Wednesday, December 26, 2007

DNA testing to prove legitimacy or illegitimacy of children; Supreme Court’s New Rule on DNA Evidence

Note: Please read the June 2011 Supreme Court decision in “Jesse U. Lucas, Petitioner, vs. Jesus S. Lucas, Respondent, G.R. No. 190710.” The Court ruled that “during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity.” This simply means that:

1. The trial court must hold a hearing on whether DNA testing should be done or not;

2. During the hearing, the petitioner (the mother or the child) must present evidence to prove that there is a reasonable possibility the man is the biological father;

Evidence to prove possibility of paternity could be testimonies of witnesses to the sexual or romantic relationship between the mother and the alleged father, videos, pictures, letters, etc.

The Court’s ruling protects the alleged father from mere harassment suits.

The issuance of a DNA testing order is discretionary upon the trial court. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

The Supreme Court’s
Rule on DNA Evidence A.M. No. 06-11-5-SC became effective on October 15, 2007. The Court used the Rule in deciding the case of “Estate Of Rogelio G. Ong versus Minor Joanne Rodjin Diaz, Represented by Her Mother and Guardian, Jinky C. Diaz,” G.R. No. 171713, promulgated on December 17, 2007. The Court observed:

“For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity.” Agustin v. Court of Appeals
The facts of the case

A Complaint for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky prayed that judgment be rendered: (a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter; (b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and thereafter to fix monthly support; (c) Ordering the defendant to pay plaintiff attorney’s fees in the sum of P100,000.00 and (d) Granting plaintiff such other measure of relief as maybe just and equitable in the premises.

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

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

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

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

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

Rogelio, despite Jinky’s remonstrance, failed and refused and continued failing and refusing to give support for the child and to acknowledge her as his daughter, thus leading to the filing of the complaint.

The RTC ruling: Joanne is the child of Rogelio
The Tarlac City RTC finally held that the only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin Diaz.
Since it was duly established that plaintiff’s mother Jinky Diaz was married at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code). The child is still presumed legitimate even if the mother may have declared against her legitimacy (Article 167, Ibid).

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

a) physical incapacity of the husband to have sexual intercourse with his wife;

b) husband and wife were living separately in such a way that sexual intercourse was not possible;

c) serious illness of the husband which prevented sexual intercourse.

It was established by evidence that the husband is a Japanese national and that he was living outside of the country and he comes home only once a year. Both evidence of the parties proved that the husband was outside the country and no evidence was shown that he ever arrived in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz.

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

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

On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant Rogelio Ong and it is but just that the latter should support plaintiff.
On 15 December 2000, the RTC rendered a decision that stated:
WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this Court awarding support pendente lite dated June 15, 1999, is hereby affirmed and that the support should continue until Joanne Rodjin Diaz shall have reached majority age.
Ong’s death while the case was pending before the Court of Appeals; CA remands the case to Tarlac City RTC for DNA testing

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

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

In a Decision dated 23 November 2005, the Court of Appeals held:
WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby REMANDED to the court a quo for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in coordination with laboratories and experts on the field of DNA analysis.
The Court of Appeals justified its Decision as follows:
In this case, records showed that the late defendant-appellant Rogelio G. Ong, in the early stage of the proceedings volunteered and suggested that he and plaintiff’s mother submit themselves to a DNA or blood testing to settle the issue of paternity, as a sign of good faith. However, the trial court did not consider resorting to this modern scientific procedure notwithstanding the repeated denials of defendant that he is the biological father of the plaintiff even as he admitted having actual sexual relations with plaintiff’s mother. We believe that DNA paternity testing, as current jurisprudence affirms, would be the most reliable and effective method of settling the present paternity dispute. Considering, however, the untimely demise of defendant-appellant during the pendency of this appeal, the trial court, in consultation with out laboratories and experts on the field of DNA analysis, can possibly avail of such procedure with whatever remaining DNA samples from the deceased defendant alleged to be the putative father of plaintiff minor whose illegitimate filiations is the subject of this action for support.
Rogelio’s appeal to the Supreme Court; DNA analysis no longer feasible after death?

Among other grounds, Ong’s appeal (as represented by his Estate) to the Supreme Court sought to reverse the ruling of the Court of Appeals by claiming that the CA erred when it remanded the case to the Tarlac City RTC for DNA analysis despite the fact that it is no longer feasible due to the death of Rogelio G. Ong.

In his petition, the Estate of Rogelio Ong asked that the Decision of the Court of Appeals be modified, by setting aside the judgment remanding the case to the trial court for DNA testing analysis, by dismissing the complaint of minor Joanne for compulsory recognition, and by declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.

Supreme Court ruling: Even the death of Rogelio cannot bar the conduct of DNA testing

In its decision, the Supreme Court discussed the Family Code provisions on filiation, presumption of legitimacy of a child (Article 167), basis for establishing legitimacy (Articles 172 and 175), among others. I have divided and numbered the pertinent portions of the Court’s ruling for easier reading and comprehension:
1. As a whole, the present petition calls for the determination of filiation of minor Joanne for purposes of support in favor of the said minor.

But with the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing.

2. DNA is the fundamental building block of a person’s entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person’s DNA profile can determine his identity.

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

3. Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the alleged impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than real. Petitioner’s argument is without basis especially as the New Rules on DNA Evidence allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation.

From Section 4 Application for DNA Testing Order, it can be said that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA.

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

Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing.