Spec Pro Cases Until Clavano

G.R. No. L-43955-56 July 30, 1979

RENATO LAZATIN alias RENATO STA. CLARA, petitioner, vs.HONORABLE JUDGE JOSE C. CAMPOS, JR., NORA L. DE LEON, BERNARDO DE LEON, ARLENE DE LEON and IRMA L. VELOSO, respondents.

The Court dismisses the petition which seeks to overrule respondent judge's orders declaring that petitioner has failed to establish by competent evidence his alleged status as an adopted child of the deceased Lazatin spouses and prays for judgment of this Court "declaring as established the fact of (his) adoption as a son of the deceased spouses entitling him to succeed in their estates as such." Respondent judge correctly ruled that he could not allow petitioner (who had filed a motion to intervene in the proceedings to probate the will of the late Margarita de Asis Vda. de Lazatin and to settle her estate as her adopted son, after having earlier filed a motion to intervene in the intestate proceedings of her pre-deceased husband as his admitted illegitimate [not natural] son), over the opposition of private respondents, to introduce evidence that he had "enjoyed ... the status of an adopted child of the without his first producing competent and documentary that there had been judicial proceedings for his by the said spouses which resulted in the final judgment of a competent court decreeing his adoption.

On January 13, 1974, Dr. Mariano M. Lazatin diamond intestate in Pasay City, survived by his wife, Margarita de Asis, and his adopted twin daughters, respondent Nora L. de Leon, married to respondent Bernardo de Leon, and respondent Irma Lazatin, married to Francisco Veloso.

One month after Mariano's death, his widow, Margarita de Asis, commenced an intestate proceeding before the Court of First Instance of Pasay, docketed as Sp. Proc. No. 2326-P. Mariano, Oscar, Virgilio and Yvonne, claiming to be admitted illegitimate (not natural) children of Dr. Lazatin with one Helen Munoz, intervened. Subsequently, one Lily Lazatin also intervened, claiming to be another admitted illegitimate (not natural) child.

Two months after or on April 11, 1974, the widow, Margarita de Asis, also died, leaving a & holographic will executed on May 29, 1970, providing, among others, for a legacy of cash, jewelry, and stocks to respondent Arlene de Leon, a granddaughter; a legacy of support to Rodolfo Gallardo, a son of her late sister; and a legacy of education to Ramon Sta. Clara, son of petitioner Renato Lazatin alias Renato Sta. Clara.

During her lifetime, Margarita de Asis kept a safety deposit box at the People's Bank and Trust Company, Roxas Boulevard branch, which either she or respondent Nora L. de Leon could open. Five days after Margarita's death, respondent Nora L. de Leon, accompanied by her husband, respondent Bernardo de Leon, opened the safety deposit box and removed its contents: (a) shares of stock; (b) her adoption papers and those of

her sister, respondent Irma L. Veloso; and (c) jewelry belonging to her and to her mother. Respondent Nora L. de Leon claims that she opened the safety deposit box in good faith, believing that it was held jointly by her and her deceased mother. Her sole reason for opening the box was to get her stock certificates and other small items deposited therein. When she was to close the deposit box, the bank personnel informed her that she needed an authority from the court to do so, in view of her mother's death and so, she removed everything from the box.

On June 3, 1974, private respondents filed a petition to probate the will of the late Margarita de Asis, before docketed as Sp. Proc. No. 2341-P of respondent Court, Days after having learned that respondent Nora L. de Leon had opened this safety deposit box, petitioner's son, Ramon Sta. Clara, filed a motion in the probate court, claiming that the deceased had executed a will subsequent to that submitted for probate and demanding its production. He likewise prayed for the opening of the safety deposit box. Respondent Nora L. de Leon admitted that she opened the box but there was no will or any document resembling a will therein.

Upon the order of the probate court, presided over by Judge Arsenio B. Alcantara, the safety deposit box was opened on November 6, 1974, at which time it was found to be empty, because prior thereto respondent Nora L. de Leon had already removed its contents.

On November 22, 1974, or seven months after, the death of Margarita de Asis, petitioner intervened for the first time in the proceedings to settle the estate of the late Dr. Mariano M. Lazatin (Sp. Proc. No. 2326- P), as an admitted illegitimate (not natural) child.

Under the same date of November 22, 1974, petitioner's son, Ramon, filed a petition in the estate proceedings of Margarita de Asis to examine private respondents on the contents of the safety deposit box, Whereupon, on January 31, 1975, the probate court ordered respondent Nora L. de Leon to deliver the properties taken from the safety deposit box to the Clerk of Court. Subsequently, however, the two cases (Sp. Proc. No. 2326-P, Mariano Lazatin, and 2341-P, Margarita de Asis) were transferred to the sala of respondent Judge Jose C. Campos, Jr.

On May 29, 1975, Judge Campos issued an order requiring counsel for respondents Nora L. de Leon and Bernardo de Leon to produce all those papers and items removed from the safety deposit box and to deliver the same to the custody of the court within one week. Within the period ordered, respondent Nora L. de Leon deposited with the Clerk of Court, not the items themselves, but two keys to a new safety deposit box which could only be opened upon order of the court.

On August 20, 1975, petitioner Renato to Lazatin alias Renato Sta. Clara filed a motion to intervene in the estate of Margarita de Asis, Sp. Proc. No. 2341-P, as an adopted child, on the basis of an affidavit executed by Benjamin Lazatin, brother of the deceased Dr.

Mariano M. Lazatin, the petitioner was an "illegitimate son" of Dr. Lazatin and was later adopted by him. This affidavit was later modified on August 19, 1975 to state that petitioner was adopted by both Mariano M. Lazatin and his wife Margarita de Asis.

On September 29, 1975, Judge Campos found respondent' Nora L. de Leon guilty of contempt of court for not complying with the orders of January 31, 1975 and May 29, 1975, requiring her to produce and deliver to the court an the papers and items removed from the safety deposit box. Her former counsel was also found guilty of contempt, sentenced to pay a fine of P00.00 and suspended from appearing in the two cases (Sp. Proc. No. 2326-P, Mariano M. Lazatin, and Sp. Proc. No. 2341-P, Margarita de Asis), on her testimony that she, Nora L. de Leon, acted upon his advice.

Respondent court heard petitioner's motion to intervene as an adopted son in the estate of Margarita de Asis, Sp. Proc. No. 2341-P, at which hearings petitioner presented no decree of adoption in his, favor. Instead, petitioner attempted to prove, over private respondents' objections, that he had recognized the deceased spouses as his parents; he had been supported by them until their death; formerly he was known as "Renato Lazatin" but was compelled to change his surname to "Sta. Clara" when the deceased spouses refused to give consent to his marriage to his present wife; that at first, he and his wife stayed at the residence of Engracio de Asis, father of Margarita, but a few months later, they transferred to the Mercy Hospital at Taft Avenue, Manila, owned by the deceased spouses, where they continuously resided up to the present. Photographs were also intended to be presented by petitioner, e.g., photograph of Irma Veloso where she addressed herself as sister of petitioner; photograph of deceased Margarita de Asis and petitioner when he was a boy; document showing that petitioners real name is "Renato Lazatin." 1

Respondent court first reserved its ruling on private respondents' objections to the admission of petitioner's evidence, but on November 14, 1975, when petitioner could not present evidence on the issue of his alleged legal adoption, respondent court discontinued the hearing and gave the parties time to file memoranda on the question of the admissibility of the evidence sought to be introduced by petitioner.

On March 4, 1976, respondent court barred the introduction of petitioner's evidence because: têñ.£îhqwâ£

All the evidence submitted by Renato and Ramon Sta. Clara through their counsel do not prove or have no tendency to prove the existence of any judicial proceeding where the adoption of the parties above named were taken up by any court. Neither do the evidence tend to establish the presence of any record of a proceeding in court where the adoption of the above named persons was held. The evidence, however, tends to prove a status of a recognized natural child which, however, is not the legal basis for which Renato and Ramon seek to intervene in this proceedings. In view thereof, and taking into

consideration the evidence heretofore presented by the petitioners, any further introduction of similar evidence, documentary or oral, would not prove or tend to prove the fact of their adoption but rather of a recognized natural child.

Petitioner then filed on March 16, 1976, in both cases, a motion to declare as established the fact of adoption in view of respondent Nora L. de Leon's refusal to comply with the orders of respondent court to deposit the items she had removed from the safety deposit box of Margarita de Asis. As authority therefor, petitioner invokes the sanction of Rule 29, Section 3 of the Rules of Court, since according to him, the order of the court for the production of the items in the safety deposit box can be considered as an order for production and inspection of documents under Rule 27.

Private respondents opposed the motion, and on March 26, 1976, respondent court denied petitioner's motion. On April 26, 1976, respondent Nora L. de Leon deposited with respondent court the items she had removed from the safety deposit box. An inventory was conducted by respondent court, with notice to the parties, and the items surrendered consisted only of pieces of jewelry and stock certificates.

On June 3,1976, respondent court, ruling on petitioners motion for definite resolution on his previous n declare as established the fact of adoption, issued the f order: têñ.£îhqwâ£

As far as the case of Renato Sta. Clara is his Petition to establish his status as an adopted child, The Court has ruled that he has failed to establish such status. The any motion for reconsideration unless based on some documentary proof.

Hence, the petition at bar.

We find the ruling of the respondent court to be in conformity with law and jurisprudence.

1. Adoption is a juridical act, a proceeding in rem 2 which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. 3 Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. 4 It is not of natural law at all, but is wholly and entirely artificial. 5 To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. 6 The fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence. The destruction by fire of a public building in which the adoption papers would have been filed if existent does not give rise to a presumption of adoption nor is the destruction of the records of an adoption proceeding to be presumed. On the contrary, the absence of a record of adoption has been said to evolve a presumption of its non-existence. 7 Where, under the provisions of the statute,

an adoption is effected by a court order, the records of such court constitute the evidence by which such adoption may be established. 8

2. Petitioner's flow of evidence in the case below does not lead us to any proof of judicial adoption. We can not pluck from his chain of evidence any link to the real existence of a court decree of adoption in his favor. Petitioner's proofs do not show or tend to show that at one time or another a specific court of competent jurisdiction rendered in an adoption proceeding initiated by the late spouses an order approving his adoption as a child of the latter. No judicial records of such adoption or copies thereof are presented or attempted to be presented. Petitioner merely proceeds from a nebulous assumption that he was judicially adopted between the years 1928 and 1932. By what particular court was the adoption decreed or by whom was the petition heard, petitioner does not even manifest, much less show. There are no witnesses cited to that adoption proceeding or to the adoption decree. Apparently on the assumption that the adoption was commenced in Manila, petitioner's counsel secured a certification from the Court of first Instance of Manila which, however, negatively reported "(T)hat among the salvaged records now available in this Office, there has not been found, after a diligent search, any record regarding the adoption of Mr. Renato Lazatin alias Renato Sta. Clara allegedly filed sometime in the years 1928 to 1931 by the spouses Dr. Mariano M. Lazatin and Margarita de Asis Lazatin." The certification of the Local Civil Registrar of Manila "(T)hat our pre-war records relative to decisions of the Court of First Instance were either destroyed or burned during the Liberation of the City of Manila," does not furnish any legal basis for a presumption of adoption in favor of petitioner. This is because there was no proof that petitioner was really adopted in Manila or that an adoption petition was filed in the Court of first Instance of Manila by the deceased spouses, where, after hearing, a judgment of approval was rendered by said court. Moreover, if there was really such adoption, petitioner could have conveniently secured a copy of the newpaper publication of the adoption as required under Section 4, Rule 99 of the Rules of Court (formerly Section 4, Rule 100) or a certification of the publishing house to that effect. Petitioner's failure on this point is anotherer strong indication of the non-existence of the one who gave the written consent of the non-existence of the adoption paper. We also observed to the adoption (Section 3, Rule 99, Rules of Court), whether the parents or orphanage, does not appear on this point is not so difficult and such proof must be presented if only to prove the real existence of the adoption. And of course, if the war, the clear right and duty of petitioner was to duly reconstitute the records as provided by law.

3. The absence of proof of such order of adoption by the court, as provided by the statute, cannot be substituted by parol evidence that a child has lived with a person, not his parent, and has been treated as a child to establish such adoption. 9Even evidence of declaration of the deceased, made in his lifetime, that he intended to adopt a child as his heir, and that he had adopted him, and of the fact that the child resided with the deceased, as a member of his family, from infancy until he attained his majority, is not sufficient to establish the fact of adoption. 10 Nor does the fact that the deceased spouses fed, clothed, educated, recognized and referred to one like petitioner as an adopted child, recognized and referred to one like petitioner as an adopted child,

necessarily establish adoption of the child. 11 Withal, the attempts of petitioner to prove his adoption by acts and declarations of the deceased do not discharge the mandatory presentation of the judicial decree of adoption. The thrust of petitioner's evidence is rather to establish his status as an admitted illegitimate child, not an adopted child which status of an admitted illegitimate child was — the very basis of his petitioner for intervention in the estate proceedings of the late Dr. Lazatin, as above stated. (Supra, at page 3 hereof)

We do not discount though that declarations in regard to pedigree, although hearsay, are admitted on the principle that they are natural expressions of persons who must know the truth. 12 Pedigree testimony is admitted because it is the best that the nature of the case admits and because greater evil might arise from the rejection of such proof than from its admission.13 But, in proving an adoption, there is a better proof available and it should be produced. The whereabouts of the child's family and circulation of the jurisdiction in which they resided and investigation in those courts where adoption are usually granted would surely produce an adoption order, if indeed there was an order. 14 Besides, since the point in favor of receiving hearsay evidence upon matters of family history or pedigree is its reliability, it has been set forth as a condition upon which such evidence is received that it emanate from a source within the family. Pursuant to this view, before a declaration of a deceased person can be admitted to prove pedigree, or ancestry, the relationship of the declarant, by either of blood or affinity to the family in question, or a branch thereof, must ordinarily be established by competent evidence. 15 Section 33 of Rule 130 states: "The act or declaration of a person deceased, or outside of the Philippines, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such actor declaration ..."

4. Secondary evidence is nonetheless admissible where the records of adoption proceedings were actually lost or destroyed. But, prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution; loss; contents; although this order may be changed if necessary in the discretion of the court. 16 The sufficiency of the proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case.17 As earlier pointed out, petitioner failed to establish the former existence of the adoption paper and its subsequent loss or destruction. Secondary proof may only be introduced if it has first beer. established that such adoption paper really existed and was lost. This is indispensable. 18 Petitioner's supposed adoption was only testified to by him and is allegedly to be testified to a brother of the deceased Mariano M. Lazatin or others who have witnessed that the deceased spouses treated petitioner as their child. If adoption was really made, the records thereof should have existed and the same presented at the hearing or subsequent thereto or a reasonable explanation of loss or destruction thereof, if that be the case, adduced.19

Assuming the mere fact that the deceased spouses treated petitioner as their child does not justify the conclusion that petitioner had been in fact judicially adopted by the spouses nor does it constitute admissible proof of adoption.

We cannot entertain the plea of petitioner that the sanction of Rule 29 should be applied to consider as established the fact of his adoption due to the refusal of respondent Nora L. de Leon to produce the document of adoption, because first, the fact or real existence of petitioner's adoption had not been established; second, there is no proof that such document of adoption is in the possession of respondent Nora L. de Leon; third, the motu proprio order of the court for Nora de Leon to produce the items retrieved from the safety deposit box cannot be treated as a mode of discovery of production and inspection of documents under Rule 27; and fourth, the items deposited in the safety deposit box have already been surrendered by respondent Nora L. de Leon on April 26; 1976 and no document of adoption in favor of petitioner was listed as found in the safety deposit box.

5. As a necessary consequence, petitioner Renato Lazatin alias Renato Sta. Clara cannot properly intervene in the settlement of the estate of Margarita de Asis, Sp. Proc. No. 2341-P as an adopted child because of lack of proof thereof. For one to intervene in an estate proceeding, it is a requisite that he has an interest in the estate, either as one who would be benefited as an heir or one who has a claim against the estate like a creditor. 20 A child by adoption cannot inherit from the parent creditor. by adoption unless the act of adoption has been done in strict accord with the statue. Until this is done, no rights are acquired by the child and neither the supposed adopting parent or adopted child could be bound thereby. 21The burden of proof in establishing adoption is upon the person claiming such relationship. He must prove compliance with the statutes relating to adoption in the jurisdiction where the adoption occurred. 22 A fortiori if no hereditary interest in the estate can be gained by a claimant who failed to submit proof thereof, whether the will is probated or not, intervention should be denied as it would merely result in unnecessary complication. 23 To succeed, a child must be ligitimate, legitimated, adopted, acknowledged illegitimate natural child or natural child by legal fiction or recognized spurious child. 24

In the face of the verified pleadings of record (constituting judicial admissions) which show that petitioner sought to intervene on November 22, 1974 in the estate proceedings of his alleged adoptive father Dr. Mariano M. Lazatin (Sp. Proc. No. 2326-P) as an admitted illegitimate (not natural) child, 25 while his intervention on August 20, 1975 in the estate of Margarita de Asis, widow of the deceased Dr. Lazatin (Sp. Proc. No. 2341-P) was as her adopted child on the basis of the affidavit of a brother of the deceased Dr. Lazatin, Benjamin Lazatin, executed August 19, 1975 (which affidavit modified a first affidavit executed on May 31, 1975, which failed to estate by "oversight" petitioner, but stated that affiant knew petitioner to be "an illegitimate son" of Dr. Lazatin who later "legally adopted (him) as a son before the Court of First Instance of Manila sometime between the years 1928 and 1921") and prescinding from the question of whether a natural or spurious child may be legally adopted by the putative

father, we hold that no grave abuse of discretion nor error of law as committed by respondent judge in issuing the questioned orders of March 4, 1976, March 26, 1976 and June 3, 1976 denying petitioner's petition "to declare as established in this proceeding the fact of adoption" and denying "any motion for reconsideration unless based on some documentary proof." The Court finds no basis to grant the affirmative relief sought in this proceeding by petitioner for a rendition of judgment "declaring as established the fact of your petitioner's adoption as a son of the deceased spouses entitling him to succeed in their estates as such in accordance with the applicable law on succession as to his inheritance."

Upon the filing of the petition, the Court issued on June 16, 1976 a temporary restraining order; which as amended on July 21, 1976, restrained respondent judge "from proceeding with the hearing scheduled on June 17, 1976 at 8:30 a.m., requiring the submission of evidence to establish heirship in Special Proceedings No. 2326-P entitled 'Intestate Estate of the Late Mariano M. Lazatin' and Special Proceedings No. 2341-P, entitled 'Testate Estate of the late Margarita de Asis Vda. de Lazatin,' and from proceeding with the probate of the alleged holographic will of the deceased Doñ;a Margarita de Asis Vda. de Lazatin scheduled on June 29, 1976, August 10 and 12, 1976 and on any other dates." With the Court's determination of the issues as herein set forth, there is no longer any need for restraining the proceedings below and the said restraining order shall be immediately lifted.

On January 24, 1977, the Court upon petitioner's motion resolved to conditionally allow respondent judge "to take the deposition of petitioner's witnesses to perpetuate their testimonies pursuant to Rule 134, Section 7 of the Rules of Court, subject to the Court's ruling in due course on the admissibility of such testimonies." The Court thereby permitted in effect the advance testimonies of petitioner's witnesses, principally among them Rafael Lazatin and Esteban L. Lazatin, both brothers of the deceased Dr. Mariano L. Lazatin and as stated in petitioner's motion of January 11, 1977: têñ.£îhqwâ£

Substantially, the testimony of the above-named witnesses will be on the fact that they had been informed by the deceased spouses, Mariano and Margarita Lazatin that your petitioner was their [Mariano's and Margarita's] judicially adopted son and to elicit further from them the fact that your petitioner enjoys the reputation of being their judicially adopted son in the Lazatin family.

The Court's resolution allowing the advance testimonies of petitioner's witnesses was but in application of the Court's long standing admonition to trial courts is reaffirmed in Lamagan vs. De la Cruz, 26, "to be liberal in accepting proferred evidence since even if they were to refuse to accept the evidence, the affected party will nevertheless be allowed to spread the excluded evidence on the record, for review on appeal." The Court therein once again stressed the established rule that "it is beyond question that rulings of the trial court on procedural questions and on admissibility of evidence during the course of the trial are interlocutory in nature and may not be the subject of separate

appeal or review on certiorari, but are to be assigned as errors and reviewed in the appeal properly taken from the decision rendered by the trial court on the merits of the case," 27 and that a party's recourse when proferred evidence is rejected by the trial court is to make a offer stating on the record what a party or witness would have testified to were his testimony not excluded, as well as to attach to the record any rejected exhibits.

At the continuation of the proceedings below for declaration of heirship and for probate of the alleged holographic the deceased Margarita de Asis Vda. de Lazatin, pet who has failed to establish his status as an alleged ;m child of Margarita de Asis (unless, as reserved to him by the court below, he can show some documentary proof),and whose intervention in the estate of the deceased Dr. Mariano Lazatin is as an admitted illegitimate child, win have to decide whether he will pursue his first theory of having the of such admitted illegitimate child of said deceased. Whatever be his theory and his course of action and whether or not he may be duly snowed to intervene in the proceedings below as such alleged admitted illegitimate child, his recourse in the event of an adverse ruling against him is to make a formal offer of proof and of his excluded evidence, oral and documentary, and seek a reversal on an appeal in due course.

ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioner's petition below "to declare as established in this proceeding the fact of [his] adoption" are hereby affirmed. The temporary restraining order issued on June 16, 1976 and amended on July 21, 1976 is ordered lifted, effective immediately. Without costs.

SO ORDERED.

G.R. No. 92326 January 24, 1992

REPUBLIC OF THE PHILIPPINES, petitioner, vs.COURT OF APPEALS and ZENAIDA C. BOBILES, respondents.

REGALADO, J.:

Dissatisfied with the decision of respondent Court of Appeals promulgated on February 20, 1990 1 which affirmed in totothe decision of Branch 2 of the Regional Trial Court of Legaspi City 2 granting the petition of herein private respondent to adopt the minor Jason Condat, petitioner seeks the reversal thereof in the present petition for review on certiorari.

On February 2, 1988, Zenaida Corteza Bobiles filed a petition to adopt Jason Condat, then six (6) years old and who had been living with her family since he was four (4) months old, before the Regional Trial Court of Legaspi City, docketed therein as Special Proceeding No. 1386. 3

The court a quo, finding the petition to be sufficient in form and substance, issued an order dated February 15, 1988 setting the petition for hearing on March 28, 1988. 4 The order was duly published, with copies thereof seasonably served on the Solicitor General; Assistant Provincial Fiscal Mediavillo, Jr. of Albay; Salvador Condat, father of the child; and the social worker assigned to the court. A copy of said order was posted on the bulletin board of the court and in the other places it had required for that purpose. Nobody appeared to oppose the petition. 5

Compliance with the jurisdictional requirements having been proved at the hearing, the testimonies of herein private respondent, together with that of her husband, Dioscoro Bobiles, and one Ma. Luz Salameno of the Department of Social Welfare and Development were taken and admitted in the proceedings.

On March 20, 1988, the trial court rendered judgment disposing as follows:

ACCORDINGLY, it is declared that henceforth, the minor child, JASON CONDAT, be freed from all legal obligations of obedience and maintenance with respect to his natural parents, and be, to all intents and purposes, the child of the spouses Dioscoro and Zenaida Bobiles, and the surname of the child be changed to "Bobiles" which is the surname of the petitioner.

Furnish the Office of the Solicitor General, Manila, the Department of Social Welfare and Development, Regional Office, Region V, Legaspi City, and the Local Civil Registrar of Tiwi, Albay, with copies of this decision.6

Herein petitioner appealed to the Court of Appeals which, as earlier stated, affirmed the aforesaid decision of the court below. Hence, this present petition with the following assignment of errors:

1. The Honorable Court of Appeals erred in ruling that the Family Code cannot be applied retroactively to the petition for adoption filed by Zenaida C. Bobiles; and

2 The Honorable Court of Appeals erred in affirming the trial court's decision which granted the petition to adopt Jason Condat in favor of spouses Dioscoro Bobiles and Zenaida C. Bobiles. 7

The petition for adoption was filed by private respondent Zenaida C. Bobiles on February 2, 1988, when the law applicable was Presidential Decree No. 603, the Child and Youth Welfare Code. Under said code, a petition for adoption may be filed by either of the spouses or by both of them. However, after the trial court rendered its decision and while the case was pending on appeal in the Court of Appeals, Executive Order No. 209, the Family Code, took effect on August 3, 1988. Under the said new law, joint adoption by husband and wife is mandatory.

On the foregoing consideration, petitioner contends that the petition for adoption should be dismissed outright for it was filed solely by private respondent without joining her husband, in violation of Article 185 of the Family Code which requires joint adoption by the spouses. It argues that the Family Code must be applied retroactively to the petition filed by Mrs. Bobiles, as the latter did not acquire a vested right to adopt Jason Condat by the mere filing of her petition for adoption. We are not persuaded.

Preliminarily, we observe that petitioner's theory implies that the non-inclusion of Dioscoro Bobiles as a co-petitioner is a jurisdictional defect, hence its prayer for an outright dismissal on that score. It could not be taking exception only on the ground of non-joinder since petitioner must be aware that non-joinder is not a ground for the dismissal of an action or a special proceeding. 8 We further apprehend that this objection has been raised for the first time on appeal in respondent court. Nonetheless, we shall clarify petitioner's misgivings as postulated in its aforestated assignment of errors.

Article 246 of the Family Code provides for retroactive effect of appropriate relevant provisions thereof, subject to the qualification that such retrospective application will not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.

