When a Florida court terminates a parent’s rights to an Indian child, the Indian Child Welfare Act’s “beyond a reasonable doubt” standard applies to the Act’s own finding that continued custody is likely to seriously harm the child. It does not raise the standard for the findings Florida law separately requires, which stay at clear and convincing evidence. The Florida Supreme Court decided that on October 22, 2026, in S.H., In the Interest of A.H. and K.W., the Children v. Department of Children and Families, No. SC2026-0470.
The facts
In June 2025, after a multi-day adjudicatory hearing, the circuit court terminated S.H.’s parental rights to her daughter K.W. and to her other child, A.H. S.H. challenged only the termination as to K.W., who is an “Indian child” as the Act defines the term (25 U.S.C. § 1903(4)). The circuit court found that the Department of Children and Families proved the elements Florida law requires by clear and convincing evidence. Because K.W. is an Indian child, the court also considered the federal requirement and found that the Department proved, beyond a reasonable doubt, that S.H.’s continued custody of K.W. would likely result in K.W.’s serious emotional damage.
The question
Section 1912(f) of the Act bars terminating parental rights to an Indian child unless the court finds, “by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses,” that continued custody by the parent “is likely to result in serious emotional or physical damage to the child.” S.H. argued that this standard preempts Florida’s clear-and-convincing standard for the other findings Florida requires, so that every finding needed for termination had to meet the higher federal burden.
The split
The Sixth District rejected S.H.’s argument and affirmed. The First District had gone the other way in J.P.H. v. Florida Department of Children & Families, 39 So. 3d 560 (Fla. 1st DCA 2010), which held that section 1912(f) requires any order terminating parental rights to an Indian child to be supported by evidence beyond a reasonable doubt, rather than the clear-and-convincing standard in Chapter 39. The Supreme Court took the case to resolve that conflict.
What Florida requires
To terminate parental rights to any child, the Department must prove by clear and convincing evidence that (1) at least one statutory ground for termination exists, (2) termination is in the child’s manifest best interest, and (3) termination is the least restrictive means of protecting the child from serious harm.
The holding
Writing for the Court, Chief Justice Couriel held that the Act “does not change the burden of proof applicable to the distinct findings required under Florida law to terminate parental rights to an Indian child.” The Court went through the three kinds of federal preemption:
- Express preemption. The Act contains none of the words courts look for. Its policy section calls its requirements “minimum Federal standards,” and section 1921 says that where state or federal law gives parents or an Indian custodian “a higher standard of protection” than the Act, the court “shall apply the State or Federal standard.” The Court noted that Florida’s three findings go beyond what the Act requires, so Florida law gives a higher standard of protection.
- Field preemption. The Act is not one of the “rare” statutes that legislates so comprehensively it leaves no room for state law. The Court said the Act “in fact says the opposite,” because it sets only minimum standards to which state law may add.
- Conflict preemption. The finding under section 1912(f) (continued custody is likely to result in serious harm) is distinct from the three Florida findings. Finding Florida’s elements by clear and convincing evidence does not, the Court said, “prohibit or frustrate” finding the federal element beyond a reasonable doubt.
The “start to finish” argument
S.H. relied on the U.S. Supreme Court’s statement in Haaland v. Brackeen, 599 U.S. 255, 266 (2023), that when a state court adjudicates an Indian child custody proceeding, the Act “governs from start to finish.” The Court answered that the Act governing the whole proceeding does not stop Florida law from governing it too, and quoted a 1974 Florida Supreme Court statement that the federal government and the states may exercise concurrent powers over the same subject, with state action valid wherever there is no direct and positive conflict with federal action.
The result
The Court said the Sixth District “correctly affirmed” the circuit court’s use of both standards: clear and convincing evidence for the Florida findings and beyond a reasonable doubt for the section 1912(f) finding. It approved the Sixth District’s decision (Int. of A.H., 428 So. 3d 612 (Fla. 6th DCA 2026)) to the extent consistent with its opinion, and disapproved J.P.H. to the extent inconsistent with it.
What the Court left open
S.H. also raised an issue about whether the Department made “active efforts” to prevent the breakup of the Indian family, which the Act requires under section 1912(d). The Court declined to reach it, because the Sixth District did not expressly address it, it fell outside the conflict question, and S.H. failed to disclose it in her jurisdictional briefing.
Who joined
Chief Justice Couriel wrote the opinion. Justices Labarga, Muñiz, Grosshans, Francis, Barrios and Tanenbaum concurred. There was no separate opinion.
Read the opinion (PDF): Download the opinion (PDF)
The opinion is not final until the time to file a rehearing motion expires and any motion is decided.
Source: S.H., In the Interest of A.H. and K.W., the Children v. Department of Children and Families, No. SC2026-0470 (Fla. Oct. 22, 2026), on review from the Sixth District, No. 6D2025-1795 (Osceola County). This article is general information, not legal advice.