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Lagdameo vs Lagdameo CA 50 O.G.

3112

[ G.R. No. L-19953, December 24, 1964 ]

PILAR REVILLA DE LAGDAMEO, PETITIONER, VS. JUAN LAO, RESPONDENT.

GUARDIANSHIP; COURT OF FIRST INSTANCE OF MANILA HAS JURISDICTION BEFORE ORGANIZATION OF JUVENILE AND DOMESTIC RELATIONS
COURT. A guardianship case is properly cognizable by the Court of First Instance of Manila where it was filed and heard before the
organization of the Juvenile and Domestic Relations Court on June 1, 1956, although after the passage of the law creating the latter court. The
effect of Section 2, Republic Act No. 1401, the law creating said court, has been to defer the operation of the grant of authority to said court,
made in Section 1 thereof, until the organization thereof.

DECISION

Appeal by certiorari from a decision of the Court of Appeals.

On November 5, 1955, petitioner Pilar R. de Lagdameo commenced this special proceeding No. 28064 of the Court of First Instance of Manila
with a petition for her appointment as guardian of the person and property of her nieces, the minors Trinidad Revilla La'O and Bettina Revilla
La'O, who are children of petitioner's sister Elena Revilla, left by her under petitioner's custody, and Juan La'O. The latter opposed the petition
and prayed that he be given the custody of said minors. The case was heard on February 18, 1956, and evidence were then introduced by the
parties. Three (3) days later the lower court rendered judgment for the petitioner, appointing her as guardian of the person and property of said
minors, upon the filing of a P1,000.00 bond. Juan LaO appealed to the Court of Appeals which, instead of deciding the case on the merits,
dismissed the petition, without prejudice to the filing thereof with the proper court, upon the theory that the case is within the exclusive
original jurisdiction of the Juvenile and Domestic Relations Court. A reconsideration of the order of dismissal having been denied, petitioner
interposed the present appeal by certiorari.

The only question before us is whether the Court of First Instance of Manila had jurisdiction to entertain this case in view of the provision of
Section 1 of Republic Act No. 1401, approved on September 9, 1955, conferring upon the Juvenile and Domestic Relations Court "exclusive
original jurisdiction to hear and decide x x x cases involving custody, guardianship, adoption, paternity and acknowledgement". The Court of
Appeals resolved the issue in the negative, this case having been instituted on November 5, 1955, or almost two (2) months after the approval
of said Republic Act No. 1401, on September 9, 1955, on which date it became effective. Petitioner assails this conclusion of the Court of
Appeals as erroneous, invoking Section 2 of said Act which provides:

"Upon the organization of the Juvenile and Domestic Relations Court, the Secretary of Justice shall cause all cases and proceedings pending:
before the municipal court and the court of first instance of Manila properly cognizable by the court herein created to be transferred thereto."

Petitioner maintains that the effect of this Section 2 has been to defer the operation of the grant of authority, made in Section 1, in favor of the
juvenile and Domestic Relations Court, until the organization thereof on June 1, 1956.

Petitioner's contention is well taken. Indeed, otherwise, the result would be that, from September 9, 1955 to June 1, 1956, there would have
been in Manila no judicial body competent to hear the cases specified in Section 1 of Republic Act No. 1401. We cannot assume that, in enacting
the same, Congress intended to create such vacuum in the very capital of the Republic, where precisely the biggest number of said cases exist.
Such vacuum would surely be inimical to public interest and we must not assume that Congress intended to bring about such result. On the
contrary, the assumption should be that, to avoid that result, Congress intended no such vacuum, and, accordingly, meant the grant of
jurisdiction to the Juvenile and Domestic Relations Court to be operative only upon the establishment or organization of that court.

WHEREFORE, the decision of the Court of Appeals is reversed, and the case hereby remanded to said Court for decision on the merits, with the
costs of this instance against respondent Juan La'O.
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Medina vs Makabali SCRA 502

ZENAIDA MEDINA, assisted by her husband, FELICIANO CASERO, petitioner-appellant,

vs.

DRA. VENANCIA L. MAKABALI, respondent-appellee.

Fausto D. Laquian for petitioner-appellant.

Maximino Q. Canlas for respondent-appellee.

FACTS:

On February 4, 1961, petitioner Zenaida Medina gave birth to a baby boy named Joseph Casero in the Makabali Clinic in San Fernando,
Pampanga, owned and operated by respondent Dra. Venancia Makabali, single, who assisted at the delivery. The boy was Zenaidas third, had
with a married man, Feliciano Casero.

The mother left the child with Dra. Makabali from his birth. The latter took care and reared Joseph as her own son; had him treated at her
expense for poliomyelitis by Dra. Fe del Mundo, in Manila, until he recovered his health; and sent him to school. From birth until August 1966,
the real mother never visited her child, and never paid for his expenses.

The trial disclosed that petitioner Zenaida Medina lived with Feliciano Casero with her two other children apparently with the tolerance, if not
the acquiescence, of Caseros lawful wife who resides elsewhere, albeit the offspring of both women are in good terms with each other; that
Casero makes about P400.00 a month as a mechanic, and Zenaida herself earns from 4 to 5 pesos a day.

ISSUE:

Whether or Not the petition for rights and duties of parents and children should go to the petitioner (parent)

Held:

Upon extracting from Dra. Makabali a promise to allow the minor a free choice with whom to live when he reaches the age of 14, the Court held
that it was for the childs best interest to be left with his foster mother and denied the writ prayed for. The real mother appealed, as already
stated.

We see no reason to disturb the order appealed from. While our law recognizes the right of a parent to the custody of her child, Courts must
not lose sight of the basic principle that in all questions on the care, custody, education and property of children, the latters welfare shall be
paramount (Civil Code of the Philippines, Art. 363), and that for compelling reasons, even a child under seven may be ordered separated from
the mother (Do.) This is as it should be, for in the continual evolution of legal institutions, the patria potestas has been transformed from the jus
vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually a chattel of his parents, into a radically different
institution, due to the influence of Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pea, now
there is no power, but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the
minor. 1

As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to
provide the children with adequate support, education, moral, intellectual and civic training and development (Civil Code, Art. 356). As
remarked by the Court below, petitioner Zenaida Medina proved remiss in these sacred duties; she not only failed to provide the child with love
and care but actually deserted him, with not even a visit, in his tenderest years, when he needed his mother the most. It may well be doubted
what advantage the child could derive from being coerced to abandon respondents care and love to be compelled to stay with his mother and
witness her irregular menage a trois with Casero and the latters legitimate wife.

It is hinted that respondents motivation in refusing to surrender the boy is to coerce petitioner to pay for the rearing of the child. This is not
acceptable, for Dra. Makabali knew (at least at the trial) that any expectation on her part is illusory, given Zenaidas meager resources, yet
expressed willingness to care and educate him.

