THIRD DIVISION

ESTATE OF ROGELIO G. G.R. No. 171713

ONG,
Petitioner, Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
Minor JOANNE RODJIN DIAZ,
Represented by Her Mother and
Guardian, JINKY C. DIAZ, Promulgated:
Respondent.
December 17, 2007
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DECISION

CHICO-NAZARIO, J.:

This is a petition for Review on Certiorari under Rule 45 of the Revised

Rules of Civil Procedure assailing (1) the Decision[1] of the Court of Appeals
dated 23 November 2005 and (2) the Resolution[2] of the same court dated 1 March
2006 denying petitioners Motion for Reconsideration in CA-G.R. CV No. 70125.

A Complaint[3] for compulsory recognition with prayer for support pending

litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by her
mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong (Rogelio)
before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky
prayed that judgment be rendered:
 (a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his
daughter.

(b) Ordering defendant to give plaintiff monthly support

of P20,000.00 pendente lite and thereafter to fix monthly support.

(c) Ordering the defendant to pay plaintiff attorneys fees in the sum
of P100,000.00.

(d) Granting plaintiff such other measure of relief as maybe just and
equitable in the premises.[4]

As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and
Rogelio got acquainted. This developed into friendship and later blossomed into
love. At this time, Jinky was already married to a Japanese national, Hasegawa
Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal Trial
Court Judge Panfilo V. Valdez.[5]

From January 1994 to September 1998, Jinky and Rogelio cohabited and lived
together at Fairlane Subdivision, and later at Capitol Garden, Tarlac City.

From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25
February 1998 was born at the Central Luzon Doctors Hospital, Tarlac City.

Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after
delivery. Rogelio paid all the hospital bills and the baptismal expenses and
provided for all of minor Joannes needs recognizing the child as his.

In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped
supporting minor Joanne, falsely alleging that he is not the father of the child.

Rogelio, despite Jinkys remonstrance, failed and refused and continued failing and
refusing to give support for the child and to acknowledge her as his daughter, thus
leading to the filing of the heretofore adverted complaint.
After summons had been duly served upon Rogelio, the latter failed to file any
responsive pleading despite repeated motions for extension, prompting the trial
court to declare him in default in its Order dated 7 April 1999. Rogelios Answer
with Counterclaim and Special and Affirmative Defenses was received by the trial
court only on 15 April 1999. Jinky was allowed to present her evidence ex parte on
the basis of which the trial court on 23 April 1999 rendered a decision granting the
reliefs prayed for in the complaint.

In its Decision[6] dated 23 April 1999, the RTC held:

WHEREFORE, judgment is hereby rendered:

1. Ordering defendant to recognize plaintiff as his natural child;

2. Ordering defendant to provide plaintiff with a monthly support

of P10,000.00 and further

3. Ordering defendant to pay reasonable attorneys fees in the amount

of P5,000.00 and the cost of the suit.

On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion
for reconsideration seeking the courts understanding, as he was then in a quandary
on what to do to find a solution to a very difficult problem of his life.[7]

On 29 April 1999, Rogelio filed a motion for new trial with prayer that the
decision of the trial court dated 23 April 1999 be vacated and the case be
considered for trial de novo pursuant to the provisions of Section 6, Rule 37 of the
1997 Rules of Civil Procedure.[8]

On 16 June 1999, the RTC issued an Order granting Rogelios Motion for New
Trial:

WHEREFORE, finding defendants motion for new trial to be impressed

with merit, the same is hereby granted.

The Order of this court declaring defendant in default and the decision is
this court dated April 23, 1999 are hereby set aside but the evidence
 adduced shall remain in record, subject to cross-examination by
defendant at the appropriate stage of the proceedings.

In the meantime defendants answer is hereby admitted, subject to the

right of plaintiff to file a reply and/or answer to defendants counterclaim
within the period fixed by the Rules of Court.

Acting on plaintiffs application for support pendente lite which this court
finds to be warranted, defendant is hereby ordered to pay to plaintiff
immediately the sum of P2,000.00 a month from January 15, 1999 to
May 1999 as support pendente lite in arrears and the amount
of P4,000.00 every month thereafter as regular support pendente lite
during the pendency of this case.[9]

The RTC finally held:

The only issue to be resolved is whether or not the defendant is the father
of the plaintiff Joanne Rodjin Diaz.

Since it was duly established that plaintiffs mother Jinky Diaz was
married at the time of the birth of Joanne Rodjin Diaz, the law presumes
that Joanne is a legitimate child of the spouses Hasegawa Katsuo and
Jinky Diaz (Article 164, Family Code). The child is still presumed
legitimate even if the mother may have declared against her legitimacy
(Article 167, Ibid).

The legitimacy of a child may be impugned only on the following

grounds provided for in Article 166 of the same Code. Paragraph 1 of the
said Article provides that there must be physical impossibility for the
husband to have sexual intercourse with the wife within the first 120
days of the 300 days following the birth of the child because of

a) physical incapacity of the husband to have sexual

intercourse with his wife;

b) husband and wife were living separately in such a way

that sexual intercourse was not possible;

c) serious illness of the husband which prevented sexual

intercourse.
 It was established by evidence that the husband is a Japanese national
and that he was living outside of the country (TSN, Aug. 27, 1999, page
5) and he comes home only once a year. Both evidence of the parties
proved that the husband was outside the country and no evidence was
shown that he ever arrived in the country in the year 1997 preceding the
birth of plaintiff Joanne Rodjin Diaz.

While it may also be argued that plaintiff Jinky had a relationship with
another man before she met the defendant, there is no evidence that she
also had sexual relations with other men on or about the conception of
Joanne Rodjin. Joanne Rodjin was her second child (see Exh. A), so her
first child, a certain Nicole (according to defendant) must have a
different father or may be the son of Hasegawa K[u]tsuo.

The defendant admitted having been the one who shouldered the hospital
bills representing the expenses in connection with the birth of plaintiff. It
is an evidence of admission that he is the real father of
plaintiff. Defendant also admitted that even when he stopped going out
with Jinky, he and Jinky used to go to motels even after 1996. Defendant
also admitted that on some instances, he still used to see Jinky after the
birth of Joanne Rodjin.Defendant was even the one who fetched Jinky
after she gave birth to Joanne.

On the strength of this evidence, the Court finds that Joanne Rodjin is
the child of Jinky and defendant Rogelio Ong and it is but just that the
latter should support plaintiff.[10]

On 15 December 2000, the RTC rendered a decision and disposed:

WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin

Diaz to be the illegitimate child of defendant Rogelio Ong with plaintiff
Jinky Diaz. The Order of this Court awarding support pendente lite
dated June 15, 1999, is hereby affirmed and that the support should
continue until Joanne Rodjin Diaz shall have reached majority age.[11]

Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in
an Order of the trial court dated 19 January 2001.[12]From the denial of his Motion
for Reconsideration, Rogelio appealed to the Court of Appeals. After all the
responsive pleadings had been filed, the case was submitted for decision and
ordered re-raffled to another Justice for study and report as early as 12 July
2002.[13]

During the pendency of the case with the Court of Appeals, Rogelios counsel filed
a manifestation informing the Court that Rogelio died on 21 February 2005; hence,
a Notice of Substitution was filed by said counsel praying that Rogelio be
substituted in the case by the Estate of Rogelio Ong,[14] which motion was
accordingly granted by the Court of Appeals.[15]

In a Decision dated 23 November 2005, the Court of Appeals held:

WHEREFORE, premises considered, the present appeal is hereby

GRANTED. The appealed Decision dated December 15, 2000 of the
Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No.
8799 is hereby SET ASIDE. The case is hereby REMANDED to the
court a quo for the issuance of an order directing the parties to make
arrangements for DNA analysis for the purpose of determining the
paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in
coordination with laboratories and experts on the field of DNA analysis.

