IN RE: A.A. (2026)

The petitioner mother voluntarily relinquished her parental rights to her five children. On appeal to this Court, she contends that the circuit court erred in accepting her relinquishments and terminating her parental rights because she did not know that relinquishing was permanent. To the contrary, the petitioner's binding admissions in the written voluntary relinquishments unequivocally demonstrate that she was aware of their permanent nature, so we affirm the circuit court's order.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 11, 2023, the Department of Human Services (“DHS”) filed a petition for immediate custody of the minor children, A.A., G.C., K.C.-1, K.C.-2, and P.C., alleging that three of these children, K.C.-1, K.C.-2, and G.C., witnessed the fatal stabbing of their (and P.C.’s) father by the petitioner's boyfriend, with whom the petitioner and the five children lived.¹ The children were removed from the home and placed with their maternal grandmother.

Among other allegations, the petition detailed “numerous referrals on the family over the years,” which have “mentioned drug use as a concern,” and that the DHS, about a month prior to the fatal stabbing, had substantiated abuse and neglect allegations against the now-deceased father due to his failure to appropriately restrain the children in the vehicle he was driving, which caused them to become injured when he wrecked that vehicle. The Child Protective Services worker recounted in the petition that she asked the petitioner why the father was at the home on the day of the stabbing, given the substantiated allegations. The petitioner claimed that the father “had just shown up at the house,” but A.A. and P.C. told the worker that he “had been at their home for weeks.”

The Child Protective Services worker also set forth in the petition that, on the December day the children were removed from their home, K.C.-1 and K.C.-2, who are twins, were in diapers only—no clothing, socks, or shoes. One of the twins had a black eye, and the other “had several scabs on his penis.” G.C. was not wearing shoes or socks, and his “toenails and feet were black with dirt.” The worker also detailed that G.C. “made a ‘stab motion’ and was trying to tell the two older [siblings, A.A. and P.C.,] who had been at school what he had witnessed.” The worker noted that all children “had a smell to them as if they had not bathed for a period of time,” and P.C. and A.A. said that “they didn't always have lots of food at their home.” When the worker asked the petitioner about her twins’ injuries, she said she was unaware of them.

The petition alleged that the children were in “imminent danger due to the [petitioner] being detained by WV State Police and the father ․ being stabbed at the family home by the petitioner's current boyfriend,” and the petitioner “was not able therefore to care for the children and her home was a crime scene for multiple hours.” Also noting the reported drug use and that the petitioner allowed the father around the children despite knowing that the substantiated abuse and neglect precluded that contact, the petition further alleged that the petitioner “lacks parenting knowledge skills, or motivation which affects the childrens [sic] safety as she left her five children in the home with [her boyfriend] who had just stabbed the father of four of the children and was transporting [him] to a hospital or medical facility for care.” The petition also cited the petitioner allowing her boyfriend “to care for her five children” and her allowing the children to be around both her boyfriend and the now-deceased father “even though she had a history of domestic violence with [the father] and had filed a DVP against him previously.”

The circuit court held an initial hearing on December 14, 2023. At that time the court ordered the petitioner to drug screen and granted her motion for visitation with the children. The court found that it was in the children's best interests to remain in DHS's temporary legal custody and the maternal grandmother's physical custody.

On March 4, 2024, the petitioner was arrested and charged with the felony offense of child neglect creating a substantial risk of death or serious bodily injury, in violation of West Virginia Code § 61-8D-4(c) (2014). The parties agree that the charge relates to the stabbing that resulted in the death of G.C., K.C.-1, K.C.-2, and P.C.’s father, but the specifics of the petitioner's conduct forming the basis of this charge are not before this Court.²

Although the appendix record is sparse, it appears that the petitioner produced negative drug screens and visited with the children during the next few months. The circuit court also held various status hearings during that time. Following a status hearing held on July 1, 2024, the court observed that the petitioner was “currently at the [p]reliminary[ ] [h]earing procedural stage” and set the matter for an “evidentiary hearing” on July 31, 2024. The court also directed the multidisciplinary treatment team to meet prior to the scheduled evidentiary hearing.