No abuse of discretion being shown, but on the contrary, the appealed order being justified in fact and law, we hold that said order should be,
and hereby is, affirmed. Costs against appellant.
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summary Petitioner Zenaida gave birth to a baby boy in respondent Dra. Makabalis clinic, and then left the boy in the latters care without
bothering to visit him or pay for any of his expenses for six years. Zenaida then filed for habeas corpus, seeking custody . At trial, the CFI saw
that the boy treated Dra. Makabali like his mother and actually chose to stay with her, and that Zenaida was living with a married man in an
irregular mnage a trois tolerated by the latters wife. The CFI denied the petition, and upon appeal, the SC affirmed this denial, holding that it
was in the best interest of the child to stay with Dra. Makabali. A parents right to the custody of her children is ancillary to the proper discharge
of parental duties.

facts of the case

In 1961, petitioner Zenaida gave birth to a baby boy named Joseph Casero in the Makabali Clinic in San Fernando, Pampanga, owned and
operated by respondent Dra. Makabali, an unmarried woman.

Zenaida left the child with Dra. Makabali from his birth, and the latter reared Joseph as her own son. She had him treated for her expense for
polio in Manila, nursed him until his recovery, and sent him to school. From birth, Zenaida neither visited the child nor paid for his expenses,
until she filed a petition for habeas corpus before the Pampanga CFI. At trial, it was found that Zenaida lived with a married man, Feliciano
Casero, and their two other children. This arrangement was apparently at the tolerance of Caseros lawful wife, who lived elsewhere. Casero
was a mechanic making P400/month, while Zenaida earns P4 to P5 a day.

When Joseph was called to the witness stand in the presence of both parties, the CFI found that he never knew his biological mother, Zenaida;
the CFI had to inform him. He repeatedly referred to Dra. Makabali as his Mammy, and when asked with whom he would like to stay, Joseph
pointed to the respondent and said, Mammy. When further questioned why, Joseph said, She is the one rearing me. (Wow big words at 6
years old)

Dra. Makabali promised the CFI that she would allow the minor a free choice with whom to live upon reaching the age of 14. The CFI then ruled
that it was in the childs best interest to be left with the respondent. Zenaida then appealed.

issue

Whether Zenaida is entitled to custody of the child. NO. The right to custody entails the proper discharge of parental duties.

ratio

Art. 363 of the Civil Code provides that in all questions on the care, custody, education, and property of children, the latters welfare shall be
paramount. Further, for compelling reasons, even a child under seven years old may be ordered separated from his mother. The law has thus
created what the civilist Pea calls a sacred trust for the welfare of the minor. Hence, the right of parents to the company and custody of their
children is but ancillary to the proper discharge of parental duties to provide the children with adequate support, education, moral intellectual,
and civic training and development, as provided by Art. 356.

As found by the Court, Zenaida was remiss in these duties. She not only failed to provide the child with love and care: she actually deserted him,
not even visiting him in his tenderest years. No advantage could be derived from coercing Joseph to leave Dra. Makabalis care, in order to stay
with Zenaida and witness her irregular mnage a trois with Casero and the latters legitimate wife.

There is an attempt to allege that Dra. Makabali refuses to surrender the boy in order to coerce Zenaida to pay for the childs expenses. Given
Zenaidas meager resources, any expectation on Dra. Makabalis part would bedirect quote from the Courtillusory. (Translation:
Ilusyonada daw si Zenaida na habol ni Doc yung pera niya. Wala naman siyang pera. Haha.) The CFIs order is hereby affirmed.

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Nery v. Lorenzo 44 SCRA 431

G.R. No. L-23376 April 27, 1972

Ponente: Fernando, J.:

Facts:

1. A parcel of land was sold to vendee spouses Nery by the widow of the deceased Leoncio Lorenzo. The vendor was Bienvenida (widow),
guardian of the decedent's minor children. Two (2) of whom later assailed the validity of the said transaction. The latter contended that despite
the order of the guardianship court authorizing the sale of the lot, they were not informed of the move. Further, they contended that the
guardianship proceeding was conducted without notifying the two older siblings although they were already more than 14 years of age at that
time.

2. The heirs of Silveria Ferrer who allegedly owned 1/4 of the property likewise intervened in the action. The lower court adjudged them the
owners of the 1/4 portion and it likewise declared the sale to be null and void.

3. The spouses Nery appealed to the Court of Appeals which declared the deed of sale to the spouses (as to the 3/4 portion) by the guardian is
valid, without prejudice to the children demanding from their mother their participation in the proceeds. Not being satisfied with the appellate
court's decision, the spouses Nery, the children of the deceased and Bienvenida filed these petitions.

Issue:

Whether or not the probate court could have validly authorize the sale of the property

RULING:

No, the juridictional infirmity is clear. The Court of Appeals failed to give due weight to the jurisdictional defect that the minors over 14 years
age were not notified. The probate court is therefor correct in not have authorized the sale due to this clear jurisdictional infirmity. The rights of
the young should never be ignored and it does not matter if their guardian is their mother, as even in some cases, the interest of the mother is
opposed to that of the children.

Finally, when minors are involve, the state being the parens patriae has the duty to protect the rights of persons or individuals who because of
age or incapacity are in an unfavorable position.

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OPOSA VS FACTORAN 224 SCRA 792

G.R. No. 101083. July 30, 1993.

Art. II, Sec. 16. Right to a Balanced and Healthful Ecology (inter-generational justice and responsibility)

FACTS:

Forty-four children, through their parents, sought to make the DENR Secretary stop issuing licenses to cut timber, invoking their right to a
healthful environment (Secs. 16, 15 Article II, 1987 Constitution). The petitioners further asserted that they "represent their generation as well
as generations yet unborn." They further claimed that the Secretary committed grave abuse of discretion in granting Timber License
Agreements to cover more areas for logging than what is available.

ISSUE:

Whether or not the petitioners have a cause of action to file the case.

RULING:

Yes. the Court stated that even though the right to a balanced and healthful ecology is under the Declaration of Principles and State Policies of
the Constitution and not under the Bill of Rights, it does not follow that it is less important than any of the rights enumerated in the latter: [it]
concerns nothing less than self-preservation and self-perpetuation, the advancement of which may even be said to predate all governments and
constitutions. The right is linked to the constitutional right to health, is fundamental, constitutionalised, self-executing and judicially
enforceable. It imposes the correlative duty to refrain from impairing the environment.

The court stated that the petitioners were able to file a class suit both for others of their generation and for succeeding generations as the
minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come.

FACTS:

A taxpayers class suit was filed by minors Juan Antonio Oposa, et al., representing their generation and generations yet unborn, and
represented by their parents against Fulgencio Factoran Jr., Secretary of DENR. They prayed that judgment be rendered ordering the defendant,
his agents, representatives and other persons acting in his behalf to:

1. Cancel all existing Timber Licensing Agreements (TLA) in the country;

2. Cease and desist from receiving, accepting, processing, renewing, or appraising new TLAs;

and granting the plaintiffs such other reliefs just and equitable under the premises. They alleged that they have a clear and constitutional
right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as parens patriae. Furthermore, they claim
that the act of the defendant in allowing TLA holders to cut and deforest the remaining forests constitutes a misappropriation and/or
impairment of the natural resources property he holds in trust for the benefit of the plaintiff minors and succeeding generations.

