I. INTRODUCTION
Star page 1*1 After the Office of Children's Services (OCS) sought to place a ten-year-old Indian child in a residential psychiatric center, the superior court appointed both an attorney and a guardian ad litem (GAL) for the child. Prior to a placement hearing in the child in need of aid (CINA) proceedings, the child's tribe asked the GAL to waive the psychotherapist-patient privilege for certain records that it asserted were necessary for the child's mental health treatment. The GAL agreed and waived the privilege, but the child's attorney objected to releasing the psychotherapy records to the Tribe. The superior court determined that the GAL held the privilege and, ultimately, ordered release of the records to all the parties.
The child petitioned for review, and we partially granted review to address the limited issue of whether a child who is at least ten, but younger than twelve, can use an objection made by his attorney to nullify a waiver of the psychotherapist-patient privilege by his GAL in CINA proceedings. Although the particular controversy here is moot because the records have been released, we address the merits under the public interest exception to our mootness doctrine. We hold that a child's objection under CINA Rule 12.1(b)(1)(C) does not nullify a GAL's waiver of the psychotherapist-patient privilege under CINA Rule 9(b)(3)(F)(ii). We also hold that after a child raises an objection, the child bears the burden of justifying protection under the framework of CINA Rule 9(b)(3)(D).
Here, after the child objected to the release of his psychotherapy records, the superior court adequately considered the factors applicable to whether such records should be disclosed or protected as required by CINA Rule 9(b)(3)(D). Observing no legal error or abuse of discretion in this ruling, we affirm the court's decision to disclose the child's records.
II. FACTS AND PROCEEDINGS
A. Background
In November 2023 OCS took emergency custody of Tanuk,1 an Indian child within the meaning of the Indian Child Welfare Act (ICWA).2 Tanuk is an enrolled citizen of the Native Village of Hooper Bay (Tribe). In its petition, OCS alleged that Tanuk was in need of aid based on neglect by his mother, Jenny, and the danger he posed to himself. The Tribe intervened in the CINA case, and the court appointed both a GAL3 and an attorney for Tanuk.4
OCS initially placed Tanuk in a foster home but subsequently admitted him to North Star Behavioral Health (North Star) for residential psychiatric care. Tanuk was discharged from North Star after approximately two months. But almost two months later he was placed back at North Star, where he was evaluated, diagnosed, and began treatment.
B. Proceedings
Star page 2*2 In April 2024 the Tribe and the GAL requested an order from the superior court requiring OCS to show cause for the agency's failure to provide appropriate services and placement for Tanuk. The Tribe explained that Tanuk had “serious mental health issues” and asserted that it was attempting to provide services for him through his regional health corporation, but the psychotherapy records the Tribe had received from OCS were “almost completely redacted.” It described unsuccessful attempts to obtain unredacted copies of the records, including Tanuk's neuropsychological examination, and the Tribe expressed concern about Tanuk's ability to receive effective care because Jenny “speaks primarily Yup'ik” and English was most likely not Tanuk's first language.
Tanuk, through his attorney, objected to the release of the records to the Tribe.5 In emails to the Tribe, he described it as “a large, nebulous, unspecified set of persons” and noted that releasing the information would “probably not change the outcome of the question that is going to be before the court.”
The superior court promptly held a hearing to review Tanuk's placement at North Star. At the hearing, Tanuk objected to releasing “privileged and confidential information, specifically psychiatric evaluations and reports and communications to the Tribe.” He argued that the Tribe should not be permitted to have the records because the material was sensitive.
In response, the Tribe emphasized the time-sensitive nature of providing Tanuk with mental health services and that it was litigating at a disadvantage without the records. Specifically, the Tribe argued that it was forced to rely on secondary sources of information, which prevented it from making fully informed decisions about Tanuk's care. Finally, the Tribe observed that because Tanuk was under the age of twelve, the GAL held Tanuk's psychotherapist-patient privilege and that the GAL did not object to disclosure of the records.
