Fundamental Versus Deferential: Appellate Review of Terminations of Parental Rights

Any attorney who handles or follows cases involving termination of parental rights will have often read, “This court has long had a highly deferential standard of review in cases concerning the termination of parental rights.” This article addresses several questions that arise from that familiar language: Does the Indiana Court of Appeals in fact have a tradition or practice of highly deferential review of termination orders? Is this deference greater than the court accords to trial court decisions in other family law matters or in non-family civil appeals? If so, on what legal analysis is this special deference based? Is it appropriate to give more deference to a trial court’s decision to forever sever the bonds between parent and child than to other trial court decisions, in and outside the area of family law? As shown in this article, the court is in fact significantly more likely to affirm termination orders than any other kind of civil judgments, including judgments in other family law matters. The Rules of Appellate Procedure also operate to increase the difficulties encountered in appeals of termination orders. This especially unfavorable treatment, however, rests on the slenderest of legal foundations and raises grave constitutional concerns. The challenge is to find an effective and practical way to move toward an appropriate level of appellate scrutiny in termination appeals