The defendant filed a motion to dismiss the complaint on the following grounds:

1. Plaintiffs have no cause of action against him;

2. The issues raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of the
government.

ISSUE:

Do the petitioner-minors have a cause of action in filing a class suit to prevent the misappropriation or impairment of Philippine rainforests?

HELD:

Yes. Petitioner-minors assert that they represent their generation as well as generations to come. The Supreme Court ruled that they can, for
themselves, for others of their generation, and for the succeeding generation, file a class suit. Their personality to sue in behalf of succeeding
generations is based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right considers the rhythm and harmony of nature which indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the countrys forest, mineral, land, waters, fisheries, wildlife, offshore areas and other natural
resources to the end that their exploration, development, and utilization be equitably accessible to the present as well as the future
generations.

Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors assertion of their right to a sound environment constitutes at the same time, the
performance of their obligation to ensure the protection of that right for the generations to come.
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Maria A Massegeld vs CA 1993 300 SCRA 464

Illegitimate children shall use the surname of the mother , and this is rule regardless of whether or not the father admits paternity.

Mandamus does not lie to compel the performance of an act prohibited by law

Facts:

In 1989, Marissa Mossesgeld (single), gave birth to a baby boy. The father, one Eleazar Calasan (married), signed the birth certificate of the
child as the informant, indicating therein the childs name as Jonathan Mossesgeld Calasan. Both Eleazar and Marissa accomplished the dorsal
side of the certificate of live birth stating that the information contained therein were true and correct. In addition, Eleazar executed an affidavit
admitting paternity of the child.

The person in charge at the hospital refused to place Calasan as the childs surname in the certificate of live birth; hence, Eleazar himself
submitted the certificate to the office of the local civil registrar of Mandaluyong, for registration. The local civil registrar denied the registration
on the basis of Circular No. 4, dated October 11, 1988, of the Civil Registrar General, providing that under Article 176 of the Family Code of the
Philippines, illegitimate children born on or after August 3, 1988, shall use the surname of their mother.

Eleazar filed with the Regional Trial Court of Pasig a petition for mandamus to compel the Local Civil Registrar of Mandaluyong to register the
certificate of live birth of his alleged illegitimate son using his surname. The RTC denied the petition. Eleazar filed a motion for reconsideration.
Later, he filed a motion for leave to amend petition and to admit amended petition, substituting the childs mother Marissa A. Mossesgeld as
the petitioner. The MR was denied. The CA affirmed the decision.

Issue:

Does mandamus lie to compel the Local Civil Registrar to register a certificate of live birth of an illegitimate child using the alleged fathers
surname where the latter admitted paternity?

Held:

No. Article 176 of the Family Code of the Philippines provides that illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code.

This is the rule regardless of whether or not the father admits paternity. Consequently, the Local Civil Registrar correctly refused to register the
certificate of live birth of petitioners illegitimate child using the surname of the alleged father, even with the latters consent. Of course, the
putative father, though a much married man, may legally adopt his own illegitimate child. In case of adoption, the child shall be considered a
legitimate child of the adopter, entitled to use his surname.

Mandamus will not lie to compel the local civil registrar to register the certificate of live birth of an illegitimate child using the fathers surname,
even with the consent of the latter. Mandamus does not lie to compel the performance of an act prohibited by law.

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Padilla vs. Republic, 113 SCRA 789

SYNOPSIS

Petitioner and Vincent Co were married on May 5, 1954. They begot five children namely; Michael, Abigail, Rafael, Gabriel and Annabelle. On
December 29, 1964, Vicente Co was declared an absentee after leaving the conjugal home in 1960 when he became a fugitive from justice.
On October 30, 1965, petitioner contracted a second marriage with Sgt. Edward Padilla. Padilla treated the minor children of petitioner with
affection as if they were his own children. This prompted petitioner to file a petition for change of the minors surname from Copuaco or Co
to Padilla. The lower court granted the petition. The State appealed contending that our laws do not authorize legitimate children to adopt
the surname of a person who is not their father. The Supreme Court set aside the decision of the lower court and held that to allow the
minor children to adopt the surname of their mothers second husband, who is not their father, could result in confusion in their paternity
and to bring their legitimate status into discredit; and that the petition is premature as the matter of change of surname of the minor
children should be left to their judgment and discretion when they reach the age of maturity.

SYLLABUS

1. CIVIL LAW; PERSONS; USE OF SURNAMES; LEGITIMATE CHILDREN SHALL PRINCIPALLY USE THE SURNAME OF THE FATHER. Our laws
do not authorize legitimate children to adopt the surname of a person who is not their father. Article 364 of the Civil Code explicitly provides
that "legitimate children . . . shall principally use the surname of their father.

2. RATIONALE. To allow said minors to adopt the surname of their mothers second husband, who is not their father, could result in
confusion in their paternity. It could also create the suspicion that said minors, who were born during the coverture of their mother with her
first husband, were in fact sired by her second husband, thus bringing their legitimate status into discredit.

3. PETITION FOR CHANGE OF SURNAME OF MINOR CHILDREN; PREMATURE IN CASE AT BAR. The instant action taken by petitioner in
behalf of her minor children is premature. Indeed, the matter of change of their surname should be left to the judgment and discretion of the
children themselves when they reach the age of maturity. If in their adulthood they want to change their surname, then they themselves or any
of them may take such appropriate action as the law may permit.

DECISION

This is an appeal by the State from the decision of the Court of First Instance of Pampanga perfected before the effectivity of Republic Act No.
5440 granting the petition of Dolores Gemora for change of surname of her minor children: Michael, Abigail, Rafael, Gabriel and Annabelle,
from "Copuaco" or "Co" to "Padilla."

Dolores Gemora and Vincent Co, a Chinese national, were married on May 5, 1954. This matrimonial union begot five children, namely: Michael
Copuaco, Abigail Copuaco, Rafael Copuaco, Gabriel Copuaco, and Annabelle Co.

Sometime in November 1960, Vincent Co left the conjugal abode in Caloocan City and has since never returned to, or even visited, his family. It
is alleged that he was a fugitive from justice, having been charged with several offenses of estafa before the Court of First Instance of Manila 1
and the City Court of Caloocan City. 2

Because of his continuous absence, the Court of First Instance of Pampanga, on petition of Dolores Gemora, issued an order dated December
29, 1964 in Sp. Proc. No. 1776, declaring Vincent Co as an absentee. 3

On October 30, 1965, Dolores Gemora contracted a second marriage with Sgt. Edward Padilla, an American serviceman stationed at Clark Air
Base, Angeles City. The five minor children, who had been living with said spouses, were generously supported by Padilla and were treated by
him with affection as if they were his own children.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

This harmonious relation existing between said minors and their stepfather prompted Dolores Gemora to file the instant petition for change of
the minors surname from "Copuaco" or "Co" to "Padilla", which petition was granted by the lower court after due notice and hearing.

Hence, this appeal.

