2005-002, IN THE MATTER OF KATHLEEN QUIGLEY BERG and EUGENE E. BERG

Kathleen Quigley Berg, and the respondent - father, Eugene E. Berg, are additional facts that are undisputed by the parties. The petitioner - mother, We accept the facts as presented in this interlocutory transfer and

to seal the therapy records of the parties’ children. We reverse and remand. Master (Leonard S. Green, Esq.), denying the guardian ad litem’s (GAL) motion Superior Court (Mangones, J.), approving the recommendation of the Marital DUGGAN, J. This is an interlocutory appeal from an order of the

minor children. Judith A. Roman, of Concord, by brief, as guardian ad litem for the

Leonard on the brief, and Ms. Leonard orally), for the respondent. Wiggin & Nourie, P.A., of Manchester (L. Jonathan Ross and Elizabeth M.

and orally), for the peti tioner. Harvey & Mahoney, P.A., of Manchester (J. Campbell Harvey on the brief

No. 2005 - 002 Hillsborough – n orthern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

records; ( p. 2 2) minor children are not protected by the therapist - client privilege or, paramount to the privacy rights minor children may have in their medical arguing that: (1) a parent’s fundamental right to raise his or her children is The father urges us to answer all questions presented in the negative,

access to such records? minor children when the parents are in conflict about the release and 3. Should the court have the au thority to seal the therapy records of records for purposes of litigation? parties’ minor children when one parent demands access to the p. 2 2. Does the court have the authority to seal the therapy records of the communications? 1. Do children have a ri ght to privacy for their medical records and

superior court transferred the following questions: reconsideration was also denied. This interlocutory appeal followed. The objectively be looked upon as harmful to the children.” The GAL’s motion for the children’s privacy rights, even if the father’s as sertion of his rights “might right of a custodial parent to access his children’s medical records overrides the father objected. The superior court denied the motion, ruling that the legal The GAL moved to seal the child ren’s records. The mother assented, but

the children. refused, contending that disclosure of the records is not in the best interests of of the mother’s alleged interference with visitation. The children’s therapists their records and notes for his inspe ction, arguing that he would find evidence contempt motion, the father requested that the children’s therapists produce was appointed to represent the children’s interests. In connection with the him. The mothe r filed a cross - motion to modify the visitation schedule. A GAL interfered with his relationship with the children and has alienated them from The father filed a contempt motion, alleging that the mother has

child’s therapist has invited the parents to participate in the counseling. with the father. Three children remain in regular individual counseling. Each counseling to address each child’s resistance to visitation and his relationship reasons for not wanting to visit. As a result, the mother arranged for individual mother instances of alleged inappropriate c onduct by the father and their made available for visitation by the mother. The children reported to the the father as scheduled, because either they refused to do so or they were not After entry of the final divorce decree, the children at times did not visit

the children. has primary physical custody, while the father has specific custodial time with their four children, whose ages range from eleven to seventeen. The mother divorced. Pursuan t to the final divorce decree, they have joint legal custody of p. 3 3

have confidential and privileged therapy records revealed to his or her parents. whether it is in the best interests of a child involved in a custody dispute to A:6 (Supp. 2005). Thus, the superior court has the authority to determin e children. See RSA 458:17, II, V, VI (2004), repealed and replaced by RSA 461 often must weigh the rights of parents against the best interests of the Particularly in the context of divorce and custody litigation, the superior court State’s parens patriae power, and must yield to the welfare of the child.” Id. 40 (1990). “[P]arental rights are not absolute, but are subordinate to the family milieu if a child’s welfare is at stake.” Preston v. Mercieri, 1 p. 3 33 N.H. 36, children within its jurisdiction, and may, as parens patriae, intervene in the The State, however, does have “a competing interest in the welfare of

childre n.” Troxel v. Granville, 5 p. 3 30 U.S. 57, 66 (2000) (plurality opinion). parents to make decisions concerning the care, custody, and control of their Process Clause of the Fourteenth Amendment protects the fundamental right of Similarly, the United States Supreme Court has recognized that “the Due Constitution. In the Matter of Nelson & Horsley, 149 N.H. 545, 547 (2003). fundamental liberty interest protected by Part I, Article 2 of the New Hampshire The right of biological parents to raise and care for their children is a

guidance only. State v. Ball, 124 N.H. 226, 2 p. 3 31 - 33 (1983). the father’s claim under the State Constitution, and cite federal opinions for children may have in the privacy of their own therapy records. We first address provided by the State and Federal Constitutions, overrides any rights his The father argues that his fundamental right to raise his childr en, as

