In Re Ashley E.

BATTAGLIA, J. This case arises out of a permanency planning hearing held on October 1, 2003, in the Circuit Court for Montgomery County, sitting as a juvenile court. We are asked to determine whether permanency planning hearings under Maryland Code (1973, 2002 Repl.Vol.), Section 3-823 of the Courts and Judicial Proceedings Article are a form of disposition hearing under Maryland Rule 11-115, in which the application of the rules of evidence are discretionary and informal, or whether the rules of evidence must be applied during permanency planning hearings. Also we are asked to address whether employees of a local department of social services, who are not presently involved in the case before the court, but were previously, can be present during otherwise confidential juvenile court proceedings. Because we find that a permanency planning hearing is a type of disposition hearing as described by Maryland Rule 11-115d., we hold that the Maryland Rules of evidence apply informally to such hearings in accordance with Maryland Rule 5-101(c).

Moreover, we conclude that the juvenile court did not commit error in permitting the department employees to remain in the courtroom during the pro ²⁶² ceedings. Therefore, we affirm the judgment of the Court of Special Appeals. Facts 1 The children, who are the subject of the permanency planning hearing at issue, are Gregory B.-G., born August 6, 1993, now eleven years old; Matthew B., born August 26, 1994, now ten years old; Laione D., born December 6, 1995, now nine years old; and Ashley E., born November 24,1997, now seven years old. 2 Petitioner is the children’s biological mother, Ms. B., and has identified various putative fathers for the children. Ms. B. and the children first became involved with the Child Welfare Services Unit of the Montgomery County Department of Health And Human Services (“the Department”) in August of 2001 while residing in Rockville, Maryland.

Although it did not eventuate, Ms. B. contacted the Department seeking assistance in caring for the children because she anticipated being incarcerated due to an outstanding warrant. In October of 2001, the Department helped Ms. B. in making arrangements for her children while she resolved the warrant issue. In November of 2001, Ms. B. and the children became homeless, and she once again sought help from the Department. The Department arranged for temporary shelter, medical treatment for Gregory for a mass in his larynx, and foster care for the children when Ms. B. was hospitalized for complications of a pregnancy, which ended in miscarriage. ²⁶³ On January 31, 2002, Laione, then six years of age, informed her first grade teacher that “her dad” had “pushed [her] down and stuck a ... beer bottle in [her] butthole.” The teacher immediately reported the suspected child sexual abuse to the Department’s Child Protective Services unit.

According to her teacher, Laione was very upset and crying when she revealed the abuse and demonstrated the position in which she was restrained when she was abused. Moreover, Laione had been having problems at school due to exhibiting sexually inappropriate behavior. The teacher also reported that Laione wore dirty clothes to school, had an unpleasant odor due to a lack of proper hygiene, and regularly urinated or defecated on herself, usually immediately prior to leaving school to return home. A social worker from the Department interviewed Laione.

Using anatomically correct dolls, Laione demonstrated that a male, whom she identified as “Sean,” had put his penis in her mouth. She also described her mother’s sexual activities, and in doing so, spontaneously got on the cot in the interview room and imitated her mother’s actions and noises when engaged in sexual activity. The next day, at the request of the social worker, Ms. B. brought all of the children to the Department to be interviewed. During that interview, Laione recanted her prior statements and denied having “sa[id] anything about penises in the mouth” the day before, but then continued to talk about Ashley and Gregory “sexing.” Gregory denied any sexual contact with his sister, but demonstrated a “horsie” game he played with the girls, which had sexual overtones. 3 At the social worker’s direction, Ms. B. took the children to the Sexual Abuse and Assault Center at Shady Grove Hospital to be examined.

Laione’s physical examination revealed signs of “chronic vaginal penetration” and that the “circumference around the anus and the area around the vaginal opening ²⁶⁴ [were] colored with ... magic marker.” The forensic nurse, who conducted the examination, concluded, from the precision of the markings and the fact that they would have caused pain, that they were not self-inflicted. Laione repeated her previous statement that “Sean” had put a beer bottle in her “butthole”; she later stated that a glass had been inserted. She denied having sex with anyone, saying, “Nobody’s ever sexed me because I’m too ugly.” She reported that Gregory had done “nasty stuff’ and that Ashley had “stopped doing that nasty stuff.” When the social worker confronted Ms. B. about the children’s medical and behavioral problems, Ms. B. denied them and became angry and defensive. She blamed the children’s problems on the school system and told the social worker that she was going to leave the country.

