Foster Care Act of 2012

Policy, intent, and constitutional basis

Section 2 adopts the constitutional policy under Article XV of the Constitution to defend children’s rights to assistance (including proper care and nutrition) and special protection from neglect, abuse, cruelty, exploitation, and other conditions prejudicial to development.
Section 2 requires the State to provide an alternative family for every child who is neglected, abused, surrendered, dependent, abandoned, under sociocultural difficulties, or with special needs.
Section 2 mandates observance of:
- the rights of the child under Article 3 of Presidential Decree No. 603 (The Child and Youth Welfare Code), as amended, and
- the rights found under Article 20 of the United Nations Convention on the Rights of the Child.
Section 2 recognizes foster care as beneficial in most cases and directs the State to systematize and enhance the foster care program and ensure foster families provide a wholesome atmosphere.
Section 2 treats foster care as an important step toward the child’s return and reintegration to biological parents or placement with an adoptive family, while protecting the biological child’s rights and ensuring the foster child is not disadvantaged because of the placement.
Section 2 requires that the child’s right to health be upheld and protected.

Key definitions under the Act

Agency means any child-caring or child-placing institution licensed and accredited by the Department of Social Welfare and Development (DSWD) to implement foster care (Section 3(a)).
Child means a person below eighteen (18) years of age, or one over eighteen (18) who is unable to fully take care of or protect oneself due to a physical or mental disability or condition, in relation to abuse, neglect, cruelty, exploitation, or discrimination (Section 3(b)).
Child Case Study Report is a written report prepared by a social worker containing all necessary information about a child (Section 3(c)).
Child with Special Needs refers to a child with developmental or physical disability (Section 3(d)).
Family refers to the parents or brothers and sisters (full or half-blood) of the child (Section 3(e)).
Foster Care is planned temporary substitute parental care for a child by a foster parent (Section 3(f)).
Foster Child is a child placed under foster care (Section 3(g)).
Foster Family Care License is the DSWD-issued document authorizing a foster parent to provide foster care (Section 3(h)).
Foster Parent is a person duly licensed by the DSWD to provide foster care (Section 3(i)).
Foster Placement Authority (FPA) is the DSWD-issued document authorizing the placement of a particular child with the foster parent (Section 3(j)).
Home Study Report is a written report prepared by a social worker containing necessary information on a prospective parent or family member (Section 3(k)).
Matching is the judicious pairing of a child with foster parent and family members based on capacity/commitment of the foster parent and the child’s ability to benefit (Section 3(l)).
Parent means the biological or adoptive parent or legal guardian (Section 3(m)).
Placement is the physical transfer of the child to the foster parent (Section 3(n)).
Relatives are relatives of a child other than family members, within the fourth degree of consanguinity or affinity (Section 3(o)).
Social Worker means a registered and licensed social worker of the DSWD, LGU, or agency (Section 3(p)).

Who may be placed and who may apply

Section 4 authorizes placement in foster care for a child who is:
- abandoned, surrendered, neglected, dependent, or orphaned;
- a victim of sexual, physical, or any other form of abuse or exploitation;
- a child with special needs;
- from a family temporarily or permanently unable or unwilling to provide adequate care;
- awaiting adoptive placement and needing preparation for family life;
- needing long-term care and close family ties but cannot be placed for domestic adoption;
- whose adoption has been disrupted;
- under socially difficult circumstances (including a street child, a child in armed conflict, or a victim of child labor or trafficking);
- a child who committed a minor offense but is released on recognizance, under custody supervision, or whose case is dismissed; or
- in need of special protection as assessed by a social worker, an agency, or the DSWD.
Section 4 provides a condition: for categories (b), (c), (f), (h), (i), and (j), the child must have no family willing and capable of caring and providing for him.
Section 5 allows an applicant to be a foster parent if all qualifications are met:
- of legal age;
- at least sixteen (16) years older than the child unless the foster parent is a relative;
- with genuine interest, capacity, commitment to parent, and ability to provide a familial atmosphere;
- with a healthy and harmonious relationship with each family member living with him or her;
- of good moral character;
- physically and mentally capable and emotionally mature;
- with sufficient resources to provide for the family’s needs;
- willing to further hone or be trained in knowledge, attitudes, and skills in caring for a child; and
- not having the maximum number of children under foster care at the time of application or award, as stated in the Act’s IRR.
Section 5 requires that relatives of the child be given priority in choosing the best-suited foster parent, provided they meet the listed qualifications.
Section 5 allows an alien to qualify as a foster parent if the alien:
- possesses the above qualifications,
- has resided in the Philippines for at least twelve (12) continuous months, and
- maintains that residence until termination of placement by the DSWD or expiration of the foster family license.

