DECISION

Adoption cases are not to be taken lightly. It entails a lot of consequences and
changes the relationship of the minor with his natural parents and relatives. In the eyes
of the law, the biological parents will become strangers to their own son or daughter.
Every right they have over the child will be surrendered to the adopters. The child may
never know his or her filiation if the adopters decide to put the adoption process to
oblivion. The biological parents may never lay eyes on their son or daughter again once
the minor is taken to a far place. All of these consequences are legal. It can be revoked
only if the child decides to rescind the adoption on legal grounds once he attains the
age of majority. Therfore, the Court must be careful in analyzing whether the granting of
adoption cases will really serve the best interests of the child.
It is the States policy to: (i) Safeguard the biological parent(s) from making
hurried decisions to relinquish his/her parental authority over his/her child; and (ii)
Prevent the child from unnecessary separation from his/her biological parent(s).
It must be borne in mind that the law on adoption should not be used as a means
to shirk ones responsibilities as a parent if it can be shown that the parent is not totally
incapable of raising the child. Under the 1987 Constitution, the State recognizes the
sanctity of family life and shall protect and strengthen the family as a basic autonomous
social institution.

The Antecedents
On February 1, 2012, Petitioner Lourdes P. Mallari-Bailey, Filipino citizen, a
resident of Meycauayan, Bulacan, filed a Petition for Adoption of minor Aris P. Mallari,
Jr before the Family Court of Malolos, Bulacan. Petitioner is married to Matthew
Leonard Bailey, an American citizen who gave his consent to the petition. Petitioner
subsequently filed an Amended Petition including her husband Matthew Leonard Bailey
as co-petitioner and also praying for the change of the subject minors name from Aris
P. Mallari, Jr. to Sean Mallari Bailey .
On October 06, 2008, Spouses Aris P. Mallari and Lydia G. Closas-Mallari, the
biological parents of Aris C. Mallari, Jr., the child subject of this petition, gave to herein
petitioners the temporary care and custody of the said chils who at that time was barely
one (1) year and five (5) months old. Spouses Aris and Lydia Mallari pleaded to
petitioners that they take the care and custody of their child because they are not
capable of supporting the said child as he has no stable income. Aris P. Mallari is the
youngest brother of petitioner Lourdes P. Mallari-Bailey.
Petitioners also alleged that the Mallari spouses had given their written consent
to this petition; that petitioners do not have any legitimate, acknowledged natural child
or natural child by legal fiction; that both petitioners are more than sixteen (16) years
older than the minor child; in possession of full civil capacity and legal rights; of good
moral character; have not been convicted of any crime involving moral turpitude;
emotionally and psychologically capable of caring for children; and in a position to
support and care for children in keeping with the means of their family.
Aris C. Mallari, Jr., the child subject of this petition, is a relative of Petitioner
Lourdes P. Mallari-Bailey within the fourth (4th) degree of consanguinity, being the son
of her legitimate brother Aris P. Mallari. The biological parents of Aris C. Mallari, Jr. has
two other children, namely, Iris, 7 years old and Aristotle, 3 years old.
Petitioners treated the minor as their own child. The child even used the names
of petitioners as his parents in the school he is attending.

Petitioners prayed that an Order be issued granting the adoption of minor Aris C.
Mallari, Jr. and for the change of name of the said minor from Aris C. Mallari, Jr., to
Sean Mallari Bailey.

The petition is dismissed.