N.H. 2 p. 3 37, 240 (2003). question of constitutional law, we review it de novo. State v. McLellan, 149 right as a parent to have access to the records. Because this issue poses a the trial court denied the motion based solely upon the father’s co nstitutional whether the records were protected by the therapist - client privilege. Instead, The trial court denied the motion to seal without specifically deciding

I. The Rights of the Parent

We answer all three questions in the affirmat ive. denying a parent access to his or her children’s personal health information. regarding the privacy of individually identifiable health information prohibit witnesses compels di sclosure of the records; and (5) federal regulations constitutionally protected right to confront and cross - examine adverse the matter of the importance of the therapists’ testimony; ( p. 4 4) the father’s mother waived her right to object to disclosure of the records when she raised if they are, the privilege is conferred exclusively upon their parents; ( p. 3 3) the 4

502(c) states that the lawyer - client privilege may be claimed on behalf of the lawyer - client privilege, specifically identifies who may claim the privilege. Rule R. Ev. 503(b). New Hampshire Rule of Evidence 502, which governs the pr ivilege upon the same basis as the lawyer - client privilege. Id.; see also N.H. client. See RSA 330 - A:32. However, the statute places the therapist - client The statute does not identify who may claim the privilege on behalf of the

the privilege on the child’s behalf. their status as natural guardians, and thus only a parent may assert or waive privilege is conferred exclusively upon the minor child’s parents based upon therapist - client privilege upon minor children, we must conclude that the The father next argues that, absent language expressly conferring the

protection. father’s argument that, on its face, the statute excludes minors fro m its “those persons who have attained the age of 18 years.” We therefore reject the “adult.” See RSA 330 - A:2, :32. “Adult” is defined in RSA 21: p. 4 44 (2000) as (unabridged ed. 2002). We also note that t he statute does not use the word exclude minors. See Webster’s Third New International Dictionary 1686 “person.” See RSA 330 - A:2. However, the plain meaning of “person” does not psychotherapy.” RSA 330 - A:2, III (2004). The statute does not define the term attorney and client ....” “Client” is defined as “a person who seeks or obtains licensee’s client are placed on the same basis as those provided by law between communications between any [licensed mental health practitioner] and such RSA 330 - A:32 provides, in pertinent part: “The confidential relations a nd

ordinary meaning. Remington Invs. v. Howard, 150 N.H. 653, 65 p. 4 4 (2004). 602 (2004). We construe the statute’s language according to its plain and words of the statute considered as a whol e.” State v. Kidder, 150 N.H. 600, interpretation, we are the final arbiter of legislative intent as expressed in the not expressly confer the privilege upon them. “In matters of statutory client privilege, a s codified in RSA 330 - A:32 (2004), because the statute does The father argues that minor children are not protected by the therapist -

II. The Rights of the Children

Constitution. same result under the Federal Constitution as we do under the State p. 4 40; Parham v. J. R., 442 U.S. 584, 602 - 04 (1979). Accordingly, we reach the the State Constitution under these circumstances. See Preston, 133 N.H. at The Federal Constitution offers the father no greater protection than does

automatica lly yield to a parent’s right to raise and care for his or her children. Accordingly, we reject the father’s argument that the child’s privacy interests p. 5 5

children’s therapy records under all circumstances “may inhibit the child from divorce and custody context. Allowing parents unfettered access to their which the parents are the source of a child’s distress, particularly in the in nearly every aspect of their children’s lives. However, there are situations in responsibilities of parents and the rights of children. Parents are often involved We recognize the tens ion in these cases between the rights and

Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 409 (Mo. 1996). S.W.2d 277, 283 (Mo. Ct. App. 1961) (citation omitted), quoted in State ex rel. either claim the privilege or, for that matter, to waive it.” In re M.P.S., 342 interest of the minor will not be protected, a parent should not be p ermitted to on behalf of the parent rather than that of the child, or where the welfare and interests of the child.’” Nagle, 460 A.2d at p. 5 51. “Where the privilege is claimed the child’s privilege “for reasons unconnected to the pol estar rule of ‘the best that one, or even both, of the parents will exercise the power to waive or assert her child in the context of a child custody dispute, there is a distinct possibility Where, as here, a parent is waiving or claiming th e privilege on behalf of his or ad Litem v. Parents of D.K., 780 So. 2d 301, 306 (Fla. Dist. Ct. App. 2001). nondisclosure.” Nagle v. Hooks, 460 A.2d 49, 51 (Md. 1983); see also Attorney in acting on behalf of th e child in asserting or waiving the privilege of custody dispute, “it is patent that [a] custodial parent has a conflict of interest Bond v. Bond, 887 S.W.2d 558, 560 (Ky. Ct. App. 1994). In the context of a