Foster parent authority and its limits

Section 6 gives foster parents the rights, duties, and liabilities of persons exercising substitute parental authority over the foster children, as provided under the Family Code.
Section 7 limits disciplinary authority: foster parents have only the rights of a person with special parental authority to discipline the foster children as defined under Section 233 of the Family Code, insofar as it prohibits the infliction of corporal punishment upon the child.

Recruitment, licensing, matching, placement

Section 8 requires the DSWD to recruit foster care applicants by reaching out to communities and LGUs, working preferably with the Local Council for the Protection of Children (LCPC).
Section 9 requires the social worker to prepare a detailed Home Study Report through a series of planned visits and interviews to determine whether the applicant meets basic foster care requirements and is suitable.
Section 10 requires the DSWD to issue a Foster Family Care License based on the Home Study Report submitted by the agency to assess motivations, capacities, and development potentials.
Section 10 sets that the Foster Family Care License is renewable every three (3) years, unless earlier revoked by the DSWD.
Section 11 requires matching to be done by the agency only after both the child case study and home study are conducted, subject to exceptions determined by the DSWD, and always considering the best interests of the child.
Section 11 requires the child case study report to establish the child’s needs and the Home Study Report to establish the foster parent’s capacity and resources to provide a safe, secure and loving home.
Section 12 allows the physical transfer of the child to the foster parent only after issuance of the Foster Placement Authority (FPA), subject to exceptions determined by the DSWD and based on the best interest of the child.
Section 13 provides that supervised foster placement begins immediately when the foster parent receives the child.
Section 13 requires regular home visits by the social worker during placement to monitor adjustment and submission of progress reports to the DSWD.
Section 13 requires immediate reporting to the agency for incidents of injury, death, running away, or getting lost, and requires the agency to immediately report to the DSWD.

Termination of foster placement and long-term options

Section 14 requires termination of placement by the DSWD upon recommendation of the agency on grounds including:
- return of the child to biological parents;
- placement for adoption;
- death of the child;
- death of both foster parents;
- expiration of the FPA; or
- when placement becomes prejudicial to the child’s welfare, including abandonment, maltreatment, sexual assault, violence, or other forms of abuse.
Section 14 gives the foster child, with assistance of a registered social worker, the option to apply for termination of placement in cases involving the prejudicial-welfare ground described in Section 14(f).
Section 15 permits a foster parent to apply for Long-Term Foster Placement Authority (LTFPA) if the child has been under the foster parent’s care for at least seven (7) years, subject to conditions that:
- the child’s return to biological parents or adoptive placement is not imminent;
- the foster parent retains required qualifications and a valid foster family care license for the entire duration;
- if the child is ten (10) years of age or over, the child gives written consent for long-term stay with the foster parent with assistance of a social worker; and
- the DSWD reassesses and reevaluates the foster home situation every three (3) years aside from regular monitoring visits.
Section 15 provides that LTFPA grants the foster parent custody over the foster child without requiring adoption by the foster parent.
Section 15 requires that during LTFPA, the foster child enjoys the rights of a child under Article 3 of the Child and Youth Welfare Code and other laws.
Section 15 bars mandatory succession rights in favor of the foster child.
Section 16 requires that a foster parent who unilaterally terminates the LTFPA before the foster child reaches the age of majority or finishes tertiary education must provide for the foster child’s education and basic needs, following the standards under which the child has been raised or has become accustomed, within the relevant period.
Section 16 conditions this obligation on the foster parent’s means to support the foster child in line with the family’s financial capacity.

Adoption by foster parents

Section 17 allows a foster parent to adopt his foster child subject to conditions:
- the foster parent must have all qualifications under Republic Act No. 8552 (Domestic Adoption Act of 1998) or Republic Act No. 8043 (Inter-Country Adoption Act of 1995), as applicable;
- the trial custody required in adoption may be waived if a harmonious relationship exists between the child and foster parent and family members; and
- adoption procedures for purposes of the Act follow the Domestic Adoption Act of 1998 or the Inter-Country Adoption Act of 1995, as applicable.

LGU role, funding, and training

Section 18 requires LGUs to promote the foster care system within their respective territorial jurisdictions.
Section 19 provides that LGUs primarily handle social welfare services including foster care programs under the Local Government Code, while the national government provides financial support with priority given to third (3rd), fourth (4th), and fifth (5th) class municipalities.
Section 20 mandates that the DSWD, in coordination with the Department of the Interior and Local Government (DILG), develop and provide programs to ensure awareness and responsiveness of local government officials in fostering and developing the foster care system in every city, municipality, or barangay.