RULING:

We find merit in the contention of the Solicitor General that our laws do not authorize legitimate children to adopt the surname of a person
who is not their father. Said minors are the legitimate children of Vincent Co; and Article 364 of the Civil Code explicitly provides that
"legitimate children . . . shall principally use the surname of their father."cralaw virtua1aw library

To allow said minors to adopt the surname of their mothers second husband, who is not their father, could result in confusion in their
paternity. It could also create the suspicion that said minors, who were born during the coverture of their mother with her first husband, were
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in fact sired by Edward Padilla, thus bringing their legitimate status into discredit.
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The case before Us is not of first impression. In Moore v. Republic 4 , a case involving the same factual milieu, We held that:

"Our laws do not authorize a legitimate child to use the surname of a person who is not his father. Article 364 of the Civil Code specifically
provides that legitimate children shall principally use the surname of their father, and Article 369 of the same Code provides that in case of
annulment of a voidable marriage the children conceived before the annulment shall principally use the surname of the father, and considering
by analogy the effect of a decree of divorce, it is correctly concluded that the children who are conceived before such a decree should also be
understood as carrying the surname of the real father.

"If a child born out of a lawful wedlock be allowed to bear the surname of the second husband of the mother, should the first husband die or be
separated by a decree of divorce, there may result a confusion as to his real paternity. In the long run the change may redound to the prejudice
of the child in the community. While the purpose which may have animated petitioner, the minors mother, is plausible and may run along the
feeling of cordiality and spiritual relationship that pervades among the members of the family of her second husband, there is a legal barrier
which cannot at present be overlooked or brushed aside. . . ."cralaw virtua1aw library

Apart from the legal obstacles discussed above, We consider the instant action taken by petitioner in behalf of her minor children to be
premature. Indeed, the matter of change of their surname should better be left to the judgment and discretion of the children themselves when
they reach the age of maturity. If in their adulthood they want to change their surname, then they themselves or any of them may take such
appropriate action as the law may permit.chanrobles.com.ph : virtual law library

WHEREFORE, the decision of the lower court granting the petition is hereby set aside, and the petition dismissed. No costs.

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People vs Cervantes 222 SCRA 365 1993

Absence of extensive abrasions on the vaginal wall does not rule out rape; the slightest penetration being enough.

[G.R. No. 117737. December 27, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NEMECIO B. CERVANTES, accused-appellant.

DECISION

The accused, Nemecio B. Cervantes, appealed to this Court from the judgment of the Regional Trial Court of Pasay City, in Criminal Case No. 92-
0567, convicting him of the rape of a 16-year old girl. He was charged with the commission of the offense in an information that read:

The undersigned State Prosecutor of the Department of Justice upon prior sworn complaint of Rosalyn M. Salvador, the offended party, hereby
accuses NEMECIO B. CERVANTES of the crime of rape penalized under Article 335 of the Revised Penal Code, committed as follows:

That in or about June 1991, in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with
a knife, did then and there willfully, unlawfully and feloniously threatened and succeeded in having sexual intercourse with the said ROSALYN
M. SALVADOR against her will and consent, to her damage and prejudice.

CONTRARY TO LAW.[1]

The Solicitor General, adopting by and large the findings of the trial court, gives a brief narration of the evidence for the prosecution.

VICTIM ROSALYN SALVADOR (who was crying until the end of her testimony) testified that sometime on June 1991 at 7:00 p.m., she was alone
inside their house at No. 87 R. Higgins Street, Pasay City, because her mother was in the store at Villamor Airbase, her eldest brother was with a
friend and the younger one, was playing. While watching a TV show (pp. 6-7, tsn, Sept. 14, 1992), accused Nemecio Cervantes whom she fondly
called `Kuya Dodong, who was renting part of their house for more than 6 years, knocked on the door of the victims house. Rosalyn Salvador
peeped at the window to find out who was knocking at the door, she discovered, it was Nemecio Cervantes. The latter asked for some water,
so, the victim opened the door and gave him water (pp. 7-10, supra). The accused did not drink the water; instead, he entered the house then
dragged the victim inside the comfort room. The accused kept on kissing the face, neck and all parts of the body of the victim who was crying
and resisting (pp. 10-11, supra). Later on, the victim was asked by the accused, with a knife poked on the middle portion of her throat, to take
off her t-shirt and short pants and to lay down, to which she gave in (pp. 11-12, supra). The accused removed victims bra and panty and inserted
his penis to the vagina of Rosalyn Salvador. She felt pain (pp. 11-13, supra). Immediately thereafter, the accused left the victim in the comfort
room with a warning not to tell anybody; otherwise, she and her brothers will be killed by the accused (pp. 13-14, supra). The victim washed her
face and her entire body then she met her mother in the store. She never told her mother earlier about the rape because of the death threat
(pp. 14-15, supra).

Sometime on August 1991 and November 1991, the same rape incident happened between Rosalyn Salvador and Nemecio Cervantes under the
same circumstances of death threats to her, her brothers and her mother (pp. 17-18, supra).

The victim first reported the rape incident to her Tita then to her mother on February 3, 1992 (pp. 18-19, supra). She was accompanied by her
Tita and her mother to the NBI where she executed a sworn statement (Exhs. B to B-6). By reason of the sexual abuse, Rosalyn Salvador failed to
go to school for few months and she got failing grades. As to moral damages, she cannot quantify the same in terms of money. Her feelings was
pagkainis at pagkasuklam to Nemecio Cervantes (pp. 21-22, tsn, Sept. 14, 1992).

Dr. Ruperto Sombilon, Jr., Medico Legal Officer, NBI, Manila, testified that on February 2, 1992 at 8.30 p.m., he conducted a genital examination
on the person of Rosalyn Salvador. His findings were old-healed hymenal lacerations, in 3 oclock and 9 oclock positions; the age of which
correlates to the date of commission of rape cases (Exhs. A to A-2). Said lacerations were caused by a male organ and that at the time of the
rape, Rosalyn Salvador was still a virgin.[2]

The accused, in his defense, asserted that the incident complained of had come about because of mutual desire and consent of both parties, he
and private complainant still then being sweethearts.

On 05 September 1994, the trial court found for the prosecution, and it rendered judgment convicting Cervantes of rape. The court held:

IN VIEW OF THE FOREGOING, the Court finds Nemecio Cervantes guilty beyond reasonable doubt of the charge of Rape against him.
Accordingly, he is hereby sentenced to suffer the penalty of reclusion perpetua and to pay Rosalyn Salvador the sum of P500,000.00 as
moral damages.

Costs against Nemecio Cervantes.[3]

In this appeal, accused-appellant raised a lone assignment of error, i.e., that

The Court a quo erred in convicting the accused guilty as charged for the crime of rape the same being contrary to the facts, the evidence and
the law/jurisprudence on the matter.[4]

The Court, almost invariably, is asked in rape cases to choose between the discordant, often essentially irreconcilable, declaration of the victim
and that of the accused. In that determination, an appellate court, realizing many times that it cannot hope to be in a position greater than, or
even equal to, that of the trial court which can observe up close the demeanor of witnesses in giving their testimony, simply would accord due
respect to the findings of the lower court. Here, the records do not give any trace of whim or arbitrariness on the part of the court a quo in its
assessment of the facts; quite the contrary, it appears to have been judicious in its findings.

Rosalyn, who was barely 16 years of age when she underwent her harrowing experience, in tears[5] gave this detailed account of the incident:
9
Page
Q On the second week of June 1991 at around 7:00 in the evening what are you doing at that time?