No pronouncement as to costs.[16]

Petitioner filed a Motion for Reconsideration which was denied by the Court of
Appeals in a Resolution dated 1 March 2006.

In disposing as it did, the Court of Appeals justified its Decision as follows:

In this case, records showed that the late defendant-appellant Rogelio G.

Ong, in the early stage of the proceedings volunteered and suggested that
he and plaintiffs mother submit themselves to a DNA or blood testing to
settle the issue of paternity, as a sign of good faith. However, the trial
court did not consider resorting to this modern scientific procedure
notwithstanding the repeated denials of defendant that he is the
biological father of the plaintiff even as he admitted having actual sexual
relations with plaintiffs mother. We believe that DNA paternity testing,
 as current jurisprudence affirms, would be the most reliable and effective
method of settling the present paternity dispute. Considering, however,
the untimely demise of defendant-appellant during the pendency of this
appeal, the trial court, in consultation with out laboratories and experts
on the field of DNA analysis, can possibly avail of such procedure with
whatever remaining DNA samples from the deceased defendant alleged
to be the putative father of plaintiff minor whose illegitimate filiations is
the subject of this action for support.[17]

Hence, this petition which raises the following issues for resolution:

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT

DID NOT DISMISS RESPONDENTS COMPLAINT FOR
COMPULSORY RECOGNITION DESPITE ITS FINDING THAT
THE EVIDENCE PRESENTED FAILED TO PROVE THAT
ROGELIO G. ONG WAS HER FATHER.

II

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT

DID NOT DECLARE RESPONDENT AS THE LEGITIMATE CHILD
OF JINKY C. DIAZ AND HER JAPANESE HUSBAND,
CONSIDERING THAT RESPONDENT FAILED TO REBUT THE
PRESUMPTION OF HER LEGITIMACY.

III

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT

REMANDED THE CASE TO THE COURT A QUO FOR DNA
ANALYSIS DESPITE THE FACT THAT IT IS NO LONGER
FEASIBLE DUE TO THE DEATH OF ROGELIO G. ONG.[18]

Petitioner prays that the present petition be given due course and the Decision of
the Court of Appeals dated November 23, 2005 be modified, by setting aside the
judgment remanding the case to the trial court for DNA testing analysis, by
dismissing the complaint of minor Joanne for compulsory recognition, and by
declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.[19]

From among the issues presented for our disposition, this Court finds it prudent to
concentrate its attention on the third one, the propriety of the appellate courts
decision remanding the case to the trial court for the conduct of DNA testing.
Considering that a definitive result of the DNA testing will decisively lay to rest
the issue of the filiation of minor Joanne, we see no reason to resolve the first two
issues raised by the petitioner as they will be rendered moot by the result of the
DNA testing.

As a whole, the present petition calls for the determination of filiation of minor
Joanne for purposes of support in favor of the said minor.

Filiation proceedings are usually filed not just to adjudicate paternity but also to
secure a legal right associated with paternity, such as citizenship, support (as in the
present case), or inheritance. The burden of proving paternity is on the person who
alleges that the putative father is the biological father of the child. There are four
significant procedural aspects of a traditional paternity action which parties have to
face: a prima facie case, affirmative defenses, presumption of legitimacy, and
physical resemblance between the putative father and child.[20]

A child born to a husband and wife during a valid marriage is presumed

legitimate.[21] As a guaranty in favor of the child and to protect his status of
legitimacy, Article 167 of the Family Code provides:

Article 167. The children shall be considered legitimate although the

mother may have declared against its legitimacy or may have been
sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of

legitimacy. We explained the rationale of this rule in the recent case of Cabatania
v. Court of Appeals[22]:
 The presumption of legitimacy does not only flow out of a declaration
in the statute but is based on the broad principles of natural justice and
the supposed virtue of the mother. The presumption is grounded on the
policy to protect the innocent offspring from the odium of illegitimacy.

The presumption of legitimacy of the child, however, is not conclusive and

consequently, may be overthrown by evidence to the contrary.Hence, Article 255
of the New Civil Code[23] provides:

Article 255. Children born after one hundred and eighty days following
the celebration of the marriage, and before three hundred days following
its dissolution or the separation of the spouses shall be presumed to be
legitimate.

Against this presumption no evidence shall be admitted other than that of

the physical impossibility of the husbands having access to his wife
within the first one hundred and twenty days of the three hundred which
preceded the birth of the child.

This physical impossibility may be caused:

1) By the impotence of the husband;

2) By the fact that husband and wife were living separately in such a way
that access was not possible;

3) By the serious illness of the husband.[24]

The relevant provisions of the Family Code provide as follows:

ART. 172. The filiation of legitimate children is established by any of

the following:

(1) The record of birth appearing in the civil register or a final judgment;
or

(2) An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned.
 In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:

(1) The open and continuous possession of the status of a legitimate

child; or

(2) Any other means allowed by the Rules of Court and special laws.
ART. 175. Illegitimate children may establish their illegitimate filiation
in the same way and on the same evidence as legitimate children.

There had been divergent and incongruent statements and assertions bandied
about by the parties to the present petition. But with the advancement in the field
of genetics, and the availability of new technology, it can now be determined with
reasonable certainty whether Rogelio is the biological father of the minor, through
DNA testing.
DNA is the fundamental building block of a persons entire genetic make-
up. DNA is found in all human cells and is the same in every cell of the same
person. Genetic identity is unique. Hence, a persons DNA profile can determine his
identity.[25]

DNA analysis is a procedure in which DNA extracted from a biological sample

obtained from an individual is examined. The DNA is processed to generate a
pattern, or a DNA profile, for the individual from whom the sample is taken. This
DNA profile is unique for each person, except for identical twins.

Everyone is born with a distinct genetic blueprint called DNA

(deoxyribonucleic acid). It is exclusive to an individual (except in the
rare occurrence of identical twins that share a single, fertilized egg), and
DNA is unchanging throughout life. Being a component of every cell in
the human body, the DNA of an individuals blood is the very DNA in
his or her skin cells, hair follicles, muscles, semen, samples from buccal
swabs, saliva, or other body parts.

The chemical structure of DNA has four bases. They are known as A
(Adenine), G (guanine), C (cystosine) and T (thymine). The order in
which the four bases appear in an individuals DNA determines his or her
physical make up. And since DNA is a double stranded molecule, it is
composed of two specific paired bases, A-T or T-A and G-C or C-
G. These are called genes.

Every gene has a certain number of the above base pairs distributed in a
particular sequence. This gives a person his or her genetic
code. Somewhere in the DNA framework, nonetheless, are sections that
differ. They are known as polymorphic loci, which are the areas
analyzed in DNA typing (profiling, tests, fingerprinting). In other words,
DNA typing simply means determining the polymorphic loci.

How is DNA typing performed? From a DNA sample obtained or

extracted, a molecular biologist may proceed to analyze it in several
ways. There are five (5) techniques to conduct DNA typing. They
are: the RFLP (restriction fragment length polymorphism); reverse dot
blot or HLA DQ a/Pm loci which was used in 287 cases that were
admitted as evidence by 37 courts in the U.S. as of November 1994;
DNA process; VNTR (variable number tandem repeats); and the most
recent which is known as the PCR-([polymerase] chain reaction) based
STR (short tandem repeats) method which, as of 1996, was availed of by
most forensic laboratories in the world. PCR is the process of replicating
or copying DNA in an evidence sample a million times through repeated
cycling of a reaction involving the so-called DNA polymerize
enzyme. STR, on the other hand, takes measurements in 13 separate
places and can match two (2) samples with a reported theoretical error
rate of less than one (1) in a trillion.

Just like in fingerprint analysis, in DNA typing, matches are

determined. To illustrate, when DNA or fingerprint tests are done to
identify a suspect in a criminal case, the evidence collected from the
crime scene is compared with the known print. If a substantial amount of
the identifying features are the same, the DNA or fingerprint is deemed
to be a match. But then, even if only one feature of the DNA or
fingerprint is different, it is deemed not to have come from the suspect.