Assistance and incentives for foster care

Section 21(a) grants foster children, through the agency, a monthly foster child subsidy from the DSWD subject to existing government auditing rules and regulations, intended to support expenses and lessen the foster parent’s financial burden.
Section 21(a) allows waiver of support if the foster parent is capable of supporting the foster child.
Section 21(b) makes a foster child automatically a PhilHealth beneficiary of the foster parent and entitled to health insurance benefits.
Section 21(b) requires that if the foster parent is not a PhilHealth member, the foster parent must seek enrollment with PhilHealth, and requires LGUs and agencies to assist in ensuring enrollment.
Section 22(a) requires the DSWD, LGU social service units, and agencies to provide support care services including counseling, visits, training on child care and development, respite care, skills training, and livelihood assistance.
Section 22(b) amends the income tax rules on dependents by expanding the definition of “dependent” under Section 35(B) of the National Internal Revenue Code (NIRC) of 1997 to include foster child, strictly for purposes of claiming the additional exemption of PHP 25,000.00 for foster parents for each dependent not exceeding four (4), subject to all other conditions under Section 35(B).
Section 22(b) limits the additional exemption to cases where foster care lasts at least a continuous period of one (1) taxable year.
Section 22(b) states that for a particular taxable year, only one (1) foster parent can treat the foster child as a dependent, and no other parent or foster parent can claim the same child as a dependent for that period.
Section 23(a) exempts agencies from income tax on income derived as such organization pursuant to Section 30 of the NIRC of 1997, implemented by Revenue Regulation (RR) No. 13-98.
Section 23(b) allows agencies to apply for qualification as a donee institution.
Section 24(a) grants donors allowable deductions from gross income to the extent of the amount donated to agencies in accordance with Section 34(H) of the NIRC of 1997.
Section 24(b) exempts donors from donor’s tax under Section 101 of the NIRC of 1997, with the condition that not more than thirty percent (30%) of the amount of donations may be spent for administrative expenses.

Penalties for violations and liability

Section 25(a) requires that any foster parent found committing acts of neglect, abuse, cruelty, exploitation, and other similar acts prejudicial to the child’s development be penalized under Republic Act No. 7610 and other applicable laws.
Section 25(b) imposes penalties on agencies that violate Sections 11, 12, 13, or any other provision of the Act and its IRR:
- first violation: a fine of not less than PHP 25,000.00 but not exceeding PHP 50,000.00; and
- subsequent violation: a fine of not less than PHP 50,000.00 but not exceeding PHP 100,000.00, and revocation of license to operate.
Section 25(c) penalizes any person (natural or juridical) other than the foster parent or any agency who violates any provision of the Act and its IRR with:
- imprisonment of one (1) month to six (6) years, depending on gravity of the offense, and/or
- a fine of not less than PHP 10,000.00 but not more than PHP 100,000.00, or both, at the discretion of the court.
Section 25(d) authorizes the court, if the offender is a public official, to impose additional disqualification from office in addition to penalties in Section 25(c).

Foster Care Committee; appropriations; IRR; final clauses

Section 26 establishes that the Regional Child Welfare Specialist Group of the DSWD shall serve as the Foster Care Committee.
Section 26 assigns the Committee functions to:
- review and deliberate issues affecting placement of a particular child;
- recommend resolution of disputes among the agency, parents, foster parents, and the child;
- monitor implementation, review, and recommend changes in foster care policies and matters related to the child’s welfare;
- submit to the Secretary of the DSWD and to Congress an annual report of policies, programs, and activities relative to implementation; and
- perform other functions and duties prescribed by the DSWD.
Section 27 directs that the necessary amount to carry out the Act be included in the General Appropriations Act of the year following enactment and thereafter.
Section 27 allocates an initial PHP 25,000,000.00 for the first year of operation to support foster care programs of the DSWD and agencies.
Section 28 mandates the DSWD (lead agency), with the DOJ, DOH, Bureau of Internal Revenue (BIR), Council on Welfare of Children (CWC), DILG, and other concerned government agencies (in consultation with agencies) to prepare and draft the IRR within (3) months from effectivity.
Section 29 provides that Executive Order No. 209 (Family Code of the Philippines) and other applicable laws have suppletory application to the Act.
Section 30 repeals, modifies, or amends laws, presidential decrees, issuances, executive orders, letters of instruction, administrative orders, rules, and regulations that are contrary to or inconsistent with the Act.
Section 31 provides separability: if any provision is held invalid or unconstitutional, the remaining provisions remain valid and subsisting.
Section 32 sets effectivity: fifteen (15) days after publication in two (2) newspapers of general circulation or in the Official Gazette.