MEMORANDUM To : From: Date: Re : Ms. Maria Victoria Diokno Cristian P.

Saba August 20, 2010 Adoption of Minor Annie Guinto Question Presented Can spouses Alvaera adopt Annie? What steps they can take to make sure they can adopt Annie? Background of the Case Aldrich Alvaera, an English citizen, and Camille Alvaera, Filipino, have been married for five years, and theyve tried to have children without success. Camille has a sister, Hannah Guinto, who has one child named Annie Guinto. Hannah is unmarried, and happens to be very ill. The doctor says that she is not likely to live for more than six months more. So she asked them to take care of her daughter after she dies. Two days later, Hannah died without giving a written consent relative to adoption. It shows that the spouses only met the child one year ago. They went to the Philippines only when they learned of Hannahs condition. Annie, who is now seven years old, hasnt seen her biological father since birth. Justin Reonal, the biological father, does not recognize the child. However, he has a sister named Yanna Reonal. Yanna admits that her brother is irresponsible. She visits the child frequently, giving her toys and gifts. She has just started her business, but is confident that in a year or so it will become stable. The spouses want to adopt the child. Theyre asking what steps they can take to make sure they can adopt Annie. Brief Answer No. Spouses Alvaera cannot adopt Annie. The only proper and authorized procedure relative to adoption is outlined in the rule on adoption itself. The Supreme Court promulgated new rules on Adoption superseding Rule 99 (Adoption and Custody of Minors) and Rule 100 (Rescission and Revocation of Adoption) of the Rules of Court. The Rule covers both domestic adoption and inter-country adoption. It incorporated provisions of R.A. 8043 and R.A. 8552, Domestic Adoption Act of 1998 and Inter-Country

Adoption Act of 1995, respectively. The Rule took effect on August 22, 2002. Discussion Adoption is the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.1 The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.2 There are three types of adoption in the Philippines:3 1. Agency adoptions are those in which a licensed adoption agency finds and develops adoptive families for children who are voluntarily or involuntarily committed. 2. Family or relative adoptions are those where the biological parents make a direct placement of the child to a relative or a member of their extended family with whom they relinquish their child. 3. Private or independent adoptions could either be a direct placement to a family known by the child's biological parents or through the use of an intermediary or a go-between. The case under consideration belongs to the second kind of adoption, that is, family or relative adoption. In all cases involving the care, custody, education and property of children, the latters welfare is paramount. 4 In this case, petition for adoption may not be granted. I. To allow adoption in contrary to state policy. favor of spouses Alvaera would be

The Family Code of the Philippines provides who may not adopt.
Art. 184. The following persons may not adopt: (3) An alien, except:
1

In the Matter of the Adoption of Stephanie Nathy Astrga Garcia, 454 SCRA 541. (XIAN KUNG PWDE KASAMA UNG YEAR) 2 Santos-Ynigo v. Republic, 95 Phil. 244.(YEAR) 3 Retrieved from the World Wide Web, http://www.bohol.gov.ph/vgo-sp/index.php? module=faq&FAQ_op=view&FAQ_id=77. 4 Cervantes v. Fajardo, GR 79955, January 27, 1989.

(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.

The Family Code is strict in the adoption of Filipino children by aliens. Alicia V. Sempio-Diy, a member of the Committee that drafted the Code explained:
It was because of the information received by the Committee that drafted the Family Code from the DSWD that some children adopted by aliens suffered cultural and psychological shock and could not adjust to their new lives in the foreign countries where they were brought by their adopters5

Article 184 was repealed by R.A 8552. Section 7 of that Act provides: Sec. 7. Who May Adopt. The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent; (b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her
5

Sempio-Diy, A., Handbook on the Family Code of the Philippines, p. 295. (2003)

country as his/her adopted son/daughter: Provided, Further, That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

Aldrich, being an alien, is Sec. 7 (b) (iii) of R.A. 8552. married to a Filipino citizen relative by consanguinity of his

qualified to adopt by virtue of Although he is an alien, he is and seeks to adopt jointly a spouse.

