ADOPTION CASE

FIRST DIVISION

 

 

ANA JOYCE S. REYES,                           G.R. No. 167405

                             Petitioner,

                                                                    Present:

                              

                                                                      Panganiban, C.J. (Chairperson),

          - versus -                                               Ynares-Santiago,

                                                                      Austria-Martinez,

   Callejo, Sr., and

   Chico-Nazario, JJ.

HON. CESAR M. SOTERO, Presiding

Judge, RTC of Paniqui, Tarlac, Branch

67, ATTY. PAULINO SAGUYOD, the

Clerk of Court of Branch 67 of the RTC

at Paniqui, Tarlac in his capacity as

Special Administrator, CORAZON

CHICHIOCO, ANGELITO LISING,

ERLINDA ESPACIO, GONZALO           Promulgated:

ZALZOS and ERNESTO LISING,

                             Respondents.                     February 16, 2006

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

 

DECISION

 

YNARES-SANTIAGO, J.:

 

 

          This petition for review seeks to modify the Decision of the Court of

Appeals dated May 14, 2004 in CA-G.R. SP No. 74047 as well as the

Resolution dated May 14, 2005 denying the motion for reconsideration.  In

the assailed judgment, the Court of Appeals annulled and set aside the

September 18, 2002 and November 12, 2002 Resolutions of the Regional

Trial Court (RTC) of Paniqui, Tarlac, Branch 67 in Spec. Proc. No. 204 but

refrained from dismissing the petition for letters of administration and

settlement of estate on the ground that petitioner must first prove that she

was legally adopted by the decedent, Elena Lising.

 

On September 15, 1998, respondent Corazon L. Chichioco filed a

petition for the issuance of letters of administration and settlement of estate

of the late Elena Lising before the RTC of Paniqui, Tarlac, where it was

docketed as Spec. Proc. No. 204 and raffled to Branch 67.  Chichioco

claimed that she was the niece and heir of Lising who died intestate on July

31, 1998.  Named as co-heirs of Chichioco were Rosario L. Zalzos, Florante

Zalzos, Erlinda Lising, Manuel Lising, Evelyn Lising, Josephine Lising,

Alfredo Lising and respondents Ernesto Lising and Erlinda Espacio.

 

According to Chichioco, the deceased left real properties located in

the municipalities of Ramos and Paniqui, Tarlac, as well as assorted pieces

of jewelry and money which were allegedly in the possession of petitioner

Ana Joyce S. Reyes, a grandniece of the deceased.  Chichioco prayed that

she be appointed administrator of the estate, upon payment of a bond,

pending settlement and distribution of Lising’s properties to the legal heirs.

 

          On November 6, 1998, petitioner Reyes filed an Opposition to the

petition, claiming that she was an adopted child of Lising and the latter’s

husband, Serafin Delos Santos, who died on November 30, 1970.  She

asserted that the petition should be dismissed and that the appointment of an

administrator was unnecessary, since she was the only heir of Lising who

passed away without leaving any debts.  She further asserted that Chichioco

is unfit to serve as administrator of Lising’s estate because of her

“antagonistic interests” against the decedent.  Chichioco and her alleged co-

heirs have questioned the decedent’s title to a piece of real property which

forms a large part of the estate.  

 

          On November 11, 1998, petitioner filed a Supplement to the

Opposition attaching thereto the Certification issued by the Municipal Civil

Registrar of Paniqui, Tarlac stating that on page 76, Book No. 01 of the

Register of Court Decrees, Reyes was adopted by Elena Lising and Serafin

Delos Santos pursuant to a decision rendered in Spec. Proc. No. 1410 by

Judge Julian Lustre of the Court of First Instance (CFI) of Tarlac, Branch 3,

promulgated on December 21, 1968 and duly registered with the Office of

the Civil Registrar on January 29, 1969.

         

Petitioner also submitted a Certification issued by the Clerk of Court

of the RTC-Tarlac City, stating that a judgment was rendered in Spec. Proc.

No. 1410 on December 21, 1968 decreeing petitioner’s adoption by Elena

Lising and Serafin Delos Santos.  She also presented a copy of Judicial Form

No. 43 indicating that the adoption decree was on file in the General Docket

of the RTC-Tarlac City, wherein the dispositive portion of the adoption

decree was recorded as follows:

 

In view of the foregoing, the court finds this petition a proper case for adoption and therefore grants the same. Consequently, the Court declares that henceforth, the child Ana Joyce C. Zalzos is freed from all legal obligations of obedience and maintenance with respect to her natural parents Orlando Zalzos and May C. Castro, and is to all legal intents and purposes the child of the petitioners Serafin delos Santos and Elena Lising.     

 

Petitioner likewise submitted a Decree of Final Distribution issued by

the Philippine Veterans Affairs Office (PVAO) showing that, upon the death

of Serafin Delos Santos, death benefits were paid to his widow, Elena

Lising, and his “daughter”, Ana Joyce Delos Santos, in accordance with

pertinent provisions of law.

 

On April 5, 1999, the RTC ordered respondents to submit

documentary evidence to prove the jurisdictional facts of the case and to

comment on petitioner’s opposition.  Only Rosario L. Zalsos appears to have

filed a Comment/Reply to Oppositor’s Opposition, after which the RTC

ordered the parties to submit memoranda thereon.  On July 22, 1999, the

case was deemed submitted for resolution.       

 

          Meanwhile, on June 30, 1999, Chichioco and her alleged co-heirs filed

before the Court of Appeals a petition for annulment of the adoption decree

docketed as SP No. 53457.  They claimed that no proceedings for the

adoption of petitioner took place in 1968 since the Provincial Prosecutor of

Tarlac and the Office of the Solicitor General (OSG) had no records of the

adoption case.  Petitioner’s natural mother supposedly connived with the

court personnel to make it appear that petitioner was adopted by the Delos

Santos spouses and that the CFI’s order for initial hearing was published in a

weekly newspaper which was not authorized to publish court orders in

special proceedings.

 

          Upon motion of Chichioco, the RTC ordered on October 4, 1999, the

suspension of hearings in Spec. Proc. No. 204 pending the outcome of SP

No. 53457.  Subsequently, however, the Court of Appeals dismissed SP No.

53457 for failure to comply with the third paragraph of Section 4, Rule 47 of

the Rules of Court.  The said dismissal became final and executory on

March 8, 2000.

 

          Thereafter, on August 22, 2000, petitioner filed a motion before the

RTC praying that the opposition to Spec. Proc. No. 204 be finally resolved

and that the petition be dismissed.  This was followed by an Urgent Ex Parte

Motion filed by petitioner on October 17, 2000 praying for the immediate

resolution of her opposition.   

 

On November 16, 2000, respondents filed a Comment to the

opposition stating that reasonable doubts have been cast on petitioner’s

claim that she was legally adopted due allegedly to certain “badges of

fraud.”  Respondents also informed the RTC that they have filed a criminal

complaint against petitioner before the Office of the Provincial Prosecutor,

Tarlac City, for alleged falsification of the adoption decree and Judicial

Form No. 43, docketed as I.S. No. 00-1016.

 

Subsequently, the RTC issued a Resolution dated December 12, 2000

deferring resolution of petitioner’s opposition to Spec. Proc. No. 204,

pending the outcome of the criminal case filed against the latter.  In the

meantime, the parties were enjoined from dissipating or disposing any or all

of the properties included in the estate of Elena Lising without order from

this Court.

 

          On December 13, 2000, Chichioco filed an Urgent Motion to Appoint

Special Administrator before the RTC on the ground that there was yet no

true determination and appraisal of the decedent’s universal estate.  It was

prayed therein that the Branch Clerk of Court, Atty. Paulino Saguyod, be

appointed special administrator as he was “an experienced and able person

in the management of properties” and is “honest, impartial, competent and

acceptable to the majority of the interested parties.”