A I was watching T.V.

Q While you were watching T.V. at around 7:00 in the evening of the second week of June 1991 do you recall if there was any unusual incident
that happened?

A Yes sir.

Q And what was this unusual incident that happened?

A Kuya Dodoy knocked at our door.

Q Now you mentioned the name `kuya Dodoy who was this `kuya Dodoy?

A He is renting in our house.

Q And what is his full name if you know?

A Nemecio Cervantes.

Q Why do you call him Miss Salvador `kuya Dodoy?

A Because I respect him as a renter in our house.

Q And how long has he been renting in your house?

A For more than 6 years.

Q In other words you are around ten years old when `kuya Dodoy or Nemecio Cervantes started renting in your house?

A Yes sir.

ATTY. CATLY:

I would like to make of record that the witness while testifying she is continuously crying your honor.

COURT:

Put it in record.

Q What part of your house, `kuya Dodoy is renting?

A He was with the other who rented at our house.

Q Also inside your house?

A No sir.

Q Where in particular?

A After at the left side.

Q Now in going to his room does he have to pass the same door in going inside your house?

A No sir the way to our house is different from the way to the room he had rented.

Q Now you mentioned while ago that `kuya Dodoy or Nemecio Cervantes knocked at your door while you were watching T.V. at around 7:00 in
the evening what did you do?

A I peeped at the window to find out who is knocking at the door and I saw him.

Q When you saw him what happened?

A He was asking for water, I opened the door and give the water.

Q Now do you recall whether he drank the water that you gave to him?

A No sir.

Q Was he able to enter your house when you gave the water?

A Yes sir.

Q While he was able to get inside your house what did he do if any?
10

A He dragged me hinatak going to the comfort room.


Page
Q Was he able to drag you at the comfort room?

A Yes sir.

Q While inside the comfort room what did `kuya Dodoy or Nemecio Cervantes do to you if any?

A He kept kissing me.

Q What part of your body did he kiss you?

A On the face, neck, all the parts of my body.

Q While he was doing this to you what did you do?

A I was just crying.

Q Now while he was kissing you what did he do if any?

A He asked me to remove my clothes.

Q By the way what were you wearing at that time?

A I was in T-shirt and walking short.

Q And when he told you to remove your clothes what did you do?

A I did what he told me because he was pointing his knife on me.

Q What particular part of your body does he poke his knife to you?

A Witness pointing to the middle portion of her throat.

Q Did he says anything when he poke his knife to you at your throat?

A Yes sir.

Q What did he say?

A He told me not to tell anybody about it because if I do so he will kill me.

Q And were you able to remove your clothes as ordered by Nemecio Cervantes?

A Yes sir.

Q What else were you wearing aside from your T-shirt and walking short?

A Bra and panty.

Q And will you inform this honorable court who remove your panty and bra?

A He was the one who remove the bra.

Q How about your panty?

A Nemecio Cervantes sir.

Q Now after the accused removed your bra and panty what things did he do if any?

A He was inserting his sex organ to my organ.

Q Do you recall if he was able to place his organ to your organ?

A Yes sir.

Q What did you feel when you felt his organ inside your organ?

A Pain.

Q Now after he was able to insert his organ to your organ what happened next?
11

A He left me inside the comfort room and warned me not to tell anybody.
Page
Q What else did he do other than warning you not to tell anybody.

A He told that he would kill me and my brothers.

Q How while he was kissing you inside the comfort room did you not think to shout and ask for help?

A No sir, because I was surprised of what he was doing to me.

Q Now after he left you in the comfort room what did you do if any?

A I washed my face and my entire body.

Q And when you washed your entire body what did you feel or see if any?

A I saw blood on my panty.

Q Now after you had washed yourself after that incident what did you do?

A I left the house and I went to the store where my mother was.

Q Were you able to see your mother at your store?

A Yes sir.

Q And what transpired when you arrived at the store of your mother?

A My mother asked where I came from.

Q What did you tell her?

A I told her I came from the house.

Q What did she ask you if any?

A She told me why I was sad and my eyes are red.

Q What did you tell to your mother?

A I told her that I have just woke up.

Q What other things transpired if any?

A She did not ask any more.

Q You stated a while ago `kuya Dodoy will you please point him if he is inside the court room?

A (Person pointed to identified himself as Nemecio Cervantes.)[6]

Appellant would instead point to complainants mother Angelina, his paramour, to be the real instigator of the complaint against him,
supposedly because she was outraged when appellant broke off their relationship and, consequently, in a fit of jealousy, anger and revenge, she
induced her daughter to falsely accuse him of rape. Quite unlikely! No mother would stoop so low as to subject her daughter to shame merely
to assuage her own hurt feelings.[7] The sweetheart theory, likewise, should deserve no better treatment. Except for a spurious love letter
allegedly sent by the victim, no evidence was adduced to support the claim. Such a letter, even if genuine, could not have been a carte blanche
or an open invitation for sexual indulgence. Indeed, had the two really been sweethearts, it would be hard to accept their having chosen a
comfort room, rather than a more suitable rendezvous, for their tryst.[8]

Accused-appellant stresses on the delay of the complainant in reporting the incident. This court has upheld the conviction of an accused for
rape even when the complainant discloses the incident days or even months after its occurrence. It is not uncommon for young girls to conceal
for some time the assaults on their virtue particularly when there is a threat by the rapist on the victim or her family.[9] The complainant has
testified:

Q What did he say?

A He told me not to tell anybody about it because if I did so he will kill me.

xxxxxxxxx

Q What else did he do other than warning you not to tell anybody.

A He told that he would kill me and my brothers.[10]

The Court agrees with the sentence imposed but finds the award of P500,000.00 by way of damages to be far in excess of that currently set
12

under prevailing jurisprudence. In People vs. Joya,[11] the Court has reiterated the rule of adjudging against the convicted accused moral
damages of P50,000.00 in (the) rape of young girls, with ages ranging from thirteen to nineteen years.
Page
People vs Ty, 263 SCRA 745

People v. Vicente Ty and Carmen Ty (G.R. No. 121519)

Vicente Ty AND Carmen Ty were charged with the crime of kidnapping and failure to return a minor in an information filed by 2nd Assistant City
Prosecutor of Kalookan City Rosauro J. Silverio, the accusatory portion of which reads:

That on or about the month of April 1989, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, being then the owners, proprietors, managers and administrators of Sir John Clinic and as such said accused had the custody of
Arabella Somblong, a minor, conspiring together and mutually helping one another and with deliberate intent to deprive the parents of the
child of her custody, did then and there willfully, unlawfully and feloniously fail to restore the custody of said Arabella Sombong to her parents
by giving said custody of subject minor to another person without the knowledge and consent of her parents.

Contrary to Law.[1]

Both accused were arrested, and then arraigned on October 27, 1992 when they pleaded not guilty to the crime charged.