After the initial investigation, the social worker contacted Ms. B. three or four times and scheduled three appointments for Ms. B. to bring Ashley and Matthew to be interviewed; however, Ms. B. failed to comply. Ms. B. continued to complain about the ongoing nature of the investigation and expressed irritation at the Department’s continued involvement. When the social worker attempted to accommodate Ms. B.’s work schedule when setting up appointments, Ms. B. did not respond. During this period, Ms. B. was involved sexually with two men: “Big Gregory” and “Monte,” Ashley’s putative father.

When Ms. B. told the social worker that the men no longer had contact with the children, the Department transferred the case to the intensive family services unit, which provided a parent aide several times a week. That arrangement was in effect until April 22, 2002, when Laione made another sexual abuse disclosure to her teacher. Laione stated that she had seen her mother “sexing it up” with two men in the bathroom, and when the three adults moved to another room “to do it harder,” her mother told her to “come join in” and watch Big Gregory perform a sex act upon her. Laione quoted her mother, using sexually explicit adult language that would not be in the ordinary vocabulary of ²⁶⁵ a young child.

When Laione’s teacher suggested that they speak to the school counselor, Laione screamed and begged the teacher not to tell for fear that Ms. B. would kill her. Laione also revealed that Big Gregory had banged Gregory’s head against the wall. That day, the teacher made a second report of sexual abuse to the Child Protective Services unit, and the children were placed in emergency shelter care and interviewed. Laione was fearful at first, saying that what had occurred was a “secret” that she was “afraid to tell” and that it was none of the social worker’s business.

She then spelled out the word “sex” and described her mother and Big Gregory and Monte “in the bathroom ... sexing” with their clothes off. She talked about a time when Ms. B. and Big Gregory were in bed and Ms. B., seeing her in the room, asked her to join in and perform a sex act. Once again, Laione quoted her mother, using sexually explicit, age inappropriate language. She also described seeing Gregory in the closet with Ashley, “sexing,” and said that afterward Ashley complained, “My poo-poo hurts.” When interviewed, Ashley, then four years old, said that Big Gregory was “licking everybody’s stomach” and that he would lick Ms. B.’s breasts.

She also used sexually explicit adult language when describing Big Gregory’s conduct. During his interview, Gregory, then nine years old, again demonstrated the “horsie” game and said that Ashley had touched his “private parts” but he only had touched her through her clothing. When asked where he had learned such behavior, he stated that he had observed Ms. B. and Big Gregory having sex in a hotel room in which the two adults and four children were staying. Matthew, who was seven years old at the time, denied that he had been sexually abused, but told the social worker that he had seen Gregory touching “Lae-Lae’s [Laione’s] poo-poo” and her “butt” with his hand and mouth.

He also stated that when he told his mother what he had witnessed, she “whipped” Gregory and Laione. Gregory later told Matthew ²⁶⁶ that Ms. B. had said “not to tell our business.” Matthew told the social worker about dreaming that something would come down from the sky and take him away. He also talked about an imaginary “bad” brother, whom he referred to as “Invisible Gregory.” After the interview ended, the social worker found Matthew crouching behind a door in the waiting room, claiming that “Invisible Gregory” had taken money from his pocket. When Ms. B. was informed of the children’s statements, she stated that she was not surprised about the sexual activity between them, because Matthew had informed her about it and that she told them that it was inappropriate.

She also acknowledged that there was “an episode when the children walked in on her having sex” and “a time when Laione walked in and saw her performing fellatio on Monte.” On April 23, 2002, the Circuit Court for Montgomery County, sitting as the juvenile court, held an emergency shelter care 4 hearing and committed the children to the Department for foster care placement. Ms. B. agreed to drop off medication for Matthew the following day, but did not do so, and also failed to give the Department forms so they could access the children’s medical records. Subsequently, based on allegations of fact derived from the children’s interviews, the Department filed Child In Need of Assistance (“CINA”) 5 petitions for all four children. The ²⁶⁷ Circuit Court held adjudicatory 6 and disposition 7 hearings on May 23 and 24, 2002.

