              REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND

                No. 637

        September Term, 2015




    IN RE: A.N., B.N., AND V.N.




   Woodward,
   Leahy,
   Moylan, Charles E., Jr.
          (Retired, specially assigned),

                 JJ.


          Opinion by Leahy, J.


          Filed: December 16, 2015
       Two-month-old B.N. was taken by his parents to the emergency room at Howard

County General Hospital on October 17, 2013, after his daycare provider discovered an

injury to his arm.    X-rays revealed that B.N. had a complete fracture of the humerus. The

attending doctor reported that the injury, not common in a two-month-old, was caused by

a “twisting force.”    B.N. was taken by ambulance to Johns Hopkins Hospital where a

skeletal survey revealed that B.N. also had a posterior rib fracture and a healing clavicle

fracture.

       After receiving notice from the Howard County Hospital that B.N.’s right humerus

was fractured, the Appellee, Howard County Department of Social Services (the

“Department”), quickly intervened and implemented a “safety plan” that required, among

other things, that Appellants M.N. and T.N. (“Father” and “Mother,” or “Parents”) take

their other two babies, A.N. and V.N., to have physical examinations the following day.

       A skeletal survey of A.N., B.N.’s twin brother, revealed that A.N. had an older skull

fracture as well as a fractured rib.    Their older sister, V.N., was not found to have any

injuries. Despite the extent of the infants’ injuries, the Parents maintained that they did not

know about the injuries or the manner by which the infants sustained such injuries. The

Department immediately removed all three children from the physical care and legal

custody of the Parents and placed them in shelter care.

       On October 21, 2013, the Department filed a “Child in Need of Assistance”

(“CINA”) Petition for each child.      That same day, a Shelter Care Hearing was held in the

Circuit Court for Howard County (sitting as the juvenile court) in which the magistrate
recommended and the court ordered that the children be placed in the custody of their

grandmother, C.N., and that the Parents would be allowed supervised visitation.

       Throughout the next year, the Parents willingly participated in various treatment and

evaluation programs, and Department reports indicated that they were “appropriate with

the children during visits.” The Parents’ psychological evaluators ultimately concluded that

neither parent presented risk or danger to the children.   As late as August 28, 2014, the

Department and the court-appointed special advocate recommended beginning a monitored

transition to custody with the Parents.    Then on October 9, 2014, Mother’s polygraph

examination indicated that she was not being truthful.

       On April 7, 2015, the juvenile court held a permanency planning review hearing.

The court received the Department’s February 23, 2015, report, which recommended—

based, in part, on the results of Mother’s October 9, 2014, polygraph examination—that

the permanency plan for all three children be changed to a sole plan of custody and

guardianship with paternal relatives.   The court concluded, as reflected in its subsequent

order dated May 1, 2015, that “objections to the polygraph exam results were waived and

the Court can consider the results.” Noting that “[b]oth parents deny causing the injuries

and continue to be a ‘united force’ in their denial,” the court found that reunification with

the Parents was not in the best interest of the children and, subsequently, modified the

permanency plan to remove the goal of reunification.

       On May 26, 2015, Father and Mother noted the instant appeal.      The Parents raised

                                             2
numerous evidentiary issues in their briefing, but the principal issue on appeal is whether

it was reversible error for the juvenile court to consider and rely on the results of Mother’s

polygraph examination.

       We hold that, because “[i]t is well-settled in Maryland that the results of a polygraph

test are inadmissible,” and even “mere references to the fact that a test was taken . . . may

be grounds for reversal if results can be inferred from the circumstances or if the references

are prejudicial,” Murphy v. State, 105 Md. App. 303, 309-10 (1995) (citations omitted), the

juvenile court erred in considering Mother’s polygraph results. Under the facts of this

case, that consideration was prejudicial, and the court erred in changing the CINA

permanency plan based, in part, on consideration of that inadmissible evidence. We

therefore vacate the May 1, 2015, orders and remand.

                                     BACKGROUND

       The twin boys, A.N. and B.N., were born on August 12, 2013.        Father and Mother

were already parents to V.N., born less than a year earlier after the Parents’ long struggle

with infertility.   Parents are employed as financial analysts.   Mother cared for the twin

boys at home until they were six-weeks old, when they, along with their sister, began

attending daycare on September 30, 2013.

       On the afternoon of October 17, 2013, the daycare provider called Father and told

him that she noticed after B.N.’s nap that his arm was injured.       Parents picked up the

children and then called their pediatrician, who had seen the twin boys the day before. The

                                              3
pediatrician instructed Parents to take B.N. to the emergency room.

       Doctors examined B.N. at Howard County General Hospital and determined that

his right humerus was completely fractured.      The hospital report stated that the fracture

was recent and was likely caused by a “twisting force.”      The hospital then immediately

notified the Department of the injuries and potential child abuse situation.   Although the

twin boys had been seen by their pediatrician regularly since their birth, no injuries had

previously been detected. However, after B.N was taken by ambulance to Johns Hopkins

Hospital that same day, a skeletal survey revealed that B.N.—not yet nine weeks old—also

had a posterior rib fracture and a healing clavicle fracture.   Dr. Anders, the Director of

Pediatric Emergency Medicine at Johns Hopkins, made the assessment that “someone did

this and this is consistent with child abuse.”    He advised that B.N.’s siblings come to

Hopkins as soon as possible for full skeletal scans.

       B.N.’s twin brother and older sister were brought to Johns Hopkins Hospital the

next day, October 18, 2013.     The hospital notified the Department that tests confirmed

that the twin, A.N., had an older skull fracture and fractured rib.       The sister had no

injuries. In response to the information about A.N.’s injuries, Father admitted that he had

dropped the infant onto a carpeted floor the week before because the family dog had come

up behind him and he had stumbled over the dog.        Otherwise, both parents maintained

that they did not abuse any of the children and did not know how the twins sustained their

injuries.   Medical experts, however, determined that A.N.’s injuries were “consistent with

                                             4
non-accidental trauma,” and A.N.’s injuries were diagnosed as child abuse.     That same

day, all three children were removed from the physical care and legal custody of Parents

and placed in shelter care.

       On October 21, 2013, CINA petitions were filed for each of the children, and a

shelter care hearing was held in the juvenile court. The magistrate determined that the

children would be placed in the custody of their paternal grandmother, C.N., and that

Mother and Father would have supervised visitation.      Meanwhile, Father and Mother

moved out of their home to allow the paternal grandparents to reside in the home with all

three children.   Father and Mother moved in with Mother’s parents.

       On October 25, 2013, a revised shelter care order was entered establishing that

“Mother shall visit the children three hours per day Monday through Friday,” and that

“Mother and Father shall visit for an additional two hours per day, Monday through

Friday.”   On weekends, the parents were allowed to visit for one three-hour visit and one

two-hour visit on Saturday and Sunday.     The Adjudication/Disposition Hearing was set

for November 13, 2013.