While there is no doubt that petitioners Lourdes P. Mallari-Bailey and Matthew
Leonard Bailey possess all the qualifications and none of the disqualifications under the
law on domestic adoption, failure to obtain the written consent of the adopters
legitimate children is fatal to the case. Lack of written consent of those required by law
to give consent warrants the dismissal of this case.
Adoption statutes, being humane and salutary, hold the interest and welfare of
the child to be of paramount consideration and are designed to provide homes, parental
care and education for unfortunate, needy or orphaned children and give them the
protection of society and family in the person of the adopter as well as to allow childless
couples or persons to experience the joys of parenthood and give them legally a child in
the person of the adopted for the manifestation of their natural parental
instincts. Every reasonable intendment should thus be sustained to promote and fulfill
these noble and compassionate objectives of the law. (Malkinson vs. Agrava, 153 Phil.
339 (1973))
However, the Court also ruled that the liberality with which this Court treats
matters leading to adoption insofar as it carries out the beneficent purposes of the law
to ensure the rights and privileges of the adopted child arising therefrom, ever mindful
that the paramount consideration is the overall benefit and interest of the adopted child,
should be understood in its proper context and perspective. The Courts position should
not be misconstrued or misinterpreted as to extend to inferences beyond the
contemplation of law and jurisprudence. Thus, the discretion to approve adoption
proceedings is not to be anchored solely on best interests of the child but likewise, with
due regard to the natural rights of the parents over the child. (Cang v. Court of
Appeals G.R. No. 105308, September 25, 1998, 296 SCRA 128)

Qualifications of Petitioner-spouses
Section 7 of Republic Act No. 8552, AN ACT ESTABLISHING THE RULES AND
POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR
OTHER PURPOSES, provides:
Section 7. Who May Adopt. The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and
legal rights, of good moral character, has not been convicted of any crime
involving moral turpitude, emotionally and psychologically capable of caring for
children, at least sixteen (16) years older than the adoptee, and who is in a
position to support and care for his/her children in keeping with the means of the
family. The requirement of sixteen (16) year difference between the age of the
adopter and adoptee may be waived when the adopter is the biological parent of
the adoptee, or is the spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications as above stated for
Filipino nationals: Provided, That his/her country has diplomatic relations with the

Republic of the Philippines, that he/she has been living in the Philippines for at
least three (3) continuous years prior to the filing of the application for adoption
and maintains such residence until the adoption decree is entered, that he/she
has been certified by his/her diplomatic or consular office or any appropriate
government agency that he/she has the legal capacity to adopt in his/her country,
and that his/her government allows the adoptee to enter his/her country as
his/her adopted son/daughter: Provided, Further, That the requirements on
residency and certification of the alien's qualification to adopt in his/her country
may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth
(4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino
spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative within the fourth (4th) degree of consanguinity or
affinity of the Filipino spouse; or
(c) The guardian with respect to the ward after the termination of the
guardianship and clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other;
or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
However, that the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the
illegitimate son/daughter of the other, joint parental authority shall be exercised
by the spouses.
There is no doubt that petitioners are emotionally and psychologically capable of
caring for children and in the best position to support and care for the child in keeping
with the means of the family.
In the Home Study Report prepared by Paulina T. Nicolas, Court Social Welfare
Officer II, the following findings were made after an investigation on the background of
petitioners:
Lourdes completed her elementary education in Calauan Elementary
School and high school in Sienna College, Quezon City. She finished her
bachelors degree in Commerce major in Accounting at Letran College in 1993.
After graduating from college, she started to work as an accounting clerk
at Shoemart, Makati. Six months after, from 1994 up to 1998, she was employed
as a bookkeeper in Mercantile Insurance Co., Itramuros, Manila. From 1999 to
2003, she worked as a credit and collection officer in National Electrification
Administration (NEA). Sometime in 2004, Lourdes was hired as an English tutor
in South Korea.

In March 2006, she was hired as an account executive of a seafood

supplier to five star hotels in Dubai. From April 2008 to July 2008, she worked as
an administrative assistant in Al Futtaim Willis Insurance Broker, also in Dubai.
xxx

xxx

IX. GENERAL FINANCIAL CONDITION

Being a retired Police Officer at California, U.S.A., the husband-petitioner
receives his monthly pension which is more than enough to provide for the needs
of the minor.
The petitioners together with the subject minor reside in the family home
of Mallari family located at #3 Lovebird St., Saint Francis Subdivision, Phase 2,
Pandayan, Meycauayan, Bulacan. It is a bungalow house consisting of 5
bedrooms and two toilets and bath. It has a spacious living room, dining room
and kitchen, furnished with modern appliances and accessories. The house is
well-kept and well-maintained.
X. PARTICIPATION IN RELIGIOUS AND COMMUNITY ACTIVITIES
As Christians, the spouses-petitioners are committed in the sincere
practice of their faith. They attend Sunday worship at the Hope Christian
Fellowship in Quezon City, however, while in the USA, the husband-petitioner
attends Sunday worship at the Sparks Christian Fellowship in Reno, Nevada.
XII. HEALTH CONDITION
The petitioners are certified to be both physically fit per medical
certificated submitted.