The court sustained most of the factual allegations, including those allegations that Ms. B. engaged in sexual activity with Laione. The children were declared CINA and committed to the Department’s continuing care for foster care placement. The court also ordered that Ms. B. be permitted supervised visitation with the children. At that point, the Department’s permanency plan for the children was reunification with Ms. B. On March 25, 2003, eleven months after the initial CINA determination, the juvenile court conducted a permanency plan review hearing pursuant to Maryland Code (1973, 2002 Repl.Vol.), Section 3—823(b)(1)(i) of the Courts and Judicial Proceedings Article. 8 At the hearing, the Department took the position that the permanency plan for the children should be changed to termination of parental rights (“TPR”)/adoption.

Ms. B. opposed such a change. The Department called two witnesses: Nancy Atikkan, the Department social worker assigned to the children since Sep ²⁶⁸ tember of 2002, and Polly H. Kraft, M.D., a psychiatrist who examined the children at The Reginald S. Lourie Center for Infants and Young Children (“Lourie Center”), and participated with others at that center in evaluating their emotional and mental health problems. Ms. B. did not call any witnesses. Counsel for the children participated in the hearing, but did not call any witnesses.

The evidence introduced by the Department showed that the children at first were placed in two foster homes in Montgomery County: Gregory and Matthew were together and Laione and Ashley were together. In both placements, the children were aggressive and combative with each other and destructive to property, and had to be moved to separate homes. Additionally, Laione told lies of a sexual nature and Ashley engaged in “sex talk.” In mid-May, Matthew moved to a second foster home, also in Montgomery County, where he has remained and adjusted well. The other three children went through multiple foster homes in the first few months immediately after entering shelter care and eventually were placed in therapeutic foster homes in Baltimore City through the Pressley Ridge Center.

Gregory, Laione, and Ashley received therapy at the Pressley Ridge Center, and Pressley Ridge facilitated their visitations with Ms. B. In the summer of 2002, Ms. B. moved to Baltimore City to be closer to her three children in foster care there. Weekly visits at Pressley Ridge were scheduled with all four children, with the Department providing transportation for Matthew from Montgomery County. Ms. B. then requested that the visits be scheduled bi-weekly to accommodate her work schedule. According to the children’s social worker, Ms-.

Atikkan, Ms. B. failed to attend the scheduled visits consistently or reliably, despite the fact that Ms. B. lived within walking distance of the Pressley Ridge Center. When she would participate in visits with all of the children, the children ran around and interacted aggressively with each other while Ms. B. exercised ²⁶⁹ little to no control over their behavior. As a result, the visits were subsequently scheduled individually, on alternating weeks, with Matthew’s visits occurring in Montgomery County. Ms. B. continued to miss a significant number of the scheduled visits and to be late for others.

During part of the time period in which the visits were scheduled on alternating weeks, Ms. B. was working in Takoma Park; however, when she lost her job and became unemployed, she did not schedule any additional visits and continued to either miss or be late for visits. The Department recommended that Ms. B. undergo a psychological evaluation. Ms. B., however, did not submit to one. Dr. Kraft, the psychiatrist who examined the children at The Reginald S. Lourie Center for Infants and Young Children, testified about the evaluation of the children performed by the Lourie Center in the summer of 2002, and the children’s mental health issues.

The evaluation was conducted by a team of therapists, including Dr. Kraft, and covered a period of forty to fifty hours. It included an interview with Ms. B., individual sessions with the children, sessions with the children and Ms. B., and sessions with the foster parents, and psychological testing of the children. Dr. Kraft conducted the interview of Ms. B., who vocalized her belief that the children’s problems were the result of mistreatment by the child welfare system. She angrily insisted that the children were not being cared for properly and claimed that the children were perfectly normal prior to their removal from her care.

She refused to acknowledge that she was responsible for their problems. Dr. Kraft concluded that the children’s emotional and mental problems were the result of long-term abuse, most likely occurring throughout their lives, which could not have been caused solely by their removal from their mother’s custody. In Dr. Kraft’s opinion, Ms. B.’s ability to properly socialize the children and keep them safe was “severely impaired.” According to Dr. Kraft, Gregory, Laione, and Ashley had suffered severe emotional damage as a result of physical and ²⁷⁰ sexual abuse in their mother’s home. Each of the children was diagnosed with mental illnesses as a consequence.