However, in adoption cases, it is the policy of the state to retain the child in the Philippines. If spouses Alvaera will be allowed to adopt Annie, it may reasonably be expected that they will bring Annie to Aldrichs home country, which is United Kingdom. They did not signify any intention to stay in the Philippines should Annie be adopted. The spouses went to the Philippines only when they learned that the sister is seriously ill. Clearly, they went to the Philippines not for adoption purposes but to take care of Hanna. Their concern about adoption is merely incidental. The situation of bringing Annie to the United Kingdom is avoided because she might suffer cultural and psychological shock which the Code Committee sought to avoid. If the paramount consideration is the best interest of the child, her custody must be given to Yanna because the two has established a closed tie even before the mother died. In Republic v. Toledano, it was held that adoption is geared more towards the promotion of the welfare of the child and enhancement of his opportunities for a useful and happy

life.6 How can Annie have a happy life if the adopting parents are foreign to her? In Santos v. Republic, the Court considered the deep and profound love7 between the petitioner and the child in granting the petition for adoption. In the case at hand, this element is not present as regards spouses Alvaera and Annie. It is present as regards Annie and Yanna. In Republic v. Court of Appeals, the Court also considered the fact that the minors had been living with the couple even prior to the filing of the petition.8 In the case at hand, Annie started living with the spouses only when her mother died. II. There was no written consent. Section 9 of Republic Act No. 8552 provides whose consents are necessary to the adoption.
Sec. 9. Whose Consent is Necessary to the Adoption. After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required: (a) The adoptee, if ten (10) years of age or over; (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; and (e) The spouse, if any, of the person adopting or to be adopted.

Section 9 of R.A. 8552 was taken from Article 188 of the Family Code. All the consents needed must be in writing. The written consent of Annie is not necessary since she is only seven years old. Also, spouses Alvaera do not have legitimate and adopted sons/daughters nor illegitimate sons/daughters.
6 7 8

Republic v. Toledano, G.R. No. 94147, June 8, 1994. Santos v. Republic, G.R. No. L-22523, September 29, 1967. Republic v. Court of Appeals, G.R. No. 100835, October 26, 1993.

However, the written consent of the biological parent (s) is necessary. In Cang v. Court of Appeals, it was held that 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 or that such parent is "insane or hopelessly intemperate.9 In the instant case, Annie is not an abandoned child. Abandoned child refers to one who has no proper parental care or guardianship or whose parents have deserted him for a period of at least six (6) continuous months and has been judicially declared as such.10 Neither was the mother insane nor hopelessly intemperate. Therefore, Hannahs written consent cannot be dispensed with. In Landingin v. Republic, it was held that the written consent of the biological parents is indispensable for the validity of a decree of adoption. 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.11 If one parent is dead, the written consent of the surviving parent suffices.12 Even granting that Justin Reonal is still alive, his consent is not sufficient because he cannot assert filiation. Under the Family Code, filiation can be established by, among others, the record of birth appearing in the civil register, yet the rule is where the birth certificate presented was not signed by the father against whom filiation is asserted, such may not be accepted as evidence of the alleged filiation. Undeniably, Justin does not recognize Annie to be his own child. In fact, he left Hanna when she told him that she was pregnant. In Angeles v. Maglaya, it was held:
x x x Such certificate, albeit considered a public record of a private document is, under Section 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child. Jurisprudence teaches that a birth certificate, to be considered as validating proof of paternity and as an instrument of recognition, must be signed by
9

Cang v. Court of Appeals, G.R. No. 105308, September 25, 1998. New Rule on Adoption, Sec. 3 (f).(wala bang RA ito ganito lang) 11 Landingin v. Republic, G.R. No. 16494, June 27, 2006. 12 Pineda, E., The Family Code of the Philippines Annotated, p. 413. (2003)
10

the father and mother jointly, or by the mother alone if the father refuses. x x x 13

If the written consent of the biological parents cannot be obtained, the written consent of the legal guardian will suffice. However, it appears that there is no legal guardian, only a de facto guardian. In People v. Delantar, it was held:
The law requires a legal or judicial guardian since it is the consanguineous relation or the solemnity of judicial appointment which impresses upon the guardian the lofty purpose of his office and normally deters him from violating its objectives.14