The 2013 CINA Adjudication Hearing

       A magistrate conducted a CINA adjudication/disposition hearing over three days:

November 13, December 11, and December 18, 2013. 1             The magistrate heard the


       1
         A “CINA” case refers to proceedings brought for the protection of children and
coming within the provisions of Maryland Code (1974, 2013 Repl. Vol., 2014 Supp.),
Courts and Judicial Proceedings Article (“CJP”) §§ 3-802(a)(1), 3-801(g). Maryland law
                                            5
testimony of several experts, beginning with Dr. Wendy G. Lane, a board certified general

pediatrician and specialist in child abuse pediatrics from the Child Advocacy Center at the

University of Maryland School of Medicine.         Dr. Lane examined the children and,

regarding the injuries to two-month old B.N., stated in her expert report:

       There is no history of injury to explain the fractures . . . [Father]
       acknowledged that [B.N.]’s arm didn’t appear right that morning [October
       17, 2013], the injury likely occurred on the day that he was brought to the
       hospital, prior to being dropped off at daycare. Oblique fractures indicate
       a twisting injury, which [B.N.] could not have caused himself.

Dr. Lane’s report noted that the most likely explanation for B.N. having injuries in various

stages of healing was abuse.    However, she also considered other potential causes for the

injuries to B.N. and A.N. not indicative of abuse or neglect and stated:

       Birth injury was considered as an explanation for the healing clavicle and rib
       fractures. However, I reviewed a chest x-ray (report and films) taken on the
       day of birth, and there were no fractures present at that time. Rickets (from
       inadequate vitamin D store/intake) does not typically present early in infancy
       because children receive vitamin D from their mother in utero.
       Osteogenesis Imperfecta should be considered because paternal grandmother
       has identified some risk factors in the family history. However, most of these
       risk factors have not been noted elsewhere in [B.N.]’s medical records, and
       details may need to be clarified.

defines a child in need of assistance as:

       [A] child who requires court intervention because:
              (1) The child has been abused, has been neglected, has a
              developmental disability, or has a mental disorder; and
              (2) The child's parents, guardian, or custodian are unable or
              unwilling to give proper care and attention to the child and the
              child's needs.

CJP § 3-801(f).
                                             6
Dr. Lane recommended that both A.N. and B.N. see a Pediatric Geneticist for evaluation

for Osteogenesis Imperfecta (brittle bone disease).       She noted, however, that “[i]n the

absence of th[at] diagnosis, the only reasonable explanation for B.N.’s injuries is abuse.”

       Dr. Richard S. Strahlman, head of pediatrics at Columbia Medical Practice—where

the children received primary healthcare—also examined the x-rays from B.N.’s date of

birth and found the clavicle to be “intact.”   In addition, Dr. Strahlman opined that A.N.’s

skull and rib fractures were a sign of trauma and not indicative of Osteogenesis Imperfecta.

       The Parents called Dr. Doug Benson, a board certified orthopedic surgeon and

Director of Orthopedic Trauma at the Enloe Medical Center in Chico, California. He

testified that A.N. and B.N. had rickets, and that rickets caused their injuries.   Dr. Benson

was accepted as an expert in orthopedic medicine; however, because he had no specialized

training in pediatrics or pediatric child abuse, his testimony on those issues and the cause

of the children’s injuries was found by the magistrate not to be credible.

       During the time between the adjudication hearings before the magistrate and entry

of its order, the juvenile court appointed Susan Gordon of the Howard County Court

Appointed Special Advocates Program (“CASA”) to represent all three children, as a friend

of the court.        Then, on January 10, 2014, the juvenile court entered an

adjudication/disposition order for each of the children.       In accordance with Maryland




                                               7
Code (1973, 2013 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”) § 3-8192

and Maryland Rule 11-1153, the juvenile court determined the children to be CINA and



      2
          CJP § 3-819 provides, in pertinent part:

      (b)(1) In making a disposition on a CINA petition under this subtitle, the
      court shall:
             (i) Find that the child is not in need of assistance and, except as
             provided in subsection (e) of this section, dismiss the case;

                                            ***

              (iii) Subject to paragraph (2) of this subsection, find that the child is
              in need of assistance and:
                      1. Not change the child's custody status; or
                      2. Commit the child on terms the court considers appropriate
                      to the custody of:
                              A. A parent;
                              B. Subject to § 3-819.2 of this subtitle, a relative, or
                              other individual; or
                              C. A local department, the Department of Health and
                              Mental Hygiene, or both, including designation of the
                              type of facility where the child is to be placed.

      3
          Maryland Rule 11-115 provides, in part:

      b. Disposition--Judge or Magistrate. The disposition made by the court
      shall be in accordance with Section 3-820 (b) of the Courts Article. If the
      disposition hearing is conducted by a judge, and his order includes placement
      of the child outside the home, the judge shall announce in open court and
      shall prepare and file with the clerk, a statement of the reasons for the
      placement. If the hearing is conducted by a magistrate, the procedures of
      Rule 11-111 shall be followed. In the interest of justice, the judge or
      magistrate may decline to require strict application of the rules in Title 5,
      except those relating to the competency of witnesses. A commitment
      recommended by a master is subject to approval by the court in accordance
      with Rule 11-111, but may be implemented in advance of court approval.

                                              8
ordered them committed to the custody of the Department and placed with their paternal

grandmother pending further review.      The juvenile court found, by a preponderance of

the evidence, that the injuries sustained by B.N. and A.N. were “consistent with non-

accidental trauma,” and that both parents—unable or unwilling to explain the injuries—

“either abused the [children] or neglected them by failing to protect them.”    The juvenile

court stated:

       [Mother and Father] were the primary caregivers for [the children] at the time
       [A.N.] and [B.N.] sustained injuries. Either [Mother or Father] caused
       [A.N.] and [B.N.] to be injured and either [Mother or Father] failed to protect
       [the children] from injury.

                                           ***

       The child[ren] require[] court intervention; [t]he child[ren] ha[ve] been
       abused and ha[ve] been neglected and the child[ren]’s parents are unable or

                                           ***

       d. Commitment to Department of Social Services. In cases in which a
       child is committed to a local department of social services for placement
       outside the child's home, the court, within 18 months after the original
       placement and periodically thereafter at intervals not greater than 18 months,
       shall conduct a review hearing to determine whether and under what
       circumstances the child's commitment to the local department of social
       services should continue. Considerations pertinent to the determination
       include whether the child should (1) be returned home, (2) be continued in
       foster care for a specified period, (3) be placed for adoption, or (4) because
       of the child's special needs or circumstances, be continued in foster care on
       a permanent or long-term basis. The hearing shall be conducted as prescribed
       in Rule 11-110 or, if conducted by a magistrate, as prescribed in Rule 11-
       111, except that the child's presence shall not be required if presence at the
       hearing is likely to cause serious physical, mental, or emotional harm to the
       child.

