G.R. No. 148311. March 31, 2005
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.
D E C I S I O N
May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his minor illegitimate childStephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994;2that her mother is Gemma Astorga Garcia; that Stephanie has been using her mother’s middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanie’s middle name Astorga be changed to “Garcia,” her mother’s surname, and that her surname “Garcia” be changed to “Catindig,” his surname.
On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, thus:
“After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioner’s care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioner’s legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.
Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court.
Let copy of this Decision be furnished the National Statistics Office for record purposes.
On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration5 praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name.
On May 28, 2001,6 the trial court denied petitioner’s motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name.
Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name “Garcia” (her mother’s surname) avoids the stigma of her illegitimacy; and; (6) her continued use of “Garcia” as her middle name is not opposed by either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanie’s filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that”the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother.”7
We find merit in the petition.
Use Of Surname Is Fixed By Law –
For all practical and legal purposes, a man’s name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.8 It is both of personal as well as public interest that every person must have a name.
The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.9
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname10 of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus:
“Art. 364. Legitimate and legitimated children shall principally use the surname of the father.
Art. 365. An adopted child shall bear the surname of the adopter.
x x x
Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband’s surname, or
(2) Her maiden first name and her husband’s surname or
(3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as ‘Mrs.’
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name andsurname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband’s surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation.
Art. 373. A widow may use the deceased husband’s surname as though he were still living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and descendants, the word ‘Junior’ can be used only by a son. Grandsons and other direct male descendants shall either:
(1) Add a middle name or the mother’s surname,
(2) Add the Roman numerals II, III, and so on.
x x x”
Law Is Silent As To The Use Of
Middle Name –
As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 17611 of the Family Code, as amended by Republic Act No. 9255, otherwise known as “An Act Allowing Illegitimate Children To Use The Surname Of Their Father,” is silent as to what middle name a child may use.
The middle name or the mother’s surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mother’s surname shall be added.
Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that “an adopted child shall bear the surname of the adopter.” Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus:
“(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters;
x x x”
However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the child’s mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus
“Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the father’s surname indicates the family to which he belongs, for which reason he would insist on the use of the father’s surname by the child but that, if he wants to, the child may also use the surname of the mother.
Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioa’s point is covered by the present Article 364, which reads:
Legitimate and legitimated children shall principally use the surname of the father.
Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enrile’s correct surname is Ponce since the mother’s surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez David’s family name is Gutierrez and his mother’s surname is David but they all call him Justice David.
Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter.
x x x
Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name.
x x x
Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion.”12 (Emphasis supplied)
In the case of an adopted child, the law provides that “the adopted shall bear the surname of the adopters.”13 Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption.14
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child –
Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.15 It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.16 The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.17 This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child.18 Republic Act No. 8552, otherwise known as the “Domestic Adoption Act of 1998,”19 secures these rights and privileges for the adopted.20
One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 18921 of the Family Code and Section 1722 Article V of RA 8552.23
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father.
Additionally, as aptly stated by both parties, Stephanie’s continued use of her mother’s surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 1824, Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future.
Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them “Mama” and “Papa”. Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mother’s surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.25 The interests and welfare of the adopted child are of primary and paramount consideration,26 hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.27
Lastly, Art. 10 of the New Civil Code provides that:
“In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.”
This provision, according to the Code Commission, “is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law.”28
Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother’s surname, we find no reason why she should not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mother’s surname “GARCIA” as her middle name.
Let the corresponding entry of her correct and complete name be entered in the decree of adoption.
G.R. No. 164948 June 27, 2006
DIWATA RAMOS LANDINGIN Petitioner,
REPUBLIC OF THE PHILIPPINES, Respondent.
D E C I S I O N
CALLEJO, SR., J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1 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.
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 petition3 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 consent8 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 consent9 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.
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.
The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for the oppositor-appellant, the OSG raised the following arguments:
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES’ BIOLOGICAL MOTHER.
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.
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 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.
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;
(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.35 To 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.
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 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 children45 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 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.
G.R. No. 148311. March 31, 2005