 

In the meantime, the Provincial Prosecutor found probable cause to

charge petitioner with falsification of public documents per resolution dated

January 5, 2001.  Petitioner thus appealed the said finding to the Office of

the Regional State Prosecutor.

 

          On August 8, 2001, the RTC granted respondents’ motion for the

appointment of a special administrator and appointed its branch clerk of

court, Atty. Saguyod.  Petitioner moved for reconsideration on the grounds

that the branch clerk of court was disqualified from taking on the task of

special administrator, and that Atty. Saguyod was appointed without being

required to file a bond.  Petitioner also reiterated that the petition should be

dismissed because she is the sole heir of the decedent.  However, the RTC

denied petitioner’s motion for reconsideration on November 5, 2001.

    

          On January 14, 2002, the Office of the Regional State Prosecutor

reversed the findings of the Provincial Prosecutor and dismissed the criminal

complaint against petitioner.  Undaunted, Chichioco filed a petition for

review before the Department of Justice (DOJ).

 

          Simultaneously, Chichioco and the other alleged co-heirs filed a

motion before the RTC to enjoin petitioner from conducting business in a

property belonging to the estate. Respondent Chichioco alleged that

petitioner converted the basement of Lising’s residence into a billiard hall

without authority of the special administrator.

 

          Acting on said motion, the RTC issued a resolution on September 18,

2002, the dispositive part of which reads:

 

WHEREFORE, the Oppositor Ana Joyce Reyes is hereby enjoined from conducting business activity in any of the properties left by the decedent. The Special Administrator is also empowered to take control and possession of the listed personal and real properties of the decedent and those that may be found to be owned or registered in the name of the same.

SO ORDERED.

 

Petitioner filed a motion for reconsideration of the above resolution

which was denied by the RTC on November 12, 2002.  On even date, the

DOJ also issued a resolution dismissing respondent Chichioco’s petition for

review in the criminal case.

 

Subsequently, petitioner filed a special civil action for certiorari

before the Court of Appeals, docketed as CA-G.R. SP No. 74047, assailing

the September 18, 2002 and November 12, 2002 resolutions of the RTC.

Petitioner alleged that said resolutions were issued with grave abuse of

discretion amounting to lack or in excess of jurisdiction since as sole heir,

she had the right to possess and use the decedent’s property, title over which

automatically passed on to her upon the latter’s death.  Moreover, the special

administrator, Atty. Saguyod, had yet to file a bond and submit an inventory

of the decedent’s estate.

         

Additionally, petitioner insisted that Spec. Proc. No. 204 should be

dismissed since the dismissal by the Court of Appeals of SP No. 53457

constituted res judicata as to the former.  There was likewise no valid

challenge to her adoption and she consequently remains to be the sole heir of

the decedent.  Thus, she stressed that there was no need for the appointment

of an administrator or for the settlement proceedings.    

 

In due course, the Court of Appeals rendered judgment nullifying the

resolutions of the trial court. It held that the presiding judge, Judge Cesar M.

Sotero, gravely abused his discretion in appointing his branch clerk of court

as special administrator.  Citing Balanay, Jr. v. Martinez, the appellate court

reasoned that such act could engender a suspicion that Judge Sotero and his

clerk are in cahoots in milking the decedent’s estate. Moreover, Atty.

Saguyod failed to comply with the requirements of a bond and inventory and

could not therefore take control and possession of any of the decedent’s

properties.

 

However, the appellate court refused to dismiss Spec. Proc. No. 204

since the dismissal of SP No. 53457 was not a judgment on the merits and

did not operate as res judicata to the former.  It was also incumbent upon

petitioner to prove before the trial court that she was indeed adopted by the

Delos Santos spouses since, according to the appellate court, “imputations of

irregularities permeating the adoption decree render its authenticity under a

cloud of doubt.”

 

Petitioner’s motion for reconsideration having been denied on March

15, 2005, hence this petition on the following assigned errors:

 

A.        THE HONORABLE COURT ERRED IN HOLDING THAT PETITIONER HAD TO PROVE THE VALIDITY OF HER ADOPTION DUE TO IMPUTATIONS OF IRREGULARITIES IN VIEW OF SECTION 47 OF RULE 39.  

 B.         THE HONORABLE COURT ERRED IN HOLDING THAT THE

DISMISSAL IN SP NO. 53457 WAS NOT A DISMISSAL ON THE MERITS.

 

          The petition is meritorious.                

 

          On the first assigned error, we agree with petitioner that she need not

prove her legal adoption by any evidence other than those which she had

already presented before the trial court.  To recall, petitioner submitted a

certification from the local civil registrar’s office that the adoption decree

was registered therein and also a copy of Judicial Form No. 43 and a

certification issued by the clerk of court that the decree was on file in the

General Docket of the RTC-Tarlac City.  Both certifications were issued

under the seal of the issuing offices and were signed by the proper officers.

These are thus presumed to have been regularly issued as part of the official

duties that said public officers perform.

 

It should be borne in mind that an adoption decree is a public

document required by law to be entered into the public records, the official

repository of which, as well as all other judicial pronouncements affecting

the status of individuals, is the local civil registrar’s office as well as the

court which rendered the judgment.  

 

Documents consisting of entries in public records made in the

performance of a duty by a public officer are prima facie evidence of the

facts therein stated.  As such, the certifications issued by the local civil

registrar and the clerk of court regarding details of petitioner’s adoption

which are entered in the records kept under their official custody, are prima

facie evidence of the facts contained therein.  These certifications suffice as

proof of the fact of petitioner’s adoption by the Delos Santos spouses until

contradicted or overcome by sufficient evidence.  Mere “imputations of

irregularities” will not cast a “cloud of doubt” on the adoption decree since

the certifications and its contents are presumed valid until proof to the

contrary is offered.

 

In this regard, it must be pointed out that such contrary proof can be

presented only in a separate action brought principally for the purpose of

nullifying the adoption decree.  The latter cannot be assailed collaterally in a

proceeding for the settlement of a decedent’s estate, as categorically held in

Santos v. Aranzanso.  Accordingly, respondents cannot assail in these

proceedings the validity of the adoption decree in order to defeat petitioner’s

claim that she is the sole heir of the decedent.  Absent a categorical

pronouncement in an appropriate proceeding that the decree of adoption is

void, the certifications regarding the matter, as well as the facts stated

therein, should be deemed legitimate, genuine and real.  Petitioner’s status as

an adopted child of the decedent remains unrebutted and no serious

challenge has been brought against her standing as such.  Therefore, for as

long as petitioner’s adoption is considered valid, respondents cannot claim

any interest in the decedent’s estate.  For this reason, we agree with

petitioner that Spec. Proc. No. 204 should be dismissed.

 

As succinctly held in Santos v. Aranzanso:

 

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

 

Petitioner, whose adoption is presumed to be valid, would necessarily

exclude respondents from inheriting from the decedent since they are mere

collateral relatives of the latter.  To allow the proceedings below to continue

would serve no salutary purpose but to delay the resolution of the instant

case.  After all, the dismissal of Spec. Proc. No. 204 is the logical

consequence of our pronouncement relative to the presumed validity of

petitioner’s adoption.   

 

Moreover, it must be stressed that all the evidence pertinent to the

resolution of the petitioner’s opposition, which is actually a motion to

dismiss the petition for letters of administration and settlement of the estate,

is a matter of record in the instant case.  The same has in fact been submitted

for resolution before the RTC more than six years ago and is so far the only

pending incident before the RTC.  The parties have likewise amply

ventilated their positions on the matter through their respective pleadings

filed before the lower courts.  No useful purpose will thus be served if we let

the RTC resolve the matter, only for its ruling to be elevated again to the

Court of Appeals and subsequently to this Court.  The remand of the case to

the lower court for further reception of evidence is not necessary where the

Court is in a position to resolve the dispute based on the evidence before it.