Based on the foregoing findings, petitioners mental, moral , psychological and

physical fitness are clearly established. Petitioners possess the competence and
capacity to provide for the childs needs for his full development and also to enable the
latter to find better opportunities in life. While this is diametrically opposed to the kind of
life that his biological parents can offer, being in financial distress alone is not sufficient
to shirk ones parental responsibilities. It was not shown that Aris P. Mallari, the
biological father of the minor, is physically or emotionally incapable of providing the
basic needs of his family. The incapacity must be so serious as to justify the act of
consenting to the adoption of ones own child. Aris P. Mallari was found to be currently
unemployed as shown by the transcript of the cross-examination conducted by
Prosecutor De Leon:
Pros. De Leon: Mr. witness, are you related to the petitioner in this case
Lourdes Mallari?
A: Yes, sir.
Q: What is your relationship?
A: My older sister, sir.
Q: Now Mr. Witness, are you employed?
A: No, sir.
This is supported by the background information stated in the Child Study Report
prepared by Paulina T. Nicolas, Court Social Worker, II, quoted as follows:

Aris P. Mallari is the subject minors biological father. He is 35 years old

and the youngest among the three children of Sol Mallari and Teresita Pizano
Mallari. He claims he finished only up to second year college of HRM because he
lost interest in continuing it due to barkada. He is the youngest brother of the
wife-petitioner.
Aris started to work as a service crew in Jolibee when he was 18 years
old. After two years of working in such different six branches of Jollibee, he
stopped. He then worked as usher-porter in SM Cinema, however, after a few
months he quitted his job. He looked again for another job and was hired as
waiter in Araneta Avenue. From 2002-2005, he worked as driver of the Barangay
ambulance in Pandayan. Sometime in 2005, he went to work in Saudi Arabia,
however after 4 months he went home to the Philippines. From thereon, he
engaged in another job like cell phone and computer repair, etc., wherein his
income is not fixed and could hardly suffice the needs of his family; other times
he has no income and just relied on his parents and other siblings for support.
On the other hand, the subject minors biological mother is Lydia G.
Closas Mallari. Jaja, as she is fondly called is 27 years old, an elementary
graduate and the youngest among the seven (7) children of Cecilia Guevarra
Closas, a housekeeper and the late Rolando Closas, formerly a photographer.
Due to financial difficulty of her family, she did not continue her studies. Instead,
she opted to work and became a market vendor helper in order to help her
parents earn a living.

Based on the foregoing report, Aris P. Mallari cannot be said to be totally

incapable of being a provider. He may not be as competent and wealthy as petitioners
but if he decides to work harder, it is not impossible for him to earn some money. As
stated above, he can be a self-employed person with the use of his skills in technical
and mechanical fields.
In the case of Cang vs. Court of Appeals, the Court held that financial constraints
should not be the principal consideration in adoption cases.
It would thus be against the spirit of the law if financial consideration were
to be the paramount consideration in deciding whether to deprive a person of
parental authority over his/her children. More proof has to be adduced that
Amelia has emotionally abandoned the children, and that the latter will not miss
her guidance and counsel if they are given to an adopting parent. Again, it is the
best interests of the child that takes precedence in adoption.

