Alaska court: guardian, not child's lawyer, waives therapy privilege

A 10-year-old boy in state custody could not stop his psychotherapy records from going to his tribe, the Alaska Supreme Court ruled Friday. The court held that his court-appointed guardian ad litem, not his own attorney, held the power to waive confidentiality. The boy could still litigate an objection, but the trial court made the final call on disclosure, and the justices affirmed its order releasing the records.

The decision, issued Aug. 28, 2026, settles who holds the psychotherapist-patient privilege for children under 12 in child-in-need-of-aid cases, a question the court said its rules left unclear for children between the ages of 10 and 12. Justice Pate wrote for the court. Chief Justice Carney did not participate.

The boy, identified in the opinion by the pseudonym Tanuk, is an enrolled citizen of the Native Village of Hooper Bay. The Office of Children's Services took emergency custody in November 2023 and later admitted him to North Star Behavioral Health in Anchorage for residential psychiatric care. The superior court appointed both a guardian ad litem and a separate attorney for him. The tribe had intervened, making it a party entitled to seek his records.

In April 2024 the tribe asked the superior court to order OCS to show cause for what it called a failure to provide appropriate services and placement. The tribe said the records it had received were "almost completely redacted," and that it could not make fully informed decisions about the boy's care. It said it was concerned he could not get effective care because his mother, identified as Jenny, speaks primarily Yup'ik, and English was most likely not the boy's first language.

The guardian ad litem waived the privilege. The boy's attorney objected, describing the tribe in emails as "a large, nebulous, unspecified set of persons." The attorney argued the child had an independent confidentiality interest that should have let him block disclosure, an argument that echoes a child-advocacy position. Superior Court Judge Nathaniel Peters ordered the records released to all parties.

The court rejected the argument that a child's objection through counsel restores the protection. Under the rule, "the privilege may be claimed or waived by the guardian ad litem" when a child is under 12, the opinion said. Allowing the objection to override the waiver, the court wrote, "would prioritize the child's subjective desires over the child's objective needs."

Because the rules did not clearly allocate it, the court held that the objecting child bears the burden of proving his interest in confidentiality outweighs the need for disclosure. Judges must weigh the content and nature of the communications, the purposes of the CINA statutes and the psychotherapy privilege, other ways to obtain the information, and whether the need for disclosure outweighs potential harm. The justices concluded Peters adequately considered those factors and that the tribe's need outweighed the risk of injury to the boy.

The records were already out, making the dispute moot. The justices decided it anyway under the public interest exception, saying the issue would otherwise keep evading review.