A vested right is one whose existence, effectivity and extent does not depend upon events foreign to the will of the holder.9 The term expresses the concept of present fixed interest which in right reason and natural justice should be protected against arbitrary State action, or an innately just and imperative right which enlightened free society,

sensitive to inherent and irrefragable individual rights, cannot deny. 10 Vested rights include not only legal or equitable title to the enforcement of a demand, but also an exemption from new obligations created after the right has vested. 11

Under the Child and Youth Welfare Code, private respondent had the right to file a petition for adoption by herself, without joining her husband therein. When Mrs. Bobiles filed her petition, she was exercising her explicit and unconditional right under said law. Upon her filing thereof, her right to file such petition alone and to have the same proceed to final adjudication, in accordance with the law in force at the time, was already vested and cannot be prejudiced or impaired by the enactment of a new law.

When private respondent filed her petition in Special Proceeding No. 1386, the trial court acquired jurisdiction thereover in accordance with the governing law. Jurisdiction being a matter of substantive law, the established rule is that the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. 12 We do not find in the present case such facts as would constitute it as an exception to the rule.

The first error assigned by petitioner warrants a review of applicable local and foreign jurisprudence. For that purpose, we start with the premise that Article 185 of the Family Code is remedial in nature. Procedural statutes are ordinarily accorded a retrospective construction in the sense that they may be applied to pending actions and proceedings, as well as to future actions. However, they will not be so applied as to defeat procedural steps completed before their enactment. 13

Procedural matters are governed by the law in force when they arise, and procedural statutes are generally retroactive in that they apply to pending proceedings and are not confined to those begun after their enactment although, with respect to such pending proceedings, they affect only procedural steps taken after their enactment. 14

The rule that a statutory change in matters of procedure will affect pending actions and proceedings, unless the language of the act excludes them from its operation, is not so extensive that it may be used to validate or invalidate proceedings taken before it goes into effect, since procedure must be governed by the law regulating it at the time the question of procedure arises. 15

The jurisdictional, as distinguished from the purely procedural, aspect of a case is substantive in nature and is subject to a more stringent rule. A petition cannot be dismissed by reason of failure to comply with a law which was not yet in force and effect at the time. As long as the petition for adoption was sufficient in form and substance in accordance with the law in governance at the time it was filed, the court acquires jurisdiction and retains it until it fully disposes of the case. 16 To repeat, the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. Such jurisdiction of a court, whether in criminal or civil cases, once it attaches

cannot be ousted by subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance.17

On the second issue, petitioner argues that, even assuming that the Family Code should not apply retroactively, the Court of Appeals should have modified the trial court's decision by granting the adoption in favor of private respondent Zenaida C. Bobiles only, her husband not being a petitioner. We do not consider this as a tenable position and, accordingly, reject the same.

Although Dioscoro Bobiles was not named as one of the petitioners in the petition for adoption filed by his wife, his affidavit of consent, attached to the petition as Annex "B" and expressly made an integral part thereof, shows that he himself actually joined his wife in adopting the child. The pertinent parts of his written consent read as follows:

xxx xxx xxx

2. That my wife, ZENAIDA O. CORTEZA BOBILES and I mutually desire to adopt as our child, a boy named JASON CONDAT, still a minor being six (6) years old, likewise residing at 18 C. Imperial Street, Legaspi City, Albay, also in the Philippines;

3. That we are filing the corresponding Petition for Adoption of said minor child, JASON CONDAT, before the Juvenile and Domestic Relations court, now the Regional Trial Court in Legaspi City, Albay in the Philippines;

4. That I, Dioscoro C. Bobiles as the husband and father, am giving my lawful consent to this adoption of said minor child, JASON CONDAT;

5. That further, my wife ZENAIDA O. CORTEZA BOBILES, and I have continuously reared and cared for this minor child, JASON CONDAT since birth;

6. That as a result thereof, my wife and I have developed a kind of maternal and paternal love for the boy as our very own, exercising therein the care, concern and diligence of a good father toward him;

7. That I am executing this document, an AFFIDAVIT OF CONSENT for whatever it is worth in the premises as to the matter of adoption of this minor child, JASON CONDAT, by my wife ZENAIDA O. CORTEZA BOBILESand by me, DIOSCORO C. BOBILES, in any court of justice; (Emphasis supplied.) 18

xxx xxx xxx

The foregoing declarations, and his subsequent confirmatory testimony in open court, are sufficient to make him a co-petitioner. Under the circumstances then obtaining, and

by reason of his foreign residence, he must have yielded to the legal advice that an affidavit of consent on his part sufficed to make him a party to the petition. This is evident from the text of his affidavit. Punctiliousness in language and pedantry in the formal requirements should yield to and be eschewed in the higher considerations of substantial justice. The future of an innocent child must not be compromised by arbitrary insistence of rigid adherence to procedural rules on the form of pleadings.

We see no reason why the following doctrines in American law should not apply to this case and, for that matter, in our jurisdiction. It is a settled rule therein that adoption statutes, as well as matters of procedure leading up to adoption, should be liberally construed to carry out the beneficent purposes of the adoption institution and to protect the adopted child in the rights and privileges coming to it as a result of the adoption. 19 The modern tendency of the courts is to hold that there need not be more than a substantial compliance with statutory requirements to sustain the validity of the proceeding; to refuse would be to indulge in such a narrow and technical construction of the statute as to defeat its intention and beneficial results or to invalidate proceedings where every material requirement of the statute was complied with.

In support of this rule it is said that it is not the duty of the courts to bring the judicial microscope to bear upon the case in order that every slight defect may be enlarged and magnified so that a reason may be found for declaring invalid an act consummated years before, but rather to approach the case with the inclination to uphold such acts if it is found that there was a substantial compliance with the statute. 20 The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary to give the court jurisdiction. 21

In determining whether or not to set aside the decree of adoption the interests and welfare of the child are of primary and paramount consideration. 22 The welfare of a child is of paramount consideration in proceedings involving its custody and the propriety of its adoption by another, and the courts to which the application for adoption is made is charged with the duty of protecting the child and its interests and, to bring those interests fully before it, it has authority to make rules to accomplish that end. 23 Ordinarily, the approval of the adoption rests in the sound discretion of the court. This discretion should be exercised in accordance with the best interests of the child, as long as the natural rights of the parents over the child are not disregarded. In the absence of a showing of grave abuse, the exercise of this discretion by the approving official will not be disturbed. 24

In the case at bar, the rights concomitant to and conferred by the decree of adoption will be for the best interests of the child. His adoption is with the consent of his natural parents. 25 The representative of the Department of Social Welfare and Development

unqualifiedly recommended the approval of the petition for adoption 26 and the trial court dispensed with the trial custody for several commendatory reasons, especially since the child had been living with the adopting parents since infancy. 27 Further, the said petition was with the sworn written consent of the children of the adopters.

The trial court and respondent court acted correctly in granting the petition for adoption and we find no reason to disturb the same. As found and aptly stated by respondent court: "Given the facts and circumstances of the case and considered in the light of the foregoing doctrine, 28 We are of the opinion and so hold that the decree of adoption issued by the court a quo would go a long way towards promoting the welfare of the child and the enhancement of his opportunities for a useful and happy life." 29

Adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopted, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law. 30

WHEREFORE, the instant petition is hereby DENIED.

G.R. No. 94147 June 8, 1994

REPUBLIC OF THE PHILIPPINES, petitioner, vs.HONORABLE RODOLFO TOLEDANO, in his capacity as Presiding Judge of the Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales and SPOUSES ALVIN A. CLOUSE and EVELYN A. CLOUSE,respondents.

PUNO, J.:

Before us is a petition for review on certiorari of the decision 1 of the Regional Trial Court of Iba, Zambales, Branch 69, in Special Proceeding No. RTC-140-I, entitled, "In the Matter of the Adoption of the Minor named Solomon Joseph Alcala", raising a pure question of law.

The sole issue for determination concerns the right of private respondents spouses Alvin A. Clouse and Evelyn A. Clouse who are aliens to adopt under Philippine Law.

There is no controversy as to the facts.

On February 21, 1990, in a verified petition filed before the Regional Trial Court of Iba, Zambales, private respondents spouses Clouse sought to adopt the minor, Solomon Joseph Alcala, the younger brother of private respondent Evelyn A. Clouse. In an Order issued on March 12, 1990, the petition was set for hearing on April 18, 1990. The said Order was published in a newspaper of general circulation in the province of Zambales and City of Olongapo for three (3) consecutive weeks.

The principal evidence disclose that private respondent Alvin A. Clouse is a natural born citizen of the United States of America. He married Evelyn, a Filipino on June 4, 1981 at Olongapo City. On August 19, 1988, Evelyn became a naturalized citizen of the United States of America in Guam. They are physically, mentally, morally, and financially capable of adopting Solomon, a twelve (12) year old minor.

Since 1981 to 1984, then from November 2, 1989 up to the present, Solomon Joseph Alcala was and has been under the care and custody of private respondents. Solomon gave his consent to the 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 worker assigned to conduct the Home and Child Study, favorably recommended the granting of the petition for adoption.

Finding that private respondents have all the qualifications and none of the disqualifications provided by law and that the adoption will redound to the best interest

and welfare of the minor, respondent judge rendered a decision on June 20, 1990, disposing as follows:

WHEREFORE, the Court grants the petition for adoption filed by Spouses Alvin A. Clouse and Evelyn A. Clouse and decrees that the said minor be considered as their child by adoption. To this effect, the Court gives the minor the rights and duties as the legitimate child of the petitioners. Henceforth, he shall be known as SOLOMON ALCALA CLOUSE.

The Court dissolves parental authority bestowed upon his natural parents and vests parental authority to the herein petitioners and makes him their legal heir. Pursuant to Article 36 of P.D. 603 as amended, the decree of adoption shall be effective as of the date when the petition was filed. In accordance with Article 53 of the same decree, let this decree of adoption be recorded in the corresponding government agency, particularly the Office of the Local Civil Registrar of Merida, Leyte where the minor was born. The said office of the Local Civil Registrar is hereby directed to issue an amended certificate of live birth to the minor adopted by the petitioners.

Let copies of this decision be furnished (sic) the petitioners, DSWD, Zambales Branch, Office of the Solicitor General and the Office of the Local Civil Registrar of Merida, Leyte.

SO ORDERED. 2

Petitioner, through the Office of the Solicitor General appealed to us for relief, contending:

THE LOWER COURT ERRED IN GRANTING THE PETITION FOR ADOPTION OF ALVIN AND EVELYN CLOUSE, BECAUSE THEY ARE NOT QUALIFIED TO ADOPT UNDER PHILIPPINE LAW.

We rule for petitioner.

Under Articles 184 and 185 of Executive Order (E.O.) No. 209, otherwise known as "The Family Code of the Philippines", private respondents spouses Clouse are clearly barred from adopting Solomon Joseph Alcala.

Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the persons who are not qualified to adopt,viz.:

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;

(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or

(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter.

Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by law.

There can be no question that private respondent Alvin A. Clouse is not qualified to adopt Solomon Joseph Alcala under any of the exceptional cases in the aforequoted provision. In the first place, he is not a former Filipino citizen but a natural born citizen of the United States of America. In the second place, Solomon Joseph Alcala is neither his relative by consanguinity nor the legitimate child of his spouse. In the third place, when private respondents spouses Clouse jointly filed the petition to adopt Solomon Joseph Alcala on February 21, 1990, private respondent Evelyn A. Clouse was no longer a Filipino citizen. She lost her Filipino citizenship when she was naturalized as a citizen of the United States in 1988.

Private respondent Evelyn A. Clouse, on the other hand, may appear to qualify pursuant to paragraph 3(a) of Article 184 of E.O. 209. She was a former Filipino citizen. She sought to adopt her younger brother. Unfortunately, the petition for adoption cannot be granted in her favor alone without violating Article 185 which mandates a joint 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 own illegitimate child; or

(2) When one spouse seeks to adopt the legitimate child of the other.

Article 185 requires a joint adoption by the husband and wife, a condition that must be read along together with Article 184.3

The historical evolution of this provision is clear. Presidential Decree 603 (The Child and Youth Welfare Code), provides that husband and wife "may" jointly adopt. 4 Executive Order No. 91 issued on December 17, 1986 amended said provision of P.D. 603. It demands that both husband and wife "shall" jointly adopt if one of them is an alien. 5 It was so crafted to protect Filipino children who are put up for adoption. The Family Code reiterated the rule by requiring that husband and wife "must" jointly adopt, except in the cases mentioned before. Under the said new law, joint adoption by husband and wife is mandatory. 6 This is in consonance with the concept of joint parental authority over the child, which is the ideal situation. 7 As the child to be adopted is elevated to the

level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses. 8

In a distinctly similar case, we held:

As amended by Executive Order 91, Presidential Decree No. 603, had thus made it mandatory for both the spouses to jointly adopt when one of them was an alien. The law was silent when both spouses were of the same nationality.