Instead of ruling from the bench, the superior court directed the Tribe to file a motion and continued the placement hearing for approximately one week. The Tribe subsequently moved for a ruling that the GAL held the psychotherapist-patient privilege for Tanuk. The Tribe argued that Tanuk could not selectively prevent the Tribe from receiving his records. It suggested that doing so violated its rights under ICWA. Jenny joined the Tribe's motion.
The court granted the Tribe's motion, ruling that the GAL “holds the psychotherapist-patient privilege under CINA Rule 9(b)(3)(F)(ii)” and that a party could not “seek selective waiver of privilege to exclude only the [T]ribe from reviewing records that all other parties have received.” It also noted that under ICWA, the Tribe had the right to take jurisdiction of the case and, were it to do so, the Tribe would be entitled to the same information.
Tanuk moved for reconsideration. He also asked the superior court to conduct an in camera review of the requested information and moved for a stay of the court's order. Tanuk argued that his attorney had been “appointed to express and protect the child's interests” and that the disagreement between his attorney and the GAL “must be resolved and decided by the Court.” OCS did not take a position with regard to release and waiver, but the agency explained that it would defer action on the release of the records pending the court's rulings. The GAL supported the Tribe's position.
The court promptly denied Tanuk's motions for reconsideration, in camera review, and a stay. It found that “OCS must provide parties discovery according to the CINA Rules when waiver of privilege is made by the [GAL]” and ordered OCS to provide all records for which the GAL had waived the privilege. The Tribe received the records.
Star page 3*3 Tanuk petitioned for review. We partially granted the petition to address the issue of whether a child who is at least ten but younger than twelve can use an objection made by the child's attorney to effectively nullify a waiver of the psychotherapist-patient privilege by the GAL.6
III. STANDARD OF REVIEW
“We apply our independent judgment to issues of mootness because as a matter of judicial policy, mootness is a question of law.”7 “When interpreting CINA statutes and rules, we apply our independent judgment, ‘adopting the rule of law that is most persuasive in light of precedent, reason, and policy.’ ”8
We review the superior court's decision on disclosure of confidential communications for abuse of discretion.9 “When applying a multi-factor test, ‘[t]he superior court abuses its discretion if it considers improper factors ..., fails to consider statutorily mandated factors, or assigns disproportionate weight to some factors while ignoring others.’ ”10
IV. DISCUSSION
For the reasons explained below, we affirm the superior court's decision to disclose Tanuk's psychotherapy records. First, although this controversy is moot, we review the merits under the public interest exception to the mootness doctrine. Second, we hold that when a child is younger than twelve, the GAL holds the child's psychotherapist-patient privilege in CINA proceedings; when the GAL waives the privilege under CINA Rule 9(b)(3)(F)(ii), a child's objection through his attorney under CINA Rule 12.1(b)(1)(C) does not nullify the GAL's waiver. Third, we hold that when a child seeks to protect communications under these circumstances, the child bears the burden of demonstrating that his interest in confidentiality outweighs the need for requested disclosure under CINA Rule 9(b)(3)(D). Finally, we conclude that the superior court did not err or abuse its discretion by ordering the release of Tanuk's psychotherapy records.
A. We Review The Issue Under The Public Interest Exception To The Mootness Doctrine.
The dispute over the release of Tanuk's psychotherapy records is moot because the records have already been distributed to all the parties, including the Tribe. We normally decline “to address moot controversies because ‘the very nature of our judicial system renders it incapable of resolving abstract questions or of issuing advisory opinions which can be of any genuine value.’ ”11 Relatedly, Jenny argues that we should dismiss the petition as improvidently granted.
Star page 4*4 Under the public interest exception to the mootness doctrine, however, we will decide an otherwise moot case if three factors persuade us that it should be heard: “the disputed issues are capable of repetition, ... the mootness doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and ... the issues presented are so important to the public interest as to justify overriding the mootness doctrine.”12 Here, our consideration of these three factors persuades us that we should decide this otherwise moot issue.
