Anna Mariesbrother Jose. However, because he had childrenof his own, the family decided to devolve the taskupon Ronald (businessman) and Maria Clara(international flight stewardess) who howevercould not always be in Cebu to care for thechildren.-A close analysis of the testimonies of siblingsRonald, Anna Marie and Jose points to theinescapable conclusion that they just wanted tokeep the children away from their father,

allegedly a womanizer.-Herbert described himself as single in status anddenied being a womanizer and father to the sonsof Wilma Soco. As to whether he was telling thetruth is beside the point. In any case, theactuality that Herbert carried on an affair with aparamour cannot be taken as sufficient basis forthe conclusion that he was necessarily an unfitfather. Conventional wisdom and common humanexperience show that a bad husband does notnecessarily make a bad father. That a husbandis not exactly an upright man is not, strictlyspeaking, a sufficient ground to deprive him as afather of his inherent right to parental authorityover the children.

-Sps Clavano themselves explained why Herbertfailed to abide by the agreement re: support ofthe children: he was an illegal alien in the US. Assuch, he could not have procured gainfulemployment.Counsel for Clavanos argue that the authoritygiven to Anna Marie by the legal separationdecree to enter into contracts was allembracing and included giving her sole consentto the adoption.SC: This conclusion is anchored on the wrongpremise that the authority given to the innocentspouse to enter into contracts that obviouslyrefer to their conjugal properties, shall includeentering into agreements leading to the adoption

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of the children. The transfer of custody over thechildren to Anna Marie by virtue of the decree oflegal separation did not, of necessity, depriveHerbert of parental authority for the purpose ofplacing the children up for adoption. The law onlyconfers on the innocent spouse the exercise ofparental authority.-Parental authority and responsibility are

inalienable and may not be transferred orrenounced except in cases authorized by law. Theright attached to parental authority, being purelypersonal, the law allows a waiver of parentalauthority only in cases of adoption, guardianshipand surrender to a childrens home or an orphaninstitution. When a parent entrusts the custody ofa minor to another, such as a friend or godfather,even in a document, what is given is merelytemporary custody and it does not constitute arenunciation of parental authority. Even if adefinite renunciation is manifest, the law stilldisallows the same.-As such, in instant case, Herbert may not bedeemed as having been completely deprived of

parental authority, notwithstanding the award ofcustody to Anna Marie in the legal separationcase. To reiterate, that award was arrived at bythe lower court on the basis of the agreement ofthe spouses.-While parental authority may be waived, as inlaw it may be subject to a compromise, there wasno factual finding in the legal separation casethat petitioner was such an irresponsible personthat he should be deprived of custody of hischildren or that there are grounds under the lawthat could deprive him of parental authority. Infact, in the legal separation case, the courtthereafter ordered the transfer of custody overthe children from Anna Marie back to Herbert.

The order was not implemented because of AnnaMaries MFR thereon. The Clavano family alsovehemently objected to the transfer of custody toHerbert, such that the latter was forced to file acontempt charge against them.-The law is clear that either parent may loseparental authority over the child only for a validreason. No such reason was established in thelegal separation case. In the instant case foradoption, the issue is WON Herbert hadabandoned his chi ldren as to warrantdispensation of his consent to their adoption.Deprivation of parental authority is one of theeffects of a decree of adoption. But therecannot be a valid decree of adoption in this

case precisely because the finding of thecourts below on the issue of Herbertsabandonment of his family was based on amisappreciation, tantamount to non-appreciation, of facts on record. [In otherwords, there was no abandonment ^_^]-As regards the divorce obtained in the US, thisCourt has ruled that a divorce obtained by Filipino

citizens after the effectivity of the Civil Code isnot recognized in this jurisdiction as it is contraryto State policy. While Herbert is now an Americancitizen, as regards Anna Marie who hasapparently remained a Filipino citizen, the divorcehas no legal effect.-Since the incorporation of the law concerningadoption in the Civil Code, there has been apronounced trend to place emphasis in adoptionproceedings, not so much on the need ofchildless couples for a child, as on the paramountinterest of a child who needs the love and care ofparents. After the passage of the Child and YouthWelfare Code and the Family Code, thediscernible trend has impelled the enactment of