The above doctrine enunciates the principle that financial considerations alone
are not to be the primary basis of granting or denying a petition for adoption. Other
factors such as physical, mental and psychological fitness must be considered. Of
course, the circumstances surrounding the case must not be ignored.
According to the Child Study Report prepared by Paulina T. Nicolas, Aris and
Lydia Mallaris union was blessed with three (3) children (1 girl and 2 boys). Iris, 7 years
old and presently Grade 2 student in Longos Elementary School is the eldest. Next to
her is Aris, Jr., the subject minor, and the youngest is Aristotle, 3 years old. They shared
in parenting and raising their eldest and youngest children except to Aris, Jr. who has
been under the care and custody of the petitioners. They believe that Aris, Jr. will enjoy
a comfortable life with petitioners.

The Court is cannot accept the biological parents way of thinking. They view Aris
as an additional burden to them while Aris two other siblings are under their care and
custody. It seems that the biological parents are just shirking their responsibility over
Aris and as a solution to their financial difficulty, they decided to surrender Aris to the
petitioners. This is not the reason behind the law on adoption. The law on adoption also
gives importance to the preservation of paternity and filiation and as much as possible,
the severance of legal ties between parents and children are to be avoided.
In the cross-examination of Aris P. Mallari on March 21, 2013, it was shown that
he was having his child adopted for purposes of convenience only. The transcript of the
cross-examination is as follows:
Q: Would you admit Mr. Witness that you are having your child
adopted for purposes of convenience only?
A: Yes, sir.
The Court will not tolerate such an attitude. The law on adoption does not
sanction indolence and irresponsibility. The law did not intend adoption as an easy way
of effectively abandoning ones parental duties. There is hardly any difference between
two children and three children in the family.
The effects of adoption, if granted, are so serious and permanent in nature. It
effectively severes all legal ties between the biological parents and the adoptees, and
that the same shall be vested on the adopters. The biological parents will be deprived of
their rights over the child.
Aris C. Mallari, Jr., the child subject of this Petition had been in the custody of
petitioner for more than five (5) years since October 06, 2008 when Aris P. Mallari and
Lydia G. Closas-Mallari gave to petitioners the temporary custody of the said child who
at that time was barely one (1) year and five (5) months old. The child is in the custody
of petitioners up to the present. As a necessary consequence of this five-year
custodianship, petitioner-spouses had developed the care and affection as if the subject
minor is their real child. While Aris C. Mallari, Jr. came to know the petitioner-spouses
as his parents, the identity of his biological mother and father is not unknown to him.
Petitioners admit that the child know his real parents as his aunt and uncle. Although it
would naturally be confusing for a child to be informed that the persons whom he
considered as his parents are not his real parents, it is never too late to rectify mistakes
committed because of failure to realize the serious effects of a decision.
The requirement of sixteen (16) year difference between the age of the adopter
and adoptee is also complied with. Matthew Leonard Bailey is 57 years old while
Lourder P. Mallari-Bailey is 40 years old. Aris C. Mallari, Jr., was born on May 12, 2007,
as evidenced by the Birth Certificate of the child.
The residence requirement was also satisfied by the petitioners. Petitioner
Matthew Leonard Bailey has been living in the Philippines for four (4) continuous years
prior to the filing of the petition and has the legal capacity to adopt in his country of
origin, the United States of America. The United States of America allows the minor
child to enter said country as his adopted child.
According to the Home Study Report prepared by Paulina T. Nicolas, Petitioners
moved to General Santos City after their wedding on August 8, 2008. Lourdes asked
Matthew if it would be okay to take Aris into their home and raise him as their son.
Knowing how attached the child was to his wife, Lourdes, Matthew was willing and
happy to accept Aris Jr. into their home. Lourdes went back to Meycauayan and brought
the child to General Santos City on October 6, 2008. Since then the child has been their

