COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Bumgardner 

MARIA DIAZ 

 MEMORANDUM OPINION* BY 

v. Record No. 0654-97-4 JUDGE RUDOLPH BUMGARDNER, III 

 SEPTEMBER 22, 1998 

ALICIA CUMMINGS MORRISSEY 

 AND DAN JOSEPH MORRISSEY 

UPON A REHEARING 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Stanley P. Klein, Judge 

 (Gregory A. Castanias; Carolyn Smith Motes; 

Jones, Day, Reavis & Pogue; Carolyn Smith 

Motes, P.C., on brief), for appellant. 

 (Christopher P. Spera; Carolyn D. Flury; 

Sheldon L. Pine; Hyacinth Grey Kucik, on 

brief), for appellees. 

 Maria Diaz filed a petition for custody of her daughter, 

Estella Diaz, in the Juvenile and Domestic Relations District 

Court of Fairfax County. After a seven-day trial, the case was 

appealed to the circuit court where the trial de novo took six 

days. The circuit court granted custody to the Morrisseys by 

final order entered February 14, 1997. The appellant filed her 

notice of appeal and received two extensions of the deadline by 

which to file the trial transcript. Two volumes of the 

transcript which covered the testimony on December 9 and 12, 1996 

were not filed by the deadline. This Court ruled September 26, 

1997 that the transcripts were not timely filed. By order 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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entered that day, the Court directed the panel hearing the case 

to decide whether those transcripts were necessary for a complete 

review. We must dismiss the appeal because the transcripts are 

indispensable to the review of the issues raised on appeal. 

 Maria Diaz gave birth to her daughter April 19, 1995. 

Shortly after that she contacted Mary Quigg about placing the 

child for adoption. Quigg contacted the Morrisseys, who lived in 

North Carolina, about the possibility of adopting the child. The 

parties met June 2, 1995. Diaz gave the baby to Quigg who kept 

the child until June 5, 1995. Quigg and Diaz met with an 

attorney to discuss adoption, and Diaz signed a consent to 

adoption form on June 7, 1995. She gave her child to the 

Morrisseys that day. They took her to North Carolina and began 

adoption proceedings there. On September 21, 1995, Diaz filed 

the initial custody petition in this case. 

 The appellant raises two issues on appeal: (1) did the 

trial court err by holding North Carolina law controlled the 

determination of the validity of the consent to adoption form 

executed by the appellant; and (2) if the consent form is 

invalid, did the trial court err by awarding custody to the 

Morrisseys. She argues that because the consent was executed in 

Virginia, its validity depends upon compliance with Virginia 

requirements, and that in the absence of a valid consent to 

adoption form, the trial court erred in awarding custody to the 

Morrisseys. We do not reach the first issue. The proceeding 
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before the trial court was not for adoption, but for custody. 

The issue of custody is a fact issue resting on the sufficiency 

of the evidence for which the transcripts are necessary. The 

consent to adoption form may have been sufficient evidence of 

voluntary custody placement even if it was not sufficient to 

authorize an adoption. Thus, irrespective of the validity of the 

consent to adoption form, we ultimately must address the issue of 

custody. We cannot address this issue because the record is 

inadequate. 

 The issue before the trial court was whether the natural 

mother voluntarily relinquished custody of her child to the 

Morrisseys. The facts and circumstances surrounding her act of 

physically delivering custody to the Morrisseys were essential in 

deciding if she voluntarily relinquished custody. The testimony 

that is missing from the record includes that of the Morrisseys 

and Mary Quigg. It also included the testimony of Carlota 

Garcia, who worked at the hospital where Diaz delivered. These 

witnesses testified about statements of intention to place the 

child for adoption made by Diaz. Their testimony included their 

observations of her mental condition and comprehension of what 

was happening. The trial judge made a very detailed and 

considered ruling in which he stated, "[I]n this case, perhaps 

more than many, if not most of the cases that I've presided over, 

the credibility of the witnesses involved was absolutely 

crucial." 
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 The essential issue in this appeal is whether there is 

sufficient evidence to support the trial court's finding that 

custody was voluntarily relinquished and that it was in the best 

interests of the child that custody remain with the Morrisseys. 

The issue cannot be reviewed without the transcripts that contain 

the essential and indispensable evidence upon which the decision 

rested. The appeal must be dismissed. 

 Dismissed.