This is in keeping with the avowed purpose of the rules of procedure which

is to secure for the parties a just, speedy and inexpensive determination of

every action or proceeding.  Hence, since the grounds for the dismissal of

Spec. Proc. No. 204 are extant in the records and there is no cogent reason to

remand the case to the RTC, Spec. Proc. No. 204 should be dismissed.

 

Based on the foregoing, the Court sees no need to discuss petitioner’s

second assigned error.

 

WHEREFORE, the instant petition is GRANTED. Special

Proceedings No. 204 pending before the Regional Trial Court of Tarlac City,

Branch 67 is DISMISSED.

 

FIRST DIVISION

 

 

IN RE:  PETITION FOR                   G.R. Nos. 168992-93

ADOPTION OF MICHELLE P.

LIM,                                                     Present:

                                                           

MONINA P. LIM,                                PUNO, C.J., Chairperson,

                                     Petitioner.        CARPIO,

 x - - - - - - - - - - - - - - - - - - - - - - - x      CORONA,

                                                             LEONARDO-DE CASTRO, and        

IN RE:  PETITION FOR                   BERSAMIN,  JJ.

ADOPTION OF MICHAEL JUDE

P. LIM,

                                                             Promulgated:

MONINA P. LIM,

                                     Petitioner.        May 21, 2009

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

 

 

 

D E C I S I O N

 

 

CARPIO,  J.:

 

 

The Case

 

         This is a petition for review on certiorari filed by Monina P. Lim

(petitioner) seeking to set aside the Decision dated 15 September 2004 of the

Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL.

PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the

consolidated petitions for adoption of Michelle P. Lim and Michael Jude P.

Lim.

 

 

The Facts

 

         The following facts are undisputed. Petitioner is an optometrist by

profession. On 23 June 1974, she married Primo Lim (Lim). They were

childless. Minor children, whose parents were unknown, were entrusted to

them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of

their own, petitioner and Lim registered the children to make it appear that

they were the children’s parents. The children were named Michelle P. Lim

(Michelle) and Michael Jude P. Lim (Michael). Michelle was barely eleven

days old when brought to the clinic of petitioner. She was born on 15 March

1977. Michael was 11 days old when Ayuban brought him to petitioner’s

clinic. His date of birth is 1 August 1983.

 

         The spouses reared and cared for the children as if they were their own.

They sent the children to exclusive schools. They used the surname “Lim” in

all their school records and documents. Unfortunately, on 28 November

1998, Lim died. On 27 December 2000, petitioner married Angel Olario

(Olario), an American citizen.

 

         Thereafter, petitioner decided to adopt the children by availing of the

amnesty given under Republic Act No. 8552 (RA 8552) to those individuals

who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed 

separate petitions for the adoption of Michelle and Michael before the trial

court  docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At

the time of the filing of the petitions for adoption, Michelle was 25 years old

and already married, while Michael was 18 years and seven months old.

 

         Michelle and her husband gave their consent to the adoption as

evidenced by their Affidavits of Consent. Michael also gave his consent to

his adoption as shown in his Affidavit of Consent.  Petitioner’s husband

Olario likewise executed an Affidavit of Consent for the adoption of

Michelle and Michael.

 

         In the Certification issued by the Department of Social Welfare and

Development (DSWD), Michelle was considered as an abandoned child and 

the whereabouts of her natural parents were unknown. The DSWD issued a

similar Certification for Michael.

        

 

The Ruling of the Trial Court

        

         On 15 September 2004, the trial court rendered judgment dismissing 

the petitions. The trial court ruled that since petitioner had remarried,

petitioner should have filed the petition jointly with her new husband. The

trial court ruled that joint adoption by the husband and the wife is mandatory

citing Section 7(c), Article III of RA 8552 and Article 185 of the Family

Code.

 

         Petitioner filed a Motion for Reconsideration of the decision but the

motion was denied in  the Order dated 16 June 2005. In denying the motion,

the trial court ruled that petitioner did not fall under any of the exceptions

under Section 7(c), Article III of RA 8552. Petitioner’s argument that mere

consent of her husband would suffice was untenable because, under the law,

there are additional requirements, such as residency and certification of his

qualification, which the husband, who was not even made a party in this

case, must comply.

 

         As to the argument that the adoptees are already emancipated and joint

adoption is merely for the joint exercise of parental authority, the trial court

ruled that joint adoption is not only for the purpose of exercising parental

authority because an emancipated child acquires certain rights from his

parents and assumes certain obligations and responsibilities.

 

         Hence, the present petition.

 

 

Issue

 

         Petitioner appealed directly to this Court raising the sole issue of

whether or not petitioner, who has remarried, can singly adopt.

 

 

The Court’s Ruling

 

         Petitioner contends that the rule on joint adoption must be relaxed

because it is the duty of the court and the State to protect the paramount

interest and welfare of the child to be adopted. Petitioner argues that the

legal maxim “dura lex sed lex” is not applicable to adoption cases. She

argues that joint parental authority is not necessary in  this case since, at the

time the petitions were filed, Michelle was 25 years old and already married,

while Michael was already 18 years of age. Parental authority is not

anymore necessary since they have been emancipated having attained the

age of majority.

 

         We deny the petition.

 

Joint Adoption by Husband and Wife

 

         It is undisputed that, at the time the petitions for adoption were filed,

petitioner had already remarried. She filed the petitions by herself, without

being joined by her husband Olario. We have no other recourse but to affirm

the trial court’s decision denying the petitions for adoption. Dura lex sed lex.

The law is explicit. Section 7, Article III of RA 8552 reads:

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

            (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or             (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or             (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or 

            (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.             Husband and wife shall jointly adopt, except in the following cases:

 

            (i)  if one spouse seeks to adopt the legitimate son/daughter of the other; or             (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or             (iii) if the spouses are legally separated from each other.

 

            In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)

 

 

         The use of the word “shall” in the above-quoted provision means that 

joint adoption by the husband and the wife is mandatory. This is in

consonance with the concept of joint parental authority over the child which

is the ideal situation. As the child to be adopted is elevated to the level of a

legitimate child, it is but natural to require the spouses to adopt jointly. The

rule also insures harmony between the spouses.

 

         The law is clear. There is no room for ambiguity. Petitioner, having

remarried at the time the petitions for adoption were filed, must jointly

adopt. Since the petitions for adoption were filed only by petitioner herself,

without joining her husband, Olario, the trial court was correct in denying

the petitions for adoption on this ground.

         Neither does petitioner fall under any of the three exceptions

enumerated in Section 7. First, the children to be adopted are not the

legitimate children of petitioner or of her husband Olario. Second, the

children are not the illegitimate children of  petitioner. And third, petitioner

and Olario are not legally separated from each other.

 

         The fact that Olario gave his consent to the adoption as shown in his

Affidavit of Consent does not suffice. There are certain requirements that

Olario must comply being an American citizen. He must meet the

qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove

that his country has diplomatic relations with the Republic of the

Philippines; (2) he must have been living in the Philippines for at least three

continuous years prior to the filing of the application for adoption; (3) he

must maintain such residency until the adoption decree is entered; (4) he has

legal capacity to adopt in his own country; and (5) the adoptee is allowed to

enter the adopter’s country as the latter’s adopted child. None of these

qualifications were shown and proved during the trial.

 

         These requirements on residency and certification of the alien’s

qualification to adopt cannot likewise be waived pursuant to Section 7. The

children or adoptees are not relatives within the fourth degree of

consanguinity or affinity of petitioner or of Olario. Neither are the adoptees

the legitimate children of petitioner.

 

 

Effects of Adoption

 

         Petitioner contends that joint parental authority is not anymore

necessary since the children have been emancipated having reached the age

of majority.       This is untenable.

 

         Parental authority includes caring for and rearing the children for civic

consciousness and efficiency and the development of their moral, mental and

physical character and well-being.  The father and the mother shall jointly

exercise parental authority over the persons of their common children.  Even

the remarriage of the surviving parent shall not affect the parental authority

over the children, unless the court appoints another person to be the guardian

of the person or property of the children. 