First, we believe it is likely that a child's objection under CINA Rule 12.1(b)(1)(C) to the GAL's waiver of a child's psychotherapist-patient privilege under CINA Rule 9(b)(3)(F)(ii) will occur again. It is entirely foreseeable that a GAL may determine that it is in a child's best interests to waive the child's psychotherapist-patient privilege.13 And because the CINA rules direct the court to appoint an attorney for a child who is at least ten and objects to the disclosure of psychotherapy information or records,14 it is also foreseeable that a child may avail himself of the opportunity to litigate that objection. And, in any case, it would be the attorney's duty to ensure that the child's objection is litigated.15
Second, applying the mootness doctrine here is likely to repeatedly circumvent review of this issue. We have previously recognized that “[f]or children needing intensive mental health services, it is important that OCS be able to efficiently place those children at facilities that provide appropriate levels of care.”16 Thus, by the time any disagreement over dissemination of a child's psychotherapy records becomes ripe for our review on appeal, it is likely that a court — acting efficiently and in the best interests of a child17 — will have already made a decision on the waiver and ordered the release of the records.18 Indeed, that is what happened here.
Finally, the issue presented here is of sufficient public importance to justify overriding the mootness doctrine. As noted above, the promotion of a child's best interests in CINA proceedings, including addressing the child's urgent mental health needs, is of the utmost importance to the public.19 Also, we have recognized the significance of preserving the psychotherapist-patient relationship, observing that “communications to a psychotherapist in the course of therapy are inherently confidential,” and this confidence is “essential to achievement of the psychotherapeutic goal.”20
Star page 5*5 All three factors weigh in favor of applying the public interest exception to the mootness doctrine. And our resolution of the dispute and explication of the interaction between CINA Rules 9(b)(3)(F)(ii) and 12.1(b)(1)(C) will provide important guidance to both the superior court and litigants alike.21 Thus, we will address the merits of the dispute within the scope of our review.22
B. A Child's Objection Under CINA Rule 12.1(b)(1)(C) Does Not Nullify A GAL's Waiver Of The Child's Psychotherapist-Patient Privilege Under CINA Rule 9(b)(3)(F)(ii).23
The superior court concluded that the GAL holds the psychotherapist-patient privilege for a child under the age of twelve in CINA proceedings. Tanuk appears to agree that a child under twelve has no authority under CINA Rule 9(b) to waive or withhold waiver of privileged psychotherapist communications. This concession is well-taken.
Under CINA Rule 9(b)(3)(F)(ii), “[i]f the child is younger than twelve, the privilege may be claimed or waived by the guardian ad litem.”24 The text of the rule is clear and unambiguous. Under the plain meaning of the rule,25 the GAL holds the privilege.
Tanuk primarily contends that after the GAL waives a child's psychotherapist-patient privilege, the child's records remain protected and the party requesting information must rebut a presumption against disclosure.26 Implicit in Tanuk's position is that an objection by the child's attorney under CINA Rule 12.1(b)(1)(C) negates any waiver of privilege made by the GAL under Rule 9(b)(3)(F)(ii). Tanuk's argument relies, in part, on the tension between the two rules as to where authority lies.
Star page 6*6 A child who is at least ten has the right to object to the GAL's disclosure of psychotherapy information and will be appointed an attorney to litigate that objection under Rule 12.1(b)(1)(C). But if that child is not yet twelve, the GAL has authority to waive the psychotherapist-patient privilege under Rule 9(b)(3)(F)(ii). Together, these rules create a two-year window where it is arguably unclear whether the GAL or the child (through his attorney) has the authority to claim or waive that child's psychotherapist-patient privilege.
But, as explained below, because we read the two rules in harmony, we are not persuaded by Tanuk's arguments. After considering the language of the rules, as well as precedent, reason, and policy, we conclude that when a child is at least ten, the child's objection under Rule 12.1(b)(1)(C) does not nullify a GAL's waiver of the psychotherapist-patient privilege under Rule 9(b)(3)(F)(ii).
1. The language of the rules and precedent support the conclusion that a child's objection does not nullify a GAL's waiver of privilege.
Both Tanuk and Jenny agree that there is a presumption of a privilege against disclosure of a child's psychotherapist-patient records. They are correct. CINA Rule 9(b)(3) provides that such communications are presumptively privileged.27 Tanuk and Jenny disagree, however, about the effect that a GAL's waiver has on this presumption.