As earlier stated, certain regions of human DNA show variations

between people. In each of these regions, a person possesses two genetic
types called allele, one inherited from each parent. In [a] paternity test,
the forensic scientist looks at a number of these variable regions in an
individual to produce a DNA profile. Comparing next the DNA profiles
of the mother and child, it is possible to determine which half of the
childs DNA was inherited from the mother. The other half must have
 been inherited from the biological father. The alleged fathers profile is
then examined to ascertain whether he has the DNA types in his profile,
which match the paternal types in the child. If the mans DNA types do
not match that of the child, the man is excluded as the father. If the DNA
types match, then he is not excluded as the father.[26]

In the newly promulgated rules on DNA evidence it is provided:

SEC. 3 Definition of Terms. For purposes of this Rule, the following

terms shall be defined as follows:

xxxx

(c) DNA evidence constitutes the totality of the DNA profiles, results
and other genetic information directly generated from DNA
testing of biological samples;

(d) DNA profile means genetic information derived from DNA testing of
a biological sample obtained from a person, which biological
sample is clearly identifiable as originating from that person;

(e) DNA testing means verified and credible scientific methods which
include the extraction of DNA from biological samples, the
generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the
purpose of determining, with reasonable certainty, whether or not
the DNA obtained from two or more distinct biological samples
originates from the same person (direct identification) or if the
biological samples originate from related persons (kinship
analysis); and

(f) Probability of Parentage means the numerical estimate for the

likelihood of parentage of a putative parent compared with the
probability of a random match of two unrelated individuals in a
given population.

Amidst the protestation of petitioner against the DNA analysis, the resolution
thereof may provide the definitive key to the resolution of the issue of support for
minor Joanne. Our articulation in Agustin v. Court of Appeals[27] is particularly
relevant, thus:

Our faith in DNA testing, however, was not quite so steadfast in the
previous decade. In Pe Lim v. Court of Appeals (336 Phil. 741, 270
SCRA 1), promulgated in 1997, we cautioned against the use of DNA
because DNA, being a relatively new science, (had) not as yet been
accorded official recognition by our courts. Paternity (would) still have
to be resolved by such conventional evidence as the relevant
incriminating acts,verbal and written, by the putative father.

In 2001, however, we opened the possibility of admitting DNA as

evidence of parentage, as enunciated in Tijing v. Court of Appeals [G.R.
No. 125901, 8 March 2001, 354 SCRA 17]:

x x x Parentage will still be resolved using

conventional methods unless we adopt the modern and
scientific ways available.Fortunately, we have now the
facility and expertise in using DNA test for identification
and parentage testing. The University of the Philippines
Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct
DNA typing using short tandem repeat (STR) analysis. The
analysis is based on the fact that the DNA of a child/person
has two (2) copies, one copy from the mother and the other
from the father. The DNA from the mother, the alleged
father and child are analyzed to establish parentage. Of
course, being a novel scientific technique, the use of DNA
test as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule
on the admissibility of DNA evidence. For it was said, that
courts should apply the results of science when
competently obtained in aid of situations presented, since to
reject said results is to deny progress.
The first real breakthrough of DNA as admissible and
authoritative evidence in Philippine jurisprudence came in 2002 with
out en bancdecision in People v. Vallejo [G.R. No. 144656, 9 May 2002,
382 SCRA 192] where the rape and murder victims DNA samples from
the bloodstained clothes of the accused were admitted in evidence. We
reasoned that the purpose of DNA testing (was) to ascertain whether an
association exist(ed) between the evidence sample and the reference
 sample. The samples collected (were) subjected to various chemical
processes to establish their profile.

A year later, in People v. Janson [G.R. No. 125938, 4 April 2003,

400 SCRA 584], we acquitted the accused charged with rape for lack of
evidence because doubts persist(ed) in our mind as to who (were) the
real malefactors. Yes, a complex offense (had) been perpetrated but who
(were) the perpetrators? How we wish we had DNA or other scientific
evidence to still our doubts.

In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434,

161634 and 161824, 3 March 2004, 424 SCRA 277], where the Court en
banc was faced with the issue of filiation of then presidential candidate
Fernando Poe, Jr., we stated:

In case proof of filiation or paternity would be

unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted
to. A positive match would clear up filiation or
paternity. In Tijing v. Court of Appeals, this Court has
acknowledged the strong weight of DNA testing...

Moreover, in our en banc decision in People v.

Yatar [G.R. No. 150224, 19 May 2004, 428 SCRA 504],
we affirmed the conviction of the accused for rape with
homicide, the principal evidence for which included DNA
test results. x x x.

Coming now to the issue of remand of the case to the trial court, petitioner
questions the appropriateness of the order by the Court of Appeals directing the
remand of the case to the RTC for DNA testing given that petitioner has already
died. Petitioner argues that a remand of the case to the RTC for DNA analysis is no
longer feasible due to the death of Rogelio. To our mind, the alleged impossibility
of complying with the order of remand for purposes of DNA testing is more
ostensible than real. Petitioners argument is without basis especially as the New
Rules on DNA Evidence[28] allows the conduct of DNA testing, either motu
proprio or upon application of any person who has a legal interest in the matter in
litigation, thus:

SEC. 4. Application for DNA Testing Order. The appropriate court may, at any
time, either motu proprio or on application of any person who has a legal
interest in the matter in litigation, order a DNA testing. Such order shall
issue after due hearing and notice to the parties upon a showing of the
following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of
DNA testing now requested; or (ii) was previously subjected to
DNA testing, but the results may require confirmation for good
reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the case;
and

(e) The existence of other factors, if any, which the court may consider
as potentially affecting the accuracy or integrity of the DNA
testing.

From the foregoing, it can be said that the death of the petitioner does not ipso
facto negate the application of DNA testing for as long as there exist appropriate
biological samples of his DNA.

As defined above, the term biological sample means any organic material
originating from a persons body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes blood, saliva, and other body fluids,
tissues, hairs and bones.[29]

Thus, even if Rogelio already died, any of the biological samples as

enumerated above as may be available, may be used for DNA testing. In this case,
petitioner has not shown the impossibility of obtaining an appropriate biological
sample that can be utilized for the conduct of DNA testing.

And even the death of Rogelio cannot bar the conduct of DNA testing. In People v.
Umanito,[30] citing Tecson v. Commission on Elections,[31] this Court held:

The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434,

3 March 2004, 424 SCRA 277] likewise reiterated the acceptance of
DNA testing in our jurisdiction in this wise: [i]n case proof of filiation or
paternity would be unlikely to satisfactorily establish or would be
difficult to obtain, DNA testing, which examines genetic codes obtained
from body cells of the illegitimate child and any physical residue of the
long dead parent could be resorted to.

It is obvious to the Court that the determination of whether appellant is

the father of AAAs child, which may be accomplished through DNA
testing, is material to the fair and correct adjudication of the instant
appeal. Under Section 4 of the Rules, the courts are authorized, after due
hearing and notice, motu proprio to order a DNA testing. However,
while this Court retains jurisdiction over the case at bar, capacitated as it
is to receive and act on the matter in controversy, the Supreme Court is
not a trier of facts and does not, in the course of daily routine, conduct
hearings. Hence, it would be more appropriate that the case be remanded
to the RTC for reception of evidence in appropriate hearings, with due
notice to the parties. (Emphasis supplied.)

As we have declared in the said case of Agustin v. Court of Appeals[32]:

x x x [F]or too long, illegitimate children have been marginalized

by fathers who choose to deny their existence. The growing
sophistication of DNA testing technology finally provides a much
needed equalizer for such ostracized and abandoned progeny. We have
long believed in the merits of DNA testing and have repeatedly
expressed as much in the past. This case comes at a perfect time when
DNA testing has finally evolved into a dependable and authoritative
form of evidence gathering. We therefore take this opportunity to
forcefully reiterate our stand that DNA testing is a valid means of
determining paternity.
WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of
the Court of Appeals dated 23 November 2005 and its Resolution dated 1 March
2006 are AFFIRMED. Costs against petitioner.
SO ORDERED.
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

DECISION

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, petitioners 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. Petitioners brother, Mariano Ramos, who earns substantial income,
signified his willingness and commitment to support the minors while in
petitioners 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 childrens 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.