Republic Act No. 8043 on Intercountry Adoption[approved 7 June 1995] and Republic Act No.8552 establishing the rules on the domesticadoption of Filipino children [approved 25February 1998].-The case at bar applies the relevant provisions ofrecent laws4. Inasmuch as the Philippines is asignatory to the United Nations Convention onthe Rights of the Child, the government and itsofficials are also duty bound to comply with itsmandates5. Underlying the policies and preceptsin international conventions and the domestic

4R.A. No. 8552. Domestic Adoption Act. Art. 1, Sec. 2.(a) To ensure that every child remains under the care

and custody of his/her parent(s) and be provided withlove, care, understanding and security towards the fulland harmonious development of his/her personality.

(b) In all matters relating to the care, custody andadoption of a child, his/her interest shall be theparamount consideration in accordance with the tenetsset forth in the United Nations (UN) Convention on theRights of the Child.

(c) To prevent the child from unnecessary separationfrom his/her biological parent(s).5

Convention on the Rights of the Child

Art. 5. States Parties shall respect the responsibilities,rights and duties of parents . . . to provide, in a mannerconsistent with the evolving capacities of the child,appropriate direction and guidance in the exercise bythe child of the rights recognized in the presentConvention.

statutes with respect to children is the overridingprinciple that all actuations should be in the bestinterests of the child. This is not, however, to beimplemented in derogation of the primary right ofthe parent or parents to exercise parentalauthority over him. The rights of parents vis--visthat of their children are not antithetical to eachother, as in fact, they must be respected and

harmonized to the fullest extent possible.-Keith, Charmaine and Joseph Anthony have allgrown up. Keith and Charmaine are now of legalage while Joseph Anthony is approachingeighteen, the age of majority. For sure, they shallbe endowed with the discretion to lead livesindependent of their parents. This is not to statethat this case has been rendered moot andacademic, for their welfare and best interestsregarding their adoption, must be determined asof the time that the petition for adoption wasfiled. Said petition must be denied as it was filedwithout the required consent of their father who,by law and under the facts of the case at bar, hasnot abandoned them.

Disposition Petition for review on certiorarigranted. Questioned CA Decision and Resolution,as well as the RTC Cebu decision, set asidethereby denying the petition for adoption.

TAMARGO V CA209 SCRA 518

FELICIANO; June 3, 1992MONCH

FACTS- Adelberto Bundoc, then a minor of 10years of age, shot Jennifer Tamargo with anair rifle causing injuries which resulted in

her death.-Petitioner Macario Tamargo, Jennifer'sadopting parent, and petitioner spouses

Art. 9, par. 3. States Parties shall respect the right ofthe child who is separated from one or both parents tomaintain personal relations and direct contact with bothparents on a regular basis, except if it is contrary to thechilds best interests.Art. 10, par. 2. A child whose parents reside in differentStates shall have the right to maintain on a regularbasis, save in exceptional circumstances personalrelations and direct contacts with both parents. . .Art. 14, par. 2. States Parties shall respect the rightsand duties of the parents . . . to provide direction to thechild in the exercise of his or her right in a mannerconsistent with the evolving capacities of the child.

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Celso and Aurelia Tamargo, Jennifer'snatural parents filed a complaint fordamages against respondent spouses Victorand Clara Bundoc, Adelberto's naturalparents with whom he was living at the timeof the tragic incident.- A case for Homicide through RecklessImprudence was also filed against

Adelberto. It was dismissed on the groundthat he was exempted from criminal liabilitysince he acted without discernment.- Prior to the incident, spouses Sabas andFelisa Rapisura filed a petition to adoptAdelberto. The petition was granted afterthe incident.- Spouses Bundoc claim that the Rapisurasare the indispensable parties since parentalauthority has already shifted to the latterupon the filing of the petition to adopt.Petitioner however contend that theBundocs are the indispensable parties sinceAdelberto still lived with them, thus,parental authority has not yet shifted.

