Spec pro In Re: Petition for Adoption of Michelle and Michael Lim,

G.R. No. 168992-93 May 21, 2009

FACTS: This is a petition for review on certiorari filed by Monina Lim
(Petitioner) seeking to set aside the Decision of the RTC of Gen San, which
dismissed without prejudice the consolidated petitions for adoption of
Michelle and Michael Jude Lim.

Petitioner is an optometrist by profession. She married Primo Lim and they

were childless. Minor children, whose parents were unknown, were
entrusted to them by a a certain Lucia Ayuban. Being so eager to have a
child on their own, Petitioner and Lim registered the child to make it appear
that they were the parents of the children.

The spouses reared and cared for the children as if they were their own.
They were sent to exclusive schools. They used the surname Lim in all their
school records and documents. Unfortunately, her husband died. Later on,
Petitioner married Angel Olario, an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the

amnesty given under RA 8552 to those individuals who simulated the birth
of a child. Thus, Petitioner filed petitions for adoption of Michelle and
Michael before the Trial Court. At the time of the filing of the petition, both
Michelle and Michael were already of age.

Michelle and Michael, as well as Olario, Petitioner’s new husband executed

an Affidavit of Consent.

RTC, however, dismissed the petitions on the ground that P should have
filed the petition jointly with her new husband as she has already remarried
citing Sec. 7(c) of Art. III RA 8552 and Art. 185 of FC.

Petitioner on appeal, contends that the rule must be relaxed. She argued that
joint parental authority is not necessary in this case since, at the time the
petitions were filed, both Michelle and Michael were already of age. Thus,
parental authority is not anymore necessary since they have been
emancipated having attained the age of majority.

ISSUE: Whether Petitioner, who has remarried, can singly adopt?

RULING: Petition was denied.  The time the petitions were filed, petitioner
had already remarried.  Husband and wife shall jointly adopt except in 3
instances which was not present in the case at bar.  In case spouses jointly
adopts, they shall jointly exercise parental authority.  The use of the word
“shall” means that joint adoption of husband and wife is mandatory.  This is
in consonance with the concept of joint parental authority since the child to
be adopted is elevated to the level of a legitimate child, it is but natural to
require spouses to adopt jointly.  The affidavit of consent given by Olario
will not suffice since there are certain requirements that he must comply as
an American Citizen.  He must meet the qualifications set forth in Sec7 of
RA8552.  The requirements on residency and certification of the alien’s
qualification to adopt cannot likewise be waived pursuant to Sec 7.  Parental
authority is merely just one of the effects of legal adoption.  It includes
caring and rearing the children for civic consciousness and efficiency and
development of their moral mental and physical character and well-being.

18. Rescission of adoption (1)

A. ISABELITA S. LAHOM, Petitioner, v. JOSE MELVIN SIBULO

(previously referred to as "DR. MELVIN S. LAHOM"), Respondent.
G.R. No. 143989, July 14, 2003

FACTS:

The bliss of marriage and family would be to most less than complete
without children. The realization could have likely prodded the spouses Dr.
Diosdado Lahom and Isabelita Lahom to take into their care Isabelita's
nephew Jose Melvin Sibulo and to bring him up as their own. At the tender
age of two, Jose Melvin enjoyed the warmth, love and support of the couple
who treated the child like their own. Indeed, for years, Dr. and Mrs. Lahom
fancied on legally adopting Jose Melvin. Finally, in 1971, the couple
decided to file a petition for adoption. On 05 May 1972, an order granting
the petition was issued that made all the more intense than before the feeling
of affection of the spouses for Melvin. In keeping with the court order, the
Civil Registrar of Naga City changed the name "Jose Melvin Sibulo" to
"Jose Melvin Lahom."

A sad turn of events came many years later. Eventually, in December of

1999, Mrs. Lahom commenced a petition to rescind the decree of adoption
before the Regional Trial Court (RTC), Branch 22, of Naga City. She
averred, that, despite her pleas and that of her husband, their adopted son
refused to use their surname Lahom and continue to use Sibulo in all his
dealing and activities.  Prior to the institution of the case, in 1998, RA No.
8552 went into effect. The new statute deleted from the law the right of
adopters to rescind a decree of adoption (Section 19 of Article VI).

This turn of events revealing Jose's callous indifference, ingratitude and lack
of care and concern prompted Lahom to file a petition in Court in December
1999 to rescind the decree of adoption previously issued way back on May
5, 1972. When Lahom filed said petition there was already a new law on
adoption, specifically R.A. 8552 also known as the Domestic Adoption Act
passed on March 22,1998, wherein it was provided that: "Adoption, being in
the interest of the child, shall not be subject to rescission by the adopter(s).
However, the adopter(s) may disinherit the adoptee for causes provided in
Article 919 of the Civil Code" (Section 19).

ISSUE:
Whether or not the subject adoption still be revoked or rescinded by an
adopter after the effectivity of R.A. No. 8552, and if in the affirmative,
whether or not the adopter’s action prescribed.

RULING:
Jurisdiction of the court is determined by the statute in force at the time of
the commencement of the action. The controversy should be resolved in the
light of the law governing at the time the petition was filed. In this case, it
was months after the effectivity of RA 8552 that Lahom filed an action to
revoke the decree of adoption granted in 1972. By then the new law had
already abrogated and repealed the right of the adopter under the Civil Code
and the family Code to rescind a decree of adoption. So, the rescission of the
adoption decree, having been initiated by Lahom after RA 8552 had come
into force, could no longer be pursued.

Besides, even before the passage of RA8552, an action to set aside the
adoption is subject to the five-year bar rule under Rule 100 of the Rules of
Court and that the adopter would lose the right to revoke the adoption decree
after the lapse of that period. The exercise of the right within a prescriptive
period is a condition that could not fulfill the requirements of a vested right
entitled to protection. Rights are considered vested when the right to the
enjoyment is a present interest, absolute, unconditional and perfect or fixed
and irrefutable. The concept of a "vested right" is a consequence of the
constitutional guarantee of due process that expresses a present fixed interest
which in right reason and natural justice is protected against arbitrary state
action. While adoption has often been referred to in the context of a "right",
it is not naturally innate or fundamental but rather a right merely created by
statute. It is more of a privilege that is governed by the state's determination
on what it may deem to be for the best interest and welfare of the child.
Matters relating to adoption, including the withdrawal of the right of the
adopter to nullify the adoption decree, are subject to State regulation.
Concomitantly, a right of action given by a statute may be taken away at any
time before it has been exercised.

But an adopter, while barred from severing the legal ties of adoption, can
always for valid reasons cause the forfeiture of certain benefits otherwise
accruing to an undeserving child, like denying him his legitime, and by will
and testament, may expressly exclude him from having a share in the
disposable portion of his estate.