                                             9
       unwilling to give proper care and attention to the child[ren] and the
       child[ren]’s needs. One parent has abused the child[ren] and the other parent
       has failed to give proper care and attention to the child[ren] under the
       circumstances that the child[ren]’s health or welfare is harmed or placed at
       substantial risk of harm. One parent is unable or unwilling to believe that
       the other parent harmed the child[ren] and is unable or unwilling to provide
       proper care for the child[ren].

       The January 10, 2014, court order maintained the visitation schedule set by the

October 23, 2013, revised shelter care order and ordered genetic testing of the children “to

rule out genetic disease or deformity.”

Expert Reports and Department Recommendations

       After the genetic testing of B.N., the Department filed a report with the juvenile

court dated April 18, 2014, detailing that B.N. was found to not be suffering from

Osteogenesis Imperfecta or rickets.       A.N. was not tested on the assumption that, as an

identical twin, testing one child was sufficient.

       The Department’s April 18 report, submitted for consideration at the next review

hearing, acknowledged that the permanency plan for all three children was reunification

with the Parents, but recommended that the children remain in the custody of their paternal

grandparents, with a review of the placement in six months.4 The report further indicated


       4
          The Department proceeded under CJP § 3-823 in this case in recommending a
plan that included future reunification with the Parents. We note that the Department may
now have the option in certain abuse cases to petition the court to relieve the Department
of any statutory obligations it has toward facilitating reunification with the parents under
“Anayah’s Law,” recently passed by the General Assembly and made effective on October
1, 2015. 2015 Md. Laws ch. 292 (S.B. 150) (codified at CJP 8-312). The law was passed
in response to the tragic death of Anayah Williams in 2012. Department of Legislative
                                               10
that Father and Mother both signed a service agreement on January 30, 2014, completed

parenting classes, completed anger management classes, were actively involved in

individual and couples therapy, visited the children regularly, and agreed to submit to a

polygraph and forensic evaluation.       The service agreement provided that Father and

Mother could use an independent provider for the polygraph examination, but it reserved

the Department’s right to submit questions to be asked.               The initial polygraph

examination was scheduled for April 25, 2014.




Services, Fiscal and Policy Note 2015 S.B. 150. Anayah Williams, an infant, was placed
in foster care with a fractured skull and rib, but after an investigation failed to reveal the
perpetrator of her injuries, she was returned to her parents. Soon after being reunited with
her parents, the child died after sustaining additional severe injuries. Id. Anayah’s Law
states that it was passed

       FOR the purpose of altering the circumstances under which a local
       department of social services may ask the court in a child in need of
       assistance proceeding to find that reasonable efforts to reunify the child with
       the child’s parents or guardian are not required . . . and generally relating to
       child abuse and neglect.

2015 Md. Laws ch. 292 (S.B. 150).

        Anayah’s Law allows for the local Department of Social Services (“Department,”
for purposes of this footnote) to petition the court to find that reasonable reunification
efforts are not required if the Department concludes that the child has been subjected, by
the parent or guardian, to sexual abuse, torture, or severe physical abuse; or if it finds that
the parent or guardian has engaged in or facilitated certain abuse, neglect or torture of the
child, a sibling, or another child in the household. CJP § 3-812(b). The Department
may also petition for the same if the parent or guardian abandoned the child or “knowingly
failed to take appropriate steps to protect the child” from abuse, neglect, or torture in the
household. Id.

                                              11
       On June 23, 2014, John Lefkowits, Ph.D., completed a psychological evaluation

report for Father.   Dr. Lefkowits’s report diagnosed Father with adjustment disorder with

mixed anxiety and depressed mood, “expected distress based on the allegations from social

services and removal of his children,” but, overall, found that Father “does not represent

any risk or danger to his children and it is unlikely that he engaged in any behaviors which

would have previously harmed his children.”         Dr. Lefkowits recommended reunification

with children at the earliest possible date.

       Dr. Lefkowits released a similar psychological evaluation report for Mother on June

25, 2014.   The report diagnosed Mother with adjustment disorder with mixed anxiety and

depressed mood, “due to the stress of a social service investigation and removal of her

children,” but overall found that Mother “does not represent any risk or danger to her

children and it is unlikely that she engaged in any behaviors which would have previously

harmed her children.”     Dr. Lefkowits again recommended reunification with children at

the earliest possible date.

       In preparation for the approaching July 23, 2014, permanency plan review hearing,

the Department filed a report with the juvenile court recommending that the children be

gradually reunited with the Parents through a reunification program.     Parents also filed a

line attaching a medical report from Charles J. Hyman, M.D., F.A.A.P., a board certified

pediatrician in the State of California.   Dr. Hyman founded and directed the Loma Linda

University Medical Center’s child abuse team in the late 1970s, and was at the time a

                                               12
member of an infant injury evaluation group that studied diseases and injury of infants that

could be misconstrued as child abuse.    Dr. Hyman’s lengthy report posited that the twins,

being premature, could have suffered from bone fragility disorder and rickets, which could

explain their fractures.   Dr. Hyman maintained that child abuse should not be the assumed

cause of injury, where there is no other evidence of such abuse, and no other organs—

including the skin—showed signs of trauma.        CASA Susan Gordon also filed a report for

the July 23, 2014, hearing, recapping the case and recommending, based on her observation

of the family and the assessments by the therapists and psychologist that “it is appropriate

for the parents to regain care of their children,” even though “it remains a troubling mystery

how A.N. and B.N. received such serious injuries . . . .”

The Polygraph Problem

       At the July 23, 2014, review hearing before the magistrate, the Department

submitted on its report and stated on the record:

              [I]deally we would like to know what happened to the children.
       Realistically I don’t believe the police are going to pursue this matter. We
       might not ever know what happened to the children.
              But the parents have done everything the Department has asked them
       to do. They’ve completed the service agreement. They’ve completed the
       parenting program, psychological, and the individual and couple’s
       counseling.
              We’re not sure what else we can ask them to do, so we’re
       recommending [] a slow transition back into the custody of the parents with
       some oversight by the Department making announced and unannounced
       home visits.

       Although the Department had not changed its position that one of the parents caused

                                             13
the serious injuries to the children, it was willing to move forward with reunification.

Nonetheless, counsel for the Parents brought Dr. Hyman’s report to the magistrate’s

attention, as well as the fact that both Father and Mother had passed private polygraph tests

in support of their argument that no child abuse had occurred.            This prompted the

magistrate to ask the Department about the polygraph examination, and the Department

responded:

       We asked the parents to participate in the polygraph. Our stipulation was that
       we were involved. . . . We asked the parents to coordinate with [the
       investigating officer] Detective Camp.