ISSUEWON parental authority has shifted from the filingof the petition for adoption

HELDNOReasoning Respondent Bundoc spouses rely onArticle 36 of the Child and Youth Welfare Codewhich reads as follows:Art. 36. Decree of Adoption. If, after consideringthe report of the Department of Social Welfare orduly licensed child placement agency and theevidence submitted before it, the court issatisfied that the petitioner is qualified to

maintain, care for, and educate the child, that thetrial custody period has been completed, and thatthe best interests of the child will be promoted bythe adoption, a decree of adoption shall beentered, which shall be effective he date theoriginal petition was filed. The decree shall statethe name by which the child is thenceforth to beknown. (Emphasis supplied)- The Bundoc spouses further argue that theabove Article 36 should be read in relation toArticle 39 of the same Code:Art. 39. Effect of Adoption.The adoption shall:(2) Dissolve the authority vested in the natural

parents, except where the adopter is the spouseof the surviving natural parent; xxx

and urge that their Parental authority must bedeemed to have been dissolved as of the timethe Petition for adoption was filed.- Uthe Civil Code, the basis of parental liability forthe torts of a minor child is the relationshipexisting between the parents and the minor childliving with them and over whom, the lawpresumes, the parents exercise supervision and

control. Article 58 of the Child and Youth WelfareCode, re-enacted this rule:Article 58 Torts Parents and guardians areresponsible for the damage caused by the childunder their parental authority in accordance withthe civil Code. (Emphasis supplied)- Article 221 of the Family Code of the Philippineshas similarly insisted upon the requisite that thechild, doer of the tortious act, shall have been inthe actual custody of the parents sought to beheld liable for the ensuing damage:Art. 221. Parents and other persons exercisingparental authority shall be civilly liable for theinjuries and damages caused by the acts oromissions of their unemancipated children living

in their company and under their parentalauthority subject to the appropriate defensesprovided by law. (Emphasis supplied)- We do not consider that retroactive effect maybe given to the decree of adoption so as toimpose a liability upon the adopting parents. Tohold that parental authority had beenretroactively lodged in the Rapisura spouses soas to burden them with liability for a tortious actthat they could not have foreseen and which theycould not have prevented (since they were at thetime in the United States and had no physicalcustody over the child Adelberto) would be unfairand unconscionable.- Article 35 of the Child and Youth Welfare Code

fortifies the conclusion reached above. Article 35provides as follows:Art. 35. Trial Custody. ? No petition for adoptionshall be finally granted unless and until theadopting parents are given by the courts asupervised trial custody period of at least sixmonths to assess their adjustment and emotionalreadiness for the legal union. During the period oftrial custody, parental authority shall be vested inthe adopting parents. (Emphasis supplied)- Under the above Article 35, parental authority isprovisionally vested in the adopting parentsduring the period of trial custody, i.e., before theissuance of a decree of adoption, preciselybecause the adopting parents are given actual

custody of the child during such trial period. Inthe instant case, the trial custody period eitherhad not yet begun or bad already beencompleted at the time of the air rifle shooting; inany case, actual custody of Adelberto was thenwith his natural parents, not the adoptingparents.

SAYSON V CACruz; GR 8922423 January 1992

ICE

FACTSAt issue in this case is the status of the privaterespondents and their capacity to inherit fromtheir alleged parents and grandparents. Thepetitioners deny them that right, asserting it forthemselves to the exclusion of all others.Eleno and Rafaela Sayson begot five children-Mauricio, Rosario, Basilisa, Remedios andTeodoro. Eleno and Rafaela died. Teodoro, who

had married Isabel Bautista, died after them. Hiswife died 9 yrs. later. Their properties were left inthe possession of Delia, Edmundo, and Doribel,all surnamed Sayson, who claim to be theirchildren.Mauricio, Rosario, Basilisa, and Remedios,together with Juana C. Bautista, Isabel's mother,filed a complaint for partition and accounting ofthe intestate estate of Teodoro and IsabelSayson. The action was resisted by Delia,Edmundo and Doribel Sayson, who allegedsuccessional rights to the disputed estate as thedecedent's lawful descendants.A different action was filed by Delia, Edmundoand Doribel filed their own complaint, for the

accounting and partition of the intestate estate ofEleno and Rafaela Sayson, against the couple'sfour surviving children. The complainantsasserted the defense they raised in Civil Case No.1030, to wit, that Delia and Edmundo were theadopted children and Doribel was the legitimatedaughter of Teodoro and Isabel. As such, theywere entitled to inherit Teodoro's share in hisparents' estate by right of representation.