adverse to the child’s interests. interests of both parents b ecome potentially, if not actually, interests of the child. It is at this point that it can be said the contestants in almost all cases obliterate that which is in the best between mother and father, the personal interests of the custody of the child become s the subject of a bitter contest and, under normal circumstances, this is true. However, when to be concerned with the best interests and well - being of their child Society expects that a mother and father are the ones most likely

custody proceedings. this assumption may not always be warranted in the context of div orce and parent will act solely with the child’s best interests in mind. Unfortunately, parents have the exclusive right to assert or waive the privilege assumes that a privilege on behalf of the child. However, t he father’s argument that the would qualify as the child’s guardian, and thus could claim or waive the We agree that a natural parent or parent who has legal custody of a child

client’s therapist. may be claimed by, among others, the client, the client’s guardian or the or the client’s lawyer. Similarly, we conclude that the therapist - client privilege client by, among others, the client himself, the client’s guardian or conservator, p. 6 6

trust, but a psychiatrist must have his patient’ s confidence or he cannot help treated with some degree of effectiveness by a doctor whom the patient did not Jaffee v. Redmond, 518 U.S. 1, 10 (199 p. 6 6). “Many physical ailments might be memories, and fears. to make a frank and complete disclosure of facts, emotions, atmosphere of confidence and trust in which the patient is willing tests. Effective psychotherapy, by contrast, depends upon an information supplied by the patient, and the results of diagnostic successfully on the basis of a physical examination, objective Treatment by a physician for physical ailments can often proceed

even more compelling than that behind the usual physician - patient privilege. Indeed, the public policy behind the therapist - client privilege may be

Kinsella v. Kinsella, p. 6 696 A.2d 556, 584 (N.J. 1997). the courts – the safety and well - being of the children and families. privacy is intertwined with one of the most important concerns of the value of the therapist - patient relationship and of the patient’s her family.... Especially in the context of matrimonial liti gation, have devastating personal consequences for the patient and his or out of context, the disclosure of notes from therapy sessions could than t hose between attorney and client. Made public and taken potentially embarrassing, and more often readily misconstrued communications that will frequently be even more personal, privilege ... serves to protect an individual’s privacy interest in some res pects even more compelling.... The psychologist - patient [T]he public policy behind the psychologist - patient privilege is in

patient privilege statute, also modeled on the attorney - client privilege. Supreme Court highlighted these differences in analyzing its own psychologist considerations underpinning the therapist - client privilege. The New Jersey on the attorney - client privilege, there are separate and distinct policy Although New Hampshire’s therapist - client privilege statute is modeled

(Fla. Dist. Ct. App. 2003). fairness of the legal process.” S.C. v. Guardi an ad Litem, 845 So. 2d 953, 9 p. 6 60 with ... the therapist ... and would often taint the minor’s perception of the custody dispute “can only have a negative effect on the minor’s relationship involuntary disclosure of his or her therapy records in the context of a child Furthermore, denying a minor the opportunity to at least object to the disclosure,” In re Daniel C.H., 269 Cal. Rptr. 624, 631 (Ct. App. 1990). even worse, result in “substantial emotional harm to the child from a forced seeking or succeeding in treatment,” Parents of D.K., p. 7 780 So. 2d at 310, or, 7

child’s doctor from testifying regarding child’s injuries). accused parent could not claim child’s physician - pati ent privilege to prevent M.P.S., 342 S.W.2d 2 p. 7 77, 283 (Mo. Ct. App. 1961) (in neglect proceeding, the child’s behalf, although a neutral guardian could assert or waive it); In re the child’s best interests, pa rent was not allowed to exercise the privilege on interests and there was uncertainty concerning the parent’s ability to further adoption proceeding, where the parent and child had potentially conflicting ad litem); In re Adoption of Diane, 508 N.E.2d 837, 840 (Mass. 1987) (in dependency proceeding, minor child could assert the privilege against guardian Guardian ad Litem, 845 So. 2d 953, 956 - 60 (Fla. Dist. Ct. App. 2003) (in parent from waiving the privilege on behalf of the minor child); S.C. v. interest and potential harm to the child as a re sult of disclosure prevented molesting his minor child, policy considerations regarding parental conflict of (Ct. App. 1990) (in dependency proceeding, where parent was accused of the best interests of the c hild); cf. In re Daniel C.H., 269 Cal. Rptr. 624, 629 - 33 minor child’s behalf, and the court must appoint a guardian to act, guided by involved in a custody dispute cannot agree or refuse to waive the privilege on a privile ge should be waived); Nagle v. Hooks, 460 A.2d 49 (Md. 1983) (parents ad litem for the sole purpose of recommending whether and to what extent the child’s behalf, and the court may interview the therapist or appoint a guardian 1994) (in child custody dispute, neither parent may assert the privilege on the child custody dispute); Bond v. Bond, 887 S.W.2d 558, 560 - 61 (K y. Ct. App. (seventeen - year - old child could assert privilege over her parents’ joint waiver in Attorney ad Litem v. Parents of D.K., 780 So. 2d 301 (Fla. Dist. Ct. App. 2001) interests may be in conflict with those of their n atural guardians. See, e.g., therapy records of children who are at the center of a custody dispute or whose The weight of authority in other jurisdictions supports protection for the