II

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

III

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
PETITIONERS 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 childrens natural mother. Moreover, the affidavit of consent
of the petitioners 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

[26]
on certiorari 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-adopters children sufficiently
complies with the law; and (c) whether or not petitioner is financially capable of
supporting the adoptees.

The Courts 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 Courts position should not
be misconstrued or misinterpreted as to extend to inferences beyond the
contemplation of law and jurisprudence. Thus, the discretion to approve adoption
proceedings is not to be anchored solely on best interests of the child but
likewise, with due regard to the natural rights of the parents over the child.[31]

Section 9 of Republic Act No. 8552, otherwise known as the Domestic

Adoption Act of 1998, provides:

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

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

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

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over,
of the adopter(s) and adoptee, if any;

(d) The illegitimate sons/daughters, ten (10) years of age or over, of the
adopter, if living with said adopter and the latters 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 Amelias 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 childrens 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.

Petitioners 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. Petitioners 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:

xxxx

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]

xxxx

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

xxxx

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]

xxxx

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 husbands 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 Pagbilaos 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 petitioners 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, charg 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, charg 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 petitioners 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. Petitioners 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 petitioners 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

 [G.R. No. 148311. March 31, 2005]

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY

ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.

DECISION
SANDOVAL-GUTIERREZ, J.:

May an illegitimate child, upon adoption by her natural father, use the
surname of her natural mother as her middle name? This is the issue
raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a
petition[1] to adopt his minor illegitimate child Stephanie Nathy Astorga
Garcia. He alleged therein, among others, that Stephanie was born on June
26, 1994;[2] that her mother is Gemma Astorga Garcia; that Stephanie has
been using her mothers middle name and surname; and that he is now a
widower and qualified to be her adopting parent. He prayed that Stephanies
middle name Astorga be changed to Garcia, her mothers surname, and that
her surname Garcia be changed to Catindig, his surname.
On March 23, 2001,[3] the trial court rendered the assailed Decision
granting the adoption, thus:

After a careful consideration of the evidence presented by the petitioner, and in the
absence of any opposition to the petition, this Court finds that the petitioner possesses
all the qualifications and none of the disqualification provided for by law as an
adoptive parent, and that as such he is qualified to maintain, care for and educate the
child to be adopted; that the grant of this petition would redound to the best interest
and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds
that the petitioners care and custody of the child since her birth up to the present
constitute more than enough compliance with the requirement of Article 35 of
Presidential Decree No. 603.

WHEREFORE, finding the petition to be meritorious, the same is GRANTED.

Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of
obedience and maintenance with respect to her natural mother, and for civil purposes,
shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article
189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE
NATHY CATINDIG.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar
concerned pursuant to Rule 99 of the Rules of Court.

Let copy of this Decision be furnished the National Statistics Office for record
purposes.

SO ORDERED.[4]

On April 20, 2001, petitioner filed a motion for clarification and/or

reconsideration[5] praying that Stephanie should be allowed to use the
surname of her natural mother (GARCIA) as her middle name.
On May 28, 2001,[6] the trial court denied petitioners motion for
reconsideration holding that there is no law or jurisprudence allowing an
adopted child to use the surname of his biological mother as his middle name.
Hence, the present petition raising the issue of whether an illegitimate
child may use the surname of her mother as her middle name when she is
subsequently adopted by her natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a
middle name as a consequence of adoption because: (1) there is no law
prohibiting an adopted child from having a middle name in case there is only
one adopting parent; (2) it is customary for every Filipino to have as middle
name the surname of the mother; (3) the middle name or initial is a part of the
name of a person; (4) adoption is for the benefit and best interest of the
adopted child, hence, her right to bear a proper name should not be violated;
(5) permitting Stephanie to use the middle name Garcia (her mothers
surname) avoids the stigma of her illegitimacy; and; (6) her continued use of
Garcia as her middle name is not opposed by either the Catindig or Garcia
families.
The Republic, through the Office of the Solicitor General (OSG), agrees
with petitioner that Stephanie should be permitted to use, as her middle name,
the surname of her natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanies filiation with her
natural mother because under Article 189 of the Family Code, she remains to
be an intestate heir of the latter. Thus, to prevent any confusion and needless
hardship in the future, her relationship or proof of that relationship with her
natural mother should be maintained.
 Second, there is no law expressly prohibiting Stephanie to use the
surname of her natural mother as her middle name. What the law does not
prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is
ordinarily the surname of the mother. This custom has been recognized by the
Civil Code and Family Code. In fact, the Family Law Committees agreed
that the initial or surname of the mother should immediately precede the
surname of the father so that the second name, if any, will be before the
surname of the mother.[7]
We find merit in the petition.

Use Of Surname Is Fixed By Law

For all practical and legal purposes, a man's name is the designation by
which he is known and called in the community in which he lives and is best
known. It is defined as the word or combination of words by which a person is
distinguished from other individuals and, also, as the label or appellation
which he bears for the convenience of the world at large addressing him, or in
speaking of or dealing with him.[8] It is both of personal as well as public
interest that every person must have a name.
The name of an individual has two parts: (1) the given or proper
name and (2) the surname or family name. The given or proper name is that
which is given to the individual at birth or at baptism, to distinguish him from
other individuals. The surname or family name is that which identifies the
family to which he belongs and is continued from parent to child. The given
name may be freely selected by the parents for the child, but the surname to
which the child is entitled is fixed by law.[9]
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules
which regulate the use of surname[10] of an individual whatever may be his
status in life, i.e., whether he may be legitimate or illegitimate, an adopted
child, a married woman or a previously married woman, or a widow, thus:

Art. 364. Legitimate and legitimated children shall principally use the surname of the
father.

Art. 365. An adopted child shall bear the surname of the adopter.

xxx
Art. 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and her husband's surname or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such
as Mrs.

Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spouse, she may resume
her maiden name and surname. However, she may choose to continue employing her
former husband's surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

Art. 372. When legal separation has been granted, the wife shall continue using her
name and surname employed before the legal separation.

Art. 373. A widow may use the deceased husband's surname as though he were still
living, in accordance with Article 370.

Art. 374. In case of identity of names and surnames, the younger person shall be
obliged to use such additional name or surname as will avoid confusion.

Art. 375. In case of identity of names and surnames between ascendants and
descendants, the word Junior can be used only by a son. Grandsons and other direct
male descendants shall either:

(1) Add a middle name or the mother's surname,

(2) Add the Roman numerals II, III, and so on.

xxx

Law Is Silent As To The Use Of

Middle Name
 As correctly submitted by both parties, there is no law regulating the use of
a middle name. Even Article 176[11] of the Family Code, as amended by
Republic Act No. 9255, otherwise known as An Act Allowing Illegitimate
Children To Use The Surname Of Their Father, is silent as to what middle
name a child may use.
The middle name or the mothers surname is only considered in Article
375(1), quoted above, in case there is identity of names and surnames
between ascendants and descendants, in which case, the middle name or the
mothers surname shall be added.
Notably, the law is likewise silent as to what middle name an adoptee
may use. Article 365 of the Civil Code merely provides that an adopted child
shall bear the surname of the adopter. Also, Article 189 of the Family Code,
enumerating the legal effects of adoption, is likewise silent on the matter, thus:

"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the
surname of the adopters;

xxx

However, as correctly pointed out by the OSG, the members of the Civil
Code and Family Law Committees that drafted the Family Code recognized
the Filipino custom of adding the surname of the childs mother as his
middle name. In the Minutes of the Joint Meeting of the Civil Code and
Family Law Committees, the members approved the suggestion that the
initial or surname of the mother should immediately precede the
surname of the father, thus

Justice Caguioa commented that there is a difference between the use by the wife of
the surname and that of the child because the fathers surname indicates the family
to which he belongs, for which reason he would insist on the use of the fathers
surname by the child but that, if he wants to, the child may also use the surname
of the mother.

