IN THE MATTER OF THE ADOPTION OF THE MINOR BERTHA ANN RIVERA ROBERT H. CATHEY AND HELEN O. CATHEY, PETITIONERS AND APPELLANTS, VS. REPUBLIC OF THE PHILIPPINES, OPPOSITOR AND APP…

On January 26, 1963, the spouses Robert H. Cathey and Helen O.
Cathey petitioned the Court of Juvenile and Domestic Relations for the
adoption of the minor Bertha Ann Rivera. Among other things their
petition alleged that petitioners are both of legal age and residents
of Manila; that Robert Cathey is an American citizen, residing in the
Philippines since 1945 and Helen Cathey is a Filipino citizen residing
here since birth; that they had the care and custody of the child
Bertha Ann Rivera three days after her birth on January 19, 1963; that
Bertha is the natural child of Violeta O. Rivera who has given her
written consent to the adoption; that a copy of said consent is
attached as Annex A to the petition; that the child’s natural father is
unknown; that petitioners have no children and are qualified to adopt.

Subsequently, upon orders of the Court, the petition was amended to
further allege that petitioners are permanent residents living at 1331
Carola St., Sampaloc, Manila, and to attach thereto the child’s birth
certificate.

After petitioners had presented their evidence, without opposition
from the Solicitor General, the Juvenile and Domestic Relations Court,
on August 5, 1963, rendered a decision that denied the petition, for
two reasons: (1) It was not convinced that genuine efforts were exerted
to present Violeta O. Rivera before the Court, for inspite of her
refusal to testify, other remedies could have been availed of under the
Rules of Court to obtain her testimony; (2) As an alien, Robert Cathey
is not qualified to adopt.

Petitioner appealed therefrom to Us, thereby raising questions purely of law.

Article 340 of the New Civil Code on consent to adoption provides
that the written consent of the following shall be necessary: “(1) the
person to be adopted, if fourteen years of age or over; (2) the
parents, guardian or person in charge of the person to be adopted.”

Section 3 of Rule 100 of the Old Rules of Court (now sec. 3 of Rule 99) likewise provides:

“SEC. 3. Consent to adoption. – There shall
be filed with the petition a written consent to the adoption signed by
the child, if over fourteen years of age and not incompetent, and by
each of its known living parents who is not insane or hopelessly
intemperate or has not abandoned such child, or if there are no such
parents by the general guardian or guardian ad litem of the
child, or if the child is in the custody of an orphan asylum,
children’s home, or benevolent society or person, by the proper officer
or officers of such asylum, home, or society, or by such person; but if
the child is illegitimate and has not been recognized, the consent of
its father to the adoption shall not be required.”

From these provisions, as correctly pointed out by petitioners, the
requirement as to consent has been met, for both our substantive and
procedural laws do not further require the testimony of the consenting
parent before the court aside from the requisite written consent
attached to the petition.

And contrary to the court’s opinion that genuine efforts were not
exerted to bring the mother to testify before it, the evidence before
Us shows that petitioners, after their own efforts had failed (Tsn of
May 8, 1963, pp. 14, 29), sought the help of the Chief of Police of
Angeles, Pampanga to locate the mother. Patrolman Mariano Carbungco,
the investigator assigned to locate the mother, finally found her in
Pauline’s Cavern where she worked as a night club hostess. She refused
to reveal her residence and to testify in court, but she re-affirmed
the fact that she has given her written consent to the adoption.
Patrolman Carbungco executed an affidavit (Exhibit F) where such facts
were attested to. Subsequently, she could not be found anymore.

While it would have been ideal, to remove all possible doubts, for
the mother to have been presented in court, the primary consideration –
the welfare of the child – should not be prejudiced by the absence of
it in view of the circumstances showing that the petitioners did all
they could and all that reasonably could have been expected from them.
Even the Solicitor General, concerned about the child’s welfare, filed
a brief praying for the adoption to be granted, reasoning that the
mother’s act of leaving the baby to the Catheys three days after her
birth constituted abandonment which under Sec. 3, Rule 100 (now Sec. 3,
Rule 99) even dispenses with the need for consent. This, the Solicitor
General believes, coupled with the affidavit of consent (Exhibit B)
reaffirmed by her to Pat. Carbungco also, show that she too, a mother,
with the interests of her child at heart, favors her adoption.

Anent the alienage of petitioner Robert H. Cathey, not all aliens
are disqualified to adopt. Article 335 of the New Civil Code provides:

“ART. 335. The following cannot adopt:

xx xxx xx xx

“(4) Non-resident aliens;

“(5) Resident aliens with whose government the Republic of the Philippines has broken diplomatic relations;”

As this Court pointed out through Mr. Justice J.B.L. Reyes in Uggi Thenkelsen vs. Republic,
L-21951, November 27, 1964: “the present Civil Code in force (Article
335) only disqualifies from being adopters aliens that are either (a)
non-residents or (b) who are residents but the Republic of the
Philippines has broken diplomatic relations with their government.
Outside of these two cases, alienage by itself alone does not
disqualify a foreigner from adopting under our laws.”

Petitioner, Robert H. Cathey though an American citizen, is a
resident alien entitled to remain in the Philippines, as his Immigrant
Certificate of Residence (Exhibit D) shows. He is legally married to
Helen Olalia and presently is the administrative officer of the U.S.
Naval Construction office at Clark Air Base with an annual compensation
of $6,295.00 and has P25,000 worth of personal properties in the
Philippines. As petitioners spouses have no child of their own, they
wish to adopt Bertha Ann Rivera and thus make her their heir. The
welfare of the child being the paramount consideration under the law
(Art. 363, New Civil Code), the child now sought to be adopted being
virtually unwanted by her own mother, who, by the way, has seven other
children to feed (Tsn of May 2, 1963, p. 11), We see no reason why the
adoption should not be granted.

WHEREFORE, the Judgment appealed from is hereby reversed and the court a quo is directed to allow the adoption sought. No costs.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Makalintal, Zaldivar, Sanchez, and Ruiz Castro, JJ., concur.
Regala, J., no part.