G.R. No. 164948

FIRST DIVISION

DIWATA RAMOS LANDINGIN G.R. No. 164948

Petitioner,

Present

PANGANIBAN, C.J., Chairperson,

YNARES-SANTIAGO,

- versus - AUSTRIA-MARTINEZ, CALLEJO, SR., and

CHICO-NAZARIO, JJ.

Promulgated:

REPUBLIC OF THE PHILIPPINES,

Respondent. June 27, 2006

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

D E C I S I O N

CALLEJO, SR., J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision[1] of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision[2] of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein.

The Antecedents

On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition[3] for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;[4] Elma Dizon Ramos, who was born on September 7, 1987;[5] and Eugene Dizon Ramos who was born on August 5, 1989.[6] The minors are the natural children of Manuel Ramos, petitioner’s brother, and Amelia Ramos.

Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,[7] the children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent[8] to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent[9] to the adoption of the minors. Petitioner’s brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioner’s custody.

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

WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor children’s name follow the family name of petitioner.

Petitioner prays for such other reliefs, just and equitable under the premises.[10]

On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.[11] The Office of the Solicitor General (OSG) entered its appearance[12] but deputized the City Prosecutor of Tarlac to appear in its behalf.[13] Since her petition was unopposed, petitioner was allowed to present her evidence ex parte.[14]

The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.[15] The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.[16]

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

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

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

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

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

In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close attachments was already developed between the petitioner and the 3 minors.[17]

Pagbilao narrated what transpired during her interview, as follows:

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

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

The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.[18]

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

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

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

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

SO ORDERED.[19]

The OSG appealed[20] the decision to the Court of Appeals on December 2, 2002. In its brief[21] for the oppositor-appellant, the OSG raised the following arguments:

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

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

III

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

On April 29, 2004, the CA rendered a decision[22] reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the children’s natural mother. Moreover, the affidavit of consent of the petitioner’s children could not also be admitted in evidence as the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the children. The dispositive portion of the CA decision reads:

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

SO ORDERED.[23]

Petitioner filed a Motion for Reconsideration[24] on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.[25]

Petitioner, thus, filed the instant petition for review on certiorari[26] on September 7, 2004, assigning the following errors:

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

2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.[27]

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

The Court’s Ruling

The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,[28] that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.[29]

However, in Cang v. Court of Appeals,[30] the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Court’s position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.[31]

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

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

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

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

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

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

The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.[32]

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

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

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

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

Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.[33] The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.[34]

Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.[35] To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.[36]

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

Q Where is the mother of these three children now?

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

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

A None, sir.

Q How about with her children?

A None, sir.

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

A I do not know, sir.

Q Did you receive any news about Amelia Ramos?

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

Q From whom did you learn that?

A From others who came from Italy, sir.

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

A Yes, sir, she got two kids.[37]

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

Q Where is your mother now?

A In Italy, sir.

Q When did your mother left for Italy?

A After my father died, sir.

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

A Two years old, sir.

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

A No, sir.[38]

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

IV. Background of the Case:

x x x x

Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.[39]

x x x x

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

x x x x

As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.[40]

x x x x

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

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

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

Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.[41]

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide.

Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.[42] It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.[43] Again, it is the best interest of the child that takes precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.[44]

Petitioner failed to offer in evidence Pagbilao’s Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioner’s children[45] was notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,[46] which states:

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

(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, chargé d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done.

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

As the alleged written consent of petitioner’s legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.[47]

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

In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.[48] Petitioner contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that “petitioner has limited income.” Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family.

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

According to the Adoption Home Study Report[49] forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioner’s main intention in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings.

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

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

WHEREFORE, premises considered, the petition is hereby DENIED.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

Chief Justice

Chairperson

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN

Chief Justice

[1] Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Mario L. Guariña III and Lucas P. Bersamin, concurring; rollo, pp. 23-35.

[3] Records, pp. 1-4. The Rule on Adoption was approved by the Court in A.M. No. 02-6-02-SC and took effect on August 22, 2002.

[30] G.R. No. 105308, September 25, 1998, 296 SCRA 128.

[32] Re Adoption of Cannon, 243 Iowa 828, 53 N.W.2d 877.

[33] Matter of Adoption of Eder, 312 Or. 244, 821 P.2d 400 (1991).

[34] In Re: McLean, 179 N.Y.S. 182,183, 109 Misc. 479.

[35] Truelove v. Parker, 132, S.G. 251, 191 N.C. 430.

[36] Slattery v. Hartford v. Connecticut Trust Co., 254 Mich. 671, 236 N.W. 902 (1931).

[43] Cang v. Court of Appeals, supra note 30, at 153.

[44] Republic v. Sandiganbayan, G.R. Nos. 112708-09, March 29, 1996, 255 SCRA 438.