Justice Puno posed the question: If the child chooses to use the surname of the mother,
how will his name be written? Justice Caguioa replied that it is up to him but that his
point is that it should be mandatory that the child uses the surname of the father
and permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the present Article
364, which reads:

Legitimate and legitimated children shall principally use the surname of the father.

Justice Puno pointed out that many names change through no choice of the person
himself precisely because of this misunderstanding. He then cited the following
example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname
is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family
name is Gutierrez and his mothers surname is David but they all call him Justice
David.

Justice Caguioa suggested that the proposed Article (12) be modified to the effect
that it shall be mandatory on the child to use the surname of the father but he
may use the surname of the mother by way of an initial or a middle name. Prof.
Balane stated that they take note of this for inclusion in the Chapter on Use of
Surnames since in the proposed Article (10) they are just enumerating the rights of
legitimate children so that the details can be covered in the appropriate chapter.

xxx

Justice Puno remarked that there is logic in the simplification suggested by Justice
Caguioa that the surname of the father should always be last because there are so
many traditions like the American tradition where they like to use their second given
name and the Latin tradition, which is also followed by the Chinese wherein they even
include the Clan name.

xxx

Justice Puno suggested that they agree in principle that in the Chapter on the
Use of Surnames, they should say that initial or surname of the mother should
immediately precede the surname of the father so that the second name, if any,
will be before the surname of the mother. Prof. Balane added that this is really
the Filipino way. The Committee approved the suggestion.[12] (Emphasis supplied)

In the case of an adopted child, the law provides that the adopted shall
bear the surname of the adopters.[13] Again, it is silent whether he can use a
middle name. What it only expressly allows, as a matter of right and
obligation, is for the adoptee to bear the surname of the adopter, upon
issuance of the decree of adoption.[14]
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child
Adoption is defined as the process of making a child, whether related or
not to the adopter, possess in general, the rights accorded to a legitimate
child.[15] It is a juridical act, a proceeding in rem which creates between two
persons a relationship similar to that which results from legitimate paternity
and filiation.[16] The modern trend is to consider adoption not merely as an act
to establish a relationship of paternity and filiation, but also as an act which
endows the child with a legitimate status.[17] This was, indeed, confirmed in
1989, when the Philippines, as a State Party to the Convention of the
Rights of the Child initiated by the United Nations, accepted the
principle that adoption is impressed with social and moral
responsibility, and that its underlying intent is geared to favor the
adopted child.[18] Republic Act No. 8552, otherwise known as the Domestic
Adoption Act of 1998,[19] secures these rights and privileges for the adopted.[20]
One of the effects of adoption is that the adopted is deemed to be a
legitimate child of the adopter for all intents and purposes pursuant to Article
189[21] of the Family Code and Section 17[22] Article V of RA 8552.[23]
Being a legitimate child by virtue of her adoption, it follows that
Stephanie is entitled to all the rights provided by law to a legitimate child
without discrimination of any kind, including the right to bear the
surname of her father and her mother, as discussed above. This is
consistent with the intention of the members of the Civil Code and Family Law
Committees as earlier discussed. In fact, it is a Filipino custom that the initial
or surname of the mother should immediately precede the surname of the
father.
Additionally, as aptly stated by both parties, Stephanies continued use of
her mothers surname (Garcia) as her middle name will maintain her maternal
lineage. It is to be noted that Article 189(3) of the Family Code and Section
18[24], Article V of RA 8552 (law on adoption) provide that the adoptee remains
an intestate heir of his/her biological parent. Hence, Stephanie can well assert
or claim her hereditary rights from her natural mother in the future.
Moreover, records show that Stephanie and her mother are living together
in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag,
Bulacan. Petitioner provides for all their needs. Stephanie is closely attached
to both her mother and father. She calls them Mama and Papa. Indeed, they
are one normal happy family. Hence, to allow Stephanie to use her mothers
surname as her middle name will not only sustain her continued loving
relationship with her mother but will also eliminate the stigma of her
illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption
It is a settled rule that adoption statutes, being humane and salutary,
should be liberally construed to carry out the beneficent purposes of
adoption.[25] The interests and welfare of the adopted child are of primary and
paramount consideration,[26] hence, every reasonable intendment should be
sustained to promote and fulfill these noble and compassionate objectives of
the law.[27]
Lastly, Art. 10 of the New Civil Code provides that:

In case of doubt in the interpretation or application of laws, it is presumed that the

lawmaking body intended right and justice to prevail.

This provision, according to the Code Commission, is necessary so that it

may tip the scales in favor of right and justice when the law is doubtful or
obscure. It will strengthen the determination of the courts to avoid an injustice
which may apparently be authorized by some way of interpreting the law.[28]
Hence, since there is no law prohibiting an illegitimate child adopted by
her natural father, like Stephanie, to use, as middle name her mothers
surname, we find no reason why she should not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed Decision is partly
MODIFIED in the sense that Stephanie should be allowed to use her mothers
surname GARCIA as her middle name.
Let the corresponding entry of her correct and complete name be entered
in the decree of adoption.
SO ORDERED.
NOEL B. BAGTAS, G.R. No. 166682
Petitioner,
Present:
- versus -
CARPIO, J., Chairperson,
LEONARDO-DE CASTRO,*
BRION,
HON. RUTH C.
SANTOS,Presiding Judge DEL CASTILLO, and
of Regional Trial Court, Branch 72, ABAD, JJ.
Antipolo City,
and ANTONIO and ROSITA
GALLARDO, Promulgated:
Respondents.
November 27, 2009
x--------------------------------------------------x

DECISION

CARPIO, J.:

The Case

This is a petition[1] for review on certiorari under Rule 45 of the Rules of

Court. The petition challenges the 11 June 2004 Decision[2]and 5 January 2005
Resolution[3] of the Court of Appeals in CA-G.R. SP No. 77751. The Court of
Appeals affirmed the 9 December 2002[4] and 21 April 2003 Orders of the
Regional Trial Court (RTC), Judicial Region 4, Branch 72, Antipolo City, in Special
Proceeding Case No. 02-1128.

The Facts
Antonio and Rosita S. Gallardo (Spouses Gallardo) are the parents of Maricel S.
Gallardo (Maricel). Two weeks after graduating from high school in April 2000,
Maricel ran away to live with her boyfriend. Maricel became pregnant and gave
birth to Maryl Joy S. Gallardo (Maryl Joy). Maricels boyfriend left her.

In February 2002, Maricel returned to her parents. On the same day, Maricel ran
away again and lived with Noel B. Bagtas (Bagtas) and Lydia B. Sioson (Sioson) at
Ma. Corazon, Unirock, Barangay Sta. Cruz, Antipolo City. Maricel went to Negros
Occidental and left Maryl Joy in the custody of Bagtas and Sioson. In a
letter[5] dated 5 February 2001, Maricel relinquished her rights over Maryl Joy to
Bagtas and his wife. She stated:

Ako po si Maricel S. Gallardo 18 taong gulang ay kusang ipinagkaloob

ang aking anak sa pagkadalaga sa mag-asawang Noel B.
Bagtas at Neneth A. Bagtas sa kadahilanan pong itinakwil ako ng
sarili kong mga magulang at hindi ko po kayang buhayin at dahil po
sa tinakbuhan ako ng aking boyfriend kaya wala na pong ibang
paraan para ako makabangon o makapagsimula ng panibagong
buhay kaya para mabigyan ng magandang buhay ang aking anak
inisip ko po na ito na ang pinaka madaling paraan para po sa
pagbabago ng aking buhay.

