Maria Diaz v. Alicia Cummings Morrissey ( 1998 )

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.
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.
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