CivRev-250-Duncan vs. CFI Rizal Branch X

250 Duncan vs.
CFI Rizal Branch X

G.R. No. L-30576 | February 10, 1976 | J. Esguerra | Need for Consent in Adoption
Baby Colin who was then three days old was abandoned by his unwedded mother to Atty. Velasquez, who then
gave him to Sps. Duncan. Since then Sps. Duncan cared and loved him as their own child. They filed for petition to
adopt Colin but this was denied by CFI Rizal Br. X, since it was Atty. Velasquez who signed/ consented to the
adoption and not the biological mother. The CFI opined that this falls short of what was required under the law.
The SC on the other hand ruled that Atty. Velasquez as the de facto guardian of Baby Colin can consent to his
adoption. Having declared that the child was an abandoned one by an unknown parent, there appears to
be no more legal need to require the written consent of such parent of the child to the adoption. Attty.
Velasquez was the de facto guardian exercising patria potestas over the abandoned child. No guardian ad litem
was appointed by the court, neither was it placed under the custom of an asylum of a benevolent society.
Facts: Robin Francis Radley Duncan and Maria Lucy Christensen are husband and wife, the former a British national residing
in the Philippines for the last 17 years and the latter an American citizen born in and a resident of the Philippines, Having no
children of their own but having previously adopted another child, said spouses filed a petition with respondent court (Sp.
Proc. No. 5457) for the adoption of a child previously baptized and named by them as Colin Berry Christensen Duncan, a 9 year
old boy. In Colin’s birth certificate Sps. Francis and Maria Lucy are indicated as her mother and father.
The Court dismissed the petition for adoption, for it was not the child’s biological mother who gave consent to her adoption
but rather Atty. Velasquez to whom the child was entrusted to by her unwedded mother, when he was just three days old. CFI
opined that this is contrary to Art. 340 (2) (of the Civil Code) provides that the written consent of the following to the
adoption shall be necessary: 2. The parents, guardian or person in charge of the person to be adopted.
In this case, Atty. Velasquez (in her capacity as loco parentis to said child) signed / consented to the adoption of said child. She
did not disclose the identity of the mother for that will violate their attorney-client privilege. The Judge of CFI Rizal opined that
this is antennal and no such privilege exists in this case.
Duncan et. Al now impute the following errors:
1. Inviolability of the privileged communication between attorney and client;

2. That the infant given away by the mother could not be considered to have been abandoned;
3. The stranger who received the baby or child, in this case, Atty. Corazon de Leon Velasquez, could not be considered as the
guardian de facto and in loco parentis of the child, and therefore, is not empowered by law to give written consent to the
adoption;
4. That whenever and as long as the natural mother is known to anybody, only said natural mother can give the written
consent to the adoption;
5. That the term “person in charge of the person to be adopted”, one of those who can give consent to the adoption under
Article 340 of the Civil Code, means or refers to institutions or orphanages established for the purpose of rearing orphans,
foundlings and destitute children.
Issue: whether or not the person who gave the consent for adoption, which in this case is Atty. Corazon de Leon
Velasquez, is the proper person required by law to give such consent? YES
Held: Art. 340. The written consent of the following to adoption 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.
On the other hand, the Rules of Court (Rule 99) has this to say on those who are required to give consent in adoption:
Sec. 3. Consent to adoption.—There shall be filed with the petition a written consent to the adoption signed by the child, if
fourteen years of age or over and not incompetent, and by the child’s spouse, if any, and by each of its known living parents who
is not an 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
250 Duncan vs. CFI Rizal Branch X
G.R. No. L-30576 | February 10, 1976 | J. Esguerra | Need for Consent in Adoption
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.
Going by the set of facts in this case, only one of two persons particularly described by law may be considered here as legally
capable of giving the required written consent. They are:
Under Art. 340 of the Civil Code, the “parent, guardian or person in charge of the person to be adopted” while the other one is
that mentioned in Section 3, Rule 99 of the Rules of Court, describing it as each of the known living parents “who has not
abandoned such child.
The father’s consent here is out of the question as the child is illegitimate and unrecognized.
The natural and unwedded mother, from that date on to the time of the adoption proceedings in court which started in mid-
year of said 1967, and up to the present, has not bothered to inquire into the condition of the child, much less to contribute to
the livelihood, maintenance, and care of the same. In short, this parent is the antithesis of that described in the law as “known
living parent who is not insane or hopelessly intemperate or has not abandoned such child” We are convinced that in fact said
mother had completely and absolutely abandoned her child. Having declared that the child was an abandoned one by an
unknown parent, there appears to be no more legal need to require the written consent of such parent of the child to
the adoption.
The question now is whether or not Atty. Corazon de Leon Velasquez, the undisputed custodian of the abandoned child may be
considered as the guardian under Art. 340 or the person standing in loco parentis of said infant contemplated in Art. 349 of the
Civil Code? Yes
She was a de facto guardian exercising patria potestas over the abandoned child. No guardian ad litem was appointed by the
court, neither was it placed under the custom of an asylum of a benevolent society.
Robin Francis Radley Duncan and Maria Lucy Christensen, appear to be qualified to adopt the child. There is no showing that they
suffer from any of the disqualifications under the law. Above all, they have the means to provide the child with the proper support,
care, education and love that a growing child needs, even if they have previously adopted another child as theirs. The fact that
even before they have applied for legal custody and adoption of the infant they have already showered it with love and care and
had it baptized, with them appearing in the records of the baptism as the parents of the child, speaks well of the genuine desire of
petitioners to have the child as their very own.
Disposition: WHEREFORE, in the light of the foregoing, the decision of the respondent Judge of the Court of First Instance of Rizal,
Branch X, in Sp. Proc. No. 5457, dated June 27, 1968, is hereby annulled, and We declare that the minor Colin Berry Christensen
Duncan is the adopted child and the heir of petitioners Robin Francis Radley Duncan and Maria Lucy Christensen.
Notes:
Dura lex sed lex does not find application in cases of adoption. All efforts or acts designed to provide homes, love, care and
education for unfortunate children, who otherwise may grow from cynical street urchins to hardened criminal offenders and
become serious social problems, should be given the widest lattitude of sympathy, encouragement and assistance.

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250 Duncan vs.

CFI Rizal Branch X

Duncan et. Al now impute the following errors:

1. Inviolability of the privileged communication between attorney and client;

(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.

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