In Simone H. v. State, Department of Health & Social Services, Office of Children's Services, where a parent challenged a trial court's denial of her request to release her son's therapy records, we examined the presumption that a child's psychotherapy records are privileged.28 We considered the history of the rule and concluded that the 2001 amendments to Rule 9(b)(3) created a presumption of nondisclosure for communications between children and their psychotherapists.29 And we concluded that the presumption is rebuttable because a “party seeking disclosure [can] show[ ] that the need for the requested disclosure outweighs the child's interest in confidentiality.”30
But the privilege against disclosure is limited in CINA proceedings because it applies only “to the extent described in this rule.”31 And Rule 9(b)(3)(B) affords the child the privilege “unless” it is waived by the child or the child's GAL.32 The word unless is commonly understood as meaning “except on the condition that” or “except under the circumstances that.”33 Its usage in the rule indicates that while 9(b)(3)(A) affords the privilege, 9(b)(3)(B) removes the privilege if the GAL waives it. Thus, once the GAL waives the privilege, it no longer exists, nor does the associated presumption.
Relying on the general rule of privilege established in Alaska Evidence Rule 504(b), Tanuk suggests that a child's psychotherapy records remain protected even after the GAL has waived privilege; he extends this argument by suggesting that the party requesting the records must rebut a presumption against disclosure. Tanuk is correct that Evidence Rule 504(b) declares that the privilege broadly applies to all communications made for the purpose of diagnosis or treatment. But this argument is unpersuasive because it fails to recognize that CINA Rule 9 expressly limits application of the privilege in CINA proceedings.34 Under CINA Rule 9(b)(3)(F), “[u]nless otherwise ordered, the child's psychotherapist-patient privilege may only be claimed or waived” under certain circumstances. Here, the GAL's waiver of Tanuk's privilege falls squarely under one of those circumstances — because Tanuk was younger than twelve, the GAL had the authority to claim or waive his privilege.35
Star page 7*7 CINA Rule 12.1(b)(1)(C) does not alter our reading of Rule 9(b)(3)(B). No part of Rule 12.1 mentions a presumption of privilege, much less contemplates a shifting presumption when a child objects to the disclosure of psychotherapy records. Rule 12.1(b)(1)(C) simply requires the appointment of an attorney for a child who is at least ten years of age when that child objects to the disclosure of psychotherapy information or records.
Reading CINA Rules 9 and 12.1 in harmony,36 it is clear that a GAL's waiver of a child's psychotherapist-patient privilege eliminates the privilege and removes the presumption entirely. Thus, the language of the rules and our precedent support the conclusion that a child's objection does not nullify the GAL's decision to waive the privilege.
2. Reason and policy support the conclusion that a child's objection does not nullify a GAL's waiver of the privilege.
The CINA rules must be construed to promote a child's best interests.37 We would subvert this directive if we allowed a child's objection under CINA Rule 12.1(b)(1)(C) to nullify a GAL's waiver of the psychotherapist-patient privilege under Rule 9(b)(3)(F)(ii). This is because allowing a child's objection to override the GAL's waiver would prioritize the child's subjective desires over the child's objective needs. A GAL “represent[s] and advocates for the best interests of the child”38 and does so “regardless of whether the child agrees with the GAL's position.”39 The child's attorney, by contrast, represents the child's “expressed wishes.”40 We have recognized that a child's preferences are distinct from the child's best interests.41
The distinct nature of a GAL's duties reinforces the conclusion that the GAL is usually in the best position to determine whether waiving the privilege is in the child's best interests. The GAL is tasked with deciding, “based on thorough and ongoing investigation, what course of action is in the child's best interests”42 and must take into account factors such as the child's “age, maturity, culture and ethnicity.”43 The GAL has access to a child's psychotherapy records, allowing a GAL to make an informed decision about whether waiver of the privilege and disclosure to the other parties are appropriate given the child's unique circumstances.44
Allowing an objection by a child younger than twelve to automatically override a GAL's determination of what is in that child's best interests assumes that the child has the maturity to make such a decision. But this assumption is contrary to the policy decision implicit within Rule 9(b)(3)(F)(ii) that a child under twelve lacks the necessary maturity; it is also inconsistent with the history of the rule.