ISSUEWON Delia and Edmundo were legally adopted

WON Doribel is a legitimate child using the Birth

Cert as only basis

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HELD1 YES. On two grounds argumentativeinconsistency and timeliness. They argue thatDelia and Edmundo could not be adoptedbecause Doribel was born already prior to theadoption and such disqualifies the couple fromadopting while they also argue that Doribel wasborn of another perso, Edita Abila.It is also untimely made. It is too late now tochallenge the decree of adoption, years after itbecame final and executory. That was way backin 1967. Assuming that the petitioners wereproper parties, what they should have done wasseasonably appeal the decree of adoption,pointing to the birth of Doribel that disqualifiedTeodoro and Isabel from adopting Delia andEdmundo. They did not. In fact, they should havedone this earlier, before the decree of adoptionwas issued. They did not, although Mauricioclaimed he had personal knowledge of such birth.When Doribel was born on February 27, 1967, orabout TEN (10) days before the issuance of the

Order of Adoption, the petitioners could havenotified the court about the fact of birth ofDORIBEL and perhaps withdrew the petition orperhaps petitioners could have filed a petition forthe revocation or rescission of the adoption(although the birth of a child is not one of thoseprovided by law for the revocation or rescission ofan adoption). The court is of the consideredopinion that the adoption of the plaintiffs DELIAand EDMUNDO SAYSON is valid, outstanding andbinding to the present, the same not having beenrevoked or rescinded.Not having any information of Doribel's birth toTeodoro and Isabel Sayson, the trial judge cannotbe faulted for granting the petition for adoption

on the finding inter alia that the adopting parentswere not disqualified.A no less important argument against thepetitioners is that their challenge to the validity ofthe adoption cannot be made collaterally, as intheir action for partition but in a directproceeding frontally addressing the issue.The settled rule is that a finding that the requisitejurisdictional facts exists, whether erroneous ornot, cannot be questioned in a collateralproceeding, for a presumption arises in suchcases where the validity of the judgment is thusattacked that the necessary jurisdictional factswere proven.

An adoption order implies the finding of thenecessary facts and the burden of proof is on theparty attacking it; it cannot be considered voidmerely because the fact needed to showstatutory compliance is obscure. While a judicialdetermination of some particular fact, such as theabandonment of his next of kin to the adoption,may be essential to the exercise of jurisdiction toenter the order of adoption, this does not make itessential to the jurisdictional validity of thedecree that the fact be determined upon properevidence, or necessarily in accordance with thetruth; a mere error cannot affect the jurisdiction,and the determination must stand until reversedon appeal, and hence cannot be collaterallyattacked. If this were not the rule, the status ofadopted children would always be uncertain,since the evidence might not be the same at allinvestigations, and might be regarded withdifferent effect by different tribunals, and theadoption might be held by one court to havebeen valid, while another court would hold it tohave been of no avail.

2 YES, Doribel is a legitimate child. Doribel's birth

certificate is a formidable piece of evidence. It is

one of the prescribed means of recognition under

Article 265 of the Civil Code and Article 172 of the

Family Code. It is true, as the petitioners stress,

that the birth certificate offers only prima facie

evidence of filiation and may be refuted by

contrary evidence. However, such evidence is

lacking in the case at bar. Another reason why

the petitioners' challenge must fail is the

impropriety of the present proceedings for that

purpose. Doribel's legitimacy cannot be

questioned in a complaint for partition and

accounting but in a direct action seasonably filed

by the proper party.

The presumption of legitimacy in the Civil Code . .. does not have this purely evidential character. Itserves a more fundamental purpose. It actuallyfixes a civil status for the child born in wedlock,and that civil status cannot be attackedcollaterally. The legitimacy of the child can beimpugned only in a direct action brought for thatpurpose, by the proper parties, and within theperiod limited by law. The legitimacy of the childcannot be contested by way of defense or

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Part 13 - Adoption

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