The Family Code has resolved any possible uncertainty. Article 185 thereof expresses the necessity for a joint adoption by the spouses except in only two instances —

(1) When one spouse seeks to adopt his own illegitimate child; or

(2) When one spouse seeks to adopt the legitimate child of the other.

It is in the foregoing cases when Article 186 of the Code, on the parental authority, can aptly find governance.

Article 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, jointly parental authority shall be exercised by the spouses in accordance with this Code. 9

Article 185 is all too clear and categorical and there is no room for its interpretation. There is only room for application. 10

We are not unaware that the modern trend is to encourage adoption and every reasonable intendment should be sustained to promote that objective. 11 Adoption is geared more towards the promotion of the welfare of the child and enhancement of his opportunities for a useful and happy life. 12 It is not the bureaucratic technicalities but the interest of the child that should be the principal criterion in adoption cases. 13 Executive Order 209 likewise upholds that the interest and welfare of the child to be adopted should be the paramount consideration. These considerations notwithstanding, the records of the case do not evince any fact as would justify us in allowing the adoption of the minor, Solomon Joseph Alcala, by private respondents who are aliens.

G.R. No. L-23828 February 28, 1966

PAULINA SANTOS and AURORA SANTOS, petitioners, vs.GREGORIA ARANZANSO and DEMETRIA VENTURA, respondents.

BENGZON, J.P., J.:

A petition for adoption of Paulina Santos and Aurora Santos was filed by Simplicio Santos and Juliana Reyes in the Court of First Instance of Manila on June 4, 1949.1 Paulina Santos was then 17 years old and Aurora Santos, 8 years old. The petition, which was under oath, alleged inter alia, that the whereabouts of the minors' nearest of kin, particularly their parents, were unknown; that since the outbreak of the war said minors have been abandoned by their respective parents; and that for years, since their infancy, said children have continuously been in petitioners' care and custody. A guardian ad litem Crisanto de Mesa, was thereafter appointed for the minors. Said guardian ad litem forthwith gave his written consent to the adoption. Paulina Santos, being over fourteen years of age, likewise gave her written consent thereto.2

After due publication and hearing, the adoption court (CFI) rendered on August 25, 1949 a decision, hereunder quoted in full:

This is a petition for the adoption of the minors Paulina Santos Reyes and Aurora Santos Reyes by the spouses Simplicio Santos and Juliana R. Santos. After due publication in the "National Weekly", a newspaper of general circulation in the City of Manila, once a week for three consecutive weeks, the case was then set for trial. The office of the Solicitor General was duly notified of the petition and at the hearing did not offer any objection.1äwphï1.ñët

From the evidence presented at the hearing, it appears that the petitioners have been married for the past twenty-seven years and have no children of their own. They desire to adopt the minors Paulina Santos Reyes and Aurora Santos Reyes, both of whom are and for years have been living under their care and custody; that the former, since she was barely three months old has already been taken care of by them up to the present time, and the latter has been cared for since she was only fifteen days old. Paulina Santos Reyes is now seventeen years old and has given her consent to the adoption as shown by her signature at the foot of the petition. She ratified the same in open Court. Both parents of the minors have long been unheard from and in spite of diligent efforts of the petitioners to locate them, they could not be found. The consent to the adoption has been given by the guardian ad litemappointed by the Court. The petitioners are both proprietors and have substantial income, more than enough to support and educate the minors. The Court is of the opinion that this adoption will be for the best interest and welfare of the minors.

WHEREFORE, the Court hereby grants the petition of the spouses Simplicio Santos and Juliana R. Santos to adopt the minors Paulina Santos Reyes and Aurora Santos Reyes and in accordance with Rule 100 of the Rules of Court in the Philippines, hence forth, the minors are freed from all legal obligations to their natural parents and are, to all legal intents and purposes the children of the petitioners.

Manila, Philippines, August 25, 1949.

No appeal was taken from the aforesaid decision.

Subsequently — eight years later — on October 21, 1957, Juliana Reyes died, in Manila, without testament. On November 25, 1957 Simplicio Santos filed in the Court of First Instance of Manila a petition for the settlement of the intestate estate of Juliana Reyes.3 In said petition he stated among other things that the surviving heirs of the deceased are: he, as surviving spouse, Paulina Santos and Aurora Santos, 27 and 17 years of age, respectively. In the same petition, he asked that he be appointed administrator of the estate.

Gregoria Aranzanso, alleging that she is first cousin to the deceased, filed on January 2, 1958 an opposition to the petition for appointment of administrator. For her grounds she asserted that Simplicio Santos" marriage to the late Juliana Reyes was bigamous and thus void: and that the adoption of Paulina Santos and Aurora Santos was likewise void ab initio for want of the written consent of their parents, who were then living and had not abandoned them. An answer to the opposition was filed by Simplicio Santos on March 7, 1958 and oppositor Aranzanso filed a reply thereto on March 17, 1958.

Demetria Ventura, alleging likewise that she is the first cousin of the deceased Juliana Reyes and adding that she is the mother of the child Paulina Santos, filed on March 19, 1959 an opposition to the petition of Simplicio Santos to be named administrator, and, moreover, thereunder adopted, as her own, the pleadings filed by Gregoria Aranzanso.

By order of April 6, 1959, the Court of First Instance decided the point in dispute, ruling that the validity of the adoption in question could not be assailed collaterally in the intestate proceedings (Sp. Proc. No. 34354). From the order Gregoria Aranzanso and Demetria Ventura appealed to the Court of Appeals.

In its decision, promulgated on September 14, 1964, the Court of Appeals reversed the appealed order, finding instead that the adoption was null and void ab initio due to the absence of consent thereto by the natural parents of the minor children, which it deemed a jurisdictional defect still open to collateral attack.

After denial of their motion for reconsideration by the Court of Appeals, Paulina Santos and Aurora Santos appealed to this Court by way of petition for review, filed on November 18, 1964, to which due course was given. Five months after submission of

this case for decision — or on October 14, 1965 — petitioners herein filed a petition for preliminary injunction, and later, on October 26, 1965, a supplemental petition therefor, to stop the trial court from allowing Gregorio Aranzanso and Demetria Ventura, as well as of two other persons, namely, Consuelo and Pacita Pasion, to intervene in the settlement proceedings or to withdraw cash advances from the estate.

It was alleged in the petition and supplemental petition for preliminary injunction that on September 22, 1965 the probate court issued an order allowing Gregoria Aranzanso and Demetria Ventura to intervene in the settlement proceedings of Juliana Reyes' estate (Sp. Proc. No. 34354); that on October 2, 1965 said court issued an order allowing, on previous motions therefor, withdrawal of the sum of P7,000 each, under bond, to all the parties, including Gregoria Aranzanso and Demetria Ventura; that on October 7, 1965 two strangers to the proceedings — the aforesaid sisters Consuelo and Pacita Pasion — filed a motion, stating that they are also first cousins of the decedent and praying that an order be issued allowing them to withdraw the sum of P7,000 each under bond; that on October 13, 1965 the same Pasion sisters filed a supplemental motion in the same proceedings praying that their motion of October 7 be treated as a motion to intervene; that on October 18, 1965 the probate court issued an order allowing the Pasion sisters to intervene in the settlement proceedings and allowing them to withdraw under bond the sum of P7,000 each from the funds of the estate.

On November 4, 1965 respondents, together with Consuelo and Pacita Pasion — who thereby submitted themselves to this Court's jurisdiction and stated that they, "for purposes of expediency, are also denominated respondents" — filed their "Comment", as required by this Court, opposing the aforesaid petition for preliminary injunction. On November 15, 1965 this Court granted the prayer for preliminary injunction and the writ was issued upon posting of a bond of P5,000 on November 20, 1965. Respondents however moved for reconsideration or modification thereof on November 23, 1965, stating inter alia that they would now be precluded from taking part in the scheduled hearing for settlement of the accounts of the special administratrix (Araceli A. Pilapil). On November 26, 1965 we ordered modification of the preliminary injunction, so that on November 29, the writ was modified so as to enjoin the probate court, until further orders: (1) from hearing and/or approving the settlement of special administratrix's accounts; (2) from allowing any sale, disposition or disbursement of the estate except when essential for strictly maintenance purposes; and (3) from allowing respondents, Gregoria Aranzanso and Demetria Ventura, or Consuelo and Pacita Pasion, or any of them, to receive any advance, cash or otherwise, from the funds of the intestate estate.

The principal issue on the merits in this appeal is whether respondents-oppositors Aranzanso and Ventura, could assail in the settlement proceedings the adoption decree in favor of Paulina and Aurora Santos. In sustaining their right to make such a collateral attack, the respondent Court of Appeals rested as abovementioned on the premise that failure to obtain the consent of the natural parents was a jurisdictional defect rendering the adoption void ab initio. In its view, said consent was not properly dispensed with, not only because the evidence adduced in the adoption proceedings was insufficient to

support a finding that the parents had abandoned the children, but also since the adoption court fatally omitted to expressly and specifically find that such abandonment in fact occurred.

In this regard it should be stated that the Court of Appeals completely relied on American jurisprudence and authorities to the effect that parental consent to the adoption is a jurisdictional requisite (E.g., 2 C.J.S., Adoption of Children, Section 45[a] p. 435; Whetmore vs. Fratello, 282 P2d 667, 670). The point to remember, however, is that under our law on the matter, consent by the parents to the adoption is not an absolute requisite:

SEC. 3. Consent to adoption.—There shall be filed with the petition a written consent to the adoption signed by the child if over fourteen years of age and not incompetent, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned such child, or if there are no such parents by the general guardian or guardian ad litem of the child, or if the 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 child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required. (Rule 100, Old Rules of Court.)4

Stated otherwise, if the natural parents have abandoned their children, consent to the adoption by the guardian ad litemsuffices. This brings as to the question whether in the proceedings at bar the Court of Appeals can still review the evidence in the adoption case and conclude that it was not sufficiently established therein that the parents of Paulina and Aurora Santos had abandoned them.

First of all, it is not quite accurate to say that the adoption court made no determination of the fact of abandonment. As quoted earlier, it is stated in the decision of the adoption court, that:

From the evidence presented at the hearing it appears that the petitioners have been married for the past twenty-seven years and have no children of their own. They desire to adopt the minors Paulina Santos [y] Reyes and Aurora Santos [y] Reyes, both of whom are and for years have been living under their care and custody; that the former, since she was barely three months old has already been taken care of by them up to the present time, and the latter has been cared for since she was only fifteen days old. Paulina Santos [y] Reyes is now seventeen years old. . . . Both parents of the minors have long been unheard from and in spite of diligent efforts of the petitioners to locate them, they could not be found. The consent to the adoption has been given by the guardian ad litemappointed by the Court. . . . . (Emphasis supplied.)

Abandonment — under persuasive American rulings — imports "any conduct on the part of the parent which evinces a settled purpose to forgo all parental duties and

relinquish all parental claims to the child". It means "neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children." (2 Am. Jur. 2d, Adoption, Sec. 32, pp. 886-887.) It can thus readily be seen that altho the CFI judgment approving the adoption does not use the word "abandoned", its findings sufficiently contain a set of facts and circumstances which truly constitutes a finding of abandonment.

Coming now to the power of the Court of Appeals to review in this case the finding of abandonment made by the adoption court, we find that even under American jurisprudence — relied upon, as stated, by said Court — the settled rule is that even when the jurisdiction of an inferior or special tribunal depends upon the existence of a fact to be established before it, the determination of that fact by the tribunal cannot be questioned in a collateral attack upon its order (In re McKaeg's Estate, 141 Cal. 403, 74 Pac. 1039, 1040; In re Camp's Estate, 131 Cal. 469, 63 Pac. 736).

Anent this point the rulings are summed up in 2 American Jurisprudence, 2nd Series, Adoption, Sec. 75, p. 922, thus:

An adoption order implies the finding of the necessary facts and the burden of proof is on the party attacking it; it cannot be considered void merely because the fact needed to show statutory compliance is obscure. While a judicial determination of some particular fact, such as the abandonment of his next of kin to the adoption, may be essential to the exercise of jurisdiction to enter the order of adoption, this does not make it essential to the jurisdictional validity of the decree that the fact be determined upon proper evidence, or necessarily in accordance with the truth; a mere error cannot affect the jurisdiction, and the determination must stand until reversed on appeal, and hence cannot be collaterally attacked. If this were not the rule, the status of adopted children would always be uncertain, since the evidence might not be the same at all investigations, and might be regarded with different effect by different tribunals, and the adoption might be held by one court to have been valid, while another court would hold it to have been of no avail.

Freeman on Judgments says the same thing:

In general, therefore, where the right of the court to assume jurisdiction of a cause and proceed to judgment depends upon the ascertainment of facts in pais and the court retains jurisdiction it thereby impliedly adjudges that the requisite jurisdictional facts exist and having found such facts in favor of jurisdiction, its decision in this respect, whether erroneous or not, cannot be questioned in a collateral proceedings, for a presumption arises in such cases, when the validity of the judgment is attacked, that the necessary jurisdictional facts were proven. . . . . (Vol. I, Sec. 350, pp. 719-720.)