                                            ***

       And then they called. Detective Camp had . . . 10 minutes notice to get to
       the polygraph. With 10 minutes notice Detective Camp was not able to get
       to the polygraph and [neither] the Department nor the Detective were able to
       submit questions.
               So we took the results of the test that they gave us. We asked the police
       polygrapher (sic) to look at them. He gave us his opinion as to the validity of
       the exam and we accepted the results.

       At the conclusion of the review hearing, the magistrate made recommendations on

the record, stating:

       [I]n my opinion, the parents haven’t fully complied in that they haven’t
       submitted to a polygraph that’s been offered by the Department and there is
       no explanation for the injuries.
              If one parent was willing to take responsibility for the infliction of the
       injuries [] I’d feel very comfortable moving on. In this circumstance I am not
       of a mind that I can assure that the children are safe in their home without
       the current conditions in place, and I’m recommending that the status remain
       the same.

       On July 25, 2014, Father and Mother filed exceptions to the magistrate’s report and
                                              14
recommendations, arguing that the magistrate incorrectly denied their request for

immediate reunification where all the current reports before the court indicated that the

Parents posed no threat to the children.    The Parents argued that, because the Department

had not specified requirements for the polygraph—other than that the Parents must submit

to one—and because the Department advised on the record that they received the polygraph

and their expert was satisfied with the conclusion, the magistrate erred in concluding that

the private polygraph was insufficient for compliance with the Department’s Service

Agreement.      Regarding the magistrate’s concern over their “willing[ness] to take

responsibility for the infliction of the injuries,” the Parents argued that “[the magistrate]

has placed the parents in the impossible position of confessing to a criminal act in which

the Parents had reported and testified under oath that they had no knowledge of how the

injuries occurred.”

       On August 28, 2014, a de novo review hearing on the exceptions was held in the

juvenile court before a judge.    The Department again submitted on its report prepared for

the July 23, 2014, hearing and recommended that “the children remain in the care and

custody of the Department of Social Services, but we start a procedure whereby they can

return to the fulltime (sic) care of their parents.”   The juvenile court remained concerned,

however, that a finding had been made that abuse occurred without an indication of which

parent was the abuser.    The court observed:

       It was either one or both of the parents, and now [the Department’s] asking
       this Court to send the children back into their care when we don’t know what
                                               15
       happened. How can the children be safe in the future? That’s the problem
       that I see the [magistrate] had, that even I had on reviewing this.

Addressing the independent polygraph, the court agreed with the magistrate that, because

the Department had no input in the polygraph, the Parents did not comply with the

requirements of the Service Agreement.

       On September 12, 2014, the circuit court (sitting as the juvenile court) entered a

review hearing order accepting the magistrate’s findings in the July 23 hearing.     However,

the court went beyond the magistrate’s recommendation that the status quo be maintained

and determined that the existing sole plan of reunification was not in the best interest of

the children.    The circuit court changed the permanency plan for the children to a

concurrent plan of reunification with the Parents or placement with relative for custody and

guardianship.   In addition, the court ordered the Parents to submit to another polygraph

examination and a “fitness to parent evaluation” to be arranged by the Department.

Finally, the court ordered that the next permanency plan hearing be set before a judge in

the circuit court, rather than before a magistrate.

       The next permanency plan hearing was scheduled for December 4, 2014, and the

Department filed its report for that hearing with the court on November 21, 2014.        The

report stated that the Department arranged, and the parents submitted to, a second

polygraph examination on October 9, 2014.          The Department’s report stated:

               As a part of their service agreement, the parents agreed to take a
       polygraph. A polygraph is a tool for the Department to use when completing
       a risk assessment. Both parents took polygraphs at Chesapeake Polygraph,
                                              16
       as arranged by their attorney, and both passed. The Department, however,
       was not permitted to participate in the polygraph offered at Chesapeake
       Polygraph. On August 28, 2014, the court ordered the parents to submit to
       a polygraph that would allow participation from [the Department]. The
       Department arranged for [both Father and Mother] to take a polygraph at the
       Howard County Police Department on 10/9/14. [Father] passed the
       polygraph. [Mother] did not pass; her results indicated deception.

The Department’s recommendation at that point was that the children remain in the custody

of the agency with a concurrent plan of reunification and custody and guardianship to a

relative.

       On February 25, 2015, the Department filed an updated report for the court for the

next permanency planning review hearing.         Importantly, the Department changed its

recommendation to remove reunification from the permanency plan, and instead advocated

for a sole plan of custody and guardianship with the children’s paternal relatives with

another review in six months.   On the same date, CASA filed a report recommending that

the children be placed in the custody of their paternal grandparents with liberal visitation

with the Parents. The CASA report concluded that because the injuries to the children

remain unexplained and because “[Mother] was found to be deceptive during the polygraph

examination,” the only way to reasonably ensure the continued safety of the children was

to give custody to the grandparents.

The April 7, 2015, Review Hearing

       On April 7, 2015, the permanency planning review hearing was held in the circuit

court. At the outset of the hearing, the court brought to Parents’ counsel’s attention the

                                            17
potential conflict of interest presented by representing both Father and Mother in light of

their differing polygraph results.     Counsel for the Parents responded by making a

preliminary objection to the polygraph results.    The court observed:

       Well, I find it interesting, you wanted to submit, or you confirmed that your
       sole polygraph test was okay because they both came back as non-deceptive.
       Now I [] require the [Department] to be involved, and one comes back to be
       deceptive, now you’re going to want that information to be not considered
       by this Court, I find that interesting.

Thereafter, at the urging of the court, both Father and Mother were questioned on the record

about their knowledge of and consent to representation where there may be a conflict, and

counsel agreed to submit informed written consent from each parent to the court after the

lunch recess.5

       Following the voir dire of the Parents, counsel formally objected to introduction

“not only of the polygraph results, but . . . [to] any provision of the Department’s report as

well as any report which indicates a deceptive finding[.]”        The Parents’ counsel cited

Kelley v. State, 288 Md. 298 (1980), for the proposition that polygraph-based evidence is

not admissible in a court proceeding. The court then took a short break to review Kelley

v. State and, upon return, stated:

               [T]he Court [in Kelley] did in fact say, because it talked about the
       reliability of [polygraph] examinations and referred to Reed v. State, and
       Lusby v. State, and the Court does say, “We conclude therefore, that until
       such time as the reliability of this particular type of scientific testing can be
       appropriately established to the satisfaction of this Court, testimony which

       5
       The Parents’ signed conflict waiver was filed with the clerk when the proceeding
recommenced after lunch recess.
                                              18
          directly or indirectly conveys the results of such tests should [] not be
          admitted.”
                 So that’s clearly the ruling and holding in Kelley, so, based on that,
          even though it is a tool that we use, since the reliability -- this is from 1980,
          has not been scientifically established, the Court will grant the request, and
          the polygraph results will not be considered.