Kaya mula sa araw na ito ay wala na akong karapatan sa aking

anak. Sila ang tatayo bilang magulang ng aking anak.
In April 2002, the Spouses Gallardo tried to obtain the custody of Maryl Joy from
Bagtas and Sioson. Bagtas and Sioson refused.Unable to settle the matter, the
Spouses Gallardo filed with the RTC a petition[6] for habeas corpus.
In its Order[7] dated 10 July 2002, the RTC issued a writ of habeas[8] corpus
directing the deputy sheriff to produce Maryl Joy before it and to summon
Bagtas and Sioson to explain why they were withholding the custody of Maryl
Joy.

The Spouses Gallardo, Bagtas and Sioson entered into a compromise

agreement. In its Order[9] dated 13 September 2002, the RTC stated:

In todays hearing, both parties appeared with their respective

counsels and have agreed on the following:

1. that the child should be placed in custody of the

petitioners on Friday, Saturday and Sunday;

2. that the child should be returned to the respondents by

the petitioners on Sunday at 8:00 oclock in the evening
subject to visitorial rights of the petitioners anytime of the
day; and

3. that the child can be brought by the respondents to

Valenzuela but should be returned to the petitioners on Friday
morning.
 The above agreement shall take effect today and parties are ordered to
comply strictly with the said agreement under pain of contempt in case
of violation thereof.

On 29 September 2002, Bagtas and Sioson learned that Rosita S. Gallardo

brought Maryl Joy to Samar. In their motion[10] dated 30 September 2002, Bagtas
and Sioson prayed that the Spouses Gallardo be directed to produce Maryl Joy
before the RTC, that they be directed to explain why they violated the RTCs 13
September 2002 Order, and that they be cited in contempt. In their motion[11] to
dismiss dated 11 October 2002, Bagtas and Sioson prayed that the Spouses
Gallardos action be dismissed pursuant to Section 3, Rule 17, of the Rules of
Court. Section 3 states that If, for no justifiable cause, the plaintiff fails x x x to
comply with x x x any order of the court, the complaint may be dismissed upon
motion of the defendant or upon the courts own motion. Bagtas and Sioson
claimed that the Spouses Gallardo failed to comply with the RTCs 13 September
2002 Order.

In its Order[12] dated 15 October 2002, the RTC cited the Spouses Gallardo in
contempt, fined them P500, and ordered them to produce Maryl Joy before the
trial court.

The RTCs Ruling

In its Order[13] dated 9 December 2002, the RTC dismissed the action for having
become moot. The RTC stated:

In this petition, the prayer of the petitioners is to produce the person of

Meryl [sic] Joy S. Gallardo before this court to be turned over to herein
petitioners who are the maternal [grandparents] of said minor.
Since the person subject of the petition has already produced [sic] to this court and
has been turned over to the petitioners, the issue on the petition for habeas corpus
is now moot and academic without prejudice to the filing of the proper action to
determine as to the rightful custody over the minor child.

In view thereof, x x x the Motion to Dismiss is hereby granted but without prejudice
on the petitioners to file proper action for custody of the minor. (Emphasis supplied)

In their motion[14] for reconsideration dated 27 December 2002, Bagtas and Sioson
alleged that the ground for the dismissal of the action was erroneous. The action
should have been dismissed pursuant to Section 3, Rule 17, of the Rules of
Court. They prayed that Maryl Joy be returned to them to preserve the status quo
ante. Bagtas and Sioson stated:

5. Thus, the Honorable Court very clearly issued a conflicting Order

because It has cited the [Spouses Gallardo] in contempt of court for
violating the previous September 13, 2002 Order that the child
should be returned to the respondents in the evening of September
29, 2002 (Sunday), and yet the Honorable Court has dismissed the
petition for being moot and academic. This is in effect giving
premium to the act of the petitioners of not turning over the child to
respondents on September 29, 2002. Likewise, this is tantamount to
rewarding them for not producing the child in court in violation of
the aforesaid September 13, 2002 Order;

6. Moreover, the Honorable Court has issued an unreasonable

Order by stating that the dismissal of the instant case is without
 prejudice to the filing of the proper action for custody of the minor
by the petitioners. Why would the petitioners still file the proper
action for custody if they now have the custody of the minor?

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

that the December 9, 2002 Order of the Honorable Court be partially
reconsidered so that the dismissal of the case will not be based on the
ground of being moot and academic but based on failure to comply with
the September 13, 2002 pursuant [sic] to Section 3, Rule 17 of the 1997
Rules of Civil Procedure and that petitioners be consequently directed
to return the person subject of the petition to the respondents to
preserve the status quo ante.

In its Order[15] dated 21 April 2003, the RTC denied the motion for
reconsideration. The RTC held that the sole purpose of the petition for habeas
corpus was the production of Maryl Joy and that the Spouses Gallardo exercised
substitute parental authority over Maryl Joy. The RTC stated that:

The allegations in the Petition show that the sole purpose for
the filing of the Petition is to cause the production before the Court of
the person of minor Meryl [sic] Joy S. Gallardo, not a determination of
the legality or illegality of respondents custody of the child, petitioners
being aware of the fact that the child was left by their (petitioners)
daughter to [sic] the custody of the respondents, as stated in par. no. 10
of the Petition.
The instant Petition is therefore, essentially not a petition for Habeas Corpus as
contemplated in Rule 102, Revised Rules of Court which is resorted to in all cases of
illegal confinement by which any person is deprived of his liberty (Cruz vs. CA, 322
SCRA 518), but is resorted to also where the rightful custody of any person is
withheld from the person entitled thereto as contemplated in Rule 102, Revised
Rules of Court. In order that the special remedy of Habeas Corpus maybe [sic]
invoked, it is necessary that there should be an actual and effective restraint or
deprivation of liberty. A nominal or moral restraint is not sufficient (Gonzales vs.
Viola, et al., 61 Phil 824).

Since therefore, the purpose of the instant Petition has already been served, as the
child has been produced and delivered to the petitioners, the instant Petition
logically has become moot and academic. Petitioners are, under the law (Art. 214,
Family Code), authorized to exercise substitute parental authority over the child in
case of death, absence or unsuitability of the parents, the entitlement to the legal
custody of the child being necessarily included therein to make possible and/or
enable the petitioners to discharge their duties as substitute parents.

There is no inconsistency between the Order dated December 9, 2002 sought to be

reconsidered, and the Order dated October 15, 2002, as the latter was issued
pursuant to an incident, an interlocutory matter, that is, the failure of the petitioners
to comply with the agreement reached between the parties in open court on
September 13, 2002. The said Order dated October 15, 2002 is not a resolution of
the case in the main, as it did not terminate the case. The Order dated December 9,
2002, on the other hand, terminated the case, and considering that the dismissal of
the case was unqualified, the same amounted to an adjudication on the merits
pursuant to Sec. 3, Rule 17 of the Revised Rules of Court Procedure, therefore, the
agreement earlier entered by and between the herein parties is deemed
terminated.(Emphasis supplied)
 Bagtas filed with the Court of Appeals a petition[16] for certiorari under Rule
65 of the Rules of Court. Bagtas alleged that (1) the RTC erred when it ruled that
the sole purpose of the 1 August 2002 petition was the production of Maryl Joy
before the trial court, (2) the RTC erred when it ruled that the petition was
essentially not a petition for Habeas Corpus as contemplated in Rule 102, (3) the
RTC erred when it ruled that there must be actual and effective deprivation of
liberty, (4) the RTC erred when it ruled that the action had become moot, (5) the
RTC erred when it ruled that the Spouses Gallardo had substitute parental
authority over Maryl Joy, and (6) the RTC erred when it ruled that there was no
inconsistency between the 15 October and 9 December 2002 Orders.