Star page 8*8 The CINA rules as originally drafted did not afford the psychotherapist-patient privilege to a child.45 When the CINA/Delinquency Rules Committee drafted Rule 9(b)(3)(F), it did so under the belief that a child under twelve lacked sufficient maturity to decide whether claiming or waiving the psychotherapist-patient privilege was in his best interests.46 The Committee specifically considered age and maturity before selecting twelve as the age at which a child could claim or waive the privilege “after consulting with an attorney, if one has been appointed, or [with] the guardian ad litem.”47 Based on the Committee's recommendation,48 we amended Rule 9(b)(3) in 2001.49
Reason and policy lead us to the conclusion that a GAL's waiver of the psychotherapist-patient privilege is not nullified when a child between the ages of ten and twelve objects to the GAL's waiver. Instead, the GAL's waiver eliminates the privilege and the associated presumption.
C. After The GAL Waives Privilege, The Child Has The Burden Of Justifying Protection Under CINA Rule 9(b)(3)(D)’s Framework.
Before addressing the allocation of burden, we identify where the parties agree on pivotal issues. Both Tanuk and Jenny agree that a child should be provided an opportunity to litigate an objection to the release of records, even after the GAL has waived the child's privilege. Further, both parties agree that a child's objection under Rule 12.1(b)(1)(C) requires the superior court to consider the factors under Rule 9(b)(3)(D).
We agree with the parties on both points. First, we hold that even though the GAL's waiver under CINA Rule 9(b)(3)(F)(ii) eliminates the psychotherapist-patient privilege and the associated presumption, the child retains the opportunity under CINA Rule 12.1(b)(1)(C) to litigate his objection with the assistance of an attorney. Interpreting the rules to eliminate the child's right to an objection under these circumstances would render Rule 12.1(b)(1)(C) meaningless.50 Instead, we interpret court rules harmoniously, giving effect to each part or section.51
Second, we agree with the parties that a child's objection to a GAL's waiver of privilege requires the court to consider the factors laid out in Rule 9(b)(3)(D) when determining whether to disclose a child's psychotherapy records. “When considering a request to disclose or protect a communication” under CINA Rule 9(b)(3)(D), the court must consider the following factors: “the content and nature of the communication;”52 the purposes of the CINA statutes and Evidence Rule 504;53 other effective means to obtain the information;54 and “whether the public interest and need for disclosure outweighs the potential injury to the patient and the patient's psychotherapist relationship.”55 The rule also provides that the court “may inspect records in camera” before ruling on such a request.56 “If the court grants the request for disclosure of the child's privileged information,” Rule 9(b)(3)(E) requires the court to take certain measures to protect the child and the psychotherapist-patient relationship.57
Star page 9*9 Having addressed where the parties are in agreement, we now turn to their disagreement as to which party bears the burden in litigating the child's objection. For the reasons explained below, we hold that when litigating an objection after a GAL has waived the privilege, the child has the burden of proving that his interest in confidentiality outweighs the need for the requested disclosure.
Tanuk argues that, even after a GAL waives the child's privilege, the requesting party must show that its need for access to the records outweighs the child's interest in confidentiality and privacy. Jenny takes the opposite position, arguing that the child must show that his interest in confidentiality outweighs the need for the requested disclosure. More particularly, Jenny points out that “if the child's objection does not nullify the [GAL's] waiver, the [GAL's] valid waiver of the privilege places the child ... in the same position as a parent who objects to disclosure.” We agree with Jenny that the child should bear the burden under these circumstances: The child must show that his interest in confidentiality outweighs the need for the requested disclosure.
Although Rule 9(b)(3) does not clearly allocate the burden in litigation over a child's objection to protect information after the GAL has waived the privilege, it is reasonable to place the burden on the child because doing so gives meaning to both Rules 9(b)(3) and 12.1(b)(1)(C) “so as to create a harmonious whole.”58 Tanuk's position is not persuasive because, as explained above, it would require the party requesting disclosure (here, the Tribe) to show a need for disclosure even after the GAL waived the privilege. This approach would improperly resurrect the presumption against disclosure, effectively returning the privilege to the child despite the guardian's waiver. The position at the other extreme — closing off any path for the child to protect the information — is also unacceptable. We have explained above that the child retains the opportunity to litigate his objection under Rule 12.1(b)(1)(C); in order for this opportunity to be meaningful, there must be a path whereby the child can demonstrate that the communications should be protected.