 

         It is true that when the child reaches the age of emancipation — that is,

when he attains the age of majority or 18 years of age —  emancipation

terminates parental authority over the person and property of the child, who

shall then be qualified and responsible for all acts of civil life.  However,  

parental authority is merely just one of the effects of legal adoption. Article

V of RA 8552 enumerates the effects of adoption, thus:

 

ARTICLE V           

EFFECTS OF ADOPTION                        SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).                        SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family.             SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

         Adoption has, thus, the following effects: (1) sever all legal ties

between the biological parent(s) and the adoptee, except when the biological

parent is the spouse of the adopter; (2) deem the adoptee as a legitimate

child of the adopter; and (3) give adopter and adoptee reciprocal rights and

obligations arising from the relationship of parent and child, including but

not limited to: (i) the right of the adopter to choose the name the child is to

be known; and (ii) the right of the adopter and adoptee to be legal and

compulsory heirs of each other.  Therefore, even if emancipation terminates

parental authority, the adoptee is still considered a legitimate child of the

adopter with all the  rights of a legitimate child such as:  (1) to bear the

surname of the father and the mother; (2) to receive support from their

parents; and (3) to be entitled to the legitime and other successional rights.

Conversely, the adoptive parents shall, with respect to the adopted child,

enjoy all the benefits to which biological parents are entitled such as support

and successional rights.

 

         We are mindful of the fact that adoption statutes, being humane and

salutary, hold the interests and welfare of the child to be of paramount

consideration. They are designed to provide homes, parental care and

education for unfortunate, needy or orphaned children and give them the

protection of society and family, as well as to allow childless couples or

persons to experience the joys of parenthood and give them legally a child in

the person of the adopted for the manifestation of their natural parental

instincts. Every reasonable intendment should be sustained to promote and

fulfill these noble and compassionate objectives of the law.   But, as we have

ruled in Republic v. Vergara:

 

            We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial court’s decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses’ petition for adoption. (Emphasis supplied)        

               

Petitioner, being married at the time the petitions for adoption were filed,

should have jointly filed the petitions with her husband. We cannot make

our own legislation to suit petitioner.

 

         Petitioner, in her Memorandum, insists that subsequent events would

show that joint adoption could no longer be possible because Olario has filed

a case for dissolution of his marriage to petitioner in the Los Angeles

Superior Court.

 

         We disagree. The filing of a case for dissolution of the marriage

between petitioner and Olario is of no moment. It is not equivalent to a

decree of dissolution of marriage. Until and unless there is a judicial decree

for the dissolution of the marriage between petitioner and Olario, the

marriage still subsists. That being the case, joint adoption by the husband

and the wife is required. We reiterate our ruling above that since, at the time

the petitions for adoption were filed, petitioner was married to Olario, joint

adoption is mandatory.

 

 

 

 

 

         WHEREFORE, we DENY the petition. We AFFIRM the Decision

dated 15 September 2004 of the Regional Trial Court, General Santos City,

Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against

petitioner.

FIRST DIVISION

 

 

DIWATA RAMOS LANDINGIN          G.R. No. 164948

          Petitioner,

                                                                Present 

 

      PANGANIBAN, C.J., Chairperson,

                                                      YNARES-SANTIAGO,              

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

                                                                CHICO-NAZARIO, JJ.

                                       

                                                      Promulgated:

 REPUBLIC OF THE PHILIPPINES,

          Respondent.                             June 27, 2006

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

 

D E C I S I O N

 

CALLEJO, SR., J.:

 

          Assailed in this petition for review on certiorari under Rule 45 of the

Rules of Court is the Decision of the Court of Appeals in CA-G.R. CV No.

77826 which reversed the Decision 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 for the adoption of minors Elaine Dizon Ramos

who was born on August 31, 1986;  Elma Dizon Ramos, who was born on

September 7, 1987; and Eugene Dizon Ramos who was born on August 5,

1989.  The minors are the natural children of Manuel Ramos, petitioner’s

brother, and Amelia Ramos.

 

Landingin, as petitioner, alleged in her petition that when Manuel died

on May 19, 1990, 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 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 to the adoption of the minors.

Petitioner’s brother, Mariano Ramos, who earns substantial income,

signified his willingness and commitment to support the minors while in

petitioner’s custody.

 

Petitioner prayed that, after due hearing, judgment be rendered in her

favor, as follows:

 

WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered  allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon

Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor children’s name follow the family name of petitioner.

 Petitioner prays for such other reliefs, just and equitable under the

premises.

 

         

          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.  The Office of the Solicitor General (OSG) entered its

appearance but deputized the City Prosecutor of Tarlac to appear in its

behalf. Since her petition was unopposed, petitioner was allowed to present

her evidence ex parte.

 

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.  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.

 

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. 

 

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.

 

 

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.         

 

The OSG appealed the decision to the Court of Appeals on December

2, 2002.  In its brief for the oppositor-appellant, the OSG raised the

following arguments:

 

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

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

III

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

 

On April 29, 2004, the CA rendered a decision reversing the ruling of

the RTC.  It held that petitioner failed to adduce in evidence the voluntary

consent of Amelia Ramos, the children’s natural mother.  Moreover, the

affidavit of consent of the petitioner’s children could not also be admitted in

evidence as the same was executed in Guam, USA and was not authenticated

or acknowledged before a Philippine consular office, and although petitioner

has a job, she was not stable enough to support the children.  The dispositive

portion of the CA decision reads:

 

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

 SO ORDERED.  

Petitioner filed a Motion for Reconsideration on May 21, 2004, which

the CA denied in its Resolution dated August 12, 2004.

 

Petitioner, thus, filed the instant petition for review 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.

 

 

The issues raised by the parties in their pleadings are the following: 

(a) whether the petitioner is entitled to adopt the minors without the written

consent of their biological mother, Amelia Ramos; (b) whether or not the

affidavit of consent purportedly executed by the petitioner-adopter’s

children sufficiently complies with the law; and (c) whether or not petitioner

is financially capable of supporting the adoptees.

 

The Court’s Ruling

 

The petition is denied for lack of merit.

 

It has been the policy of the Court to adhere to the liberal concept, as

stated in Malkinson v. Agrava, 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.

 

However, in Cang v. Court of Appeals, the Court also ruled that the

liberality with which this Court treats matters leading to adoption insofar as

it carries out the beneficent purposes of the law to ensure the rights and

privileges of the adopted child arising therefrom, ever mindful that the

paramount consideration is the overall benefit and interest of the adopted

child, should be understood in its proper context and perspective.  The

Court’s position should not be misconstrued or misinterpreted as to extend

to inferences beyond the contemplation of law and jurisprudence. Thus, the

discretion to approve adoption proceedings is not to be anchored solely on

best interests of the child but likewise, with due regard to the natural rights

of the parents over the child.

 

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

Domestic Adoption Act of 1998, provides:

 

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

(a)     The adoptee, if ten (10) years of age or over; (b)    The biological parent(s) of the child, if known, or the legal

guardian, or the proper government instrumentality which has legal custody of the child;

 

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

 

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

 

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

The general requirement of consent and notice to the natural parents is

intended to protect the natural parental relationship from unwarranted

interference by interlopers, and to insure the opportunity to safeguard the

best interests of the child in the manner of the proposed adoption.

 

Clearly, the written consent of the biological parents is indispensable

for the validity of a decree of adoption.  Indeed, the natural right of a parent

to his child requires that his consent must be obtained before his parental

rights and duties may be terminated and re-established in adoptive parents.

In this case, petitioner failed to submit the written consent of Amelia Ramos

to the adoption.