Gregory’s ability to trust others was damaged to the extent that he exhibited deviant anti-social behavior, including lying, stealing, and attempting to trick people. Ashley was the most seriously emotionally damaged, to such a degree that the evaluators first believed that she was psychotic. She engaged in sexualized and inappropriate behavior that included making an overt sexual advance to one of the interviewing therapists. Laione also suffered severe personality damage, marked by a very low sense of self-esteem.

She sexualized all relationships and resorted to sexual self-stimulation when experiencing stress. Matthew was the only child who suffered moderate, rather than serious, emotional damage, exhibited mainly through anxiety. Dr. Kraft stated that all of the children would need to be “resocialized.” At the conclusion of the hearing, the court determined that the permanency plan would remain reunification, stating, “I do not think TPR is yet appropriate.” The court noted that some of the problems with Ms. B.’s failure to attend visits could have been caused by distance and that it was necessary that Ms. B. undergo a psychological evaluation. Moreover, the court stated that, without an evaluation, the appropriate plan for the children could not be determined.

The judge explained: So, I want to make it clear by saying it a third time, that the mother must participate in this psychological evaluation, in which she tells the evaluator what happened in her childhood and what happened in the lives of the children while they were with her that may be significant, so we can look to what has to be done to reunify the children. I do not think we’ve had a full enough opportunity to do that. That’s why I can’t approve today a Permanency Plan of Termination of Parental Rights. I do not think we’ve had enough opportunity on behalf of the mother for that to be an appropriate Plan.... ²⁷¹ The court ordered that the psychological evaluation of Ms. B. be performed within thirty days.

A second permanency planning review hearing was held on October 1, 2003. The Department once again requested that the permanency plan be changed to TPR/adoption, and Ms. B. again opposed that request. During the approximately six months between the first and second permanency plan review hearings, Dr. Michael Gelles, performed a psychological evaluation of Ms. B. During the hearing, the Department called Dr. Gelles and Ms. Atikkan as witnesses. Counsel for the children called Shelby Morgan, Ph.D., Gregory and Laione’s therapist at Pressley Ridge, and the supervisor for Ashley’s therapist at Pressley Ridge.

Ms. B. testified on her own behalf. Also present were Joanna Duncan, a Community Services Aide, Josie Traum, the children’s former social worker, and Charley Mathews, a social worker who supervises the Sex Abuse Treatment division, all of whom were employed by the Department. The Department introduced a ninety-nine page report which included a calendar containing entries indicating when Ms. B. had failed to attend visits, a discharge summary from Shepard Pratt for Gregory, and writings by the children. Ms. B. objected to the admission of the report as impermissible hearsay and objected to opinion testimony from Ms. Atikkan, the children’s social worker.

She also requested that the other people who had been identified as witnesses be excluded from the courtroom during Dr. Gelles’s testimony pursuant to Maryland Rule 5-615, 9 and that the courtroom be cleared of all members of the general public, but the court denied her requests. In addition, the court denied Ms. B.’s objections stating that a permanency planning hearing is a “species of’ ²⁷² disposition hearing under Maryland Rules 5-101(c) 10 and 11-115, 11 and thus, application of the Maryland Rules of evidence was discretionary outside of the context of competency of witnesses. ²⁷¹ (A) In general. ... upon the request of a party made before testimony begins, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. ²⁷² Dr. Gelles, the psychologist who evaluated Ms. B., testified that, prior to conducting the evaluation, he reviewed docu ²⁷³ ments related to her and to the children, including an intake evaluation of Ms. B. by a social services agency in Montgomery County, in September of 2001. He interviewed Ms. B. for approximately two and one half hours and administered a variety of psychological tests. Based upon all of the information at his disposal, Dr. Gelles concluded that Ms. B. did not have a major psychological condition, but manifested a minor to moderate personality disorder characterized by passive, aggressive, and avoidance traits that negatively impact her behavior.

Dr. Gelles found Ms. B. to have difficulty being consistent ánd reliable, as a person and therefore, as a parent. She told people what she wanted them to hear to portray herself in the manner in which she wanted to be seen. As an example, Dr. Gelles informed the court about lies that Ms. B. had told in order to obtain housing assistance, including that as a child she was sexually abused by a relative and had witnessed a murder. Dr. Gelles concluded that Ms. B.’s pervasive unreliability and extreme need to please others resulted in others distrusting what she said and only basing their judgments on her actions.

