                       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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