U.S. at 10 (quotation omitted). patients of confidentiality and, indeed, privileged communicatio n.” Jaffee, 518 impossible for [a psychotherapist] to function without being able to assure ... relationship necessary for successful treatment.... [It is] difficult if not possibility of disclosure may impede de velopment of the confidential children access to productive and effective therapeutic treatment. “[T]he mere have a chilling effect on the therapist - client relationship, thus denying the parents unconditi onal access to the therapy records of their children would treatment.” Kinsella, 696 A.2d at 566. There is a serious risk that permitting when individuals are able to seek effective mental health counseling and clients, the therapist - client privilege “[advances] the public good accomplished By fostering productive relationships between therapists and th eir

123 - 24 (1993). superseded on other grounds as recognized by In re Tracy M., 13 p. 7 7 N.H. 119, him.” In re Brenda H., 119 N.H. 3 p. 8 82, 386 (1979) (quotation omitted), 8

address only the privilege issue. the existing guardian ad litem, or appoint an independent guardian ad litem to whether the privilege should be asserted. To that end, the court may rely upo n ad litem, regardless of the child’s maturity, for the purpose of determining The trial court may also, within its sound discretion, appoint a guardian

N.H. at 735. personally, that assertion may be given substantial weight. Cf. But terick, 127 court must consider, and if the minor is mature enough to assert the privilege the child’s privilege should be waived, the child has a separate interest that the 7 p. 8 80 So. 2d at 305. Even if the parents and the gua rdian ad litem agree that own best interest” without the involvement of their parents. Parents of D.K., parent). “[M]inors do have rights which they can assert themselves in their twelve years of age or older to en ter drug rehabilitation without the consent of a of his or her parents. See, e.g., RSA 318 - B:12 - a (2004) (authorizing any minor circumstances in which a minor may make decisions without the involvement This is consistent with the legislative recognition that there are

minor to either waive or assert his privilege. Cf. id. at 735. the judge may then give substantial weight to the preference of the mature undesirable or improper influences. Cf. id. at 734 - 35. Based on this finding, advances his preference; and (3) whe ther the preference is based upon child’s age, intelligence, and maturity; (2) the intensity with which the child sound judgment, the trial judge must consider the following factors: (1) the 127 N.H. at 73 5. In finding that the child is sufficiently mature to make a proper custody). Age alone is not determinative of this ability. Cf. Butterick, 735 (19 p. 8 86) (regarding maturity of a minor to make a sound judgment about his 2d 301, 308 (Fla. Dist. Ct. App. 2001); cf. Butterick v. Butterick, 127 N.H. 731, his therapist - client privilege. See Attorney ad Litem v. Parents of D.K., 780 So. sufficient maturity to make a sound judgment about the assertion or waiver of The trial court may, within its sound discretion, find that a child is of

determinative. guardian, the child’s guardian ad litem, or the child’s therapist, will no t be the child’s privilege by anyone, including the child, the child’s parent or and productive therapeutic treatment. The attempted assertion or waiver of with particular emphasis on preservation of the chil d’s ability to engage in open whether waiver or assertion of the privilege is in the best interests of the child, privilege issue arises, the trial court must engage in fact - finding to determine that determination to the sound discretio n of the trial court. However, when a through which the privilege should be waived or asserted, and instead leave child’s best interests. We refrain from establishing a detailed procedure discretion to d etermine whether assertion or waiver of the privilege is in the waive the privilege on their child’s behalf. The trial court has the authority and We conclude that parents do not have the exclusive right to assert or p. 9 9

therapists testifies in this case or the GAL obtains access to the records at specifically the therapists and the GAL. However, unless and until any of the confront and cross - examine adverse witnesses in the pending proceedings, The father argues that he has a constitutionally protected right to

