LEAHY, J.
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
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 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, 659 A.2d 384 (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.
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 pediatrician instructed Parents to take B.N. to the emergency room.
Doctors examined B.N. at Howard County General Hospital and determined
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 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.
A magistrate conducted a CINA adjudication/disposition hearing over three days: November 13, December 11, and December 18, 2013.
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:
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 Code (1973, 2013 Repl.Vol.), Courts and Judicial Proceedings Article ("CJP") § 3-819
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."
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.
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
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 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...."
At the July 23, 2014, review hearing before the magistrate, the Department submitted on its report and stated on the record:
Although the Department had not changed its position that one of the parents caused 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:
At the conclusion of the review hearing, the magistrate made recommendations on the record, stating:
On July 25, 2014, Father and Mother filed exceptions to the magistrate's report and 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:
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
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:
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.
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 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:
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.
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, 418 A.2d 217 (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:
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:
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 sole plan of custody and guardianship to a relative. In listing the Department's considerations leading to their recommendation,
Further into Ms. Lawson-Anderson's examination, the following exchange occurred:
Next, Dr. Ronald F. Means testified regarding the results of his parental fitness evaluation,
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."
There was no further mention of the polygraph until the middle of the closing argument by the Parents' counsel, when the following colloquy occurred:
At the close of the proceeding the court reiterated:
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. 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:
Additional facts will be introduced as they pertain to the issues discussed.
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, 819 A.2d 1030 (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, 819 A.2d 1030. First, when an appellate court scrutinizes factual findings, the clearly erroneous standard applies. In re Shirley B., 419 Md. 1, 18, 18 A.3d 40 (2011) (citing In re Yve S., 373 Md. at 586, 819 A.2d 1030). 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, 819 A.2d 1030). 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, 18 A.3d 40.
Parents enjoy a well-established and fundamental constitutional right — protected by the Fourteenth Amendment — to raise their children without undue influence by the State, and that right cannot be taken away "`unless clearly justified.'" In re Yve S., 373 Md. at 565-66, 819 A.2d 1030 (quoting Wolinski v. Browneller, 115 Md.App. 285, 693 A.2d 30 (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, 819 A.2d 1030. 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, 819 A.2d 1030 (quoting Wolinski, 115 Md.App. at 301, 693 A.2d 30). 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, 819 A.2d 1030 (citing In Re: Adoption/Guardianship Nos. J9610436 & J9711031, 368 Md. 666, 692-93, 796 A.2d 778 (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 proactive." Id. at 570, 819 A.2d 1030. 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."
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, 819 A.2d 1030. CJP § 3-823(h) provides, in pertinent parts:
(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, 819 A.2d 1030. 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, 819 A.2d 1030 (quoting In re: Adoption No. 12612, 353 Md. 209, 238, 725 A.2d 1037 (1999)). In In re Yve S., the
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.
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, 659 A.2d 384 (1995) (citing Guesfeird v. State, 300 Md. 653, 658, 480 A.2d 800 (1984); Lusby v. State, 217 Md. 191, 194-95, 141 A.2d 893 (1958)); see also Kelley v. State, 288 Md. 298, 302, 418 A.2d 217 (1980) ("[U]ntil such time as the reliability of [polygraphs] has been appropriately established to the satisfaction of this Court,
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." Md. Rule 5-101(c)(6); see also In re Ashley E., 387 Md. 260, 293-94, 874 A.2d 998 (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, 556 A.2d 736 (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, 875 A.2d 734 (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, 481 A.2d 520 (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, 481 A.2d 520. When the hearing recommenced five days later, all parties stipulated that the father had passed the polygraph. Id. at 150, 481 A.2d 520. Notwithstanding that stipulation, this Court stated:
Id. at 150, 481 A.2d 520.
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, 483 A.2d 363 (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
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, 481 A.2d 520; Akonom, 40 Md.App. at 680, 394 A.2d 1213. 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, 481 A.2d 520.
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, 480 A.2d 800 (1984) (citing Poole v. State, 295 Md. 167, 182-84, 453 A.2d 1218 (1983); Lusby, 217 Md. at 195, 141 A.2d 893). Indeed, the Court of Appeals in Guesfeird, provided a non-exclusive list of factors that courts have considered in determining whether the introduction of polygraph evidence was prejudicial, including:
Id. at 659, 480 A.2d 800 (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, 480 A.2d 800. 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.
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
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, 394 A.2d 1213 (citing People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (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, 481 A.2d 520, 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 the juvenile court
CJP § 3-801(f).
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.
(Emphasis supplied).