Instead, giving meaning to both Rule 9(b)(3) and Rule 12.1(b)(1)(C) and reading the provisions in harmony, we hold that while a child's objection does not recreate a presumption against disclosure, the child's objection requires a meaningful opportunity to demonstrate that the communications should be protected. We observe that in these circumstances a child is in a position similar to that of a parent, who is without a psychotherapist-patient privilege but still has an opportunity to protect communications if “the parent shows that the parent's interest in confidentiality outweighs the need for the requested disclosure.”59
We therefore hold that when a child seeks to protect communications after a GAL has waived the privilege, the child bears the burden of demonstrating that his interest in confidentiality outweighs the need for disclosure under the framework of Rule 9(b)(3)(D).
D. The Superior Court Did Not Err Or Abuse Its Discretion By Ordering Release Of Tanuk's Psychotherapy Records.
Tanuk argues that it was error to disclose his psychotherapy records because the superior court did not consider the factors specified in CINA Rule 9(b)(3)(D). He also argues that the court relied on “inappropriate or inapplicable facts” when it decided to release his psychotherapy records. Neither of Tanuk's arguments is persuasive.
Star page 10*10 Under CINA Rule 9(b)(3)(D), in determining whether to disclose or protect psychotherapist-patient communications, courts must consider certain factors before ruling on a request.60 Here, after the GAL waived Tanuk's privilege under Rule 9(b)(3)(F)(ii), the superior court provided him with the opportunity to litigate his objection under Rule 12.1(b)(1)(C). Although the court did not expressly identify the factors it considered when it reviewed Tanuk's objection, we are satisfied that its analysis implicitly considered the factors under CINA Rule 9(b)(3)(D). The court indicated that it had considered the content and the nature of the relevant records, reasoning that the Tribe needed as much information “as possible as soon as possible” so that the Tribe could apply for services for Tanuk and effectively advocate for him.61
Similarly, the court appears to have considered the purposes and policy of the CINA statutes,62 namely, to secure care that served Tanuk's mental and physical welfare and to promote his resilience through “protective relationships, supports, ... and services.”63 The court also recognized that under ICWA, the Tribe “would have the right to take jurisdiction of this case,” which would entitle the Tribe to all of the same records, implicitly addressing other effective ways to obtain the information.64 And while the court did not explicitly address the public interest or the potential injury to Tanuk, it declined to give weight to Tanuk's argument that allowing the Tribe to access the information would “expose[ ] the child to irreparable harm.”65
Tanuk argues that the superior court impermissibly considered the Tribe's ability to access his records were it to take jurisdiction of the case. He contends that this reasoning “made incomplete or faulty assumptions about the Tribe's entitlement to information in the case.” The question of whether the Tribe could assume jurisdiction in this matter is not on appeal, but we observe that under ICWA, federally recognized tribes have jurisdiction over child custody proceedings involving their citizens.66 Moreover, Rule 9(b)(3)(D) specifically required the court to consider other means by which the Tribe could obtain the information. Thus, it was not “impermissible” or “inappropriate” for the court to consider the Tribe's ability to receive the information by exercising its right to assert jurisdiction over the proceedings under ICWA.
Our review of the record demonstrates that the superior court weighed the relevant factors under Rule 9(b)(3)(D) in reaching its conclusion that the benefit of distributing Tanuk's records to his Tribe outweighed the risk of any potential injury to him. Given that the court ordered release of the records to the Tribe, we are able to discern its implicit conclusion that Tanuk failed to meet the burden of proving that his interest in confidentiality outweighed the Tribe's need for disclosure.
Star page 11*11 Thus, we hold that the court did not err or abuse its discretion by ordering the release of Tanuk's psychotherapy records.
CONCLUSION
The superior court's order is AFFIRMED.