son and they call him Sean. From General Santos City, they have lived in Cebu City,
Marilao, Bulacan, and Cubao, Quezon City. At the end of March 2012, Matthew and
Lourdes travelled back to the USA (Reno, Nevada) at the request of Matthews family to
care for his ailing mother. Matthew stayed in the USA while Lourdes returned to the
Philippines on November, 2012 to be with the subject child until they are able to bring
him to the USA.
Petitioner Lourdes Mallari Bailey is now representing her husband Matthew
Bailey in this petition by virtue of a Special Power of Attorney.
At this juncture, it may be argued that petitioner Matthew Leonard Bailey failed to
meet the residency requirement because the law provides that an alien petitioner has
been living in the Philippines for at least three (3) continuous years prior to the filing of
the application for adoption and maintains such residence until the adoption decree is
entered. If he is in the U.S.A. at present, he fails to comply with the requirement that
residence be maintained while the petition for adoption is pending approval. However,
petitioners case falls squarely within the exception found in sec. 7 of R.A. 8552.
Under the law, the requirements on residency and certification of the alien's
qualification to adopt in his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth
(4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino
spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity
of the Filipino spouse
Petitioners case falls under the third instance provided by law for the exceptions
on the residency requirement. Matthew Leonard Bailey, an American citizen, is married
to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth
(4th) degree of consanguinity or affinity of the Filipino spouse. Aris C. Mallari, Jr., the
subject of this petition happens to be the nephew of petitioner Lourdes P. Mallari Bailey.
Aris C. Mallari, Jr. is the son of Lourdes brother, Aris P. Mallari. Hence, Aris, Jr. is a
relative within the fourth (4th) degree of consanguinity of the Filipino spouse.
Clearly, petitioners are qualified to adopt the minor. However, qualifications and
disqualifications are not the only things to be considered in deciding whether or not to
grant a petition for adoption.
Consent
Section 9 of R.A. 8552 enumerates the persons whose written consent is
necessary to the adoption.
Section 9. Whose Consent is Necessary to the Adoption. After being
properly counseled and informed of his/her right to give or withhold his/her
approval of the adoption, the written consent of the following to the adoption is
hereby required:
(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or
the proper government instrumentality which has legal custody of the
child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or
over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter
if living with said adopter and the latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to be adopted.

The general requirement of consent and notice to the natural parents is

intended to protect the natural parental relationship from unwarranted interference by
interlopers, and to insure the opportunity to safeguard the best interests of the child in
the manner of the proposed adoption. (Re Adoption of Cannon, 243 Iowa 828, 53
N.W.2d 877)
Clearly, the written consent of the biological parents is indispensable for the
validity of a decree of adoption. Indeed, the natural right of a parent to his child requires
that his consent must be obtained before his parental rights and duties may be
terminated and re-established in adoptive parents. (Landingin vs. Republic of the
Philippines)
Spouses Lydia G. Closas-Mallari and Aris P. Mallari executed an Affidavit of
Consent dated June 11, 2012, wherein they acknowledged that the adoption of their
son, Aris C. Mallari, Jr. by petitioners-spouses Bailey is for the best interest of the child
and that they give their full consent to the adoption of the minor child to herein
petitioners.
The following answers appear on theJudicial Affidavit executed by Spouses
Mallari which they authenticated during the direct examination:
T: Lubos ba ninyong nauunawaan na sa sandaling pagtibayin ng Kagalanggalang na Hukumang ito ang kahilingan ng mag-asawang Lourdes P. MallariBailey at Matthew Leonard Bailey ay mawawala na sa inyo ang pangangalaga,
legal na kustoduya, at lahat ng inyong karapatan kay Aris P. Mallari, Jr.?
S: Opo, nauunawaan po naming.
T: Dagdag pa dito, ay hindi na siya maituturing na inyong anak at mababago na
din ang kanyang pangalan sang-ayon sa kahilingan ng mag-asawang Lourdes P.
Mallari-Bailey at Matthew Leonard Bailey?
S: Opo, pumapayag po kami.
T: Sa kabila ng lahat ng ito ay pumapayag pa din kayo na ipaampon si Aris P.
Mallari, Jr., sa mag-asawang Lourdes P. Mallari-Bailey at Matthew Leonard
Bailey?
S: Opo, pumapayag po kami.
In this case, the consent of the biological parents was properly obtained by
petitioners. However, it appears from the records that Matthew Leonard Bailey was
married in 1983 and has two children in the U.S. who are now adults with their own