The Supreme Court of Wisconsin, construing a statute akin to our law in this regard, said in Parsons vs. Parsons, 101 Wis. 76, 77 N.W. 147, 148:

The statute to be considered is section 4022, Rev. St. 1878, which reads as follows: "No such adoption shall be made without the written consent of the living parents of such child unless the court shall find that one of the parents has abandoned the child or gone to parts unknown." Thus it will be seen that upon the fact being established that the living parent has abandoned his child, he is deemed by the statute to have thereby relinquished all parental right to be consulted in respect to the child's welfare, and his consent to the adoption is therefore dispensed with. The term "abandon" obviously means no more than neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children. The fact of abandonment, judicially determined, was essential to the jurisdiction; not essential that it should be determined on proper evidence, necessarily, or in accordance with the truth, because mere error in that regard does not affect jurisdicition. If jurisdiction be obtained to determine a fact, its determination wrong or on insufficient or improper evidence is immaterial oh the question of legal right to proceed judicially to the next step. That is deemed to be elementary... A judicial determination may be contrary to conclusive evidence, or legal evidence, or without any evidence, yet cannot be impeached for want of jurisdiction. Van Fleet, Coll. Attack, Secs. 663, 665. That rule applies to all judicial proceedings. . . . .

It follows, therefore, that the Court of Appeals erred in reviewing, under a collateral attack, the determination of the adoption court that the parents of Paulina and Aurora Santos had abandoned them. This is so even if such fact of abandonment is deemed jurisdictional, a point which we need not — and do not — rule upon in this case.

For the same reason, it is not in point to argue here that Simplicio Santos in fact concealed the adoption proceedings from the natural parents, thereby rendering the judgment obtained therein null and void or being secured by extrinsic fraud. The rule is well recognized that a judgment can be set aside on the ground of extrinsic fraud only in a separate action brought for that purpose; not by way of collateral attack (Gomez vs. Concepcion, 47 Phil. 717; Ramos vs. Mañalac, 89 Phil. 270).

Anent the alleged lack of notice of the adoption proceedings on the natural parents, suffice it to mark that adoption is a proceeding in rem5 and that constructive notice, such as the publication duly made as aforesaid, is enough where the residence of the parents is unknown (2 Am. Jur., 2d, Adoption, Sec. 56, p. 906). Notice, moreover, is not required in adoption cases in regard to the abandoning parent (Parsons vs. Parsons, supra).

Assuming that Simplicio Santos was not validly married to Juliana Reyes, it will not make any difference as far as the right of respondents to intervene in the intestate proceedings is concerned. Juliana Reyes should then be deemed to have filed the petition for adoption as a person whose status is single, not married. The defect would then lie only as to Simplicio Santos, who, as allegedly married to another person (a point that we do not decide in this case), could not adopt without joining his wife in the

petition.6 It being the estate of Juliana Reyes that is the subject matter of the settlement proceedings, the flaw, if any, would not affect the consideration of the right of Paulina and Aurora Santos to succeed as adopted children of Juliana Reyes, to the exclusion of respondents.

It must not be forgotten that the philosophy behind adoption statutes is to promote the welfare of the child. Accordingly, the modern trend is to encourage adoption (Prasnik vs. Republic, 5 O.G. 1942) and every reasonable intendment should be sustained to promote that objective.

From 2 Corpus Juris Secundum 375-376 we quote:

Accordingly, as the main purpose of adoption statutes is the promotion of the welfare of children, bereft of the benefits of the home and care of their real parents, wherever possible without doing violence to the terms of the statute, such a construction should be given adoption laws as will sustain, rather than defeat, this purpose.

Although, as against the interests of the child, the proceedings must be strictly in accordance with the statute, there is a tendency on the part of the courts, however, where the adoption has been fully consummated, to construe the statute with a reasonable degree of liberality, to the end that the assumed relationship and the intention of the parties be upheld, particularly as against strangers to the proceedings collaterally attacking them . . . .

From all the foregoing it follows that respondents-oppositors Aranzanso and Ventura and those who, like them (Pasion sisters), claim an interest in the estate of Juliana Reyes as alleged first cousins, cannot intervene, as such, in the settlement proceedings, in view of the fact that in the order of intestate succession adopted children exclude first cousins (Articles 979 and 1003, New Civil Code). The same holds true as long as the adoption must be — as in the instant case — considered valid.

Wherefore, the judgment of the Court of Appeals is hereby reversed and the order of the probate court a quo sustaining the adoption, dated April 6, 1959, is affirmed. Respondents Gregoria Aranzanso and Demetria Ventura as well as Consuelo and Pacita Pasion are declared without right to intervene as heirs in the settlement of the intestate estate of Juliana Reyes. The preliminary injunction heretofore issued is dissolved, except insofar as it enjoins the intervention or allowance of withdrawals of properly from the estate by Gregoria Aranzanso, Demetria Ventura, Consuelo and Pacita Pasion, in the concept of heirs, as to which it is hereby made permanent. No costs. So ordered.

Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Sanchez, JJ., concur.

R E S O L U T I O N, May 19, 1966.

BENGZON, J.P., J.:

Respondents, thru newly retained counsel, Atty. Juan T. David, moved for reconsideration of Our decision of February 28, 1966 and/or modification of its dispositive portion. A supplemental motion thereto was filed by respondents' other counsel, Atty. Cuadrajento A. Mendoza. In addition, a motion to substitute pages 11 and 12 of the motion for reconsideration was made, which is hereby granted. The substitute pages are already in the record. Also, we received and take, note of respondents' counsels' manifestation and comment.

1. The principal argument of movants is that the adoption court made no finding of abandonment by the natural parents of the children sought to be adopted. Altho the point has already been fully discussed in the decision, it will elaborate further on the same.

It is now argued that such long absence and status of being unheard from on the part of the natural parents, and their having left their children since infancy to the care and custody of others, is not abandonment, for the reason that abandonment must be willful and that time is not an element of abandonment.

As stated in the decision, abandonment means, under persuasive American rulings, "any conduct on the part of the parent which evinces a settled purpose to forgo all parental duties and relinquish all parental claims to the child."1 In other words, "neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children.2

Negligent and careless failure to perform the duties of parenthood is a significant element of abandonment, regardless of actual intention. (Emmons v. Dinelli, 235 Ind. 249, 133 NE 2d 56.) And as to the element of time, far from being immaterial, it is recognized that: "A strong basis for a finding of the parents' abandonment of his or her child is found in the case where the parent has left the child permanently or indefinitely in the care of others, given it to another, or surrendered it entirely." (2 Am. Jur. 2d, 888; Emphasis supplied.)

It cannot seriously be disputed, therefore, that the adoption court did find that the fact of abandonment by the parents was attendant. It was rule In re Asterbloom's Adoption, 63 Nev. 190, 166 P 2d 157 that: "A parent who withholds his presence, his love, his care, and the opportunity to display filial affection, and neglects to lend support and maintainance, relinquishes all parental claim and abandons the child."3 Such elements of abandonment are what the findings of the adoption court, abovementioned, amount to.

2. Pursuing the argument, movants contend that, at any rate, according to the Court of Appeals, said finding of abandonment had totally no support in the evidence. For the Court of Appeals to arrive at such a conclusion, however, it had to pass under review the entire proceedings in the adoption court. And as ruled by us in the decision, it cannot do so in a collateral suit, but only in a direct action for that purpose. It must not be lost sight of, that what was before the Court of Appeals was not an appeal from the decision of the adoption court, or a direct suit assailing the adoption, but an appeal from an order in the settlement proceedings where the adoption was sought to be collaterally attacked. Accordingly, said Court was not in a position to determine that the findings of the adoption court had totally no support in the evidence. For even assuming that the finding of abandonment is jurisdictional, Freeman on Judgments, to repeat, states the settled rule that a finding that the requisite jurisdictional facts exist, whether erroneous or not, cannot be questioned in a collateral proceedings, for a presumption arises in such cases, where the validity of the judgment is thus attacked, that the necessary jurisdictional facts were proven. (Vol. I, 350, pp. 719-720)

3. In regard to the cases of Hook vs. Wright, 160 NE 479 and In Re McCormick's Estate, 84 NW 559, relied upon once more by movants, suffice it to observe: First, that in the Hook case it was expressly ruled that "Neither the petition nor the degree made any reference or finding as to such desertion."4 Secondly, the McCormick case, far from overruling Parsons v. Parsons,5 distinguished therefrom, in that in the Parsons case the fact of abandonment was judicially determined, whereas, in the said McCormick case, there was no fact of abandonment being found by the lower court.6 It being Our view in the present case before Us that the adoption court made a finding of the fact of abandonment, said cases invoked by movants do not apply.

4. Apparently in reply to Our reference to the trend in modern jurisprudence to sustain adoption in the face of collateral attack, movants stress that parental ties are too noble and sacred to be lightly severed in the absence of a written consent of the parents. It cannot be stressed too much that the parental consent required by the law refers to parents who have not abandoned their child (Sec. 3, Rule 100, Rules of Court). And from the findings of the adoption court, it is rather something remarkable that the natural parents of the children herein involved paid no heed to the sanctity and nobility of the selfsame parental ties for almost twenty years. It would seem, from all that appears in this collateral attack, that only when a fortune was bequeathed and about to befall upon their children, did said parents come to the fore, not alas to assert parental rights in order to enhance the welfare of said children, but to defeat their claim to the estate as adopted children, so as to succeed to said estate themselves, as collateral heirs. Such attitude strikes Us as too selfish for parents to take, so much so that it would not be surprising if said parents were impelled thereto by other would-be successors. At any rate, for such purposes, the sacredness of parental ties cannot be invoked. In such cases, the rule that favors sustaining the validity of adoptions under collateral attack holds true with full vigor.

5. It is also raised that if Juliana Reyes was not validly married to Simplicio Santos, a point We did not decide, their joint petition for adoption would be defective, since only Simplicio Santos signed the same. As We said, the petition would then be deemed that of Juliana Reyes alone; as to the signature, Simplicio Santos may likewise be deemed to have signed in behalf of Julian Reyes, as her representative. Personal signature by the petitioner of the petition to adopt is not among the requisites of the law. At any rate, any defect on his has obviously been cured by Juliana Reyes' subsequent prosecution of the adoption case.

6. Respondents-movants would cite Ragudo vs. Pasno, L-16642, April 18, 1962, where this Court stated:

But this is not an adoption case. This is a civil action to annul an order of a justice of the peace court, allegedly obtained thru fraud. It is based on Sec. 43 of Act 196. Of such action, justice of the peace Courts can not take cognizance. And it falls within the general jurisdiction of courts of first instance.

It is argued for the appellees that under Art. 348 of the New Civil Code, fraud is not one of the grounds for revocation of an adoption. The appellants reply, quite correctly, that those grounds refer only to an adoption validlydecreed — not to an adoption void from the beginning because tainted with fraud. Anyway, this is an argument that should be submitted when the case is considered on the merits.

Said case, however, involved a direct action to annul an adoption decree on the ground of fraud. Furthermore, the ruling therein is simply that such direct action falls within the jurisdiction of the Court of First Instance, not the municipal court. The second paragraph abovequoted is, therefore, not ratio decidendi, as shown by the last sentence therein: "Anyway, this is an argument that should be submitted when the case is considered on the merits."

7. Anent the motion for modification of the dispositive portion of Our decision, the same is due to the fear that the same may be interpreted as foreclosing respondents' avenue — if any is open at this stage — to a direct action to annul the adoption decree. Suffice it therefore to clarify the same. Said dispositive portion ought to be read together with relevant discussions in the body of the decision, especially the last sentence immediately preceding it: "The same holds true as long as the adoption must be — as in the instant case — considered valid." Should respondents, therefore, succeed by a direct attack in invalidating the adoption, the dispositive portion of this Court's decision herein shall not be deemed to hinder their rights thereunder. Furthermore, said dispositive portion described the court a quo's order of April 6, 1959 as sustaining the adoption, in the sense of holding it valid in the face of a collateral attack, nothing more. As to whether a direct attack will prosper or not, We say nothing, and can say nothing, in this case. Thus clarified, We see no further need to modify the dispositive portion of Our decision. Motion denied. So ordered.

G.R. No. 105308 September 25, 1998

HERBERT CANG, petitioner, vs.COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA CLAVANO, respondents.

ROMERO, J.:

Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them? The answer to this interesting query, certainly not one of first impression, would have to be reached, not solely on the basis of law and jurisprudence, but also the hard reality presented by the facts of the case.

This is the question posed before this Court in this petition for review on certiorari of the Decision 1 of the Court of Appeals affirming the decree of adoption issued by the Regional Trial Court of Cebu City, Branch 14, 2 in Special Proceedings No. 1744-CEB, "In the Matter of the Petition for Adoption of the minors Keith, Charmaine and Joseph Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara Diago Clavano, petitioners."

Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot three children, namely: Keith, born on July 3, 1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on January 3, 1981.

During the early years of their marriage, the Cang couple's relationship was undisturbed. Not long thereafter, however, Anna Marie learned of her husband's alleged extramarital affair with Wilma Soco, a family friend of the Clavanos.

Upon learning of her husband's alleged illicit liaison, Anna Marie filed a petition for legal separation with alimony pendente lite3 with the then Juvenile and Domestic Relations Court of Cebu 4 which rendered a decision 5 approving the joint manifestation of the Cang spouses providing that they agreed to "live separately and apart or from bed and board." They further agreed:

(c) That the children of the parties shall be entitled to a monthly support of ONE THOUSAND PESOS (P1,000.00) effective from the date of the filing of the complaint. This shall constitute a first lien on the net proceeds of the house and lot jointly owned by the parties situated at Cinco Village, Mandaue City;

(d) That the plaintiff shall be entitled to enter into any contract or agreement with any person or persons, natural or juridical without the written consent of

the husband; or any undertaking or acts that ordinarily requires husband's consent as the parties are by this agreement legally separated; 6

Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second Judicial District Court of the State of Nevada. Said court issued the divorce decree that also granted sole custody of the three minor children to Anna Marie, reserving "rights of visitation at all reasonable times and places" to petitioner. 7

Thereafter, petitioner took an American wife and thus became a naturalized American citizen. In 1986, he divorced his American wife and never remarried.

While in the United States, petitioner worked in Tablante Medical Clinic earning P18,000.00 to P20,000.00 a month 8 a portion of which was remitted to the Philippines for his children's expenses and another, deposited in the bank in the name of his children.

Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and Maria Clara Diago Clavano, respectively the brother and sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB for the adoption of the three minor Cang children before the Regional Trial Court of Cebu. The petition bears the signature of then 14-year-old Keith signifying consent to his adoption. Anna Marie likewise filed an affidavit of consent alleging that her husband had "evaded his legal obligation to support" his children; that her brothers and sisters including Ronald V. Clavano, had been helping her in taking care of the children; that because she would be going to the United States to attend to a family business, "leaving the children would be a problem and would naturally hamper (her) job-seeking venture abroad;" and that her husband had "long forfeited his parental rights" over the children for the following reasons:

1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written consent of her husband;

2. Her husband had left the Philippines to be an illegal alien in the United States and had been transferring from one place to another to avoid detection by Immigration authorities, and

3. Her husband had divorced her.

Upon learning of the petitioner for adoption, petitioner immediately returned to the Philippines and filed an opposition thereto, alleging that, although private respondents Ronald and Maria Clara Clavano were financially capable of supporting the children while his finances were "too meager" compared to theirs, he could not "in conscience, allow anybody to strip him of his parental authority over his beloved children."

Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his children alleging that Anna Marie had transferred to the United States thereby leaving custody of their children to private respondents. On January 11, 1988, the Regional Trial Court of Cebu City, Branch 19, issued an order finding that Anna Marie had, in effect, relinquished custody over the children and, therefore, such custody should be transferred to the father. The court then directed the Clavanos to deliver custody over the minors to petitioner.

On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a decree of adoption with a dispositive portion reading as follows:

WHEREFORE, premises considered, the petition for adoption of the minors Keith, Charmaine and Joseph Anthony all surnamed Cang, by the petitioner-spouses Ronald V. Clavano and Maria Clara Diago Clavano is hereby granted and approved. These children shall henceforth be known and called as Keith D. Clavano, Charmaine D. Clavano and Joseph Anthony D. Clavano respectively. Moreover, this Decree of Adoption shall:

(1) Confer upon the adopted children the same rights and duties as though they were in fact the legitimate children of the petitioners;

(2) Dissolve the authority vested in the parents by nature, of the children; and,

(3) Vest the same authority in the petitioners.

Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this Decree of Adoption for registration purposes.

SO ORDERED.

In so ruling, the lower court was "impelled" by these reasons:

(1) The Cang children had, since birth, developed "close filial ties with the Clavano family, especially their maternal uncle," petitioner Ronald Clavano.

(2) Ronald and Maria Clara Clavano were childless and, with their printing press, real estate business, export business and gasoline station and mini-mart in Rosemead, California, U.S.A., had substantial assets and income.

(3) The natural mother of the children, Anna Marie, nicknamed "Menchu," approved of the adoption because of her heart ailment, near-fatal accident in

1981, and the fact that she could not provide them a secure and happy future as she "travels a lot."

(4) The Clavanos could provide the children moral and spiritual direction as they would go to church together and had sent the children to Catholic schools.

(5) The children themselves manifested their desire to be adopted by the Clavanos — Keith had testified and expressed the wish to be adopted by the Clavanos while the two younger ones were observed by the court to have "snuggled" close to Ronald even though their natural mother was around.

On the other hand, the lower court considered the opposition of petitioner to rest on "a very shaky foundation" because of its findings that:

(1) Petitioner was "morally unfit to be the father of his children" on account of his being "an improvident father of his family" and an "undisguised Lothario." This conclusion is based on the testimony of his alleged paramour, mother of his two sons and close friend of Anna Marie, Wilma Soco, who said that she and petitioner lived as husband and wife in the very house of the Cangs in Opao, Mandaue City.

(2) The alleged deposits of around $10,000 that were of "comparatively recent dates" were "attempts at verisimilitude" as these were joint deposits the authenticity of which could not be verified.

(3) Contrary to petitioner's claim, the possibility of his reconciliation with Anna Marie was "dim if not nil" because it was petitioner who "devised, engineered and executed the divorce proceedings at the Nevada Washoe County court."

(4) By his naturalization as a U.S. citizen, petitioner "is now an alien from the standpoint of Philippine laws" and therefore, how his "new attachments and loyalties would sit with his (Filipino) children is an open question."

Quoting with approval the evaluation and recommendation of the RTC Social Worker in her Child Study Report, the lower court concluded as follows:

Simply put, the oppositor Herbert Cang has abandoned his children. And abandonment of a child by its (sic) parent is commonly specified by statute as a ground for dispensing with his consent to its (sic) adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption will be allowed not only without the consent of the parent, but even against his opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Gal.

469,63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa, 561, 153 N.W. 160, citing R.C.L.; Steams v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep. 564; Nugent v. Powell, 4 Wyo, 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.) 9

Before the Court of Appeals, petitioner contended that the lower court erred in holding that it would be in the best interest of the three children if they were adopted by private respondents Ronald and Maria Clara Clavano. He asserted that the petition for adoption was fatally defective and tailored to divest him of parental authority because: (a) he did not have a written consent to the adoption; (b) he never abandoned his children; (c) Keith and Charmaine did not properly give their written consent; and (d) the petitioners for adoption did not present as witness the representative of the Department of Social Welfare and Development who made the case study report required by law.

The Court of Appeals affirmed the decree of adoption stating:

Art. 188 of the Family Code requires the written consent of the natural parents of the child to be adopted. It has been held however that the consent of the parent who has abandoned the child is not necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA 344). The question therefore is whether or not oppositor may be considered as having abandoned the children. In adoption cases, abandonment connotes any conduct on the part of the parent to forego parental duties and relinquish parental claims to the child, or the neglect or refusal to perform the natural and legal obligations which parents owe their children (Santos vs. Ananzanso, supra), or the withholding of the parent's presence, his care and the opportunity to display voluntary affection. The issue of abandonment is amply covered by the discussion of the first error.

Oppositor argues that he has been sending dollar remittances to the children and has in fact even maintained bank accounts in their names. His duty to provide support comes from two judicial pronouncements. The first, the decision in JD-707 CEB, supra, obliges him to pay the children P1,000.00 a month. The second is mandated by the divorce decree of the Nevada, U.S.A. Federal Court which orders him to pay monthly support of US$50.00 for each child. Oppositor has not submitted any evidence to show compliance with the decision in JD-101 CEB, but he has submitted 22 cancelled dollar checks (Exhs. 24 to 45) drawn in the children's names totalling $2,126.98. The last remittance was on October 6, 1987 (Exh. 45). His obligation to provide support commenced under the divorce decree on May 5, 1982 so that as of October 6, 1987, oppositor should have

made 53 remittances of $150.00, or a total of $7,950.00. No other remittances were shown to have been made after October 6, 1987, so that as of this date, oppositor was woefully in arrears under the terms of the divorce decree. And since he was totally in default of the judgment in JD-707 CEB, the inevitable conclusion is oppositor had not really been performing his duties as a father, contrary to his protestations.

True, it has been shown that oppositor had opened three accounts in different banks, as follows —

Acct. No. Date Opened Balance Name of Bank

———— —————— ———— ——————

1) 118-606437-4 July 23, 1985 $5,018.50 Great Western Savings,

Oct. 29, 1987 Daly City, Cal., U.S.A.

2) 73-166-8 March 5, 1986 3,129.00 Matewan National Bank

Oct. 26, 1987 of Williamson, West

Virginia, U.S.A.

3) 564-146883 December 31, 1986 2,622.19 Security Pacific National

Oct. 29, 1987 Bank, Daly City, Cal.,

U.S.A.

The first and third accounts were opened however in oppositor's name as trustee for Charmaine Cang and Joseph Anthony Cang, respectively. In other words, the accounts are operated and the amounts withdrawable by oppositor himself and it cannot be said that they belong to the minors. The second is an "or" account, in the names of Herbert Cang or Keith Cang. Since Keith is a minor and in the Philippines, said account is operable only by oppositor and the funds withdrawable by him alone.

The bank accounts do not really serve what oppositor claimed in his offer of evidence "the aim and purpose of providing for a better future and security of his family." 10

Petitioner moved to reconsider the decision of the Court of Appeals. He emphasized that the decree of legal separation was not based on the merits of the case as it was based on a manifestation amounting to a compromise agreement between him and Anna Marie. That he and his wife agreed upon the plan for him to leave for the United States was borne out by the fact that prior to his departure to the United States, the family lived with petitioner's parents. Moreover, he alone did not instigate the divorce proceedings as he and his wife initiated the "joint complaint" for divorce.

Petitioner argued that the finding that he was not fit to rear and care for his children was belied by the award to him of custody over the children in Civil Case No. JD-707. He took exception to the appellate court's findings that as an American citizen he could no longer lay claim to custody over his children because his citizenship would not take away the fact that he "is still a father to his children." As regards his alleged illicit relationship with another woman, he had always denied the same both in Civil Case No. JD-707 and the instant adoption case. Neither was it true that Wilma Soco was a neighbor and family friend of the Clavanos as she was residing in Mandaue City seven (7) kilometers away from the Clavanos who were residents of Cebu City. Petitioner insisted that the testimony of Wilma Soco should not have been given weight for it was only during the hearing of the petition for adoption that Jose Clavano, a brother of Ronald, came to know her and went to her residence in Iligan City to convince her to be a witness for monetary considerations. Lastly, petitioner averred that it would be hypocritical of the Clavanos to claim that they could love the children much more than he could. 11

His motion for reconsideration having been denied, petitioner is now before this Court, alleging that the petition for adoption was fatally defective as it did not have his written consent as a natural father as required by Article 31 (2) of Presidential Decree No. 603, the Child and Youth Welfare Code, and Article 188 (2) of the Family Code.

Art. 31 of P.D. No. 603 provides —

Art. 31. Whose Consent is Necessary. — The written consent of the following to the adoption shall be necessary:

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

(2) The natural parents of the child or his legal guardian of the Department of Social Welfare or any duly licensed child placement agency under whose care the child may be;

(3) The natural children, fourteen years and above, of the adopting parents. (Emphasis supplied)

On December 17, 1986, then President Corazon C. Aquino issued Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the Child and Youth Welfare Code. As thus amended, Article 31 read:

Art. 31. Whose Consent is Necessary. — The written consent of the following to the adoption shall be necessary:

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

(2) The natural parents of the child or his legal guardian after receiving counselling and appropriate social services from the Ministry of Social Services and Development or from a duly licensed child-placement agency;

(3) The Ministry of Social Services and Development or any duly licensed child-placement agency under whose care and legal custody the child may be;

(4) The natural children, fourteen years and above, of the adopting parents. (Emphasis supplied)

Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court. 12 As such, when private respondents filed the petition for adoption on September 25, 1987, the applicable law was the Child and Youth Welfare Code, as amended by Executive Order No. 91.

During the pendency of the petition for adoption or on August 3, 1988, the Family Code which amended the Child and Youth Welfare Code took effect. Article 256 of the Family Code provides for its retroactivity "insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." As amended by the Family Code, the statutory provision on consent for adoption now reads:

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 government instrumentality;

(3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;

(4) The illegitimate children, ten years of age or over, of the adopting parents, if living with said parent and the latter's spouse, if any; and

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

Based on the foregoing, it is thus evident that notwithstanding the amendments to the law, the written consent of the natural parent to the adoption has remained a requisite for its validity. Notably, such requirement is also embodied in Rule 99 of the Rules of Court as follows:

Sec. 3. Consent to adoption. — There shall be filed with the petition a written consent to the adoption signedby the child, if fourteen years of age or over and not incompetent, and by the child's spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned the child, or if the 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 persons; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required. (Emphasis supplied)

As clearly inferred from the foregoing provisions of law, the written consent of the natural parent is indispensable for the validity of the decree of adoption. Nevertheless, the requirement of written consent can be dispensed with if the parent has abandoned the child 13 or that such parent is "insane or hopelessly intemperate." The court may acquire jurisdiction over the case even, without the written consent of the parents or one of the parents provided that the petition for adoption alleges facts sufficient to warrant exemption from compliance therewith. This is in consonance with the liberality with which this Court treats the procedural aspect of adoption. Thus, the Court declared:

. . . . The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading. Accordingly, it is generally held that

a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary to give the court jurisdiction. 14

In the instant case, only the affidavit of consent of the natural mother was attached to the petition for adoption. Petitioner's consent, as the natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of abandonment of the minors for adoption by the natural father as follows:

3. That the children's mother, sister of petitioner RONALD V. CLAVANO, has given her express consent to this adoption, as shown by Affidavit of Consent, Annex "A". Likewise, the written consent of Keith Cang, now 14 years of age appears on page 2 of this petition; However, the father of the children, Herbert Cang, had already left his wife and children and had already divorced the former, as evidenced by the xerox copy of the DECREE OF DIVORCE issued by the County of Washoe, State of Nevada, U.S.A. (Annex "B") which was filed at the instance of Mr. Cang, not long after he abandoned his family to live in the United States as an illegal immigrant. 15

The allegations of abandonment in the petition for adoption, even absent the written consent of petitioner, sufficiently vested the lower court with jurisdiction since abandonment of the child by his natural parents is one of the circumstances under which our statutes and jurisprudence 16 dispense with the requirement of written consent to the adoption of their minor children.

However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the matter of whether he had abandoned his child becomes a proper issue for determination. The issue of abandonment by the oppositor natural parent is a preliminary issue that an adoption court must first confront. Only upon, failure of the oppositor natural father to prove to the satisfaction of the court that he did not abandon his child may the petition for adoption be considered on its merits.

As a rule, factual findings of the lower courts are final and binding upon this Court. 17 This Court is not expected nor required to examine or contrast the oral and documentary evidence submitted by the parties. 18 However, although this Court is not a trier of facts, it has the authority to review and reverse the factual findings of the lower courts if it that these do not conform to the evidence on record. 19

In Reyes v. Court of Appeals, 20 this Court has held that the exceptions to the rule that factual findings of the trial court are final and conclusive and may not be reviewed on appeal are the following: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact

are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.

This Court finds that both the lower court and the Court of Appeals failed to appreciate facts and circumstances that should have elicited a different conclusion 21 on the issue of whether petitioner has so abandoned his children, thereby making his consent to the adoption unnecessary.

In its ordinary sense, the word "abandon'' means to forsake entirely, to forsake or renounce utterly. The dictionaries trace this word to the root idea of "putting under a ban." The emphasis is on the finality and publicity with which a thing or body is thus put in the control of another, hence, the meaning of giving up absolutely, with intent never to resume or claim one's rights or interests. 22 In reference to abandonment of a child by his parent, the act of abandonment imports "any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." It means "neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children." 23

In the instant case, records disclose that petitioner's conduct did not manifest a settled purpose to forego all parental duties and relinquish all parental claims over his children as to, constitute abandonment. Physical estrangement alone, withoutfinancial and moral desertion, is not tantamount to abandonment. 24 While admittedly, petitioner was physically absent as he was then in the United States, he was not remiss in his natural and legal obligations of love, care and support for his children. He maintained regular communication with his wife and children through letters and telephone. He used to send packages by mail and catered to their whims.

Petitioner's testimony on the matter is supported by documentary evidence consisting of the following handwritten letters to him of both his wife and children:

1. Exh. 1 — a 4-page updated letter of Menchu (Anna Marie) addressed to "Dear Bert" on a C. Westates Carbon Phil. Corp. stationery. Menchu stated therein that it had been "a long time since the last time you've heard from me excluding that of the phone conversation we've had." She discussed petitioner's intention to buy a motorbike for Keith, expressing apprehension over risks that could be engendered by Keith's use of it. She said that in the "last phone conversation" she had with petitioner on the birthday of "Ma," she forgot to tell petitioner that Keith's voice had changed; he had become a "bagito" or a teen-ager with many "fans" who sent

him Valentine's cards. She told him how Charmaine had become quite a talkative "almost dalaga" who could carry on a conversation with her angkong and how pretty she was in white dress when she won among the candidates in the Flores de Mayo after she had prayed so hard for it. She informed him, however, that she was worried because Charmaine was vain and wont to extravagance as she loved clothes. About Joeton (Joseph Anthony), she told petitioner that the boy was smart for his age and "quite spoiled" being the youngest of the children in Lahug. Joeton was mischievous but Keith was his idol with whom he would sleep anytime. She admitted having said so much about the children-because they might not have informed petitioner of "some happenings and spices of life" about themselves. She said that it was "just very exciting to know how they've grown up and very pleasant, too, that each of them have (sic) different characters." She ended the letter with the hope that petitioner was "at the best of health." After extending her regards "to all," she signed her name after the word "Love." This letter was mailed on July 9, 1986 from Cebu to petitioner whose address was P.O. Box 2445, Williamson, West Virginia 25661 (Exh. 1-D).

2. Exh. 2 — letter dated 11/13/84 on a green stationery with golden print of "a note from Menchu" on the left upper corner. Anna Marie stated that "we" wrote to petitioner on Oct. 2, 1984 and that Keith and Joeton were very excited when petitioner "called up last time." She told him how Joeton would grab the phone from Keith just so petitioner would know what he wanted to order. Charmaine, who was asleep, was so disappointed that she missed petitioner's call because she also wanted something that petitioner should buy. Menchu told petitioner that Charmaine wanted a pencil sharpener, light-colored T-shirts for her walking shorts and a (k)nap sack. Anna Marie informed petitioner that the kids were growing up and so were their needs. She told petitioner to be "very fatherly" about the children's needs because those were expensive here. For herself, Anna Marie asked for a subscription of Glamour and Vogue magazines and that whatever expenses he would incur, she would "replace" these. As a postscript, she told petitioner that Keith wanted a size 6 khaki-colored "Sperry topsider shoes."

3. Exh. 3 — an undated note on a yellow small piece of paper that reads:

Dear Herbert,

Hi, how was Christmas and New Year? Hope you had a wonderful one.

By the way thanks for the shoes, it was a nice one. It's nice to be thought of at X'mas. Thanks again.

Sincerely,

Menchu

4. Exh. 4 — a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to "Dear Dad." Keith told his father that they tried to tell their mother "to stay for a little while, just a few weeks after classes start(s)" on June 16. He informed petitioner that Joeton would be in Kinder I and that, about the motorbike, he had told his mother to write petitioner about it and "we'll see what you're (sic) decision will be." He asked for chocolates, nuts, basketball shirt and shorts, rubber shoes, socks, headband, some clothes for outing and perfume. He told petitioner that they had been going to Labug with their mother picking them up afterAngkong or Ama had prepared lunch or dinner. From her aerobics, his mother would go for them in Lahug at about 9:30 or 10:00 o'clock in the evening. He wished his father "luck and the best of health" and that they prayed for him and their other relatives. The letter was ended with "Love Keith."

5. Exh. 5 — another undated long letter of Keith. He thanked his father for the Christmas card "with $40.00, $30.00 and $30.00" and the "card of Joeton with $5.00 inside." He told petitioner the amounts following his father's instructions and promise to send money through the mail. He asked his father to address his letter directly to him because he wanted to open his own letters. He informed petitioner of activities during the Christmas season — that they enjoyed eating, playing and giving surprises to their mother. He apprised him of his daily schedule and that their mother had been closely supervising them, instructing them to fold their blankets and pile up their pillows. He informed petitioner that Joeton had become very smart while Charmaine, who was also smart, was very demanding of their mother. Because their mother was leaving for the United States on February 5, they would be missing her like they were missing petitioner. He asked for his "things" and $200.00. He told petitioner more anecdotes about Joeton like he would make the sign of the cross even when they would pass by the Iglesia ni Cristo church and his insistence that Aquino was not dead because he had seen him on the betamax machine. For Keith, Charmaine had become "very maldita" who was not always satisfied with her dolls and things but Joeton was full of surprises. He ended the letter with "Love your son, Keith." The letter was mailed on February 6, 1985 (Exh. 5-D).

6. Exh. 6 — an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain, pencil box, socks, half shirt, pencil sharpener and $50.00. She reminded him of her birthday on January 23 when she would turn 9 years old. She informed him that she wore size 10 and the size of her feet was IM. They had fun at Christmas in Lahug but classes would start on January 9 although Keith's classes had started on January 6. They would feel sad again because Mommy would be leaving soon. She hoped petitioner would keep writing them. She signed, "Love, Charmaine."

7. Exh . 7 — an undated letter of Keith. He explained to petitioner that they had not been remiss in writing letters to him. He informed him of their trip to Manila — they went to Malacañang, Tito Doy Laurel's house, the Ministry of Foreign

Affairs, the executive house, Tagaytay for three days and Baguio for one week. He informed him that he got "honors," Charmaine was 7th in her class and Joeton had excellent grades. Joeton would be enrolled in Sacred Heart soon and he was glad they would be together in that school. He asked for his "reward" from petitioner and so with Charmaine and Joeton. He asked for a motorbike and dollars that he could save. He told petitioner that he was saving the money he had been sending them. He said he missed petitioner and wished him the best. He added that petitioner should call them on Sundays.

8. Exh. 8 — a letter from Joeton and Charmaine but apparently written by the latter. She asked for money from petitioner to buy something for the school and "something else." She, promised not to spend so much and to save some. She said she loved petitioner and missed him. Joeton said "hi!" to petitioner. After ending the letter with "Love, Joeton and Charmaine," she asked for her prize for her grades as she got seventh place.

9. Exh. 9 — undated letter of Keith. He assured petitioner that he had been writing him; that he would like to have some money but he would save them; that he learned that petitioner had called them up but he was not around; that he would be going to Manila but would be back home May 3; that his Mommy had just arrived Thursday afternoon, and that he would be the "official altar boy." He asked petitioner to write them soon.

10. Exh. 10 — Keith thanked petitioner for the money he sent. He told petitioner that he was saving some in the bank and he was proud because he was the only one in his group who saved in the bank. He told him that Joeton had become naughty and would claim as his own the shirts sent to Keith by petitioner. He advised petitioner to send pants and shirts to Joeton, too, and asked for a pair of topsider shoes and candies. He informed petitioner that he was a member of the basketball team and that his mom would drive for his group. He asked him to call them often like the father of Ana Christie and to write them when he would call so that they could wait for it. He informed petitioner that they had all grown bigger and heavier. He hoped petitioner would be happy with the letter that had taken him so long to write because he did not want to commit any mistakes. He asked petitioner to buy him perfume (Drakkar) and, after thanking petitioner, added that the latter should buy something for Mommy.

11. Exh. 11 — a Christmas card "For My Wonderful Father" dated October 8, 1984 from Keith, Charmaine and Joeton.

12. Exh. 12 — another Christmas card, "Our Wish For You" with the year '83 written on the upper right hand corner of the inside page, from Keith, Charmaine and Joeton.

13. Exh. 13 — a letter of Keith telling petitioner that he had written him even when their Mom "was there" where she bought them clothes and shoes. Keith asked petitioner for $300.00. Because his mother would not agree to buy him a motorbike, he wanted a Karaoke unit that would cost P12,000.00. He informed petitioner that he would go to an afternoon disco with friends but their grades were all good with Joeton receiving "stars" for excellence. Keith wanted a bow and arrow Rambo toys and G.I. Joe. He expressed his desire that petitioner would come and visit them someday.

14. Exh. 14 — a letter of Keith with one of the four pages bearing the date January 1986. Keith told his father that they had received the package that the latter sent them. The clothes he sent, however, fitted only Keith but not Charmaine and Joeton who had both grown bigger. Keith asked for grocery items, toys and more clothes. He asked, in behalf of his mother, for low-heeled shoes and a dress to match, jogging pants, tights and leotards that would make her look sexy. He intimated to petitioner that he had grown taller and that he was already ashamed to be asking for things to buy in the grocery even though his mother had told him not to be shy about it.

Aside from these letters, petitioner also presented certifications of banks in the U.S.A. showing that even prior to the filing of the petition for adoption, he had deposited amounts for the benefit of his children. 25 Exhibits 24 to 45 are copies of checks sent by petitioner to the children from 1985 to 1989.

