In re Berg, No. 2005-002.

CourtSupreme Court of New Hampshire
Writing for the CourtDuggan
Citation886 A.2d 980
PartiesIn the Matter of Kathleen Quigley BERG and Eugene E. Berg.
Docket NumberNo. 2005-002.
Decision Date18 October 2005
886 A.2d 980
In the Matter of Kathleen Quigley BERG and Eugene E. Berg.
No. 2005-002.
Supreme Court of New Hampshire.
Argued: July 13, 2005.
Opinion Issued: October 18, 2005.

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

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

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


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

We accept the facts as presented in this interlocutory transfer and additional facts that are undisputed by the parties. The petitioner-mother, Kathleen Quigley Berg, and the respondent-father, Eugene E. Berg, are divorced. Pursuant to the final divorce decree, they have joint legal custody of their four children, whose ages range from eleven to seventeen. The mother has primary physical custody, while the father has specific custodial time with the children.

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

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Each child's therapist has invited the parents to participate in the counseling.

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

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

1. Do children have a right to privacy for their medical records and communications?

2. Does the court have the authority to seal the therapy records of the parties' minor children when one parent demands access to the records for purposes of litigation?

3. Should the court have the authority to seal the therapy records of minor children when the parents are in conflict about the release and access to such records?

The father urges us to answer all questions presented in the negative, arguing that: (1) a parent's fundamental right to raise his or her children is paramount to the privacy rights minor children may have in their medical records; (2) minor children are not protected by the therapist-client privilege or, if they are, the privilege is conferred exclusively upon their parents; (3) the mother waived her right to object to disclosure of the records when she raised the matter of the importance of the therapists' testimony; (4) the father's constitutionally protected right to confront and cross-examine adverse witnesses compels disclosure of the records; and (5) federal regulations regarding the privacy of individually identifiable health information prohibit denying a parent access to his or her children's personal health information. We answer all three questions in the affirmative.

I. The Rights of the Parent

The trial court denied the motion to seal without specifically deciding whether the records were protected by the therapist-client privilege. Instead, the trial court denied the motion based solely upon the father's constitutional right as a parent to have access to the records. Because this issue poses a question of constitutional law, we review it de novo. State v. McLellan, 149 N.H. 237, 240, 817 A.2d 309 (2003).

The father argues that his fundamental right to raise his children, as provided by the State and Federal Constitutions, overrides any rights his children may have in the privacy of their own therapy records. We first address the father's claim under the State Constitution, and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983).

The right of biological parents to raise and care for their children is a fundamental liberty interest protected by Part I,

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Article 2 of the New Hampshire Constitution. In the Matter of Nelson & Horsley, 149 N.H. 545, 547, 825 A.2d 501 (2003). Similarly, the United States Supreme Court has recognized that "the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion).

The State, however, does have "a competing interest in the welfare of children within its jurisdiction, and may, as parens patriae, intervene in the family milieu if a child's welfare is at stake." Preston v. Mercieri, 133 N.H. 36, 40, 573 A.2d 128 (1990). "[P]arental rights are not absolute, but are subordinate to the State's parens patriae power, and must yield to the welfare of the child." Id. Particularly in the context of divorce and custody litigation, the superior court often must weigh the rights of parents against the best interests of the children. See RSA 458:17, II, V, VI (2004), repealed and replaced by RSA 461-A:6 (Supp.2005). Thus, the superior court has the authority to determine whether it is in the best interests of a child involved in a custody dispute to have confidential and privileged therapy records revealed to his or her parents. Accordingly, we reject the father's argument that the child's privacy interests automatically yield to a parent's right to raise and care for his or her children.

The Federal Constitution offers the father no greater protection than does the State Constitution under these circumstances. See Preston, 133 N.H. at 40, 573 A.2d 128; Parham v. J.R., 442 U.S. 584, 602-04, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution.

II. The Rights of the Children

The father argues that minor children are not protected by the therapist-client privilege, as codified in RSA 330-A:32 (2004), because the statute does not expressly confer the privilege upon them. "In matters of statutory interpretation, we are the final arbiter of legislative intent as expressed in the words of the statute considered as a whole." State v. Kidder, 150 N.H. 600, 602, 843 A.2d 312 (2004). We construe the statute's language according to its plain and ordinary meaning. Remington Invs. v. Howard, 150 N.H. 653, 654, 843 A.2d 334 (2004).

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

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

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assert or waive the privilege on the child's behalf.

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

We agree that a natural parent or parent who has legal custody of a child would qualify as the child's guardian, and thus could claim or waive the privilege on behalf of the child. However, the father's argument that the parents have the exclusive right to assert or...

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