After trial, on May 31, 1995, a decision was rendered by the Regional Trial Court of Kalookan City, Branch 123, the decretal portion of which
disposes as follows:

WHEREFORE, this Court finds both accused Spouses Vicente Ty and Carmen Ty guilty beyond reasonable doubt of the crime of kidnapping a
minor and failure to return the same as defined and penalized by Article 270 of the Revised Penal Code and hereby sentences them to suffer
imprisonment of reclusion perpetua. The accused are hereby ordered to pay the private complainant the sum of P100,000.00 by way of moral
damages caused by anxiety, by her being emotionally drained coupled by the fact that up to this date she could not determine the whereabouts
of her child Arabella Sombong.

SO ORDERED.[2]

The accused now interposes this appeal alleging the ensuing assignment of errors, viz:

THE TRIAL COURT ERRED IN FINDING THAT APPELLANTS DELIBERATELY FAILED TO RESTORE THE CHILD TO HER MOTHER, AND CONVICTING
THEM UNDER ART. 270 OF THE REVISED PENAL CODE, AND SENTENCING THEM TO RECLUSION PERPETUA;

II

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE CRIME COMMITTED, IF ANY, IS THAT DEFINED AND PENALIZED UNDER ART. 227 OF THE
REVISED PENAL CODE;

III

THE TRIAL COURT ERRED IN NOT RECOMMENDING EXECUTIVE CLEMENCY PURSUANT TO PRECEDENT IN PEOPLE vs. GUTIERREZ, 197 SCRA 569;
and

IV

THE TRIAL COURT ERRED IN AWARDING COMPLAINANT THE SUM OF P100,000.00 BY WAY OF MORAL DAMAGES.[3]

The relevant antecedents surrounding the case are as follows:

On November 18, 1987, complainant Johanna Sombong brought her sick daughter Arabella, then only seven (7) months old, for treatment to
the Sir John Medical and Maternity Clinic located at No. 121 First Avenue, Grace Park, Kalookan City which was owned and operated by the
accused-appellants. Arabella was diagnosed to be suffering bronchitis and diarrhea, thus complainant was advised to confine the child at the
clinic for speedy recovery. About three (3) days later, Arabella was well and was ready to be discharged but complainant was not around to take
her home. A week later, complainant came back but did not have enough money to pay the hospital bill in the amount of P300.00. Complainant
likewise confided to accused-appellant Dr. Carmen Ty that no one would take care of the child at home as she was working. She then inquired
about the rate of the nursery and upon being told that the same was P50.00 per day, she decided to leave her child to the care of the clinic
nursery. Consequently, Arabella was transferred from the ward to the nursery.[4]

Thereafter, hospital bills started to mount and accumulate. It was at this time that accused-appellant Dr. Ty suggested to the complainant that
she hire a yaya for P400.00 instead of the daily nursery fee of P50.00. Complainant agreed, hence, a yaya was hired. Arabella was then again
transferred from the nursery to the extension of the clinic which served as residence for the hospital staff.[5]

From then on, nothing was heard of the complainant. She neither visited her child nor called to inquire about her whereabouts. Her estranged
husband came to the clinic once but did not get the child. Efforts to get in touch with the complainant were unsuccessful as she left no address
or telephone number where she can be reached. This development prompted Dr. Ty to notify the barangay captain of the childs
13

abandonment.[6] Eventually, the hospital staff took turns in taking care of Arabella.[7]

Sometime in 1989, two (2) years after Arabella was abandoned by complainant, Dr. Fe Mallonga, a dentist at the clinic, suggested during a
Page

hospital staff conference that Arabella be entrusted to a guardian who could give the child the love and affection, personal attention and caring
she badly needed as she was thin and sickly. The suggestion was favorably considered, hence, Dr. Mallonga gave the child to her aunt, Lilibeth
Neri.[8]

In 1992, complainant came back to claim the daughter she abandoned some five (5) years back.

When her pleas allegedly went unanswered, she filed a petition for habeas corpus against accused-appellants with the Regional Trial Court of
Quezon City. Said petition was however denied due course and was summarily dismissed without prejudice on the ground of lack of jurisdiction,
the alleged detention having been perpetrated in Kalookan City.

Thereafter, the instant criminal case was filed against accused-appellants.

Complainant likewise filed an administrative case for dishonorable conduct against accused-appellant Dr. Carmen Ty before the Board of
Medicine of the Professional Regulation Commission. This case was subsequently dismissed for failure to prosecute.

On October 13, 1992, complainant filed a petition for habeas corpus with the Regional Trial Court of Quezon City, this time against the alleged
guardians of her daughter, namely, Marietta Neri Alviar and Lilibeth Neri. On January 15, 1993, the trial court rendered a decision granting the
petition and ordering the guardians to immediately deliver the person of Cristina Grace Neri to the complainant, the court having found Cristina
to be the complainants child. On appeal to the Court of Appeals, however, said decision was reversed on the ground that the guardians were
not unlawfully withholding from the complainant the rightful custody of Cristina after finding that Cristina and complainants daughter are not
one and the same person. On January 31, 1996, this Court in Sombong v. Court of Appeals[9] affirmed the Court of Appeals decision.

In this appeal, accused-appellants would want us to take a second look and resolve the issue of whether or not they are guilty of kidnapping and
failure to return a minor. Accused-appellants of course contend that they are not guilty and the Solicitor General agrees. In its Manifestations
and Motion in lieu of Appellees Brief, the Office of the Solicitor General recommends their acquittal.

We agree.

As we have mentioned above, this Court in Sombong v. Court of Appeals[10] affirmed the decision of the Court of Appeals reversing the trial
courts ruling that complainant has rightful custody over the child, Cristina Grace Neri, the latter not being identical with complainants daughter,
Arabella. The Court discoursed, thusly:

Petitioner does not have the right of custody over the minor Cristina because, by the evidence disclosed before the court a quo, Cristina has not
been shown to be petitioners daughter, Arabella. The evidence adduced before the trial court does not warrant the conclusion that Arabella is
the same person as Cristina.

xxx

In the instant case, the testimonial and circumstantial proof establishes the individual and separate existence of petitioners child, Arabella, from
that of private respondents foster child, Cristina.

We note, among others, that Dr. Trono, who is petitioners own witness, testified in court that, together with Arabella, there were several babies
left in the clinic and so she could not be certain whether it was Arabella or some their baby that was given to private respondents. Petitioners
own evidence shows that, after the confinement of Arabella in the clinic in 1987, she saw her daughter again only in 1989 when she visited the
clinic. This corroborates the testimony of petitioners own witness, Dra. Ty, that Arabella was physically confined in the clinic from November,
1987 to April, 1989. This testimony tallies with her assertion in her counter-affidavit to the effect that Arabella was in the custody of the
hospital until April, 1989. All this, when juxtaposed with the unwavering declaration of private respondents that they obtained custody of
Cristina in April, 1988 and had her baptized at the Good Samaritan Church on April 30, 1988, leads to the conclusions that Cristina is not
Arabella.