 

We note that in her Report, Pagbilao declared that she was able to

interview Amelia Ramos who arrived in the Philippines with her son, John

Mario in May 2002.  If said Amelia Ramos was in the Philippines and 

Pagbilao was able to interview her, it is incredible that the latter would not

require Amelia Ramos to execute a Written Consent to the adoption of her

minor children.  Neither did the petitioner bother to present Amelia Ramos

as witness in support of the petition.

Petitioner, nonetheless, argues that the written consent of the

biological mother is no longer necessary because when Amelia’s husband

died in 1990, she left for Italy and never came back.  The children were then

left to the guidance and care of their paternal grandmother.  It is the paternal

relatives, including petitioner, who provided for the children’s financial

needs.  Hence, Amelia, the biological mother, had effectively abandoned the

children.  Petitioner further contends that it was by twist of fate that after 12

years, when the petition for adoption was pending with the RTC that Amelia

and her child by her second marriage were on vacation in the Philippines. 

Pagbilao, the DSWD social worker, was able to meet her, and during the

meeting, Amelia intimated to the social worker that she conformed to the

adoption of her three children by the petitioner.

 

Petitioner’s contention must be rejected.  When she filed her petition

with the trial court, Rep. Act No. 8552 was already in effect.   Section 9

thereof provides that if the written consent of the biological parents cannot

be obtained, the written consent of the legal guardian of the minors will

suffice.  If, as claimed by petitioner, that the biological mother of the minors

had indeed abandoned them, she should, thus have adduced the written

consent of their legal guardian.

 

Ordinarily, abandonment by a parent to justify the adoption of his

child without his consent, is a conduct which evinces a settled purpose to

forego all parental duties. 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.

 

Merely permitting the child to remain for a time undisturbed in the

care of others is not such an abandonment.  To dispense with the

requirement of consent, the abandonment must be shown to have existed at

the time of adoption.

 

In this case, petitioner relied solely on her testimony and that of

Elaine Ramos to prove her claim that Amelia Ramos had abandoned her

children.  Petitioner’s testimony on that matter follows:

 

Q         Where is the mother of these three children now?A         She left for Italy on November 20, 1990, sir. Q         At the time when Amelia Ramos left for Italy, was there an

instance where she communicated with the family?A         None, sir. Q         How about with her children?A         None, sir. Q         Do you know what place in Italy did she reside?A         I do not know, sir. Q         Did you receive any news about Amelia Ramos?A         What I know, sir, was that she was already married with another

man. Q         From whom did you learn that?

A         From others who came from Italy, sir. Q         Did you come to know whether she has children by her second

marriage?A         Yes, sir, she got two kids.

  

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.

 

However, the Home Study Report of the DSWD Social Worker also

stated the following:

 IV.              Background of the Case: 

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

x x x x

 V.                 Background Information about the Minors Being Sought for

Adoption: 

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

x x x x             In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life.  After the death of her husband, her in-laws which include the petitioner had continued providing support for them.  However being ashamed of just depending on the support of her husband’s relatives, she decided to work abroad.  Her parents are also in need of financial help as they are undergoing maintenance medication.  Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper.              When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000.             While working in Italy, she met Jun Tayag, a married man from Tarlac.  They became live-in partners since 1995 and have a son John Mario who is now 2 years old.  The three of them are considered Italian residents.  Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is amenable to it.  He is providing his legitimate family regular support.             Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children.  The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.

  

          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.  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. 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.

 

          Petitioner failed to offer in evidence Pagbilao’s Report and of the Joint

Affidavit of Consent purportedly executed by her children; the authenticity

of which she, likewise, failed to prove. The joint written consent of

petitioner’s children 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,

which states:

 

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

(a)  The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, chargé d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. (b)  The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed.  The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his

certificate shall so state.  In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, chargé de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited.  The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine.

 

 

As the alleged written consent of petitioner’s legitimate children did

not comply with the afore-cited law, the same can at best be treated by the

Rules as a private document whose authenticity must be proved either by

anyone who saw the document executed or written; or by evidence of the

genuineness of the signature or handwriting of the makers.

 

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. 

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 forwarded by the

Department of Public Health & Social Services of the Government of Guam

to the DSWD, petitioner is no longer supporting her legitimate children, as

the latter are already adults, have individual lives and families.  At the time

of the filing of the petition, petitioner was 57 years old, employed on a part-

time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a

month.  Petitioner’s main intention in adopting the children is to bring the

latter to Guam, USA.  She has a house at Quitugua Subdivision in Yigo,

Guam, but the same is still being amortized.  Petitioner likewise knows that

the limited income might be a hindrance to the adoption proceedings.

 

          Given these limited facts, it is indeed doubtful whether petitioner will

be able to sufficiently handle the financial aspect of rearing the three

children in the US.  She only has a part-time job, and she is rather of age. 

While petitioner claims that she has the financial support and backing of her

children and siblings, the OSG is correct in stating that the ability to support

the adoptees is personal to the adopter, as adoption only creates a legal

relation between the former and the latter.  Moreover, the records do not

prove nor support petitioner’s allegation that her siblings and her children

are financially able and that they are willing to support the minors herein. 

The Court, therefore, again sustains the ruling of the CA on this issue.

 

          While the Court recognizes that petitioner has only the best of

intentions for her nieces and nephew, there are legal infirmities that militate

against reversing the ruling of the CA.  In any case, petitioner is not

prevented from filing a new petition for adoption of the herein minors.

 

          WHEREFORE, premises considered, the petition is hereby

DENIED.

[G.R. No. 143989.  July 14, 2003]

ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO (previously referred to as “DR. MELVIN S. LAHOM”), respondent.

D E C I S I O N

VITUG, J.:

The bliss of marriage and family would be to most less than complete without children.  The realization could have likely prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom to take into their care Isabelita’s nephew Jose Melvin Sibulo and to bring him up as their own.  At the tender age of two, Jose Melvin enjoyed the warmth, love and support of the couple who treated the child like their own.  Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin.  Finally, in 1971, the couple decided to file a petition for adoption.  On 05 May 1972, an order granting the petition was issued that made all the more intense than before the feeling of affection of the spouses for Melvin.  In keeping with the court order, the Civil Registrar of Naga City changed the name “Jose Melvin Sibulo” to “Jose Melvin Lahom.” 

A sad turn of events came many years later.  Eventually, in December of 1999, Mrs. Lahom commenced a petition to rescind the decree of adoption before the Regional Trial Court (RTC), Branch 22, of Naga City.  In her petition, she averred -

“7.     That x x x despite the proddings and pleadings of said spouses, respondent refused to change his surname from Sibulo to Lahom, to the frustrations of petitioner particularly her husband until the latter died, and even before his death he had made known his desire to revoke respondent’s adoption, but was prevented by petitioner’s supplication, however with his further request upon petitioner to give to charity whatever properties or interest may pertain to respondent in the future.

“x x x                                                                       x x x                                                                 x x x

“10.   That respondent continued using his surname Sibulo to the utter disregard of the feelings of herein petitioner, and his records with the Professional Regulation Commission showed his name as Jose Melvin M. Sibulo originally issued in 1978 until the present, and in all his dealings and activities in connection with his practice of his profession, he is Jose Melvin M. Sibulo.

“x x x                                                                       x x x                                                                 x x x

“13.   That herein petitioner being a widow, and living alone in this city with only her household helps to attend to her, has yearned for the care and show of concern from a son, but respondent remained indifferent and would only come to Naga to see her once a year.

“14.   That for the last three or four years, the medical check-up of petitioner in Manila became more frequent in view of a leg ailment, and those were the times when petitioner would need most the care and support from a love one, but respondent all the more remained callous and utterly indifferent towards petitioner which is not expected of a son.

“15.   That herein respondent has recently been jealous of petitioner’s nephews and nieces whenever they would find time to visit her, respondent alleging that they were only motivated by their desire for some material benefits from petitioner.

