In Re A.N., B.N., and V.N.

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 ²⁸⁷ 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 numerous evidentiary issues in ²⁸⁸ 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. 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 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 ²⁸⁹ 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 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 ²⁹⁰ 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 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 ²⁹¹ 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 útero. 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.J’s medical records, and details may need to be clarified.

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 BJST.’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. Strahl-man 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 ²⁹² Article (“CJP”) § 3-819 2 and Maryland Rule 11-115 3 , the ²⁹³ juvenile court determined the children to be CIÑA and 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 faffing 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 childfren] 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 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 ²⁹⁴ 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 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 ²⁹⁵ 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. On June 28, 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 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 ²⁹⁶ 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: [Ijdeally 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 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: ²⁹⁷ 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 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. ²⁹⁸ 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 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 evalu ²⁹⁹ ation” 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, 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] ³⁰⁰ 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 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 , 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: [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 ³⁰¹ 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 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. Ridg-way, 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 ³⁰² 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, 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 evaluation, 6 and concluded that “[t]o a ³⁰³ 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.” 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. ³⁰⁴ [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