          Opening statements followed, and during her opening, attorney for the children

Connie Ridgway, advocated for transitioning the children into the custody of the Parents.

Ms. Ridgway, who was appointed to represent all three children on October 24, 2013,

stated:

          I actually believe, Your Honor, that there should be a transition plan for the
          parents. Even if, let’s say, for sake of argument, one of the parents had
          admitted to whatever may have occurred; Your Honor, we still have to work
          towards reunification. And part of that work towards reunification is setting
          out a . . . service agreement . . . . The parents have lived up to everything
          required of them . . . . [T]he therapist is recommending that there is no further
          fear of abuse by these parents.

                                               ***

          I just don’t believe, Your Honor, based on what I know of this case, that a
          transition plan could not be put in place that would assure the safety of the
          children, assure the Department of their continued growth, and assure this
          Court that, in fact, the children could be raised by their parents, given the
          transition plan.

          The Department’s witness, Cheryl Lawson-Anderson—a foster care social worker

with the Howard County Department of Social Services—testified that she had observed

the children in their current living situation, that the Parents had complied with all the terms

of their Service Agreement, and that there were no other services that the Department could

offer to the Parents.     She maintained, however, that the Department was recommending a
                                                 19
sole plan of custody and guardianship to a relative.          In listing the Department’s

considerations leading to their recommendation, Ms. Lawson-Anderson cited the extent of

the injuries to the children, the reports of Dr. Means and Dr. Lefkowits, and the polygraph.

The Parents’ counsel immediately objected to the testimony; however, the Court overruled

the objection, stating “I’m not admitting the results, she’s just saying she considered the

polygraph[.]”

       Further into Ms. Lawson-Anderson’s examination, the following exchange

occurred:

       [DEPARTMENT’S COUNSEL]: Now, why did your recommendation
       change between July 2014 and now?

       [MS. LAWSON-ANDERSON]: The main reason was the results of the
       polygraph.

       [PARENTS’ COUNSEL]: Objection.

       THE COURT: Overruled.

       [DEPARTMENT’S COUNSEL]: And what were –

       [MS. LAWSON-ANDERSON]: And --

       [DEPARTMENT’S COUNSEL]: -- the other reasons?

       [MS. LAWSON-ANDERSON]: -- that one was deceptive?

       [PARENTS’ COUNSEL]: Objection.

       THE COURT: That part I’ll sustain.

       Next, Dr. Ronald F. Means testified regarding the results of his parental fitness

                                            20
evaluation,6 and concluded that “[t]o a reasonable degree of medical certainty, I’m of the

opinion that [Father and Mother] are more than adequate parents.”      Dr. John Lefkowits

also testified regarding his report and the Parents’ psychological evaluations.           Dr.

Lefkowits opined that, to a reasonable degree of psychological certainty, neither parent

represented any risk or danger to the children.

       Paternal grandmother and custodial guardian of the children, C.N., testified

regarding her observations of the children and their interactions with Father and Mother,

maintaining that she did not believe that the Parents ever abused the children.         In her

opinion, reunification was in the best interest of the children.   At the end of her direct

examination, C.N. was asked by the Parents’ counsel whether the Department had

communicated to her why it changed its position regarding reunification, and she replied:

“[the Department] said [Mother] failed the poly and nobody’s admitted to [the abuse], and

the judge wouldn’t go for it.”


       6
         On or about February 19, 2015, Dr. Ronald F. Means completed the evaluation of
Mother and Father on behalf of the Department. Dr. Means’s evaluation consisted of in-
person interviews with each parent separately, observation of the family, telephone
interviews with the individual and marriage therapists, telephone interviews of the maternal
grandfather and paternal grandmother, and review of the medical evaluation by Dr. Lane
and the forensic examinations by Dr. Lefkowits. Dr. Means’s evaluation concluded:

       To a reasonable degree of medical certainty, with the exception of the abuse
       allegations, all evidence supports that [the Parents] have more than adequate
       parenting abilities and are capable of providing a supportive, nurturing
       environment for their children. Nearly all sources of information support this
       conclusion, decreasing the likelihood that they are trying to present in an
       unreasonably favorable fashion.
                                            21
       There was no further mention of the polygraph until the middle of the closing

argument by the Parents’ counsel, when the following colloquy occurred:

       [PARENTS’ COUNSEL]: . . . Now in regards to [the Department]’s change
       of plan, I have no idea why. What’s the reason that they have changed their
       plan? In July of 2014 --

       THE COURT: You elicited from [C.N.] Which just puzzled me. I granted
       your motion, and what did you do?

       [PARENTS’ COUNSEL]: Well, Your Honor –

       THE COURT: You -- stop. You asked Ms. N., “Why did Cheryl Lawson-
       Anderson say she changed her mind?” And the answer, which shocked me
       that you would elicit that, now I think that’s a waiver, because your client,
       [Mother], failed the polygraph and the judge wouldn’t go for it.

       [PARENTS’ COUNSEL]: Respectfully --

       THE COURT: So -- no, no, no, so, that’s [] the testimony that you presented
       to this Court. So, clearly we know why [the Department] changed -- or DHR
       changed their opinion.

At the close of the proceeding the court reiterated:

       [C]learly, even though I indicated earlier, . . . I granted the motion, [I] wasn’t
       going to consider everything about the polygraph . . . until Counsel asked
       her, “Why did [the Department] say they changed their opinion?” And she
       said, “They changed their opinion because [Mother] failed the polygraph,
       and the judge won’t go for it.” Wow. Okay, so, that’s -- we know based on
       that testimony, that [Mother] failed the polygraph.

       On May 1, 2015, the juvenile court entered permanency planning review hearing

orders for the children, finding it to be in the children’s best interest to remove reunification

from the permanency plan and seek placement with a relative for custody and guardianship

instead.   The court discounted the recommendations and reports of Dr. Means and Dr.
                                               22
Lefkowits because both doctors admitted that their findings were based on the premise that

neither parent abused the children.     Significantly, the court did consider evidence of the

second polygraph when changing the permanency plan.           The court stated:

                [The Department] originally recommended that the children be
         returned to the care and custody of the parents, however, due to the results of
         the polygraph examination, changed the recommendation to custody and
         guardianship with a relative.

                                             ***

                In January 2014 and July 2014 the Court found that, even though the
         parents have maintained their innocence and deny causing the children’s
         injuries, it is abundantly clear and already established by the Court that the
         two boys sustained serious injuries that are indicative of child abuse while in
         the care and custody of their parents, and one or both of them physically
         abused these children and the children are not safe in their care.