The rationale of adoption has, however, changed, and it is now considered more of the benefit of the child than for the adopter.15 The spouses cannot argue that the mothers written consent is no longer necessary on the ground that she has already died. It is true that her consent cannot be obtained anymore. However, this fault is attributable to the spouses. They all have the opportunity to secure the written consent before Hannah died but they failed to do so. Had it been their honest intention to adopt Annie, they would have secured Hannahs written consent long before she died. The spouses are only necessitated to adopt Annie because she has no other relative. However, Yanna recognizes Annie to be her own niece. Therefore, it cannot be said that Annies welfare is at stake if the adoption does not favor the spouses. Yannas intention to take care Annie is manifest. Adoption proceedings in the Philippines are always judicial. And because there can be no valid adoption without a court decree granting the same, a mere agreement of adoption between the adopters and the parents of the child is not a valid adoption.16 III. Annie is not a child legally available for adoption. Opposing counsel might argue that spouses Alvaera may adopt Annie by virtue of R.A. 8043- Inter-Country Adoption Act of 1995. Inter-country adoption refers to the adoption of Filipino children by foreign nationals and Filipino citizens permanently
13 14 15 16

Angeles v. Maglaya, 469 SCRA 363. (year) People v. Delantar, G.R. No. 169143, February 2, 2007. Prasnick v. Republic, 98 Phil. 6651. (year) Supra at 2.

residing abroad.17 However, R.A. 8043, as well as R.A. 8552, provides:

Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as legally available for adoption and his custody transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child.

A child legally available for adoption is one who has been voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his/her biological parent(s) or guardian or adopter(s) in case of rescission of adoption.18 Even if the adopters are relative of Annie, it is required that she still be voluntarily or involuntarily committed as defined by R.A. 8552. Certainly, Annie is not a child legally available for adoption. IV. Adoption will not redound to the best interest of Annie. In adoption cases, the Family Code requires that the prospective adoptive parents must not have ever been convicted of a crime involving moral turpitude. They must be in a position to provide proper care and support and to give necessary moral values and example to all their children, including the child to be adopted. The upbringing and rearing of children require a lot of efforts, pains and sacrifices of all sorts because of the strenuous, laborious and toilsome duties and responsibilities attendant thereto. These duties are to be fulfilled not once but continuously until the child has maturated and able to live by himself alone.19 In Republic v. Court of Appeals, it was held that paramount consideration is given to the physical, moral, social and intellectual welfare of the adopted child for which the law on adoption has in the first place been designed.20 It is noteworthy that in England the average annual temperature varies from 8.5 C (47.3 F) in the north to 11 C
17 18 19 20

Gupit, F., Rules of Procedure in Family Law Annotated, p. 313. (2008) Rep. Act. No. 8552 (YEAR), Section 3 (b). Supra at 19, p. 401. Supra at 8.

(51.8 F) in the south, but over the higher several degrees lower.21 In the Philippines, 26.5C (80 F).22 This temperature should because it will affect the physical condition

ground this can be it is approximately not be disregarded of Annie.

Also, in Cervantes v. Fajardo, it was held that in all controversies regarding the custody of minor, the foremost consideration is the moral, physical and social welfare of the child concerned, taking into account the resources and moral, as well as social standing of the contending parents.23 Moreover, in Landingin case, it was held that 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 spouses should be in a position to support Annie, in keeping with the means of the family. 24 It is not clear whether the spouses are financially capable. Being an English citizen does not follow that Aldrich has the means to support his family. It is incumbent upon the spouses to prove that they are financially capable. On the contrary, Cang v. Court of Appeals 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. 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. 25 Conclusion In this case, the petition for adoption may not be granted. First, to allow adoption would be contrary to the state policy regarding adoption. Second, the petition for adoption may not be granted as there was no written consent by the mother. While there was a voluntary consent, the same must be written. Third, Annie is not a child legally available for adoption. Lastly, the
21

Retrieved from the World Wide Web, http://www.woodlandsjunior.kent.sch.uk/customs/questions/weather/ average.htm. 22 Retrieved from the World Wide Web, http://www.southtravels.com/asia/philippines/weather.html. 23 Supra at 4. 24 Supra at 11. 25 Supra at 9.

petition for adoption may not be granted because it will not redound to the best interest of the child.