families. He was separated in 1996 and legally divorced in 1998. He was a single parent
raising his children to be successful and happy adults. He has five (5) grandchildren.
In the cross-examination of Lourdes Mallari-Bailey conducted by Pros. Gorospe
on March 4, 2013, it was shown that the consent of Matthews two children were
obtained.
Q: Were you able to take the consent of the two sons, biological sons of
your co-petitioner with respect to this adoption
A: Yes maam.
The law requires written consent. Petitioners failed to submit any written
document embodying the agreement of Matthews children to the adoption. It is on this
ground that this petition must fail.
The requirements of the law on adoption must be strictly complied with. The law
requires the consent of the legitimate and adopted sons/daughters, ten (10) years of
age or over, of the adopter(s) and adoptee, if any. Oral consent does not suffice.
Adopting a child means welcoming the child as a new member of the family. While the
law protects and promotes the welfare of the child to be adopted, it does not completely
forget about the legitimate and illegitimate children of the adopter whose consent must
necessarily be obtained. The law requires that their consent be in writing, plain and
simple. Behavior which impliedly shows acceptance or oral consent are not sufficient
compliance with the requirement. Written consent of the adopters children should not
be dispensed with.

Conclusion
Adoption cases are not to be taken lightly. It entails a lot of consequences and
changes the relationship of the minor with his natural parents and relatives. In the eyes
of the law, the biological parents will become strangers to their own son or daughter.
Every right they have over the child will be surrendered to the adopters. The child may
never know his or her filiation if the adopters decide to put the adoption process to
oblivion. The biological parents may never lay eyes on their son or daughter again once
the minor is taken to a far place. All of these consequences are legal. It can be revoked
only if the child decides to rescind the adoption on legal grounds once he attains the
age of majority.
The old definition of adoption in the Partidas is that it is the act whereby one
person is received as the offspring of another though he is not such by nature (Reyes
and Puno, id., p.313). This definition was based on the theory that adoption is mainly for
the benefit of the adopter, so that those who have no children or have lost them, may
have the solace and joys of parenthood, and that the void which exists in childless
homes may be filled (Ynigo vs Republic, 95 Phil. 244).
The rationale of adoption has, however, changed, and it is now considered more
for the benefit of the child than for the adopter, and pursuant to this modern trend, it has
been held that adoption does not merely establish a relationship of paternity and filiation
but is also an act which endows the child with legitimate status. (Prasnick vs. Republic,
98 Phil. 6551) Adoption is thus given a social and moral purpose; that is, to extend to
the orphan or to the child of the indigent, the incapacitated or the sick, the protection of
society in the person of the adopter. (Tolentino, 694)

It is a dream for petitioners to have a child of their own and it was established
that their physical limitations make it impossible for them to have a biological child
because Matthew Bailey had undergone vasectomy even before he met Lourdes.
Lourdes is also not at the best age for a pregnancy. Petitioners are commendable for
being determined to share their blessings with a child who is at risk of having an
uncertain future. That they can give Aris a more comfortable life should not be the sole
basis of adoption. Being financially challenged alone does not mean that Aris biological
parents are not capable of raising a child. Even beggars rear children and this proves
that having no money is still not a license to abandon ones child. Aris can be happier if
he is given the chance to be with his real siblings. Aris can also be spared from the pain
of discovering in the future that petitioners are not his real parents. There are other
factors which should not be ignored.
R.A. 8552 provides: It is hereby declared the policy of the State to ensure that
every child remains under the care and custody of his/her parent(s) and be provided
with love, care, understanding and security towards the full and harmonious
development of his/her personality. Only when such efforts prove insufficient and no
appropriate placement or adoption within the child's extended family is available shall
adoption by an unrelated person be considered.
The law prefers that the child remains under the care and custody of the his
parents. The law seeks to prevent the child from unnecessary separation from his/her
biological parent and this policy must prevail over the suppositions that the minor will
have a brighter future with petitioners.

WHEREFORE, PETITION IS DENIED.

SO ORDERED.