The Court of Appeals Ruling

In its Decision dated 11 June 2004, the Court of Appeals dismissed the petition
and affirmed the 9 December 2002 and 23 April 2003 Orders of the RTC. The
Court of Appeals held that:

In the second part of [Section 1, Rule 102, of the Rules of Court], x x x

habeas corpus may be resorted to in cases where the rightful custody of
any person is withheld from the person entitled thereto. Accordingly,
the writ of habeas corpus is the proper remedy to enable herein private
respondents to regain the custody of their minor grand daughter Maryl
Joy who was admittedly left by her natural mother in the care of
petitioner and Lydia Sioson.

Significantly, in custody cases involving minors, the question of illegal or involuntary

restraint is not the underlying rationale for the availability of the writ of habeas
corpus as a remedy; rather, the writ is prosecuted for the purpose of determining
the right of custody of a child. By dismissing the petition a quo, the trial court in
effect upheld private respondents right of custody over the minor involved as against
that of petitioner.

While it cannot be gainsaid that private respondents obtained initial

custody of the minor in violation of a valid court order, we nonetheless
sustain the judgment a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private respondents are
the grandparents of Maryl Joy, hence, lawfully authorized to exercise
substitute parental authority over her in the absence of her
parents. What is more, in awarding custody to private respondents, the
best welfare of the child was taken into consideration inasmuch as, per
report of the Court Social Worker, the implementation of the parties
agreement would cause more psychological damage and traumatic
experience to Maryl Joy. To our mind, therefore, the violation of a court
order pales in significance when considered alongside the best interest
of the minor whose welfare requires that she be in the custody of her
grandparents rather than petitioners. x x x

Under the factual and legal milieux of the case, there is no question that
as grandparents of the minor, Maryl Joy, private respondents have a far
superior right of custody over her than petitioner.[17]

The Issues
In his petition dated 1 February 2005, Bagtas raised as issues that:

THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION

IN NOT FINDING THAT TRIAL COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN FINDING THAT
THE ALLEGATION IN THE PETITION FOR HABEAS CORPUS SHOW THAT
THE SOLE PURPOSE FOR THE FILING THEREOF IS TO CAUSE THE
PRODUCTION BEFORE THE COURT OF THE PERSON IN WHOSE FAVOR IT
WAS FILED.

WHETHER OR NOT THE GRANDPARENTS HAVE THE RIGHT OF CUSTODY

FOR THE CHILD

THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION IN NOT
FINDING THAT THE TRIAL COURT GRAVELY ABUSED ITS DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN RULING THAT WITH THE DELIVERY OF THE CHILD FOR
WHOM THE PETITION WAS FILED, THE PETITION FOR HABEAS CORPUS HAS BECOME
MOOT AND ACADEMIC.

The Courts Ruling

The Court of Appeals erred when it affirmed the RTCs 9 December 2002 and 21
April 2003 Orders. In its Orders, the RTC ruled that, since the sole purpose of the
petition for habeas corpus was the production of Maryl Joy before the trial court,
the action became moot when Maryl Joy was produced. The Court disagrees.

Section 1, Rule 102, of the Rules of Court states that the writ of habeas corpus
shall extend to all cases where the rightful custody of any person is withheld from
the persons entitled thereto. In cases involving minors, the purpose of a petition
for habeas corpus is not limited to the production of the child before the
court. The main purpose of the petition for habeas corpus is to determine who
has the rightful custody over the child. In Tijing v. Court of Appeals,[18] the Court
held that:

The writ of habeas corpus extends to all cases of illegal confinement

or detention by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the person
entitled thereto. Thus, it is the proper legal remedy to enable parents
to regain the custody of a minor child even if the latter be in the
custody of a third person of his own free will. It may even be said
that in custody cases involving minors, the question of illegal and
involuntary restraint of liberty is not the underlying rationale for the
availability of the writ as a remedy. Rather, it is prosecuted for the
purpose of determining the right of custody over a child. (Emphasis
supplied)

The RTC erred when it hastily dismissed the action for having become moot after
Maryl Joy was produced before the trial court. It should have conducted a trial to
determine who had the rightful custody over Maryl Joy. In dismissing the action,
the RTC, in effect, granted the petition for habeas corpus and awarded the
custody of Maryl Joy to the Spouses Gallardo without sufficient
basis. In Laxamana v. Laxamana,[19] the Court held that:

Mindful of the nature of the case at bar, the court a quo should
have conducted a trial notwithstanding the agreement of the parties
to submit the case for resolution on the basis, inter alia, of the
psychiatric report of Dr. Teresito. Thus, petitioner is not estopped
from questioning the absence of a trial considering that said
 psychiatric report, which was the courts primary basis in awarding
custody to respondent, is insufficient to justify the decision. The
fundamental policy of the State to promote and protect the welfare
of children shall not be disregarded by mere technicality in resolving
disputes which involve the family and the youth. (Emphasis supplied)

Article 214 of the Civil Code states that in case of absence or unsuitability of the
parents, substitute parental authority shall be exercised by the surviving
grandparent. Article 216 states that in default of parents or a judicially appointed
guardian, the surviving grandparent shall exercise substitute parental authority
over the child. Accordingly, in its 21 April 2003 Order, the RTC held that:

Petitioners are, under the law (Art. 214, Family Code), authorized to
exercise substitute parental authority over the child in case of death,
absence or unsuitability of the parents, the entitlement to the legal
custody of the child being necessarily included therein to make possible
and/or enable the petitioners to discharge their duties as substitute
parents.[20]

In its 11 June 2004 Decision, the Court of Appeals held that:

While it cannot be gainsaid that private respondents obtained initial

custody of the minor in violation of a valid court order, we nonetheless
sustain the judgment a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private respondents are
the grandparents of Maryl Joy, hence, lawfully authorized to exercise
substitute parental authority over her in the absence of her parents.[21]
In determining who has the rightful custody over a child, the childs welfare is the
most important consideration. The court is not bound by any legal right of a
person over the child. In Sombong v. Court of Appeals,[22] the Court held that:

The controversy does not involve the question of personal freedom,

because an infant is presumed to be in the custody of someone until
he attains majority age. In passing on the writ in a child custody case,
the court deals with a matter of an equitable nature. Not bound by
any mere legal right of parent or guardian, the court gives his or her
claim to the custody of the child due weight as a claim founded on
human nature and considered generally equitable and
just. Therefore, these cases are decided, not on the legal right of the
petitioner to be relieved from unlawful imprisonment or detention,
as in the case of adults, but on the courts view of the best interests of
those whose welfare requires that they be in custody of one person
or another. Hence, the court is not bound to deliver a child into the
custody of any claimant or of any person, but should, in the
consideration of the facts, leave it in such custody as its welfare at
the time appears to require. In short, the childs welfare is the
supreme consideration.

Considering that the childs welfare is an all-important factor in custody cases, the
Child and Youth Welfare Code unequivocally provides that in all questions regarding
the care and custody, among others, of the child, his welfare shall be the
paramount consideration. In the same vein, the Family Code authorizes the courts
to, if the welfare of the child so demands, deprive the parents concerned of
parental authority over the child or adopt such measures as may be proper under
the circumstances. (Emphasis supplied)
In Sombong,[23] the Court laid down three requisites in petitions for habeas corpus
involving minors: (1) the petitioner has a right of custody over the minor, (2) the
respondent is withholding the rightful custody over the minor, and (3) the best
interest of the minor demands that he or she be in the custody of the
petitioner. In the present case, these requisites are not clearly established
because the RTC hastily dismissed the action and awarded the custody of Maryl
Joy to the Spouses Gallardo without conducting any trial.

The proceedings before the RTC leave so much to be desired. While a remand of
the case would mean further delay, Maryl Joys best interest demands that proper
proceedings be conducted to determine the fitness of the Spouses Gallardo to
take care of her.