                                             ***

         The Court, based on the parents counsel’s request, excluded the results of the
         polygraph examination, however, the parents counsel, during the questioning
         of the [Department] case worker elicited from the worker that the mother’s
         polygraph examination results indicated deception, and that the mother was
         not being truthful, which is why [the Department] changed their
         recommendation from reunification to custody and guardianship with a
         relative. By eliciting testimony from the [Department] case worker, the
         objection to the polygraph exam results were waived and the Court can
         consider the results. . . . Reunification with a parent who has abused them
         and/or failed to protect them [is] not in the children’s best interest.
                The Court finds that the child[ren]’s permanency plan is: Placement
         with a relative for custody and guardianship.

         On May 26, 2015, the Parents noted this timely appeal.    They present the following

issue:

         Whether the circuit court abused its discretion when it found that
                                               23
       reunification is not in the best interest of the children, after admitting
       evidence of the results of a polygraph test during the April 2015 permanency
       plan hearing review, and considering all of the competent and credible
       evidence of the record.

Additional facts will be introduced as they pertain to the issues discussed.

                                      DISCUSSION

       A. Standard of Review

       When reviewing an order regarding a permanency plan in a CINA proceeding “[t]he

appellate standard of review as to the overall determination of the hearing court is one of

‘abuse of discretion.’” In re Yve S., 373 Md. 551, 583 (2003). However, when an

appellate court reviews cases involving the custody of children generally, it simultaneously

applies three different levels of review.    Id. at 584.    First, when an appellate court

scrutinizes factual findings, the clearly erroneous standard applies.   In re Shirley B., 419

Md. 1, 18 (2011) (citing In re Yve S., 373 Md. at 586).      Second, “if it appears that the

[juvenile court] erred as to matters of law, further proceedings in the trial court will

ordinarily be required unless the error is determined to be harmless.”     Id. (alteration in

original) (quoting In re Yve S., 373 Md. at 586). Finally, when reviewing a juvenile

court’s decision to modify the permanency plan for the children, this Court “must

determine whether the court abused its discretion.”    Id. at 18-19.

       B.     Changes to CINA Permanency Plans After a Finding of Abuse

       Parents enjoy a well-established and fundamental constitutional right—protected by

the Fourteenth Amendment—to raise their children without undue influence by the State,
                                             24
and that right cannot be taken away “‘unless clearly justified.’”    In re Yve S., 373 Md. at

565-66 (quoting Wolinski v. Browneller, 115 Md. App. 285 (1997)).        However, that right

is not absolute and must be balanced against the State’s interest in protecting the health,

safety, and welfare of the child.   Id. at 568-69.   Indeed, the Court of Appeals has “‘often

reaffirmed that [the best interest of the child] takes precedence over the fundamental right

of a parent to raise his or her child.’”   Id. at 569-70 (quoting Wolinski, 115 Md. App. at

301).       Nonetheless, “the best interests of the child standard embraces a strong

presumption that the child’s best interests are served by maintaining parental rights.” Id.

at 571 (citing In Re: Adoption/Guardianship Nos. J9610436 & J9711031, 368 Md. 666,

692-93 (2002)).

        Certainly, the courts of Maryland have recognized that, “in cases where abuse or

neglect is evidenced, particularly in a CINA case, the court’s role is necessarily more pro-

active.” Id. at 570. Pursuant to Maryland Code (1984, 2012 Repl. Vol.), Family Law

Article (“FL”) § 9-101, “in cases where evidence of abuse exists, courts are required by

statute to deny custody or unsupervised visitation unless the court makes a specific finding

that there is no likelihood of further child abuse or neglect.”7 In re Yve S., 373 Md. at 571


        7
            FL § 9-101 provides:

        Determine if abuse or neglect is likely
        (a) In any custody or visitation proceeding, if the court has reasonable
        grounds to believe that a child has been abused or neglected by a party to the
        proceeding, the court shall determine whether abuse or neglect is likely to
        occur if custody or visitation rights are granted to the party.
                                              25
(emphasis in original) (quoting In re Mark M., 365 Md. 687, 706 (2001)). Accordingly,

the Court of Appeals has recognized that courts have a higher degree of responsibility

where abuse has been proven. Id. (citing In re Mark M., 365 Md. at 706).

       Once CINA proceedings have begun and a permanency plan has been established,

the plan must be periodically reviewed “to determine progress and whether, due to

historical and contemporary circumstances, that goal [of the plan] should be changed.”

Id. at 582.   CJP § 3-823(h) provides, in pertinent parts:

       (1)(i) Except as provided in subparagraphs (ii) and (iii) of this paragraph, the
       court shall conduct a hearing to review the permanency plan at least every 6
       months until commitment is rescinded or a voluntary placement is
       terminated.

                                            ***

       (2) At the review hearing, the court shall:
              (i) Determine the continuing necessity for and appropriateness of the
              commitment;
              (ii) Determine and document in its order whether reasonable efforts
              have been made to finalize the permanency plan that is in effect;
              (iii) Determine the extent of progress that has been made toward
              alleviating or mitigating the causes necessitating commitment;
              (iv) Project a reasonable date by which a child in placement may be
              returned home, placed in a preadoptive home, or placed under a legal



     Deny custody or visitation if abuse likely
     (b) Unless the court specifically finds that there is no likelihood of further
     child abuse or neglect by the party, the court shall deny custody or visitation
     rights to that party, except that the court may approve a supervised visitation
     arrangement that assures the safety and the physiological, psychological, and
     emotional well-being of the child.
(Emphasis supplied).

                                             26
              guardianship;
              (v) Evaluate the safety of the child and take necessary measures to
              protect the child; and
              (vi) Change the permanency plan if a change in the permanency plan
              would be in the child’s best interest.

       (3) Every reasonable effort shall be made to effectuate a permanent
       placement for the child within 24 months after the date of initial placement.

(Emphasis added).