“16.   That in view of respondent’s insensible attitude resulting in a strained and uncomfortable relationship between him and petitioner, the latter has suffered wounded feelings, knowing that after all respondent’s only motive to his adoption is his expectancy of his alleged rights over the properties of herein petitioner and her late husband, clearly shown by his recent filing of Civil Case No. 99-4463 for partition against petitioner, thereby totally eroding her love and affection towards respondent, rendering the decree of adoption, considering respondent to be the child of petitioner, for all legal purposes, has been negated for which reason there is no more basis for its existence, hence this petition for revocation.”

Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No. 8552, also known as the Domestic Adoption Act, went into effect.  The new statute deleted from the law the right of adopters to rescind a decree of adoption. 

Section 19 of Article VI of R.A. No. 8552 now reads:

“SEC. 19.  Grounds for Rescission of Adoption.  – Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations.

“Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s).  However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.” (emphasis supplied)

Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial court had no jurisdiction over the case and (b) that the petitioner had no cause of action in view of the aforequoted provisions of R.A. No. 8552.  Petitioner asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not retroactively apply, i.e., to cases where the ground for rescission of the adoption vested under the regime of then Article 348 of the Civil Code and Article 192 of the Family Code.

In an order, dated 28 April 2000, the trial court held thusly:

“On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A. No. 8369 confers jurisdiction to this Court, having been designated Family Court in A.M. No. 99-11-07 SC.

“On the matter of no cause of action, the test on the sufficiency of the facts alleged in the complaint, is whether or not, admitting the facts alleged, the Court could render a valid judgment in accordance with the prayer of said complaint (De Jesus, et al. vs. Belarmino, et al., 95 Phil. 365).

“Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to rescind an adoption earlier granted under the Family Code.  Conformably, on the face of the petition, indeed there is lack of cause of action.

“Petitioner however, insists that her right to rescind long acquired under the provisions of the Family Code should be respected.  Assuming for the sake of argument, that petitioner is entitled to rescind the adoption of respondent granted on May 5, 1972, said right should have been exercised within the period allowed by the Rules.  From the averments in the petition, it appears clear that the legal grounds for the petition have been discovered and known to petitioner for more than five (5) years, prior to the filing of the

instant petition on December 1, 1999, hence, the action if any, had already prescribed.  (Sec. 5, Rule 100 Revised Rules of Court)

“WHEREFORE, in view of the foregoing consideration, the petition is ordered dismissed.”

Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner raises the following questions; viz:

1.  May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by an adopter after the effectivity of R.A. No. 8552?

2.  In the affirmative, has the adopter’s action prescribed?

A brief background on the law and its origins could provide some insights on the subject.  In ancient times, the Romans undertook adoption to assure male heirs in the family. The continuity of the adopter’s family was the primary purpose of adoption and all matters relating to it basically focused on the rights of the adopter.  There was hardly any mention about the rights of the adopted. Countries, like Greece, France, Spain and England, in an effort to preserve inheritance within the family, neither allowed nor recognized adoption. It was only much later when adoption was given an impetus in law and still later when the welfare of the child became a paramount concern. Spain itself which previously disfavored adoption ultimately relented and accepted the Roman law concept of adoption which, subsequently, was to find its way to the archipelago.  The Americans came and introduced their own ideas on adoption which, unlike most countries in Europe, made the interests of the child an overriding consideration. In the early part of the century just passed, the rights of children invited universal attention; the Geneva Declaration of Rights of the Child of 1924 and the Universal Declaration of Human Rights of 1948, followed by the United Nations Declarations of the Rights of the Child, were written instruments that would also protect and safeguard the rights of adopted children.  The Civil Code of the Philippines of 1950 on adoption, later modified by the Child and Youth Welfare Code and then by the Family Code of the Philippines, gave immediate statutory acknowledgment to the rights of the adopted.  In 1989, the United Nations initiated the Convention of the Rights of the Child.  The Philippines, a State Party to the Convention, accepted the principle that adoption was impressed with social and moral responsibility, and that its underlying intent was geared to favor the adopted child.  R.A. No. 8552 secured these rights and privileges for the adopted.  Most importantly, it affirmed the legitimate status of the adopted child, not only in his new family but also in the society as well.  The new law withdrew the right of an adopter to rescind the adoption decree and gave to the adopted child the sole right to sever the legal ties created by adoption. 

Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to annul the adoption decree, nor deprive the trial court of its jurisdiction to hear the case, both being vested under the Civil Code and the Family Code, the laws then in force. 

The concept of “vested right” is a consequence of the constitutional guaranty of due process that expresses a present fixed interest which in right reason and natural justice is protected against arbitrary state action; it includes not only legal or equitable title to the enforcement of a demand but also exemptions from new obligations created after the right has become vested.  Rights are considered vested when the right to enjoyment is a present interest, absolute, unconditional, and perfect or fixed and irrefutable. 

In Republic vs. Court of Appeals, a petition to adopt Jason Condat was filed by Zenaida C. Bobiles on 02 February 1988 when the Child and Youth Welfare Code (Presidential Decree No. 603) allowed an adoption to be sought by either spouse or both of them.  After the trial court had rendered its decision and while the case was still pending on appeal, the Family Code of the Philippines (Executive Order No. 209), mandating joint adoption by the husband and wife, took effect.  Petitioner Republic argued that the case should be dismissed for having been filed by Mrs. Bobiles alone and without being joined by the husband.  The Court concluded that the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action.  The petition to adopt Jason, having been filed with the court at the time when P.D. No. 603 was still in effect, the right of Mrs. Bobiles to file the petition, without being joined by her husband, according to the Court had become vested.  In Republic vs. Miller, spouses Claude and Jumrus Miller, both aliens, sought to adopt Michael Madayag.  On 29 July 1988, the couple filed a petition to formalize Michael’s adoption having theretofore been taken into their care.  At the time the action was commenced, P.D. No. 603 allowed aliens to adopt.  After the decree of adoption and while on appeal before the Court of Appeals, the Family Code was enacted into law on 08 August 1988 disqualifying aliens from adopting Filipino children.  The Republic then prayed for the withdrawal of the adoption decree.  In discarding the argument posed by the Republic, the Supreme Court ruled that the controversy should be resolved in the light of the law governing at the time the petition was filed.

It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to revoke the decree of adoption granted in 1975.  By then, the new law, had already abrogated and repealed the right of an adopter under the Civil Code and the Family Code to rescind a decree of adoption.  Consistently with its earlier pronouncements, the Court should now hold that the action for rescission of the adoption decree, having been initiated by petitioner after R.A. No. 8552 had come into force, no longer could be pursued.

Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to the five–year bar rule under Rule 100 of the Rules of Court and that the adopter would lose the right to revoke the adoption decree after the lapse of that period.  The exercise of the right within a prescriptive period is a condition that could not fulfill the requirements of a vested right entitled to protection.  It must also be acknowledged that a person has no vested right in statutory privileges. While adoption has often been referred to in the context of a “right,” the privilege to adopt is itself not naturally innate or fundamental but rather a right merely created by statute. It is a privilege that is governed by the state’s determination on what it may deem to be for the best interest and welfare of

the child. Matters relating to adoption, including the withdrawal of the right of an adopter to nullify the adoption decree, are subject to regulation by the State. Concomitantly, a right of action given by statute may be taken away at anytime before it has been exercised.

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply the law.  Dura lex sed lex would be the hackneyed truism that those caught in the law have to live with.  It is still noteworthy, however, that an adopter, while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of certain benefits otherwise accruing to an undeserving child.  For instance, upon the grounds recognized by law, an adopter may deny to an adopted child his legitime and, by a will and testament, may freely exclude him from having a share in the disposable portion of his estate.

WHEREFORE, the assailed judgment of the court a quo is AFFIRMED.  No costs.

SO ORDERED.