IV. Right of Confrontation

the GAL’s right to object on behalf of the children. own right, as a litigant, to object to disclosure, she has not effected a waiver of confidentiality of their records. Therefor e, even if the mother has waived her neither parent is in a position to assert or waive the children’s right to the children’s therapists in her motion for modification. As explained above, of the records becau se she initially raised the importance of the testimony of The father argues that the mother waived her right to object to disclosure

III. Waiver

privilege. See RSA 461 - A:16 (Supp. 2005); RSA 464 - A:41 (Supp. 2005). r epresenting the child’s best interests with regard to the therapist - client to appoint an independent guardian ad litem solely for the purpose of litem’s ultimate recommendation regarding custody or visitation, it may choose that viewing the therapy records may taint a previously - appointed guardian ad of custody and visitation, Ross is inapplicable. If t he trial court is concerned assertion of a child’s therapist - client privilege, as opposed to broader questions that a guardian ad litem may assist the court solely regarding the waiver or regarding the basis for his or her custodial recommendations. To the extent determinations and the parent’s right to confront the guardian ad litem our decision in Ross was limited to the guardian ad litem’s role in custody by both parties pursuant to Ross v. Gadwah, 131 N.H. 3 p. 9 91 (1988). However, therapy records for any reason, those records would then be open to discovery The father argues that, if the GAL obtains access to the children’s

of the records for the same purpose. within the di scretion of the trial court to conduct an ex parte, in camera review of the therapist - client privilege is in the best interests of the child. It is also to the records solely for the purpose of determining whether waiver or assertion case, i t is within the trial court’s discretion to grant a guardian ad litem access therapist - client privilege without viewing the child’s therapy records. In such a be unable to make an informed decision regarding assertion or waiver of the the actual records. We recognize that in some cases, a guardian ad litem may privilege on their behalf. The GAL has done so without having ha d access to In the case at hand, the GAL has asserted the children’s therapist - client p. 10 10

access his children’s therapy records. of the HIPAA Privacy Rules does not create an absolute right in the father to personal representative.” Id. § 164.502(g)(5)(ii). Therefore, section 164.502(g) the [health care recipient] to treat the [parent] as the [health care recipient’s] exercise of professional judgment, decides that it is not in the best interest of information is not prohibited by state law, if the health care provider, “i n the withhold information from a parent, even where the disclosure of such Furthermore, section 164.502(g) permits the health care provider to

records absent court order. statute prohibits the father from obtaining access to his childr en’s therapy § 164.502(g)(3)(ii)(B). In the context of this case, the therapist - client privilege provision of State or other law, including applicable case law.” Id. unemancipated minor to a parent if doin g so is “prohibited by an applicable not disclose or provide access to protected health information about an to health care. Id. § 164.502(g)(3)(i). However, the health care provider may law, has the aut hority to act on behalf of the minor in making decisions related as the minor’s personal representative, so long as the parent, under applicable For an unemancipated minor, a parent, among others, must be treated

purpose of obtaining information and records). personal representative of a heal th care recipient as the recipient for the request. See id. § 164.502(g)(1) (requiring the health care provider to treat the representative of the health care recipient at the personal representative’s provider is also required to disclose such information to the personal the health care recipient’s request. In certain circumstances, the health care provider to disclose protected health information to the health care recipient at Section 164.502(a)(2) of the HIPAA Privacy Rules requires a health care

access to his children’s personal health information. W e disagree. section 164.502(g) of the HIPAA Privacy Rules prohibits denying a parent §§ 164.500 -.534 (HIPAA Privacy Rules). The father argues in his brief that Act of 1996, Pub. L. No. p. 10 104 - 191, 110 Stat. 1936 (1996). 45 C.F.R. information, pursuant to the Health Insurance Portability and Accountability promulgated rules regarding the privacy of individually identifiable health The United States Department of Health and Human Services has

V. Th e HIPAA Privacy Rules

A.2d 232, 237 (2005). review. See Petition of State of N.H. (State v. Fischer), 152 N.H. 205, ___, 876 visitation, the issue of confrontation and cross - examination is not ripe for issue a nd relies upon them in making recommendations regarding custody and p. 11 11

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and GALWAY, JJ.,

interlocutory appeal. Therefore, we do not address it. point and it was not one of the questions transferred from the trial court in the constitutional interests. However, the trial court made no findings on this are not discoverable, we must articula te a standard to protect his The father argues that even if we hold that the children’s therapy records

VI. Need for Disclosure