At the July 31, 2024, hearing, the guardian ad litem reported that, while the matter had been set for a preliminary hearing and evidentiary hearing, there had “been some significant changes” since the required multidisciplinary treatment team meeting, as he expected that the petitioner would voluntarily relinquish her parental rights to all five children. The petitioner's counsel confirmed that the petitioner intended to relinquish. The court asked the petitioner's counsel whether he had had “sufficient time and opportunity to be able to go over everything with [the petitioner] to make sure that she feels that she understands what's going on?” The petitioner's counsel confirmed, “Your Honor, we've had numerous discussions, including several today.” Counsel also confirmed that he had “answered all the questions [the petitioner had] posed to [him,]” and he did not believe that the petitioner had “any others.” The court asked the petitioner directly, “Ma'am, do you have any questions that you would like to pose to me?” “I don't think so,” she answered. The court also asked the petitioner whether anyone had “threatened, any coercion, undue influence, anything like that to get you to do this?” She responded, “No, Your Honor.”

The circuit court then took a recess to allow the petitioner to sign written voluntary relinquishments. She signed a separate voluntary relinquishment form for each of her five children. The forms were identical in substance, and so for each child, she made the following averments that are relevant to this appeal:

I have come to the conclusion after mature consideration that I am unable and will never be able to care for the above named child and that the interest of said child will be best served by permanent transfer of legal guardianship to the West Virginia [DHS] and placement for adoption.

․ Believing it to be in the best interest of said child ․ I hereby voluntarily consent to the permanent transfer of the legal and physical custody of said child to the [DHS] for the purpose of placing them for adoption.

․ I understand that I am surrendering all legal claims upon this child, ․ I understand that termination of parental rights and obligations is permanent ․

․

I further understand that I am authorizing the West Virginia [DHS] to consent to the adoption of said child ․

I understand this relinquishment is a final act and may be revoked only if:

1.) I and the Department agree to its revocation prior to the entry of an adoption order;

2.) I provide by clear and convincing evidence ․ that the Relinquishment was obtained by fraud or duress; or

3.) I prove by clear and convincing evidence, prior to the entry of an adoption order, that this Relinquishment does not comply with the requirements set forth in West Virginia Code § 48-22-303.

Further, the petitioner confirmed that she had “read this relinquishment, or it was read to [her] before [she] signed it” and that she “understand[s] English or an interpreter [was] provided for [her].”

The circuit court judge also signed each voluntary relinquishment form, affirming that, for each child, he was

of the opinion that said parent understands the nature and consequences of such act; has not been induced by threat or reward to sign the relinquishment; and that said relinquishment is the free, voluntary and knowing act of the minor parent. I do, therefore, approve the relinquishment. I find that this relinquishment is in the best interest of the child and to remain in the home would be contrary to the child's welfare.

When the hearing resumed after the written voluntary relinquishments were signed, the circuit court accepted the relinquishments from the petitioner, and the court asked the petitioner's counsel whether there was any concern “in regard to any undue influence, coercion, improper influence or anything like that?” The petitioner's counsel said, “No, Your Honor.” The court asked the petitioner whether she had any questions, and she responded, “No, sir.” The court concluded that the voluntary relinquishments were in the children's best interests and were “knowingly, intelligently and voluntarily done without any fraud und[ue] influence, [or] coercion.”

In view of her choice to voluntarily relinquish her parental rights, the petitioner waived her right to a preliminary hearing, and the circuit court found that waiver to have been freely, knowingly, intelligently, and voluntarily made. The voluntary relinquishments served as bases to adjudicate the petitioner as an abusing parent and to adjudicate each child as an abused and/or neglected child. See W. Va. Code § 49-4-607 (2016) (providing that when a parent voluntarily relinquishes, and the voluntary relinquishment is accepted by the circuit court, “the relinquishment may, without further evidence, be used as the basis of an order of adjudication of abuse and neglect by that parent of his or her children”). The court then terminated the petitioner's rights to the subject children, concluding in its October 4, 2024, order that the voluntary relinquishments were free from fraud or duress and that it was in the children's best interests to accept the voluntary relinquishments. It is from the court's October 4, 2024, order accepting the petitioner's voluntary relinquishments and terminating her parental rights that she now appeals.³

II. STANDARD OF REVIEW

Our longstanding standard of review applicable to abuse and neglect matters is as follows:

Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.