Significantly, Justice Lourdes K. Tayao-Jaguros, herself a mother and the ponente of the herein assailed decision, set the case for hearing on
August 30, 1993 primarily for the purpose of observing petitioners demeanor towards the minor Cristina. She made the following personal but
relevant manifestation:

The undersigned ponente as a mother herself of four children, wanted to see how petitioner as an alleged mother of a missing child supposedly
in the person of Cristina Neri would react on seeing again her long lost child. The petitioner appeared in the scheduled hearing of this case late,
and she walked inside the courtroom looking for a seat without even stopping at her alleged daughters seat; without even casting a glance on
said child, and without even that tearful embrace which characterizes the reunion of a loving mother with her missing dear child. Throughout
the proceedings, the undersigned ponente noticed no signs of endearment and affection expected of a mother who had been deprived of the
embrace of her little child for many years. The conclusion or finding of undersigned ponente as a mother, herself, that petitioner-appellee is not
the mother of Cristina Neri has been given support by aforestated observation xxx.

xxx

Since we hold that petitioner has not been established by evidence to be entitled to the custody of the minor Cristina on account of mistaken
identity, it cannot be said that private respondents are unlawfully withholding from petitioner the rightful custody over Cristina. At this
juncture, we need not inquire into the validity of the mode by which private respondents acquired custodial rights over the minor, Cristina.

xxx

Under the facts and ruling in Sombong, as well as the evidence adduced in this case accused-appellants must perforce be acquitted of the crime
charged, there being no reason to hold them liable for failing to return one Cristina Grace Neri, a child not conclusively shown and established
14

to be complainants daugther, Arabella.


Page

The foregoing notwithstanding, even if we were to consider Cristina Grace Neri and Arabella Sombong as one and the same person, still, the
instant criminal case against the accused-appellants must fall.
Before a conviction for kidnapping and failure to return a minor under Article 270 of the Revised Penal Code can be had, two elements must
concur, namely: (a) the offender has been entrusted with the custody of the minor, and (b) the offender deliberately fails to restore said minor
to his parents or guardians. The essential element herein is that the offender is entrusted with the custody of the minor but what is actually
punishable is not the kidnapping of the minor, as the title of the article seems to indicate, but rather the deliberate failure or refusal of the
custodian of the minor to restore the latter to his parents or guardians.[11] Said failure or refusal, however, must not only be deliberate but
must also be persistent as to oblige the parents or the guardians of the child to seek the aid of the courts in order to obtain custody.[12] The key
word therefore of this element is deliberate and Blacks Law Dictionary defines deliberate as:

Deliberate, adj. Well advised; carefully considered; not sudden or rash; circumspect; slow in determining. Willful rather than merely intentional.
Formed, arrived at, or determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan. Carried
on coolly and steadily, especially according to a preconceived design; given to weighing facts and arguments with a view to a choice or decision;
careful in considering the consequences of a step; slow in action; unhurried; characterized by reflection; dispassionate; not rash. People v.
Thomas, 25 Cal. 2d 880, 156 P. 2d 7, 17, 18.

By the use of this word, in describing a crime, the idea is conveyed that the perpetrator weighs the motives for the act and its consequences,
the nature of the crime, or other things connected with his intentions, with a view to a decision thereon; that he carefully considers all these,
and that the act is not suddenly committed. It implies that the perpetrator must be capable of the exercise of such mental powers as are called
into use by deliberation and the consideration and weighing of motives and consequences.[13]

Similarly, the word deliberate is defined in Corpus Juris Secundum as:

DELIBERATE.

As a Verb

The word is derived from two Latin words which mean literally concerning and to weigh, it implies the possession of a mind capable of
conceiving a purpose to act, and the exercise of such mental powers as are called into use by the consideration and weighing of the motives and
the consequences of the act; and has been defined as meaning to consider, reflect, take counsel, or to weigh the arguments for and against a
proposed course of action; to consider and examine the reasons for and against, consider maturely, ponder, reflect upon, or weigh in the mind;
to reflect, with a view to make a choice; to weigh the motives for an act and its consequences, with a view to a decision thereon.

As an Adjective

The word, used adjectively, implies action after thought and reflection, and relates to the end proposed; indicates a purpose formed in a mind
capable of conceiving a purpose; and is based upon an intention accompanied by such circumstances as evidence a mind fully conscious of its
own purpose and design. It has been defined as meaning carefully considered; circumspect; entered upon after deliberation and with fixed
purpose, formed after careful consideration, and fully or carefully considering the nature or consequences of an act or measure; maturely
reflected; not sudden or rash, carefully considering the probable consequences of a step; premeditated; slow in determining; weighing facts and
arguments with a view to a choice of decision; well-advised.

Under some circumstances, it has been held synonymous with, or equivalent to, intentional, premeditated, and willful.

Under other circumstances, however, it has been compared with, or distinguished from, premeditated, sudden, and willful.[14]

Essentially, the word deliberate as used in the article must imply something more than mere negligence; it must be premeditated, obstinate,
headstrong, foolishly daring or intentionally and maliciously wrong.

In the case at bar, it is evident that there was no deliberate refusal or failure on the part of the accused-appellants to restore the custody of the
complainants child to her. When the accused-appellant learned that complainant wanted her daughter back after five (5) long years of apparent
wanton neglect, they tried their best to help herein complainant find the child as the latter was no longer under the clinics care. Accused-
appellant Dr. Ty did not have the address of Arabellas guardians but as soon as she obtained it from Dr. Fe Mallonga who was already working
abroad, she personally went to the guardians residence and informed them that herein complainant wanted her daughter back. Dr. Ty testified
as follows:

Q: Now, since you said a while ago that when you placed the child under the (sic) guardianship, you are (sic) aware that the natural mother will
get back the child, why did you not return the minor to the natural mother?

A: During that time mam, the resident physician who will (sic) discharged the baby was not present because she was abroad.

Q: But then madam witness, are you aware where the child was and to whom it was given?

A: The exact address was not given to me, mam, before the resident physician left for abroad so, I asked the PAO to give me one month to have
(sic) a long distance call to this doctor and asked her for the whereabout(s) of the child.

Q: And where you granted the thirty-day period by the Officer of the PAO?

A: Yes, mam.

Q: What happened if any during that thirty-day period?

A: I was able to talk to Fe Mallonga in Bahrain and she told me the exact address of the guardian, mam.

Q: Were (sic) you informed (of) the exact address of the guardian, did you informed (sic) the PAO?
15

A: Yes, mam.
Page

ATTY. WARD:
Q: Then, what happened next, madam witness?

A: I was the one who went to the address to be sure that the child was really there, mam.

Q: And did you see the child?

A: Yes, mam.

Q: What did you do with the child?

A: I just tell (sic) the child. Ay and laki mo na pala. I just told the child like that and Ive (sic) talked also to the guardian during that time, mam.

Q: And what did you tell the guardian?

A: I told the guardian that the rightful mother was claiming for the child and that we should talked (sic) with each other at the PAO for the
decision, mam.

Q: Did the guardian bring the child to the PAOs Office (sic)?

A: No mam, she did not appear.

Q: Why?

A: They told me first that they are (sic) going to contact a lawyer but for (sic) several days, she did not respond anymore, mam.[15]

When the guardians refused to return the child, accused-appellant Dr. Ty sought the assistance of the National Bureau of Investigation (NBI)
which conducted a conference among the parties but since a case was yet to be filed, the custody of the minor remained with the guardians.
This fact is evident from the following testimony, thus:

Q: You testified on cross-examination that you located the whereabouts of the child sometime later, what steps did you take up (sic) after you
found the child?