WHEREFORE, the Court REMANDS the case to the Regional Trial Court, Judicial
Region 4, Branch 72, Antipolo City, for the purpose of receiving evidence to
determine the fitness of the Spouses Antonio and Rosita S. Gallardo to have
custody of Maryl Joy Gallardo.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice
WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

ASSOCIATE JUSTICE
MA. CRISTINA TORRES G.R. No. 181174
BRAZA, PAOLO JOSEF T.
BRAZA and JANELLE ANN T. Present:
BRAZA,
Petitioners, PUNO, C.J., Chairperson,
CARPIO MORALES,
LEONARDO-DE CASTRO,
BERSAMIN, and
- versus - VILLARAMA, JR., JJ.

THE CITY CIVIL REGISTRAR

OF HIMAMAYLAN CITY,
NEGROS OCCIDENTAL, minor
PATRICK ALVIN TITULAR
BRAZA, represented by LEON
TITULAR, CECILIA TITULAR Promulgated:
and LUCILLE C. TITULAR, December 4, 2009
Respondents.

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

DECISION

CARPIO MORALES, J.:

Petitioner Ma. Cristina Torres (Ma. Cristina) and Pablo Sicad Braza, Jr.
(Pablo), also known as Pablito Sicad Braza, were married[1] on January 4,
1978. The union bore Ma. Cristinas co-petitioners Paolo Josef[2] and Janelle
Ann[3] on May 8, 1978 and June 7, 1983, respectively, and Gian Carlo[4] on June 4,
1980.
Pablo died[5] on April 15, 2002 in a vehicular accident in Bandung, West
Java, Indonesia.

During the wake following the repatriation of his remains to the Philippines,
respondent Lucille Titular (Lucille) began introducing her co-respondent minor
Patrick Alvin Titular Braza (Patrick) as her and Pablo's son. Ma. Cristina
thereupon made inquiries in the course of which she obtained Patrick's birth
certificate[6] from the Local Civil Registrar of Himamaylan City, Negros
Occidental with the following entries:

Name of Child: PATRICK ALVIN CELESTIAL

TITULAR
Date of Birth: 01 January 1996
Mother: Lucille Celestial Titular
Father: Pablito S. Braza
Date Received at the
Local Civil Registrar: January 13, 1997
Annotation: "Late Registration"
Annotation/Remarks: "Acknowledge (sic) by the father
Pablito Braza on January 13, 1997"
Remarks: Legitimated by virtue of subsequent marriage of
parents on April 22, 1998 at Manila. Henceforth, the child
shall be known as Patrick Alvin Titular Braza (Emphasis and
underscoring supplied)

Ma. Cristina likewise obtained a copy[7] of a marriage contract showing that Pablo
and Lucille were married on April 22, 1998, drawing her and her co-petitioners to
file on December 23, 2005 before the Regional Trial Court of Himamaylan City,
Negros Occidental a petition[8] to correct the entries in the birth record of Patrick in
the Local Civil Register.

Contending that Patrick could not have been legitimated by the supposed
marriage between Lucille and Pablo, said marriage being bigamous on account of
the valid and subsisting marriage between Ma. Cristina and Pablo, petitioners
prayed for (1) the correction of the entries in Patrick's birth record with respect to
his legitimation, the name of the father and his acknowledgment, and the use of the
last name "Braza"; 2) a directive to Leon, Cecilia and Lucille, all surnamed Titular,
as guardians of the minor Patrick, to submit Parick to DNA testing to determine his
paternity and filiation; and 3) the declaration of nullity of the legitimation of
Patrick as stated in his birth certificate and, for this purpose, the declaration of the
marriage of Lucille and Pablo as bigamous.
 On Patricks Motion to Dismiss for Lack of Jurisdiction, the trial court, by
[9]
Order of September 6, 2007, dismissed the petition without prejudice, it holding
that in a special proceeding for correction of entry, the court, which is not acting as
a family court under the Family Code, has no jurisdiction over an action to annul
the marriage of Lucille and Pablo, impugn the legitimacy of Patrick, and order
Patrick to be subjected to a DNA test, hence, the controversy should be ventilated
in an ordinary adversarial action.

Petitioners motion for reconsideration having been denied by Order [10] of

November 29, 2007, they filed the present petition for review.

Petitioners maintain that the court a quo may pass upon the validity of
marriage and questions on legitimacy even in an action to correct entries in the
civil registrar. Citing Cario v. Cario,[11] Lee v. Court of Appeals[12] and Republic v.
Kho,[13] they contend that even substantial errors, such as those sought to be
corrected in the present case, can be the subject of a petition under Rule 108.[14]

The petition fails. In a special proceeding for correction of entry under Rule 108
(Cancellation or Correction of Entries in the Original Registry), the trial court has
no jurisdiction to nullify marriages and rule on legitimacy and filiation.

Rule 108 of the Rules of Court vis a vis Article 412 of the Civil Code[15] charts
the procedure by which an entry in the civil registry may be cancelled or
corrected. The proceeding contemplated therein may generally be used only to
correct clerical, spelling, typographical and other innocuous errors in the civil
registry. A clerical error is one which is visible to the eyes or obvious to the
understanding; an error made by a clerk or a transcriber; a mistake in copying or
writing, or a harmless change such as a correction of name that is clearly
misspelled or of a misstatement of the occupation of the parent. Substantial or
contentious alterations may be allowed only in adversarial proceedings, in which
all interested parties are impleaded and due process is properly observed.[16]

The allegations of the petition filed before the trial court clearly show that
petitioners seek to nullify the marriage between Pablo and Lucille on the ground
that it is bigamous and impugn Patricks filiation in connection with which they ask
the court to order Patrick to be subjected to a DNA test.
 Petitioners insist, however, that the main cause of action is for the correction
of Patricks birth records[17] and that the rest of the prayers are merely incidental
thereto.

Petitioners position does not lie. Their cause of action is actually to seek the
declaration of Pablo and Lucilles marriage as void for being bigamous and impugn
Patricks legitimacy, which causes of action are governed not by Rule 108 but by
A.M. No. 02-11-10-SC which took effect on March 15, 2003, and Art. 171[18] of
the Family Code, respectively, hence, the petition should be filed in a Family Court
as expressly provided in said Code.

It is well to emphasize that, doctrinally, validity of marriages as well as

legitimacy and filiation can be questioned only in a direct action seasonably filed
by the proper party, and not through collateral attack such as the petition filed
before the court a quo.
Petitioners reliance on the cases they cited is misplaced.

Cario v. Cario was an action filed by a second wife against the first wife for
the return of one-half of the death benefits received by the first after the death of
the husband. Since the second wife contracted marriage with the husband while the
latters marriage to the first wife was still subsisting, the Court ruled on the validity
of the two marriages, it being essential to the determination of who is rightfully
entitled to the death benefits.

In Lee v. Court of Appeals, the Court held that contrary to the contention that
the petitions filed by the therein petitioners before the lower courts were actions to
impugn legitimacy, the prayer was not to declare that the petitioners are
illegitimate children of Keh Shiok Cheng as stated in their records of birth but to
establish that they are not the latters children, hence, there was nothing to impugn
as there was no blood relation at all between

the petitioners and Keh Shiok Cheng. That is why the Court ordered the
cancellation of the name of Keh Shiok Cheng as the petitioners mother and the
substitution thereof with Tiu Chuan who is their biological mother. Thus, the
collateral attack was allowed and the petition deemed as adversarial proceeding
contemplated under Rule 108.

In Republic v. Kho, it was the petitioners themselves who sought the

correction of the entries in their respective birth records to reflect that they were
illegitimate and that their citizenship is Filipino, not Chinese, because their parents
were never legally married. Again, considering that the changes sought to be made
were substantial and not merely innocuous, the Court, finding the proceedings
under Rule 108 to be adversarial in nature, upheld the lower courts grant of the
petition.

It is thus clear that the facts in the above-cited cases are vastly different from
those obtaining in the present case.

WHEREFORE, the petition is DENIED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice