Strict Rule 35 Colloquy as a Due-Process Prerequisite to Valid Parental Relinquishment in Abuse-and-Neglect Cases

Introduction

This commentary addresses Justice Titus’s dissent (joined by Chief Justice Bunn) in In re A.A., G.C., K.C.-1, K.C.-2, and P.C. (W. Va. May 13, 2026). The case arises from a child abuse and neglect proceeding in which the petitioner-mother executed written forms purporting to voluntarily relinquish her parental rights to five children. The circuit court accepted the relinquishments and entered an order finding the relinquishments to be in the children’s best interests and “knowingly, intelligently and voluntarily” made.

The dissent frames the core issue as procedural and constitutional: whether the circuit court complied with Rule 35 of the Rules of Procedure for Child Abuse and Neglect Proceedings when accepting the mother’s relinquishment, and whether deficiencies in the court’s colloquy could be cured by the written relinquishment forms used. Justice Titus further challenges the majority’s threshold characterization that the Rule 35 compliance issue was not properly raised on appeal.

At stake is the validity of a parent’s purported waiver of a “fundamental constitutional right[]” to the care, custody, and control of her children—an area where the dissent insists due process demands “exceedingly high standards.”

Summary of the Opinion (Dissent)

The dissent would vacate and remand because, in Justice Titus’s view, the circuit court did not satisfy Rule 35’s mandatory prerequisites for accepting a voluntary relinquishment in an abuse-and-neglect proceeding. Specifically, the circuit court’s in-court exchange asked only whether counsel had discussed matters with the petitioner, whether she had questions for the court, and whether there was any threat/coercion. It did not determine on the record whether the petitioner:

  • fully understood the consequences of termination of 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(a)(3).

The dissent further concludes that the written forms did not “fill that critical gap” because they were keyed to Chapter 48 adoption relinquishment requirements (including reference to West Virginia Code § 48-22-303) rather than the Chapter 49 abuse-and-neglect framework (referencing, by contrast, West Virginia Code § 49-4-607 and Rule 35), and they omitted essential Rule 35 advisements—especially the right to a hearing/counsel and the availability of less drastic alternatives.

Finally, Justice Titus analogizes the required Rule 35 colloquy to the guilty-plea advisements demanded by Rule 11 of the West Virginia Rules of Criminal Procedure, arguing that both contexts involve grave waivers of fundamental rights and require the court—not merely counsel or paperwork—to ensure the waiver is knowing, voluntary, and intelligent.

Analysis

Precedents Cited

In re James G., 211 W. Va. 339, 566 S.E.2d 226 (2002)

The dissent anchors its rule-of-decision in syllabus point language from In re James G., quoted for the proposition that, in abuse and neglect proceedings, a court may accept a parent’s voluntary relinquishment only if the agreement meets applicable statutory requirements and “the relevant provisions of the Rules of Procedure for Abuse and Neglect Proceedings.” Justice Titus uses this as a direct constraint: compliance with the procedural rules (here, Rule 35) is not aspirational; it is a condition of validity.

In re Tessla N.M., 211 W. Va. 334, 338, 566 S.E.2d 221, 225 (2002)

The dissent cites In re Tessla N.M. to differentiate “extrajudicial” relinquishments (e.g., a DHHR office or private adoption) from relinquishments in abuse-and-neglect litigation. This distinction matters because the forms used here referenced Chapter 48 adoption provisions, which the dissent views as tailored to a different context and therefore not reliably ensuring the specific procedural protections demanded by Rule 35 in Chapter 49 proceedings.

In re Cesar L., 221 W. Va. 249, 654 S.E.2d 373 (2007)

The dissent treats In re Cesar L. as the pivotal comparator—ironically undermining the majority’s reliance on it. Justice Titus emphasizes that the relinquishment form in Cesar L. explicitly advised the parent of: (1) the right to counsel; (2) the right to hearings with the ability to call witnesses and cross-examine; and (3) that the court would consider “less drastic alternatives” to termination (e.g., improvement periods, return of the child, or continued custody with DHHR), culminating in an express acknowledgment that relinquishment left “no less restrictive alternative or option other than termination.”

By contrast, the forms here did not include Rule 35’s core advisements. The dissent therefore reads Cesar L. not as authority to affirm, but as authority demonstrating what a valid relinquishment record should contain.

Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591 S.E.2d 308 (2003) and In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973)

Justice Titus invokes these cases to reiterate the constitutional baseline: a natural parent’s right to custody is a “fundamental personal liberty” protected by due process, and cannot be impaired without procedural due process. These authorities function as constitutional guardrails, supporting the dissent’s insistence that Rule 35 must be treated as an implementation of due process rather than a technical checklist.

Troxel v. Granville, 530 U.S. 57 (2000)

Troxel is cited for the proposition that the parental liberty interest is “perhaps the oldest” fundamental liberty interest recognized by the U.S. Supreme Court. The dissent uses this to elevate the required rigor of the relinquishment colloquy: when the right is foundational, the waiver process must be correspondingly exacting.

State v. Boyce, 230 W. Va. 725, 742 S.E.2d 413 (2013)

The dissent cites State v. Boyce for the purpose of explaining Rule 11 guilty-plea procedure: the court must address a defendant personally in open court to ensure understanding of rights and consequences. Justice Titus uses this criminal-procedure analogue to argue that a circuit court has a similar non-delegable duty under Rule 35 when a parent waives parental rights—especially given the permanence of termination.

In re C.W., No. 17-0614, 2018 WL 1040378 (W. Va. Feb. 23, 2018) (memorandum decision)

The dissent references In re C.W. to support a practical point: West Virginia has “never recognized a parent’s claim of ineffective assistance of counsel” in an abuse-and-neglect civil proceeding. This fact heightens, in the dissent’s view, the importance of the court’s own Rule 35 advisements on the record, because a deficient colloquy cannot later be remedied by recasting the problem as counsel’s ineffectiveness.

Impact

Although a dissent does not itself create binding law, Justice Titus’s approach proposes a stringent, record-based template likely to influence:

  • Trial-court practice: encouraging circuit judges to conduct a more explicit Rule 35 colloquy, covering each required element on the record, rather than relying on counsel’s representations or generic voluntariness questions.
  • Form usage: pressing courts and agencies to use abuse-and-neglect-specific relinquishment forms that track Rule 35 (and Chapter 49), rather than adoption-oriented Chapter 48 forms that may omit key advisements.
  • Appellate review: providing a roadmap for future appellants to argue that failure to advise about “less drastic alternatives” and hearing/counsel rights is structural enough to require vacatur, especially where the written forms lack those disclosures.
  • Due process doctrine in child welfare: reinforcing an analogy to guilty-plea safeguards, which—if adopted by future majorities—could elevate the rigor of waiver colloquies and strengthen procedural protections around voluntary termination.

The dissent also highlights a systemic vulnerability: if ineffective assistance claims are not recognized in abuse-and-neglect proceedings, then the judicial colloquy becomes the primary safeguard ensuring the parent’s understanding. That framing could affect future debates about the adequacy of procedural protections in this domain.

Complex Concepts Simplified

Voluntary relinquishment of parental rights
A parent’s decision to give up all legal rights and responsibilities to a child, usually leading to termination of parental rights and clearing the way for adoption. It is intended to be a voluntary waiver rather than a termination imposed after litigation.
Termination of parental rights (TPR)
A court order permanently ending the legal parent-child relationship. It is generally irreversible and eliminates rights to custody, visitation, and decision-making.
Colloquy
An in-court question-and-answer exchange where the judge confirms a person understands rights, options, and consequences before accepting a waiver (here, relinquishment).
Rule 35 (abuse-and-neglect relinquishment safeguards)
A procedural rule requiring the judge to determine, on the record, that the parent understands consequences, knows less drastic alternatives exist, and has been informed of rights to a hearing and to representation by counsel.
Less drastic alternatives
Options short of terminating parental rights—such as improvement periods, reunification efforts, or placements/custody arrangements that do not permanently sever the legal relationship. Rule 35 requires the parent to be aware of these possibilities before relinquishing.
Procedural due process
Constitutional requirements that the government use fair procedures before depriving someone of a protected liberty interest—here, the parent’s interest in custody and care of the child.
Fraud or duress; “clear and convincing evidence”
Fraud or duress refers to deceit or coercion undermining voluntariness. “Clear and convincing evidence” is a high evidentiary standard—more demanding than “preponderance of the evidence,” but less than “beyond a reasonable doubt.”
Rule 11 guilty-plea analogy
In criminal cases, a guilty plea waives constitutional trial rights and must be knowing and voluntary, confirmed through a judge’s personal advisements in open court. The dissent argues parental relinquishment warrants similarly careful, judge-led safeguards.
Chapter 48 vs. Chapter 49 forms
Chapter 48 generally addresses adoption-related relinquishment; Chapter 49 addresses child welfare abuse-and-neglect proceedings. The dissent’s point is that adoption-style forms may omit abuse-and-neglect-specific rights and options required by Rule 35.

Conclusion

Justice Titus’s dissent in In re A.A., G.C., K.C.-1, K.C.-2, and P.C. advances a clear procedural due-process principle: in abuse-and-neglect cases, a court should not accept a voluntary relinquishment of parental rights unless the record demonstrates strict compliance with Rule 35— including explicit advisement and understanding of the consequences of termination, awareness of less drastic alternatives, and knowledge of the rights to hearing and counsel.

The dissent treats the circuit court’s limited voluntariness questions and reliance on Chapter 48-based forms as insufficient to validate a waiver of fundamental parental rights. It reads In re Cesar L. as illustrating what compliance looks like, and it bolsters the constitutional stakes through Lindsie D.L. v. Richard W.S., In re Willis, and Troxel v. Granville, while using State v. Boyce to argue that judge-led advisements—like guilty-plea procedures—are essential.

Even as a dissent, the opinion offers a practical and doctrinal roadmap: if adopted in future cases, it would push West Virginia practice toward more robust, standardized Rule 35 colloquies and away from reliance on non-tailored relinquishment forms—thereby tightening the procedural integrity of voluntary terminations in the child welfare system.