Ms. B. told Dr. Gelles that none of the abuse reported by the children as having occurred in her household had happened. She continued in her denial even when shown a letter written by Laione during therapy which detailed Ms. B.’s sexual relations with her. Ms. B.’s reaction was that the letter might have been written by someone else or that someone had influenced Laione to write it. Ms. B. was angry with the Department and blamed it for the children’s problems.

Dr. Gelles testified that Ms. B. lacked any real understanding about how her past behavior had impacted her children, as evidenced by Ms. B.’s defensiveness and denial. At the close of Dr. Gelles’s testimony, the Department stated that it did not intend to call Ms. Duncan, Ms. Traum, or Mr. Mathews as witnesses. Ms. Atikkan testified that the children had been in foster care for sixteen months and that during that time Ms. B. ²⁷⁴ failed to comply with the service agreements. Ms. B. had not participated in parenting classes which were offered to her, had not consistently signed releases for medical treatment for the children, and had not consistently attended visitation with the children.

During sixty-eight weeks of visitation, she had seen Gregory twenty-six weeks, Matthew fourteen weeks, Laione twenty-one weeks, and Ashley eighteen weeks. Ms. B. also did not attend school meetings for the children and changed jobs several times since September of 2002. Ms. Atikkan also explained that Ms. B. refused to acknowledge the abuse that had occurred in her household, and therefore, failed to take responsibility for it. She stated that Ms. B.’s lack of honesty in acknowledging the circumstances in which her children were sexually abused and inability to empathize with them made it difficult for the children to heal emotionally from the trauma.

After Ms. Atikkan testified, the children’s attorney called Ms. Morgan, the Clinical Coordinator for Pressley Ridge, to testify. Ms. Morgan is a therapist who specializes in treating children who have been sexually abused. She began treating Laione in September of 2002 and testified that at that time Laione would engage in sexual talk during therapy and exhibit sexualized behavior at school and in her foster home. Laione would touch other children sexually at school, would ask her foster mother to have sex with her, and would become angry and intentionally wet the bed when her foster mother refused.

Ms. Morgan stated that through therapy Laione made progress and developed a sense of trust over the preceding year. Laione disclosed more sexual abuse during that time, including abuse by Ms. B. Ms. Morgan worked with Laione to control her sexual thoughts and dreams, by labeling them the “sex monster,” and by writing about her feelings in a journal. When Ms. Morgan discussed Laione’s problems with Ms. B., Ms. B. acknowledged that Laione had been sexually abused, but claimed that she did not know the identity of the perpetrator. ²⁷⁵ Gregory began meeting with Ms. Morgan in April of 2003, after his first counselor left Pressley Ridge. According to Ms. Morgan, in the beginning, Gregory had difficulty expressing any feelings, but eventually began to talk about his anger.

He has engaged in bizarre behavior at his foster home, such as defecating in a potato bag, which he said that he did because he was angry. According to Ms. Morgan, Gregory has problems with lying, stealing, and trusting adults. Ms. Morgan stated that, although Ms. B. does have some skills in dealing with the children, she is inconsistent, unreliable, and unable to keep them safe outside of a highly structured and protective treatment environment. Responding to questions posed by the court, Ms. Morgan observed that Laione had experienced anger when her mother failed to attend a scheduled visit, and at one time wrote a letter to her mother expressing her feelings.

Laione also would experience a large amount of anxiety after meeting with Ms. B. Gregory, however, responded to his mother’s absence "with stated indifference. As the last witness, Ms. B. testified on her own behalf. She stated that she never engaged in sexual abuse of her children and that, to her knowledge, they were not sexually abused in her home. The court then ruled from the bench, granting the Department’s petition to change the permanency plan.

It found that the Department had made reasonable efforts to reunify Ms. B. with her children and that Ms. B.’s testimony was replete with hollow empathy and “sophistry.” The same day, the court issued written orders changing the children’s permanency plans to TPR/adoption. On October 31, 2003, Ms. B. noted her appeal to the Court of Special Appeals, asking the following questions: I. Did the juvenile court err by denying [Ms. B.’s] motion to sequester "witnesses and otherwise failing to strictly apply the Maryland Rules of Evidence in the permanency plan review hearing?

