Estate of Rogelio ong v. Minor Diaz

Facts:

1.     A Complaint for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz, represented by her mother and guardian, Jinky C. Diaz, against Rogelio G. Ong before the RTC. 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.

d.      Granting plaintiff such other measure of relief as maybe just and equitable in the premises.

2.     As alleged by Jinky in her Complaint in, 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.

3.     Jinky and Rogelio cohabited and from this live-in relationship, Joanne was conceived and born.

4.     Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor Joanne's needs - recognizing the child as his.

5.     In Sept 1998, Rogelio abandoned Joanne and Jinky, and stopped supporting minor Joanne, falsely alleging that he is not the father of the child. So Jinky filed the complaint.

6.     Rogelio failed to file any responsive pleading despite repeated motions for extension, prompting the trial court to declare him in default.

7.     Rogelio's Answer with Counterclaim and Special and Affirmative Defenses was received by the trial court only on 15 April 1999. Jinky was allowed to present her evidence ex parte on the basis of which the trial court rendered a decision granting the reliefs prayed for in the complaint.

8.     RTC: 1. Ordering defendant to recognize plaintiff as his natural child; 2. Ordering defendant to provide plaintiff with a monthly support

9.     Rogelio filed a motion to lift the order of default and a motion for reconsideration. He also filed a motion for new trial with prayer that the decision of the trial court be vacated and the case be considered for trial de novo.

10.   RTC: Granted Motion for new trial; The only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin Diaz.

a.     Since it was duly established that Jinky was married at the time of the birth of Joanne, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz The child is still presumed legitimate even if the mother may have declared against her legitimacy

b.     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.

c.      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 Joanne

d.     there is no evidence that she also had sexual relations with other men on or about the conception of Joanne.

e.     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.

f.      On the strength of this evidence, the Court finds that Joanne is the illegitimate child of Jinky and defendant Rogelio Ong and it is but just that the latter should support plaintiff

11.   MR: Denied; Appeal to CA; However, during the pendency of the appeal, defendant died and was substituted by his Estate.

12.   CA: Granted the appeal; 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

13.   Estate filed MR: Denied

Issue:

WON THE CA ERRED WHEN IT REMANDED THE CASE FOR DNA ANALYSIS DESPITE THE FACT THAT IT IS NO LONGER FEASIBLE DUE TO THE DEATH OF ROGELIO

Held: NO

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.

In the newly promulgated rules on DNA evidence it is provided:

SEC. 3 Definition of Terms. - For purposes of this Rule, the following terms shall be defined as follows:

xxxx

(c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples;

(d) "DNA profile" means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person;

(e) "DNA testing" means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and

(f) "Probability of Parentage" means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population.

*Jurisprudence on DNA Testing

1997: Pe Lim v CA - we cautioned against the use of DNA because "DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts,verbal and written, by the putative father."

2001: Tijing v CA - opened the possibility of admitting DNA as evidence of parentage; The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis; the use of DNA test as evidence is still open to challenge.; courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said results is to deny progress.

2002: People v. Vallejo - The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence; where the rape and murder victim's DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample.

2003: People v. Janson –

2004: Tecson v. COMELEC - filiation of then presidential candidate Fernando Poe, Jr; DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to.

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, thus:

SEC. 4. Application for DNA Testing Order . – The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and

(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.

From the foregoing, 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.

And even the death of Rogelio cannot bar the conduct of DNA testing. In People v. Umanito,citing Tecson v. Commission on Elections, this Court held:

The 2004 case of Tecson v. Commission on Elections likewise reiterated the acceptance of DNA testing in our jurisdiction in this wise: "[i]n case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to."

It is obvious to the Court that the determination of whether appellant is the father of AAA's child, which may be accomplished through DNA testing, is material to the fair and correct adjudication of the instant appeal. Under Section 4 of the Rules, the courts are authorized, after due hearing and notice, motu proprio to order a DNA testing. However, while this Court retains jurisdiction over the case at bar, capacitated as it is to receive and act on the matter in controversy, the Supreme Court is not a trier of facts and does not, in the course of daily routine, conduct hearings. Hence, it would be more appropriate that the case be remanded to the RTC for reception of evidence in appropriate hearings, with due notice to the parties. (Emphasis supplied.)

As we have declared in the said case of Agustin v. Court of Appeals:

x x x [F]or 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.

WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated 23 November 2005 and its Resolution dated 1 March 2006 are AFFIRMED. Costs against petitioner.