[G.R. No. 118680.  March 5, 2001]

MARIA ELENA RODRIGUEZ PEDROSA, petitioner, vs. THE HON. COURT OF APPEALS, JOSE, CARMEN, MERCEDES & RAMON, all surnamed RODRIGUEZ, ROSALINA RODRIGUEZ,  CHAN LUNG FAI, MATEO TAN TE, TE ENG SUY, LORETA TE, VICTORIO S. DETALIA, JEROME DEIPARINE, PETRONILO S. DETALIA, HUBERT CHIU YULO, PATERIO N. LAO, LORENSITA M. PADILLA, IMMACULATE CONCEPCION COLLEGE AND LILIAN EXPRESS, INC. and TIO TUAN, respondents.

D E C I S I O N

QUISUMBING, J.:

This petition assails the decision of the Court of Appeals dated May 23, 1994 which affirmed the judgment of the Regional Trial Court, Branch 15, of Ozamiz City in Civil Case No. OZ-1397.

The facts of this case are as follows:

On April 8, 1946, the spouses Miguel Rodriguez and Rosalina J. de Rodriguez initiated proceedings before the CFI of Ozamiz City for the legal adoption of herein petitioner, Maria Elena Rodriguez Pedrosa.  On August 1, 1946, the CFI granted the petition and declared petitioner Pedrosa the adopted child of Miguel and Rosalina.

On April 29, 1972, Miguel died intestate.  Thereafter, petitioner and Rosalina entered into an extrajudicial settlement of Miguel’s estate, adjudicating between themselves in equal proportion the estate of Miguel.

On November 21, 1972, private respondents filed an action to annul the adoption of petitioner before the CFI of Ozamiz City, with petitioner and herein respondent Rosalina as defendants docketed as OZ 349.

On August 28, 1974, the CFI denied the petition and upheld the validity of the adoption.  Thereafter, the private respondents appealed said decision to the Court of Appeals.

On March 11, 1983, while said appeal was pending, the Rodriguezes entered into an extrajudicial settlement with respondent Rosalina for the partition of the estate of Miguel and of another sister, Pilar.  Rosalina acted as the representative of the heirs of Miguel Rodriguez.  Pilar had no heirs except his brothers and sisters.

The Deed of Extrajudicial Settlement and Partition covered fourteen parcels of land covering a total area of 224,883 square meters.  These properties were divided among Jose, Carmen, Mercedes, Ramon and the heirs of Miguel, represented solely by Rosalina.  The heirs of Miguel were given 226 square meters of parcel 2, and 9,567 square meters and 24,457 square meters of parcels 7 and 9, respectively. The total land area allocated to the heirs of Miguel was 34,250 square meters.

Armed with the Deed of Extrajudicial Settlement and Partition, respondents Rodriguezes were able to secure new Transfer Certificates of Title (TCTs) and were able to transfer some parcels to the other respondents herein.

Lots 504-A-6, 504-B-3 and 504-C-4, portions of Parcel 3, designated as Lot 504, were transferred to respondents Chuan Lung Fai, but not included in the Deed of Settlement and Partition, were transferred to respondent Lilian Express, Inc. and are now registered under TCT No. T-11337.  Parcel 6, Lot 560, was subdivided among Ramon, Jose, Carmen and Mercedes and was designated as Lots 560-A, 560-B, 560-C, 560-D and 560-E.  Lot 560-A covering 500 square meters was transferred to respondent Victorino Detall and was subsequently transferred to Jerome Deiparine who registered it under his name under TCT No. T-10706.  Lot 560-B with 500 square meters was transferred to respondent Petronilo Detalla and was later transferred to respondent Hubert Chiu Yulo who registered it under his name under TCT No. T-11305.  Lot 560-C was transferred and registered under the name of respondent Paterio Lao with TCT No. T-10206.  Lot 560-D was sold to and subsequently registered in the name of Lorensita M. Padilla under TCT No. T-10207.  The remaining portion, Lot 560-E consisting of 43,608 square meters was bought by respondent Immaculate Concepcion College and was registered in its name under TCT No. T-10208.

On June 19, 1986, the parties in the appeal which sought to annul the adoption of petitioner Pedrosa filed a joint Motion to Dismiss.  On June 25, 1986, the Court of Appeals dismissed the appeal but upheld the validity of the adoption of petitioner.

Thereafter, petitioner sent her daughter, Loreto Jocelyn, to claim their share of the properties from the Rodriguezes.  The latter refused saying that Maria Elena and Loreto were not heirs since they were not their blood relatives.

Petitioner, then, filed a complaint to annul the 1983 partition. The said complaint was filed on January 28, 1987.  Said complaint was later amended on March 25, 1987 to include the allegation “that earnest efforts toward a compromise were made between the plaintiffs and the defendants, but the same failed.”

The Regional Trial Court dismissed the complaint.

Petitioner appealed to the Court of Appeals.  The appellate court affirmed the decision of the trial court.  Its ruling was premised on the following grounds:

1)     that the participation of Rosalina has already estopped her from questioning the validity of the partition, and since she is already estopped, it naturally follows that Maria Elena, her successor-in-interest, is likewise estopped, applying Article 1439 of the Civil Code;

2)     that the appeal of Maria Elena and her claim that the partition is null and void is weakened by her inconsistent claim that the partition would have been alright had she been given a more equitable share;

3)  the action is essentially an action for rescission and had been filed late considering that it was filed beyond the 4 year period provided for in Article 1100 of the Civil Code;

4)     that fraud and/or bad faith was never established.

Petitioner filed a Motion for Reconsideration, which was denied by the Court of Appeals in a Resolution dated December 20, 1994.

Hence, this petition wherein the petitioner asserts that the following errors were allegedly committed by the Court of Appeals in -

I.     ……FINDING THAT THE EXTRAJUDICIAL SETTLEMENT AND PARTITION ENTERED INTO BY DEFENDANT JUREDINI AND DEFENDANTS-APPELLANTS RODRIGUEZES WAS VALID AND BINDING UPON THE PLAINTIFF-APPELLANT WHO DID NOT PARTICIPATE IN SAID TRANSACTION

II.     ……CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT HAVE ALREADY PRESCRIBED TWO (2) YEARS AFTER PUBLICATION OF THE EXTRAJUDICIAL SETTLEMENT AND PARTITION IN THE NEWSPAPER OF GENERAL CIRCULATION

III. ...…CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT IS BARRED OR ESTOPPED IN FILING THIS CASE (sic) IN VIEW OF THE

DISMISSAL OF THE APPEAL IN CIVIL CASE NO. OZ 349 INTERPOSED BY HEREIN DEFENDANTS-APPELLEES WHO WERE THEN PLAINTIFFS-APPELLANTS IN AC[C]-G.R. NO. SP-00208

IV. ……SUSTAINING THE DEFENDANT-APPELLEES’ CLAIM THAT AS THEY HAVE NOT AS YET RECOGNIZED PLAINTIFF-APPELLANT AS AN ADOPTED DAUGHTER OF MIGUEL RODRIGUEZ IT WAS NOT NECESSARY FOR THEM TO HAVE HER PARTICIPATE IN THE EXTRAJUDICIAL SETTLEMENT, EXHIBITS “S” AND “I”

V.     ……CONCLUDING THAT THE PLAINTIFF-APPELLANT HAD NOT CONCLUSIVELY SHOWN THAT MIGUEL RODRIGUEZ WAS A   CO-OWNER OF THE LANDS SOLD AND HENCE IT FOLLOWS THAT SHE HAS NO RIGHT OF REDEMPTION OF THOSE LANDS

VI. ……FINDING THAT PORTION OF LOTS NOS. 504 AND 560 SOLD TO THE OTHER DEFENDANTS–APPELLEES WERE CLEAN AND FREE FROM ENCUMBRANCES OR ANY FLAWS HENCE WERE VALID

VII. ……FINDING THAT THE PLANTIFF–APPELLANT NEVER APPEARED IN COURT TO TESTIFY OR REBUT THE ASSERTIONS OF THE DEFENDANTS–APPELLANTS THAT THERE WAS A VALID PARTITION

VIII. ……AWARDING PLAINTIFF–APPELLANT DAMAGES FOR THE INCOME OF HER SHARE IN THE PROPERTIES IN QUESTION

In sum, the issues to be resolved in our view are (1) whether or not the complaint for annulment of the “Deed of Extrajudicial Settlement and Partition” had already prescribed; (2) whether or not said deed is valid; and (3) whether or not the petitioner is entitled to recover the lots which had already been transferred to the respondent buyers.

Petitioner argues that the complaint for annulment of the extrajudicial partition has not yet prescribed since the prescriptive period which should be applied is four years following the case of Beltran vs. Ayson, 4 SCRA 69 (1962).  She also avers that Sec. 4, Rule 74 which provides for a two-year prescriptive period needs two requirements.  One, the party assailing the partition must have been given notice, and two, the party assailing the partition must have participated therein.  Petitioner insists these requirements are not present in her case, since she did not participate in the “Deed of Extrajudicial Settlement and Partition.” She cites Villaluz vs. Neme, 7 SCRA 27, 30 (1963), where we held that a deed of extrajudicial partition executed without including some of the heirs, who had no knowledge and consent to the same, is fraudulent. She asserts that she is an adoptive daughter and thus an heir of Miguel.

Petitioner also contends that the respondent buyers were buyers in bad faith since they failed to exercise the necessary due diligence required before purchasing the lots in question. In the alternative, petitioner wants to redeem the said lots as a co-owner of respondent Rodriguezes under the provisions of Article 1620 of the New Civil Code.

Lastly, petitioner asserts that she will suffer lesion if the partition would be allowed.  She asks for the rescission of the said partitioning under Articles 165-175 of the Civil Code.

Respondents, in response, claim that the action of petitioner had already prescribed.  In addition, they argue that petitioner, Maria Elena, and Rosalina already have their shares in the estate of Miguel Rodriguez reflected in the compromise agreement they entered into with the respondent Rodriguezes in AC- G.R. SP 00208.  Finally, respondents aver that the non-participation of Maria Elena in the extrajudicial partition was understandable since her status as an adopted child was then under litigation.  In any case, they assert that the shares of Miguel’s heirs were adequately protected in the said partition.

Section 4, Rule 74 provides for a two year prescriptive period (1) to persons who have participated or taken part or had notice of the extrajudicial partition, and in addition (2) when the provisions of Section 1 of Rule 74 have been strictly complied with, i.e., that all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians.

Petitioner, as the records confirm, did not participate in the extrajudicial partition.  Patently then, the two-year prescriptive period is not applicable in her case.

The applicable prescriptive period here is four (4) years as provided in Gerona vs. De Guzman, 11 SCRA 153 (1964), which held that:

[The action to annul] a deed of “extrajudicial settlement” upon the ground of fraud...may be filed within four years from the discovery of the fraud.  Such discovery is deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents exclusively.

Considering that the complaint of the petitioner was filed on January 28, 1987, or three years and ten months after the questioned extrajudicial settlement dated March 11, 1983, was executed, we hold that her action against the respondents on the basis of fraud has not yet prescribed.

Section 1 of Rule 74 of the Rules of Court is the applicable rule on publication of extrajudicial settlement.  It states:

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.

Under said provision, without the participation of all persons involved in the proceedings, the extrajudicial settlement cannot be binding on said persons.  The rule contemplates a notice which must be sent out or issued before the Deed of Settlement and/or Partition is agreed upon, i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition, not after, which was when publication was done in

the instant case.  Following Rule 74 and the ruling in Beltran vs. Ayson, since Maria Elena did not participate in the said partition, the settlement is not binding on her.

The provision of Section 4, Rule 74 will also not apply when the deed of extrajudicial partition is sought to be annulled on the ground of fraud.  A deed of extrajudicial partition executed without including some of the heirs, who had no knowledge of and consent to the same, is fraudulent and vicious. Maria Elena is an heir of Miguel together with her adopting mother, Rosalina.  Being the lone descendant of Miguel, she excludes the collateral relatives of Miguel from participating in his estate, following the provisions of Article 1003 of the Civil Code. The private respondent Rodriguezes cannot claim that they were not aware of Maria Elena’s adoption since they even filed an action to annul the decree of adoption.  Neither can they claim that their actions were valid since the adoption of Maria Elena was still being questioned at the time they executed the deed of partition.  The complaint seeking to annul the adoption was filed only twenty six (26) years after the decree of adoption, patently a much delayed response to prevent Maria Elena from inheriting from her adoptive parents.  The decree of adoption was valid and existing.  With this factual setting, it is patent that private respondents executed the deed of partition in bad faith with intent to defraud Maria Elena.

In the case of Segura vs. Segura, the Court held:

This section [referring to section 4, Rule 74] provides in gist that a person who has been deprived of his lawful participation in the estate of the decedent, whether as heir or as creditor, must assert his claim within two years after the extrajudicial or summary settlement of such estate under Sections 1 and 2 respectively of the same Rule 74.  Thereafter, he will be precluded from doing so as the right will have prescribed.

It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were concerned.  The rule covers only valid partitions.  The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property.  Under the rule, “no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.” As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two years from its execution in 1941.

To say that Maria Elena was represented by Rosalina in the partitioning is imprecise.  Maria Elena, the adopted child, was no longer a minor at the time Miguel died.  Rosalina, only represented her own interests and not those of Maria Elena.  Since Miguel predeceased Pilar, a sister, his estate automatically vested to his child and widow, in equal shares.  Respondent Rodriguezes’ interests did not include Miguel’s estate but only Pilar’s estate.

Could petitioner still redeem the properties from buyers?  Given the circumstances in this case, we are constrained to hold that this is not the proper forum to decide this issue.  The properties sought to be recovered by the petitioner are now all registered under the name

of third parties.  Well settled is the doctrine that a Torrens Title cannot be collaterally attacked.  The validity of the title can only be raised in an action expressly instituted for such purpose.

Petitioner asks for the award of damages.  No receipts, agreements or any other documentary evidence was presented to justify such claim for damages.  Actual damages, to be recoverable, must be proved with a reasonable degree of certainty.  Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages. The same is true for moral damages.  These cannot be awarded in the absence of any factual basis. The unsubstantiated testimony of Loreto Jocelyn Pedrosa is hearsay and has no probative value.  It is settled in jurisprudence that damages may not be awarded on the basis of hearsay evidence. Nonetheless, the failure of the petitioner to substantiate her claims for damages does not mean that she will be totally deprived of any damages.  Under the law, nominal damages are awarded, so that a plaintiff’s right, which has been invaded or violated by defendants may be vindicated and recognized.

Considering that (1) technically, petitioner sustained injury but which, unfortunately, was not adequately and properly proved, (2) petitioner was unlawfully deprived of her legal participation in the partition of the estate of Miguel, her adoptive father, (3) respondents had transferred portions of the properties involved to third parties, and (4) this case has dragged on for more than a decade, we find it reasonable to grant in petitioner’s favor nominal damages in recognition of the existence of a technical injury. The amount to be awarded as such damages should at least commensurate to the injury sustained by the petitioner considering the concept and purpose of said damages. Such award is given in view of the peculiar circumstances cited and the special reasons extant in this case. Thus, the grant of ONE HUNDRED THOUSAND (P100,000.00) PESOS to petitioner as damages is proper in view of the technical injury she has suffered.

WHEREFORE, the petition is GRANTED.  The assailed decision of the Court of Appeals is hereby REVERSED and SET ASIDE.  The “Deed of Extrajudicial Settlement and Partition” executed by private respondents on March 11, 1983 is declared invalid.  The amount of P100,000.00 is hereby awarded to petitioner as damages to be paid by private respondents, who are also ordered to pay the costs.

SO ORDERED.