       The Court of Appeals has interpreted CJP § 3-823(h)(2)(vi) to mean that an existing

permanency plan “may not be changed without the court first determining that it is in the

child’s best interest to do so.” In re Yve S., 373 Md. at 581. Notably, under § 3-

823(h)(2)(iii), the review hearing court must “[d]etermine the extent of progress that has

been made toward alleviating or mitigating the causes necessitating commitment.” In

evaluating the safety of the child and the continuing necessity for commitment, the Court

of Appeals has instructed that, “‘even upon substantial evidence of past abuse or neglect,

it does not require a finding that future abuse or neglect is impossible or will, in fact never

occur, but only that there is no likelihood—no probability—of its recurrence.’” Id. at 588

(quoting In re: Adoption No. 12612, 353 Md. 209, 238 (1999)). In In re Yve S., the Court

cautioned that such a high standard would require the judge to be “a prophet or soothsayer

and somehow ‘know’ that there will never be a future incident of abuse or neglect.”         Id.

at 587-88 (footnote omitted). Nevertheless, in a case where there is no evidence as to the

cause of the abuse, we recognize the dilemma in measuring “the extent of progress that has

been made toward alleviating or mitigating the causes necessitating commitment.”
                                              27
       In the instant case, after the appalling injuries to the infant twins were exposed, a

most troubling circumstance persisted through to the day of the April 7, 2015, hearing—

there was still no explanation as to how the infants suffered their injuries.        Only three

events occurred since the August 28, 2014, de novo review hearing on exceptions: first, the

passage of additional time, which is a relevant concern under CJP § 3-823(h)(3); second,

the results of the parental fitness examination by Dr. Means which concluded that “all

evidence supports that [the Parents] have more than adequate parenting abilities and are

capable of providing a supportive, nurturing environment for their children”; and finally,

the existence of the second court-ordered polygraph examination of Mother that

purportedly indicated deception.      Still without any resolution as to what happened to the

children, the juvenile court was faced with deciding whether to continue the permanency

plan of a concurrent plan of reunification with the Parents and custody and guardianship

with a relative.   As noted above, under § 3-823(h)(2)(iii), the court must evaluate whether

the cause of the abuse has been alleviated—a task made decidedly more onerous where the

Parents provide no information and take no direct responsibility. Additionally, the court

is under a statutory mandate to work towards “a timely, permanent placement for the

child[ren] consistent with the child[ren]’s best interests.” CJP 3-802(a)(7); see also CJP

§ 3-823(h)(3).     Here, again it is clear that our statutes place a heightened responsibility on

the juvenile court in cases such as this one to be pro-active in the protection of the well-

being and interests of children who have been abused.

                                               28
       C.     Erroneous Reliance on Inherently Unreliable Polygraph Evidence

       The Parents argue that the juvenile court “abused its discretion by finding that

reunification is not in the best interest of the children after admitting unreliable and

incompetent testimony concerning the results of the polygraph testing and, considering the

results in determining whether to change the permanency plan.”         The Parents maintain

that the admission of polygraph evidence “falls outside the realm of even a ‘relaxed’

application of the Rules of Evidence[.]”          They contend that their objection to the

polygraph results was not waived and that their lay witness, who mentioned the polygraph

in testimony, was not qualified or competent to testify regarding the polygraph results.

The Department counters that consideration of the polygraph results did not prejudice the

Parents because the court’s decision to change the permanency plan was based on already

adjudicated facts, and not the polygraph results.

       “It is well-settled in Maryland that the results of a polygraph test are inadmissible.”

Murphy v. State, 105 Md. App. 303, 309 (1995) (citing Guesfeird v. State, 300 Md. 653,

658 (1984); Lusby v. State, 217 Md. 191, 194-95 (1958)); see also Kelley v. State, 288 Md.

298, 302 (1980) (“[U]ntil such time as the reliability of [polygraphs] has been appropriately

established to the satisfaction of this Court, testimony which directly or indirectly conveys

the results of such tests should not be admitted.”).

       In permanency plan review hearings, the court may decline to require strict

application of the evidentiary rules, “other than those relating to competency of witnesses.”

                                             29
Md. Rule 5-101(c)(6); see also In re Ashley E., 387 Md. 260, 293-94 (2005).          However,

even under the relaxed evidentiary rules that apply to administrative proceedings, this court

has found that polygraph evidence is inadmissible because, “the evidence presented must

be considered ‘competent.’”      Dep’t of Pub. Safety and Corr. Serv. v. Scruggs, 79 Md.

App. 312, 322-24 (1989) (emphasis in original) (determining that polygraph evidence was

admitted in error and “severely prejudiced” the appellee).       Moreover, in a permanency

plan hearing—notwithstanding that the Rules of Evidence are not strictly applied—the

court must still determine whether proffered evidence is “sufficiently reliable and probative

to its admission.” In re Billy W., 387 Md. 405, 434 (2005).

       In In re Rachel S., the Anne Arundel County Department of Social Services received

a complaint alleging the possible physical and sexual abuse of a child. 60 Md. App. 147,

149 (1984). An immediate shelter care hearing was held; however, the court ordered the

case continued for five days (temporarily approving shelter care) to allow the alleged

abusive father to take a polygraph examination.          Id. at 149-50.     When the hearing

recommenced five days later, all parties stipulated that the father had passed the polygraph.

Id. at 150. Notwithstanding that stipulation, this Court stated:

       The erroneous reliance upon the polygraph tests was itself sufficient error to
       flaw the proceedings. Even if all parties to the adjudication had agreed to
       accept the results of the polygraph testing, the long settled law in this state is
       that the technique is considered so inherently unreliable as to preclude the
       admission of such test results in a trial, civil or criminal. As was
       unequivocally stated in Akonom v. State, 40 Md. App. 676, 680, 394 A.2d
       1213 (1978):

                                              30
               “It cannot logically be argued that a stipulation enhances in any
               significant way the inherent reliability of evidence produced
               by a so-called scientific process or art. . . . Thus, while we are
               generally reluctant to invalidate agreements entered into by the
               parties, we view this as one of the unusual occasions when we
               are obligated to do so.”

Id. at 150.8

       In In re Shannon A., this Court stated that the “[a]ppellant cannot complain that his

own trial conduct constitutes error,” after “it was appellant’s counsel who first mentioned

the word polygraph.” 60 Md. App. 399, 410 (1984). However, that case concerned the

admissibility of a statement made by a juvenile defendant to a police officer “between

polygraph tests.” Id. This Court did not retreat from the position that “polygraph results

are inadmissible.” Id. In that case, the appellant’s contention was that his own trial

counsel’s mere mention of the word polygraph indirectly conveyed the results of the

examination. Id. at 409-10. The argument was not (as it is here) that the Court was

actually made aware of the results of the polygraph and considered those results in reaching

its decision. Thus, in In re Shannon A., it was appropriate to discount the alleged error

because it did not challenge a ruling, failure to act, or error on the part of the lower court.



       8
           Because we conclude, consistent with Maryland case law, that polygraph
examinations are “considered so inherently unreliable as to preclude the admission of such
test results in a trial, civil or criminal,” In re Rachel S., 60 Md. App. at 150, we need not
address the level of qualification needed to allow a witness to testify regarding the results
of such an examination. Thus, we do not address the Parents’ argument that C.N.’s
testimony regarding the polygraph was improper lay testimony.

                                              31
See id. (citing Braun v. Ford Motor Co., 32 Md. App. 545, 548 (1976) (“Appellate courts

look only to the rulings made by a trial judge, or to his failure to act when action was

required, to find reversible error.”)). That is not the case here.