II

Did the juvenile court err by refusing to exclude non-parties from the courtroom? ²⁷⁶ III. Did the juvenile court err in changing the children’s permanency plans from reunification to adoption when the evidence was insufficient to show that the Department had made reasonable efforts to reunify [Ms. B.] with the children? In a reported opinion, In re Ashley E., 158 Md.App. 144 , 854 A.2d 893 (2004), the Court of Special Appeals upheld the decision to change the permanency plan from reunification to TPR/adoption and agreed with the Circuit Court’s determination that a permanency planning hearing is a kind of disposition hearing because at such a hearing the court is determining the appropriate actions that the court should take and reviewing the permanency plan established at the original disposition hearing. Therefore, the Court of Special Appeals concluded that the Rules do not mandate the application of the Rules of Evidence during the hearing.

Because the application of the Rules of Evidence was discretionary, the court held that the Circuit Court was not bound to apply Maryland Rule 5-615(a), and thus, was not required to order the exclusion of witnesses when asked to do so prior to the first witness’s testimony. Moreover, the Court of Special Appeals held that the Circuit Court’s decision to permit certain employees of the Department to remain in the courtroom during the hearing did not constitute good cause for overturning the court’s decision because Ms. B. could not show both error and prejudice. Ms. B. filed a petition for writ of certiorari with this Court on September 1, 2004, presenting two issues for our consideration: 1. Whether the Maryland Rules of Evidence should be strictly applied in a permanency planning hearing and the subsequent hearings to review the permanency plan when such hearings are separate and distinct from disposition hearings under Rule 11-115, are meant to accomplish more than simply modify the dispositional order under Rule 11-116, and were created by statute in .1998, subsequent to the adoption of the rules of evidence, such that the court could not have been author ²⁷⁷ ized to decline to apply the common-law rules of evidence in these hearings. 2.

Whether all non-parties must be excluded from the courtroom pursuant to Courts and Judicial Proceedings Section 8—810(b)(2) when the proceedings were concerning confidential information from the child abuse report and record and the mere presence of the non-parties caused the natural parent’s right to confidentiality to be breached. On November 12, 2004, we granted the petition and issued the wit of certiorari. In re Ashley E., 383 Md. 569 , 861 A.2d 60 (2004). Because we find that permanency planning hearings are dispositional in nature and may properly be characterized as hearings governed by Rule 11—115d., we hold that the juvenile court was not required to apply the Rules of Evidence during a permanency planning hearing. 12 Moreover, we conclude that the juvenile court did not err in failing to exclude the Department’s employees who were no longer directly involved in the case under Section 3-810 of the Courts and Judicial Proceedings Article because their presence did not destroy the confidential nature of the proceedings due to their prior knowledge.

Discussion On December 15, 1993, this Court adopted Title 5 of the Maryland Rules governing the admission of evidence during judicial proceedings. Md. Reg. vol. 21, at 1 (Jan. 7, 1994). At that time, we approved Rule 5-101, “Scope,” which stated: ²⁷⁸ (a) Generally. Except as otherwise provided by statute or rule, the rules in this Title apply to all actions and proceedings in the courts of this State.

(b) Rules inapplicable. The rules in this Title other than those relating to the competency of witnesses do not apply to the following proceedings: (1) Proceedings before grand juries; (2) Proceedings for extradition or rendition; (3) Direct contempt proceedings in which the court may act summarily; (4) Small claim actions under Rule 3-701 and appeals under rule 7-112(c)(2); (5) Issuance of a summons or warrant under Rule 4-212; (6) Pretrial release under Rule 4-216 or release after conviction under Rule 4-349; (7) Preliminary hearings under Rule 4-221; (8) Post-sentencing procedures under Rule 4-340; (9) Sentencing in non-capital cases under Rule 4-342; (10) Issuance of a search warrant under Rule 4-601; (11) Detention and shelter care hearings under Rule 912; and (12) Any other proceeding in which, prior to the adoption of the rules in this Title, the court was traditionally not bound by the common-law rules of evidence. (c) Discretionary application. In the following proceedings, the court may, in the interest of justice, decline to require strict application of the rules of evidence in this Title other than those relating to the competency of witnesses: (1) The determination of questions of fact preliminary to admissibility of evidence when the issue to be determined by the court under Rule 5 — 104(a); (2) Proceedings for revocation of probation under Rule 4-347; (3) Hearings on petitions for post-conviction relief under Rule 4-406; ²⁷⁹ (4) Plenary proceedings in the Orphans’ Court under Rule 6-62; (5) Waiver hearings under Rule 913; (6) Disposition hearings under Rule 915; (7) Modification hearings under Rule 916; and (8) Any other proceeding in which, prior to the adoption of the rules in this Title, the court was authorized to decline to apply the common-law rules of evidence.