These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed over these, ignoring not only evidence on financial support but also the emotional exchange of sentiments between petitioner and his family. Instead, the courts below emphasized the meagerness of the amounts he sent to his children and the fact that, as regards the bank deposits, these were "withdrawable by him alone." Simply put, the courts below attached a high premium to the prospective adopters' financial status but totally brushed aside the possible repercussion of the adoption on the emotional and psychological well-being of the children.

True, Keith had expressed his desire to be adopted by his uncle and aunt. However, his seeming steadfastness on the matter as shown by his testimony is contradicted by his feelings towards his father as revealed in his letters to him. It is not at all farfetched to conclude that Keith's testimony was actually the effect of the filing of the petition for adoption that would certainly have engendered confusion in his young mind as to the capability of his father to sustain the lifestyle he had been used to.

The courts below emphasized respondents' emotional attachment to the children. This is hardly surprising for, from the very start of their young lives, the children were used to their presence. Such attachment had persisted and certainly, the young ones' act of snuggling close to private respondent Ronald Clavano was not indicative of their emotional detachment from their father. Private respondents, being the uncle and aunt

of the children, could not but come to their succor when they needed help as when Keith got sick and private respondent Ronald spent for his hospital bills.

In a number of cases, this Court has held that parental authority cannot be entrusted to a person simply because he could give the child a larger measure of material comfort than his natural parent. Thus, in David v. Court of Appeals, 26 the Court awarded custody of a minor illegitimate child to his mother who was a mere secretary and market vendor instead of to his affluent father who was a married man, not solely because the child opted to go with his mother. The Court said:

Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to her means.

In Celis v. Cafuir 27 where the Court was confronted with the issue of whether to award custody of a child to the natural mother or to a foster mother, this Court said:

This court should avert the tragedy in the years to come of having deprived mother and son of the beautiful associations and tender, imperishable memories engendered by the relationship of parent and child. We should not take away from a mother the opportunity of bringing up her own child even at the cost of extreme sacrifice due to poverty and lack of means; so that afterwards, she may be able to look back with pride and a sense of satisfaction at her sacrifices and her efforts, however humble, to make her dreams of her little boy come true. We should not forget that the relationship between a foster mother and a child is not natural but artificial. If the child turns out to be a failure or forgetful of what its foster parents had done for him, said parents might yet count and appraise (sic) all that they have done and spent for him and with regret consider all of it as a dead loss, and even rue the day they committed the blunder of taking the child into their hearts and their home. Not so with a real natural mother who never counts the cost and her sacrifices, ever treasuring memories of her associations with her child, however unpleasant and disappointing. Flesh and blood count. . . . .

In Espiritu v. Court of Appeals, 28 the Court stated that "(I)n ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant considerations." Thus, in awarding custody of the child to the father, the Court said:

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the "torture and agony" of a mother separated from her children and the humiliation

she suffered as a, result of her character being made a key issue in court rather than the feelings and future, the best interests and welfare of her children. While the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody . One cannot say that his or her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration. (Emphasis supplied) 29

Indeed, it would 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 children. There should be a holistic approach to the matter, taking into account the physical, emotional, psychological, mental, social and spiritual needs of the child. 30 The conclusion of the courts below that petitioner abandoned his family needs more evidentiary support other than his inability to provide them the material comfort that his admittedly affluent in-laws could provide. There should be proof that he had so emotionally abandoned them that his children would not miss his guidance and counsel if they were given to adopting parents. The letters he received from his children prove that petitioner maintained the more important emotional tie between him and his children. The children needed him not only because he could cater to their whims but also because he was a person they could share with their daily activities, problems and triumphs.

The Court is thus dismayed that the courts below did not look beyond petitioner's "meager" financial support to ferret out other indications on whether petitioner had in fact abandoned his family. The omission of said courts has led us to examine why the children were subjected to the process of adoption, notwithstanding the proven ties that bound them to their father. To our consternation, the record of the case bears out the fact that the welfare of the children was not exactly the "paramount consideration" that impelled Anna Marie to consent to their adoption.

In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was wont to travel abroad often, was a problem that would naturally hamper her job-seeking abroad. In other words, the adoption appears to be a matter of convenience for her because Anna Marie herself is financially capable of supporting her children. 31 In his testimony, private respondent Ronald swore that Anna Marie had been out of the country for two years and came home twice or three times, 32 thereby manifesting the fact that it was she who actually left her children to the care of her relatives. It was bad enough that their father left their children when he went abroad, but when their mother followed suit for her own reasons, the situation worsened. The Clavano family must have realized this. Hence, when the family first discussed the adoption of the children, they decided that the prospective adopter should be Anna Marie's brother Jose. However, because he had children of his own, the family decided to devolve the task upon private respondents. 33

This couple, however, could not always be in Cebu to care for the children. A businessman, private respondent Ronald Clavano commutes between Cebu and Manila while his wife, private respondent Maria Clara, is an international flight stewardess. 34 Moreover, private respondent Ronald claimed that he could "take care of the children while their parents are away," 35 thereby indicating the evanescence of his intention. He wanted to have the children's surname changed to Clavano for the reason that he wanted to take them to the United States as it would be difficult for them to get a visa if their surname were different from his. 36 To be sure, he also testified that he wanted to spare the children the stigma of being products of a broken home.

Nevertheless, a close analysis of the testimonies of private respondent Ronald, his sister Anna Marie and their brother Jose points to the inescapable conclusion that they just wanted to keep the children away from their father. One of the overriding considerations for the adoption was allegedly the state of Anna Marie's health — she was a victim of an almost fatal accident and suffers from a heart ailment. However, she herself admitted that her health condition was not that serious as she could still take care of the children. 37 An eloquent evidence of her ability to physically care for them was her employment at the Philippine Consulate in Los Angeles 38 — she could not have been employed if her health were endangered. It is thus clear that the Clavanos' attempt at depriving petitioner of parental authority apparently stemmed from their notion that he was an inveterate womanizer. Anna Marie in fact expressed fear that her children would "never be at ease with the wife of their father." 39

Petitioner, who described himself as single in status, denied being a womanizer and father to the sons of Wilma Soco. 40 As to whether he was telling the truth is beside the point. Philippine society, being comparatively conservative and traditional, aside from being Catholic in orientation, it does not countenance womanizing on the part of a family man, considering the baneful effects such irresponsible act visits on his family. Neither may the Court place a premium on the inability of a man to distinguish between siring children and parenting them. Nonetheless, the actuality that petitioner carried on an affair with a paramour cannot be taken as sufficient basis for the conclusion that petitioner was necessarily an unfit father. 41Conventional wisdom and common human experience show that a "bad" husband does not necessarily make a "bad" father. That a husband is not exactly an upright man is not, strictly speaking, a sufficient ground to deprive him as a father of his inherent right to parental authority over the children. 42 Petitioner has demonstrated his love and concern for his children when he took the trouble of sending a telegram 43 to the lower court expressing his intention to oppose the adoption immediately after learning about it. He traveled back to this country to attend to the case and to testify about his love for his children and his desire to unite his family once more in the United States. 44

Private respondents themselves explained why petitioner failed to abide by the agreement with his wife on the support of the children. Petitioner was an illegal alien in the United States. As such, he could not have procured gainful employment. Private respondents failed to refute petitioner's testimony that he did not receive his share

from the sale of the conjugal home, 45pursuant to their manifestation/compromise agreement in the legal separation case. Hence, it can be reasonably presumed that the proceeds of the sale redounded to the benefit of his family, particularly his children. The proceeds may not have lasted long but there is ample evidence to show that thereafter, petitioner tried to abide by his agreement with his wife and sent his family money, no matter how "meager."

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. 46 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. 47

In this regard, this Court notes private respondents' reliance on the manifestation/compromise agreement between petitioner and Anna Marie which became the basis of the decree of legal separation. According to private respondents' counsel, 48 the authority given to Anna Marie by that decree to enter into contracts as a result of the legal separation was "all embracing" 49and, therefore, included giving her sole consent to the adoption. This conclusion is however, anchored on the wrong premise that the authority given to the innocent spouse to enter into contracts that obviously refer to their conjugal properties, shall include entering into agreements leading to the adoption of the children. Such conclusion is as devoid of a legal basis as private respondents' apparent reliance on the decree of legal separation for doing away with petitioner's consent to the adoption.

The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of necessity; deprive petitioner of parental authority for the purpose of placing the children up for adoption. Article 213 of the Family Code states: ". . . in case of legal separation of parents, parental authority shall be exercised by the parent designated by the court." In awarding custody, the court shall take into account "all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit."

If should be noted, however, that the law only confers on the innocent spouse the "exercise" of parental authority. Having custody of the child, the innocent spouse shall implement the sum of parental rights with respect to his rearing and care. The innocent spouse shall have the right to the child's services and earnings, and the right to direct his activities and make decisions regarding his care and control, education, health and religion. 50

In a number of cases, this Court has considered parental authority, the joint exercise of which is vested by the law upon the parents, 51 as

. . . a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their hearts and senses. As regards parental authority, "there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor."

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company. 52 (Emphasis supplied)

As such, in instant case, petitioner may not be deemed as having been completely deprived of parental authority, notwithstanding the award of custody to Anna Marie in the legal separation case. To reiterate, that award was arrived at by the lower court on the basis of the agreement of the spouses.

While parental authority may be waived, as in law it may be subject to a compromise, 53 there was no factual finding in the legal separation case that petitioner was such an irresponsible person that he should be deprived of custody of his children or that there are grounds under the law that could deprive him of parental authority. In fact, in the legal separation case, the court thereafter ordered the transfer of custody over the children from Anna Marie back to petitioner. The order was not implemented because of Anna Marie's motion for reconsideration thereon. The Clavano family also vehemently objected to the transfer of custody to the petitioner, such that the latter was forced to file a contempt charge against them. 54

The law is clear that either parent may lose parental authority over the child only for a valid reason. No such reason was established in the legal separation case. In the instant case for adoption, the issue is whether or not petitioner had abandoned his children as to warrant dispensation of his consent to their adoption. Deprivation of parental authority is one of the effects of a decree of adoption. 55 But there cannot be a valid decree of adoption in this case precisely because, as this Court has demonstrated

earlier, the finding of the courts below on the issue of petitioner's abandonment of his family was based on a misappreciation that was tantamount to non-appreciation, of facts on record.

As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v. Escaño 56 that a divorce obtained by Filipino citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary to State policy. While petitioner is now an American citizen, as regards Anna Marie who has apparently remained a Filipino citizen, the divorce has no legal effect.

Parental authority is a constitutionally protected State policy borne out of established customs and tradition of our people. Thus, in Silva v. Court of Appeals, 57 a case involving the visitorial rights of an illegitimate parent over his child, the Court expressed the opinion that:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law not the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well being of the child.

Since the incorporation of the law concerning adoption in the Civil Code, there has been a pronounced trend to place emphasis in adoption proceedings, not so much on the need of childless couples for a child, as on the paramount interest, of a child who needs the love and care of parents. After the passage of the Child and Youth Welfare Code and the Family Code, the discernible trend has impelled the enactment of Republic Act No. 8043 on Intercountry,Adoption 58 and Republic Act No. 8552 establishing the rules on the domestic adoption of Filipino children. 59

The case at bar applies the relevant provisions of these recent laws, such as the following policies in the "Domestic Adoption Act of 1998":

(a) To ensure that every child remains under the care and custody of his/her parent(s) and be provided with love, care, understanding and security towards the full and harmonious development of his/her personality. 60

(b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child. 61

(c) To prevent the child from unnecessary separation from his/her biological parent(s). 62

Inasmuch as the Philippines is a signatory to the United Nations Convention on the Rights of the Child, the government and its officials are duty bound to comply with its mandates. Of particular relevance to instant case are the following provisions:

States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. 63

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. 64

A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents . . . 65

States Parties shall respect the rights and duties of the parents . . . to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 66

Underlying the policies and precepts in international conventions and the domestic statutes with respect to children is the overriding principle that all actuations should be in the best interests of the child. This is not, however, to be implemented in derogation of the primary right of the parent or parents to exercise parental authority over him. The rights of parents vis-à-vis that of their children are not antithetical to each other, as in fact, they must be respected and harmonized to the fullest extent possible.

Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while Joseph Anthony is approaching eighteen, the age of majority. For sure, they shall be endowed with the discretion to lead lives independent of their parents. This is not to state that this case has been rendered moot and academic, for their welfare and best interests regarding their adoption, must be determined as of the time that the petition for adoption was filed. 67 Said petition must be denied as it was filed without the required consent of their father who, by law and under the facts of the case at bar, has not abandoned them.

WHEREFORE, the instant petition for review on certiorari is hereby GRANTED. The questioned Decision and Resolution of the Court of Appeals, as well as the decision of

the Regional Trial Court of Cebu, are SET ASIDE thereby denying the petition for adoption of Keith, Charmaine and Joseph Anthony, all surnamed Cang, by the spouse respondents Ronald and Maria Clara Clavano. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Kapunan and Purisima, JJ., concur.

Spec Pro Cases Until Clavano

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Transcript of Spec Pro Cases Until Clavano