       Here, the court twice overruled the Parents’ objections to testimony, elicited by the

Department, that the reason for the change in permanency plan recommendation was the

results of the polygraph examination.     And, the very same information was elicited by

Parents’ counsel from another witness later in the hearing, resulting in the waiver of their

earlier objections to the polygraph evidence.     Nevertheless, under this Court’s precedent,

it was still error for the court to consider the results of the polygraph.   See In re Rachel

S., 60 Md. App. at 150; Akonom, 40 Md. App. at 680.        This is especially clear where this

Court’s precedent instructs that, even had all parties stipulated to the admissibility of the

polygraph results, “the long settled law in this state is that the technique is considered so

inherently unreliable as to preclude the admission of such test results in a trial, civil or

criminal,” and “reliance upon the polygraph tests [i]s itself sufficient error to flaw the

proceedings.” In re Rachel S., 60 Md. App. at 150.

       The Department cites to Guesfeird v. State, for the proposition that “there have been

cases in Maryland in which references to lie detector tests were held not to be so prejudicial

as to warrant reversal.” 300 Md. at 659 (1984) (citing Poole v. State, 295 Md. 167, 182-

84 (1983); Lusby, 217 Md. at 195). Indeed, the Court of Appeals in Guesfeird, provided




                                             32
a non-exclusive list of factors that courts have considered in determining whether the

introduction of polygraph evidence was prejudicial, including:

       whether the reference to a lie detector was repeated or whether it was a single,
       isolated statement; whether the reference was solicited by counsel, or was an
       inadvertent and unresponsive statement; whether the witness making the
       reference is the principal witness upon whom the entire prosecution depends;
       whether credibility is a crucial issue; whether a great deal of other evidence
       exists; and, whether an inference as to the result of the test can be drawn.

Id. at 659 (citations omitted). Notably, in Guesfeird, as in In re Shannon A., (discussed

supra), the case involved a single reference to a polygraph examination that defense

counsel feared would allow the fact-finder to infer a result. Id. at 656. Again, that is not

the case here.

       As discussed above, the references to the polygraph in this case were numerous and

originated from the key witness for the Department and a witness for the Parents.

Notwithstanding the fact that all involved clearly knew the results of the polygraph, a

negative result could certainly have been inferred from the testimony of Ms. Lawson-

Anderson—elicited by the Department and sustained over objection—that the Department

removed reunification of the Parents and children from its recommendation after

considering the results of the polygraph examination. Credibility was a central issue in

this case. The Parents maintain that they never abused the children, but the juvenile court,

with no plausible explanation for how the injuries occurred and with both Parents united

in denying any knowledge, concluded that “one or both parents have either abused the

[children] or neglected them by failing to protect them.”
                                             33
       It is abundantly clear, from the record and the court’s May 1, 2015, orders that the

juvenile court did consider the polygraph results in making the decision to remove

reunification with the Parents from the permanency plan. As noted above, at the close of

the April 7, 2015, hearing, the court remarked, “[o]kay, so, that’s -- we know based on that

testimony, that [Mother] failed the polygraph.”      Further, in its order, the court stated,

“[b]y eliciting testimony from the [Department] case worker, the objection to the polygraph

exam results were waived and the Court can consider the results.” (Emphasis added).

       We recognize that a polygraph examination is an important investigative tool,

widely used by law enforcement agencies and private industry, and we do not discourage

its appropriate use. See Akonom, 40 Md. App. at 683 (citing People v. Barbara, 255

N.W.2d 171 (Mich. 1977); U. S. v. Wilson, 361 F.Supp. 510, 514 (D.Md.1973)).

       However, the juvenile court erred in considering the polygraph evidence in a court

proceeding, see In re Rachel S., 60 Md. App. at 150, and, under the facts of this case, that

consideration was prejudicial. Accordingly, the improper consideration of the polygraph

constituted a fatal error in the proceedings, and the court abused its discretion in changing

the CINA permanency plan based, in part, on the consideration of that inadmissible

evidence.

       We note that we have no criticisms or concerns regarding the juvenile court’s

analysis of the evidence that was properly before it. Nor do we criticize the weight the

court gave to that evidence, for we give great deference to the credibility determinations of

                                             34
the juvenile court9 and recognize the heightened responsibility of the court in child abuse

cases. Additionally, we do not find error in the Department’s internal use of polygraph

testing as part of its investigative process. Indeed, in the investigation of suspected child

abuse, Code of Maryland Regulations (“COMAR”) 07.02.07.11 provides that “[t]he local

department may consider any available information regarding the family, individual, or

child at issue.”    However, we must maintain the careful distinction between an

investigative tool and evidence that has sufficient reliability for consideration in an

adjudicative proceeding. To countenance the admission of inherently unreliable evidence,

such as a polygraph test, would set a dangerous precedent, especially in cases like this,

where a child has been abused and there is no direct evidence identifying the abuser, or the

circumstances surrounding the occurrence of abuse. Certainly, where critical portions of

the narrative are unavailable for the court’s analysis (who committed the abuse and the

surrounding circumstances), unreliable polygraph evidence should not substitute for what

is missing—especially given that an abuser may be able to manipulate the test. See United

States v. Scheffer, 523 U.S. 303, 310 n.6 (1998) (“Even if the basic debate about the



       9
          Because we remand for a new hearing based on the court’s improper consideration
of the inadmissible polygraph examination, we decline to address the Parents’ numerous
contentions regarding the weight given to other evidence properly before the juvenile court.
It will be the province of the juvenile court, on remand, to assess that evidence and afford
it the weight it merits. See In re Priscilla B., 214 Md. App. 600, 623-24 (2013) (citations
omitted) (discussing the “great deference” paid to the first-level fact finding that has
“traditionally been carried out in the equity courts by [magistrates] . . .”).

                                             35
reliability of polygraph technology itself were resolved, however, there would still be

controversy over the efficacy of countermeasures, or deliberately adopted strategies that a

polygraph examinee can employ to provoke physiological responses that will obscure

accurate readings and thus ‘fool’ the polygraph machine and the examiner.”). Therefore,

it is only due to the court’s improper reliance on the polygraph examination in reaching its

decision—removing reunification from the permanency plan—that we vacate the May 1,

2015, orders and remand.

                                              ORDERS OF THE CIRCUIT COURT
                                              FOR HOWARD COUNTY DATED MAY
                                              1, 2015, IN CASES 13-I-13-50511, 13-I-13-
                                              50512, AND 13-I-13-50513, VACATED.

                                              CASE REMANDED FOR FURTHER
                                              PROCEEDINGS CONSISTENT WITH
                                              THIS OPINION.

                                              COSTS TO BE PAID BY HOWARD
                                              COUNTY.




                                            36