Syl. Pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).

III. DISCUSSION

The petitioner argues that the circuit court erred in allowing her to voluntarily relinquish her parental rights to her five children. Before delving into the specifics of her argument, we first observe that West Virginia Code § 49-4-607, which addresses the consensual termination of parental rights in child abuse and neglect cases, provides, in relevant part, that “[a]n agreement of a natural parent in termination of parental rights is valid if made by a duly acknowledged writing, and entered into under circumstances free from duress and fraud.” Likewise, we held in Syllabus Point 3 of In re Cesar L., 221 W. Va. 249, 654 S.E.2d 373 (2007), that “W. Va .Code § [49-4-607 (2016)] permits a parent to voluntarily relinquish his/her parental rights. Such voluntary relinquishment is valid pursuant to W. Va. Code § [49-4-607 (2016)] if the relinquishment is made by ‘a duly acknowledged writing’ and is ‘entered into under circumstances free from duress and fraud.’ ” We have also recognized that because the statute's language “suggests that such an agreement may be invalid if it is not entered into under circumstances that are free of duress and fraud,” a circuit court can “look behind the face of the document to determine whether or not a parent signed the agreement to relinquish their parental rights under circumstances free from duress and fraud.” State ex rel. Rose L. v. Pancake, 209 W. Va. 188, 191, 544 S.E.2d 403, 406 (2001); see also id. at 189, 544 S.E.2d at 404, Syl. Pt. 3 (holding that a circuit court may conduct a hearing to make this determination). The question of “[w]hether there has been fraud or duress is a question of fact,” and it “must be determined by the circuit court judge.” Id. at 191, 544 S.E.2d at 406.

Turning now to the specifics of the petitioner's argument to this Court, she claims that her counsel below ⁴ advised her that a voluntary relinquishment was “not permanent and could be reversed after her criminal charges were dismissed.” She argues that her counsel below was “clearly wrong and clearly misled” her in this regard because, “[a]s this [C]ourt knows, the relinquishment of parental rights is permanent and cannot be undone,” unless, as the petitioner acknowledges, there is proof that the voluntary relinquishments were obtained through fraud or duress or that they did not comply with West Virginia Code § 49-4-607 or Rule 35 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings.⁵ Because she alleges that she “relinquished her parental rights with the understanding [that] if the criminal case was resolved she could get her children back,” however, and therefore “did not understand that a [v]oluntary [r]elinquishment is a final act,” she contends that the circuit court erred in allowing her to voluntarily relinquish her parental rights.

Here, in her sole assignment of error, the petitioner does not ever argue that her voluntary relinquishments failed to comply with West Virginia Code § 49-4-607 or Rule 35, nor has she even sought, let alone obtained, a determination from the circuit court she relinquished under fraud or duress.⁶ Rather, she claims only that she did not understand the permanent nature of her voluntary relinquishments because her former counsel misled her. But that assertion is flatly and repeatedly contradicted by the binding representations she made in the five relinquishment forms she signed. In a separate voluntary relinquishment form completed for each child, the petitioner asserted that she would “never be able to care for” her children and that “mature consideration” had led her to the conclusion that “permanent transfer” and “placement for adoption” was therefore in her children's best interests. (Emphasis added.) She affirmed her understanding “that termination of parental rights and obligations is permanent” and that each relinquishment was “a final act” that could be revoked only under limited circumstances, such as fraud or duress. (Emphasis added.) Indeed, the word “permanent” appears three separate times in each of the five relinquishments, demonstrating that the petitioner knew that the transfer of legal custody was permanent and that the consequent termination of her parental rights was permanent.

This Court faced an argument similar to the petitioner's in In re Cesar L. In that case, a mother who had voluntarily relinquished her parental rights to her child moved to withdraw that relinquishment, in accordance with Rose L., claiming that it was not voluntary and had been obtained under duress. 221 W. Va. at 253, 654 S.E.2d at 377. The mother submitted an affidavit to the circuit court asserting that her attorney had “not explained the ramifications of the voluntary relinquishment to her and that she had been led to believe that her parental rights would be terminated if she did not sign the relinquishment form.” Id. at 253–54, 654 S.E.2d at 377–78. Concluding that the mother was not subject to fraud or duress when she signed the relinquishment form, the court determined that her relinquishment was valid and denied her motion to withdraw. Id. at 254, 654 S.E.2d at 378.

On appeal to this Court, the mother argued that the circuit court erred in determining that her voluntary relinquishment was valid and refusing to set it aside. Id. at 259–60, 654 S.E.2d at 383–84. We agreed with the circuit court that the mother did not prove that she relinquished her parental rights under fraud or duress. Id. at 262, 654 S.E.2d at 386. In particular, we were “[un]convinced” that the mother's former counsel coerced her to voluntarily relinquish where the assertions in her affidavit suggesting duress or coercion were “sharply contradict[ed]” by the representations in her voluntary relinquishment that she understood the consequences of and had not been coerced into relinquishing. Id. We stated that the “statements contained in [the mother's] relinquishment constitute judicial admissions by which she is bound and which she cannot now deny.” Id. (citation omitted). And because the mother was “bound by the admissions contained in her relinquishment,” we could not “condone her present attempts to recant these statements absent clear and convincing evidence of the duress to which she claims to have been subject at the time thereof.” Id.

Just as in In re Cesar L., because the petitioner has not established (or even argued) that her voluntary relinquishments were obtained through fraud or duress, she is bound by the statements contained in them, and we cannot condone her attempts to recant her multiple representations that she understood the permanent nature of the relinquishments. Her numerous confirmations of this knowledge and understanding “stop [her] from subsequently asserting any claim inconsistent therewith.” Id. (quoting Wheeling-Pittsburgh Steel Corp. v. Rowing, 205 W. Va. 286, 302, 517 S.E.2d 763, 779 (1999)). As these confirmations preclude her from claiming that she was unaware of the permanent nature of voluntarily relinquishing her parental rights, and as that claimed lack of knowledge is the only basis on which she contends that the circuit court erred in accepting her relinquishments, she has demonstrated no error.⁷

IV. CONCLUSION

For the reasons stated above, we affirm the Circuit Court of Lincoln County's October 4, 2024, order accepting the petitioner's voluntary relinquishments and terminating her parental rights.

Affirmed.

A parent's decision to voluntarily relinquish his or her parental rights to a child is one of the most serious decisions a parent could ever confront. To ensure that a parental relinquishment is voluntarily, knowingly, and intelligently made, circuit courts must accurately advise parents of their rights, options, and consequences in a relinquishment colloquy in accordance with Rule 35 of the Rules of Procedure for Child Abuse and Neglect Proceedings (“Rule 35”). Due process requires circuit courts to adhere to exceedingly high standards when determining whether a parent fully understands the rights and consequences attendant to relinquishing fundamental constitutional rights to the care, custody, and control of his or her children. In this case, the record is clear that the circuit court's colloquy fell short of Rule 35's requirements and that the petitioner's relinquishment forms failed to fill that critical gap. It is equally evident that the petitioner raised this issue on appeal. For these reasons, I respectfully dissent to the majority's decision affirming the circuit court's order accepting the petitioner's relinquishment of her parental rights to her five children.

The majority contends that the petitioner did not raise the circuit court's failure to comply with Rule 35 as an assignment of error, but the logic of this contention eludes me. The majority's discussion begins with “[t]he petitioner argues that the circuit court erred in allowing her to voluntarily relinquish her parental rights to her five children.” This argument requires that we examine whether the circuit court followed proper procedures when accepting her relinquishments. The majority goes on to state that the petitioner acknowledges that the relinquishments could not be overturned unless there was proof that they were obtained through fraud or duress or that they “did not comply with West Virginia Code § 49-4-607 or Rule 35 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings.” (Emphasis added, footnote omitted). Therefore, the issue of whether the circuit court followed proper procedures when accepting the relinquishment of her parental rights is squarely before the Court and the majority has bypassed the key question presented in this case. Further, its decision is at odds with the Rules of Procedure for Child Abuse and Neglect Proceedings and the petitioner's constitutional procedural due process protections.

This Court has held that a circuit court must abide by the relevant provisions of the Rules of Procedure for Abuse and Neglect Proceedings when accepting a parent's voluntary relinquishment. See Syl. Pt. 3, in part, In re James G., 211 W. Va. 339, 566 S.E.2d 226 (2002) (“In the context of an abuse and neglect proceeding, a court may accept a parent's voluntary relinquishment of parental rights ․ provided that the agreement meets the requirements of W. Va. Code § 49–6–7 (1977), where applicable, and the relevant provisions of the Rules of Procedure for Abuse and Neglect Proceedings.”).

Rule 35 provides the prerequisites for a circuit court's acceptance of a parent's voluntary relinquishment of parental rights. Rule 35 states that the circuit court must make the following determinations:

(3) If the parent is present in court and voluntarily has signed a relinquishment of parental rights, the court shall determine whether the parent fully understands the consequences of a termination of parental rights, is aware of possible less drastic alternatives than termination, and was informed of the right to a hearing and to representation by counsel.

W. Va. R. P. Child Abuse & Neglect Procs. 35(a)(3) (emphasis added). There is no question that the circuit court failed to satisfy these requirements.

At a hearing held in July 2024, the children's guardian ad litem and the petitioner's counsel informed the circuit court that the petitioner intended to relinquish her parental rights to her five children. The circuit court asked the petitioner's counsel whether he had had “sufficient time and opportunity to be able to go over everything with [the petitioner] to make sure that she feels that she understands what's going on?” The petitioner's counsel confirmed, “Your Honor, we've had numerous discussions, including several today.” Counsel also confirmed that he had “answered all the questions [the petitioner had] posed to [him,]” and he did not believe that the petitioner had “any others.” The circuit court asked the petitioner, “Ma'am, do you have any questions that you would like to pose to me?” “I don't think so,” she answered. It also asked the petitioner whether anyone had “threatened, any coercion, undue influence, anything like that to get you to do this?” She responded, “No, Your Honor.”

As this exchange demonstrates, the circuit court did not determine whether the petitioner fully understood “the consequences of a termination of [her] parental rights, [was] aware of possible less drastic alternatives than termination, and was informed of the right to a hearing and to representation by counsel[,]” as required by Rule 35. Nor do the petitioner's signed voluntary relinquishment forms salvage the circuit court's deficient inquiry.

The petitioner signed five voluntary relinquishment forms, a separate one for each of her children, and the circuit court accepted them, concluding that the relinquishments were in the children's best interests and were “knowingly, intelligently and voluntarily done without any fraud und[ue] influence, [or] coercion.” However, the relinquishment forms cite Chapter 48 of the West Virginia Code, not Chapter 49; as a result, they do not comport with Rule 35 because they are intended for use in circumstances where a parent relinquishes parental rights outside of the abuse and neglect construct. The forms do not advise the petitioner of less drastic alternatives to termination or her right to counsel and a hearing.¹

The forms expressly reference West Virginia Code § 48-22-303, contained with Article 48's “Adoption” provisions, which delineates all the information required in these particular relinquishment forms, designed for use when parental rights are surrendered absent abuse and neglect allegations. Therefore, these forms do not contemplate the particulars of abuse and neglect proceedings such as rights to counsel and a hearing, the least restrictive disposition, etc., as outlined in Rule 35. See e.g., In re Tessla N.M., 211 W. Va. 334, 338, 566 S.E.2d 221, 225 (2002) (“Parents may be in an extrajudicial setting when they choose to terminate their rights. For instance, a parent may choose to terminate his or her rights when he or she is in a DHHR office or when he or she is involved in a private adoption proceeding.”).

The deficiency of the circuit court's inquiry and the relinquishment forms is best demonstrated in the very case upon which the majority relies to support its conclusion that the circuit court did not err when accepting the petitioner's voluntary relinquishment of her parental rights. In In re Cesar L., 221 W. Va. 249, 654 S.E.2d 373 (2007), the relinquishment form signed by the respondent mother comported with Rule 35, because, among other things, it fully advised her of the consequences of relinquishment including less drastic alternatives to termination and her right to a hearing and counsel. The Cesar L. relinquishment form provided, in relevant part:

1. That I believe it is in the best interest of Cesar A[.] L[.] to remain in the custody of the West Virginia Department of Health and Human Resources;

2. I understand that I am entitled to be represented by counsel at all proceedings.

․

4. I understand that I would be entitled to call witnesses, present evidence, testify on my own behalf, and have my attorney cross-examine any witnesses called at any hearing held in this matter;

5. I wish to waive my right to an adjudication and dispositional hearing in this matter and voluntarily relinquish all my parental rights to Cesar A [.] L[.]

6. I understand the Court would consider less drastic alternatives to termination, such as granting a pre or post adjudicatory improvement period, returning the child into my custody or simply having custody remain with West Virginia Department of Health and Human Resources.

․

10. I understand by relinquishing parental rights to Cesar A[.] L[.] that it is a final disposition as towards custody and therefore I leave the Court no less restrictive alternative or option other than termination of my parental rights.

․

13. I fully understand the meaning and consequences of executing this document.

14. I have not been induced, coerced or threatened into signing this document.

15. No promises or rewards have been offered in consideration for my execution of this document.

I hereby freely, knowingly, intelligently and voluntarily relinquish all my parental rights to Cesar A[.] L[.]

In re Cesar L., 221 W. Va. at 260 n.22, 654 S.E.2d at 384 n.22 (emphasis added).

Inasmuch as the context of Cesar L. is inapposite to the present case, it furnishes no support for the majority. To the contrary, the majority's result runs against this precedent and, more importantly, the petitioner's constitutional procedural due process protections.

This Court has repeatedly held that the relationship between parent and child is constitutionally protected and cannot be affected without procedural due process. See Syl. Pt. 2, Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591 S.E.2d 308 (2003) (“ ‘In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.’ Syllabus Point 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).”). A parent's fundamental liberty interest of in the care, custody, and control of his or her children is afforded due process protection and is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court of the United States. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

In terms of the due process deprivation, I equate the circuit court's failure to properly inform a parent considering whether to relinquish his or her parental rights with the failure to inform a criminal defendant of the rights, options, and consequences of a guilty plea. The procedures and requirements governing the acceptance of guilty pleas are contained in Rule 11 of the West Virginia Rules of Criminal Procedure (“Rule 11”). See State v. Boyce, 230 W. Va. 725, 728, 742 S.E.2d 413, 416 (2013). The purpose of Rule 11 is to ensure that a defendant knows his rights and thereby understands the consequences of a decision to plead guilty. A defendant's decision to plead guilty to a criminal charge is a grave and personal judgment, and Rule 11 provides that a circuit court is responsible for addressing the defendant personally, in open court, to inform him of the rights he is waiving as well as the possible consequences of conviction by a guilty plea.

In the same way, nothing is more important to a parent contemplating the decision to relinquish his or her parental rights than understanding the full consequences of that decision as well as the less drastic alternatives. A circuit court's duty to ensure that proper procedures are followed is vitally important because, unlike a criminal case, this Court has never recognized a parent's claim of ineffective assistance of counsel in an abuse and neglect civil proceeding.² Rule 35 provides that a circuit court must deliver certain information and ask certain questions to determine that a parent's relinquishment is made in a knowing, voluntary and intelligent manner. In this case, the circuit court's failure to engage in an adequate Rule 35 colloquy with the petitioner, coupled with her deficient relinquishment forms, erodes the integrity of the entire proceeding. For these reasons, I would vacate the circuit court's order and remand this case for further proceedings. I am authorized to state that Chief Justice Bunn joins in this dissent.

FOOTNOTES

1.   We use initials where necessary to protect the identities of those involved in this case. See W. Va. R. App. P. 40(e). Because two of the children share initials, we use numbers to differentiate them. A.A.’s father was initially part of these proceedings but was later dismissed as a non-abusing parent.

2.   The petitioner included certain documents related to her criminal charge in the appendix record; however, the children's guardian ad litem moved to have them struck, as they were not made part of the record below or considered by the circuit court. We granted the guardian's motion on April 17, 2025. See W. Va. R. App. P. 6 & 7 (providing that the “record on appeal consists of the documents and exhibits filed in the proceedings in the lower tribunal” and requiring an appendix record to “contain accurate reproductions of the documents and exhibits submitted to the lower court”).

3.   The petitioner's boyfriend (although it was represented that he and the petitioner were no longer together by the time of the July 31, 2024, hearing) voluntarily relinquished his guardianship and custodial rights to the children at the July 31, 2024, hearing. A.A.’s permanency plan is to remain in the custody of her non-abusing father, and the permanency plan for the other children is adoption in their current placement.

4.   The petitioner was represented in the circuit court by counsel different from that on appeal.

5.   Relevant to the circumstances of the petitioner's voluntary relinquishments, Rule 35 of the Rules of Procedure for Child Abuse and Neglect Proceedings provides that[i]f a parent voluntarily relinquishes parental rights or fails to contest termination of parental rights, the court shall make the following inquiry at the disposition hearing:․(3) If the parent is present in court and voluntarily has signed a relinquishment of parental rights, the court shall determine whether the parent fully understands the consequences of a termination of parental rights, is aware of possible less drastic alternatives than termination, and was informed of the right to a hearing and to representation by counsel.

6.   The petitioner included in the appendix record documents that purportedly support her claim that former counsel misled her regarding the permanent effect of her voluntary relinquishments. By order entered April 17, 2025, we granted the guardian ad litem's motion to strike these documents and corresponding references to them in the petitioner's brief because the documents were not considered by the circuit court or contained in the record below. To the extent that the petitioner intended for these documents and related references to demonstrate that her voluntary relinquishments were obtained by fraud or duress, as stated above “[w]hether there has been fraud or duress is a question of fact that must be determined by the circuit court judge,” not this Court. Rose L., 209 W. Va. at 191, 544 S.E.2d at 406. For this additional reason, the documents and related arguments are not properly before this Court.

7.   Although the voluntary relinquishment forms signed by the petitioner clearly and repeatedly demonstrate that she knew relinquishing her parental rights was permanent and final—and are therefore sufficient to demonstrate that she is not entitled to relief on the basis claimed before this Court—we nevertheless note that these forms are not tailored to voluntary relinquishments under Chapter 49 of the West Virginia Code. Rather, they appear tailored to relinquishments under Chapter 48. They directly reference West Virginia Code § 48-22-303 and include representations required for relinquishments under that Chapter. We caution circuit courts to be mindful of the distinctions between Chapter 48 and Chapter 49 voluntary relinquishments and use forms or agreements tailored to the particular relinquishment. See In re A.R., No. 18-0050, 2019 WL 2452717, *2 n.3 (recognizing that Chapter 49 of the West Virginia Code and the Rules of Procedure for Child Abuse and Neglect Proceedings contain provisions for relinquishing and for revoking relinquishments that are “separate and distinct” from such provisions in Chapter 48).

1.   In relevant part, the petitioner's relinquishment forms stated:I have come to the conclusion after mature consideration that I am unable and will never be able to care for the above named child and that the interest of said child will be best served by permanent transfer of legal guardianship to the West Virginia [DHS] and placement for adoption.․ Believing it to be in the best interest of said child ․ I hereby voluntarily consent to the permanent transfer of the legal and physical custody of said child to the [DHS] for the purpose of placing them for adoption.․ I understand that I am surrendering all legal claims upon this child, ․ I understand that termination of parental rights and obligations is permanent ․․I further understand that I am authorizing the West Virginia [DHS] to consent to the adoption of said child ․I understand this relinquishment is a final act and may be revoked only if:1.) I and the Department agree to its revocation prior to the entry of an adoption order;2.) I provide by clear and convincing evidence ․ that the Relinquishment was obtained by fraud or duress; or3.) I prove by clear and convincing evidence, prior to the entry of an adoption order, that this Relinquishment does not comply with the requirements set forth in West Virginia Code § 48-22-303.

2.   See e.g., In re C.W., No. 17-0614, 2018 WL 1040378, at *3 (W. Va. Feb. 23, 2018) (memorandum decision).

EWING, Justice:

CHIEF JUSTICE BUNN and JUSTICE TITUS dissent and reserve the right to file separate Opinions.