A: I explained to the guardian that the verbal agreement between the supposed to be guardianship was only a plain guardianship and not as an
adoption, sir.

Q: You said you went to the NBI after you found the child, why did you go to the NBI?

A: Because the guardian are (sic) not willing to surrender the child to the PAOs Office (sic). that is why I asked their help, sir.[16]

xxx

Q: Now, when you informed the present custodian that the natural mother is now claiming the child, why were you not able to get the minor?

A: I was not able to get the minor so I asked the help of the NBI to have the child surrender (sic), mam.

ATTY. WARD:

Q: And what happened when you get (sic) the assistance of the NBI?

A: They were the ones who asked the guardian to surrender the child, mam.

Q: You stated a while ago that there was no written agreement between you or your hospital and the guardian of the minor, is that correct?

A: Yes, mam.

Q: For what reason if you know, why (did) the guardian did (sic) not follow you or obey you when you want (sic) to get back the child?

A: I dont know of any reason, mam.[17]

The efforts taken by the accused-appellants to help the complainant in finding the child clearly negate the finding that there was a deliberate
refusal or failure on their part to restore the child to her mother. Evidence is simply wanting in this regard.

It is worthy to note that accused-appellants conduct from the moment the child was left in the clinics care up to the time the child was given up
for guardianship was motivated by nothing more than an earnest desire to help the child and a high regard for her welfare and well-being.

WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant VICENTE TY
and CARMEN TY are hereby ACQUITTED of the crime charged and are ordered to be released immediately unless they are being detained for
16

other lawful causes. Costs de oficio.


Page
Facts:

On November 8, 1987, Johanna Sombong brought her seven-month old daughter, Arabella, to Sir John Medical and Maternity Clinic. The clinic
was owned and operated by the accused-appellants. Arabella was diagnosed to be suffering bronchitis and diarrhea and was confined for three
days.

After which, Sombong was not around to pick up her daughter and she only appeared after a week. Sombong couldnt pay the hospital bills and
since no one could take care of her daughter at home, she left her at the nursery of the hospital, which she will be charged P50.00 per day.

Arabella was transferred to the clinic extension and she was taken cared of by a yaya hired by her mother. Nothing was heard of the
complainant so Dr. Ty notified the barangay captain of the childs abandonment.

After two years, Arabella was entrusted to a guardian, Lilibeth Neri. Then after five years, Sombong came back to claim her daughter. Sombong
filed a petition for habeas corpus against accused-appellant with the RTC of Quezon City but was summarily dismissed on the ground of lack of
jurisdiction since the alleged detention was perpetrated in Kalookan City. Then, a criminal case was filed against accused-appellants and an
administrative case was filed against Dr. Carmen Ty before the Board of Medicine of PRC.

The case was subsequently dismissed for failure to prosecute. Then on October 13, 1992, Sombong file a petition for habeas corpus against the
alleged guardians of her daughter and the petition was granted and ordered the immediate delivery of Cristina Grace Neri having found that she
was the daughter of Sombong.

On appeal to the Court of Appeals, said decision was reversed on the ground that Cristina and complainants daughter are not one and the same
person.

Issue:

Whether or not the accused appellants are guilty of kidnapping and failure to return a minor?

Decision:

No, the Court ruled that before a conviction for kidnapping and failure to return a minor under Article 270 of the Revised Penal Code can be
had, two elements must concur, namely: (a) the offender has been entrusted with the custody of the minor, and (b) the offender deliberately
fails to restore said minor to his parents or guardians.

The essential element herein is that the offender is entrusted with the custody of the minor but what is actually punishable is not the
kidnapping of the minor, as the title of the article seems to indicate, but rather the deliberate failure or refusal of the custodian of the minor to
restore the latter to his parents or guardians. Said failure or refusal, however, must not only be deliberate but must also be persistent as to
oblige the parents or the guardians of the child to seek the aid of the courts in order to obtain custody.

Essentially, the word deliberate as used in the article must imply something more than mere negligence; it must be premeditated, obstinate,
headstrong, foolishly daring or intentionally and maliciously wrong. In the case at bar, it is evident that there was no deliberate refusal or failure
on the part of the accused-appellants to restore the custody of the complainant's child to her.
17
Page
CHUA v CABANGBANG (1969) 27 SCRA 791

G.R. No. L-23253 March 28, 1969

Facts:

Pacita Chua worked in nightclubs as a hostess. She had sexual liaison with man after man without benefit of marriage. She cohabited with Sy
Sia Lay by whom she had two children named Robert and Betty Chua Sy. After the birth of Betty, Pacita Chua and Sy Sia Lay separated. Pacita
Chua met Victor Tan Villareal, she became the latter's mistress.

Bartolome Cabangbang and his wife, a childless couple, acquired the custody of the child Betty who was then barely four months old. They have
since brought her up as their own. They had her christened as Grace Cabangbang.

There are testimonial conflicts on how the Cabangbang spouses acquired custody of the girl Betty (or Grace), Pacita Chua avers that while she
and Villareal were still living together, the latter surreptitiously took the child away and gave her to the Cabangbangs, the Cabangbang spouses
assert in rebuttal that Mrs. Cabangbang found the child, wrapped in a bundle, at the gate of their residence; that she reared her as her own and
grew very fond of her.

Pacita Chua demanded the surrender to her of the custody of the child. Failing to secure such custody, Pacita Chua filed a petition for habeas
corpus in the RTC but it was dismissed.

Issues:

I. WON the lower court erred when it awarded the custody of petitioner's daughter Betty Chua Sy or Grace Cabangbang, in favor of
respondents Mr. and Mrs. Bartolome Cabangbang.

II. WON the petitioner was illegally deprived of parental authority over her daughter.

Held:

I. No. The lower court did not err and the SC affirmed the lower court's decision, not on the grounds cited by it, but upon a ground which the
court overlooked abandonment by the petitioner of her child. It was found out that the child was given to the Cabangbangs by Villareal with
the knowledge and consent of the petitioner. The petitioner did not at all not ever report to the authorities the alleged disappearance of
her daughter, and had not taken any step to see the child when she allegedly discovered that she was in the custody of the Cabangbangs. Art.
332 of the Civil Code stated that abandonment is one of the grounds for depriving parents of parental authority over their children. The records
show petitioner's settled purpose and intention to completely forego all parental responsibilities and forever relinquish all parental claims in
respect to the child.

II. No. Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly provided by law, the writ of habeas corpus shall
extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto." The petitioner has not proven that she is entitled to the rightful custody of Betty Chua Sy
or Grace Cabangbang. Upon the contrary, by wantonly and completely shunting aside her legal and moral obligations toward her child, she must
be deemed as having forfeited all legitimate legal and moral claim to her custody. The lower court acted correctly in dismissing her petition.

Esmalin vs NLRC 177 SCRA 137 1984

Balolon vs Uy 54 O.G. 5561

Apex Mining Company Inc vs NLRC 196 SCRA 251 1998


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