Md. Rule 5-101 (1994). Rule 5-101 was amended in 1996 to conform to the new numbering scheme of the Maryland Rules. Md. Rule 5-101 (1997). The Rule had not been altered substantively until April 5, 2005, when we adopted the recommended amendment to the Rule to align its provisions with the newly promulgated Title 15, Chapter 1100 of the Rules, which govern catastrophic health emergency proceedings.

Md. Reg. vol. 32, at 279 (Feb. 4, 2005); Rules Order (Apr. 5, 2005). 13 Maryland Rule 5-101 (c) permits a court to “decline to require the strict application of the rules” in various proceedings including “[disposition hearings under Rule 11-115” Md. Rule 5-101(c). When discussing Rule 5-101(c), the Rules Committee considered various phrases including: “relax the application of the rules of evidence”; “decline to apply as justice may require”; “decline to apply certain rules of evidence”; and “decline to apply the rules of evidence strictly.” Minutes of the Standing Committee on Rules of Practice and Procedure Meeting, June 19, 1992, at 47. Ultimately, the Rules Committee recommended the language presently contained in subsection (c). Id.

The Chairman of the Committee, the Honorable Alan M. Wilner, now a Judge on this Court, noted that the adopted language “clearly allows the application of some rules and not others.” Id. at 48. Based upon the Rules Committee’s discussion, “decline to require strict appli ²⁸⁰ cation of the rules” appears to have been intended to mean that the application of the various rules of evidence in a proceeding listed in subsection (c) is entrusted to the discretion of the court. This conclusion is consistent with the structure of Rule 5-101. Rule 5-101 delineates three different categories of proceedings depending upon the application of the Rules of Evidence identified.

Subsection (a) provides the general rule that the Rules of Evidence apply to “all actions and proceedings in the courts of this State,” subject to certain exceptions. Md. Rule 5-101(a). Subsection (b) lists those proceedings in which the Rules of Evidence do not apply, except “those relating to the competency of witnesses.” Md. Rule 5-101(b). Finally, subsection (c), entitled “Discretionary application,” prescribes proceedings in which the court, in its discretion, may decline to apply the Rules of Evidence.

Md. Rule 5-101(c). Therefore, it is clear that the phrase “decline to require strict application” means that the application of the Rules of Evidence is not mandatory with respect to those proceedings listed in subsection (c), and in this context “strict” is synonymous with “mandatory.” Ms. B. argues that the application of the Rules of Evidence in permanency planning hearings is mandatory because such hearings cannot be categorized as any of the proceedings listed in Maryland Rule 5-101(c). Ms. B. notes that the only possible categories applicable to permanency planning hearings under Rule 5-101(c) are either disposition hearings under Maryland Rule 11-115 or modification hearings under Maryland Rule 11-116. She distinguishes permanency planning hearings held under Section 3-823 of the Courts and Judicial Proceedings Article 14 from disposition review hearings de ²⁸¹ scribed under Maryland Rule 11-115d. on the basis of their applicable time periods.

Ms. B. also asserts that permanency planning hearings are not modification hearings under Maryland Rule 11-116 15 because permanency planning hearings are ²⁸² not intended solely to modify the dispositional order. Ms. B. characterizes the result of a permanency planning order as a new order based on new factual findings rather than one modifying the original order. 16 Ms. B. also argues that because Ms. Traum, Ms. Duncan, and Mr. Mathews were not witnesses or the designated representatives of the Department, they should have been excluded as members of the general public from a confidential proceeding concerning child abuse under Maryland Code (1973, 2002 Repl.Vol.), Section 3-810 of the Courts and Judicial Proceedings Article. 17 She asserts that exclusion was mandatory, and that because of the nature of the underlying issues and purpose of the applicable statute, the failure to exclude should not be considered harmless error. Conversely, the Department argues that a permanency planning hearing is dispositional, and as such, the application of the Rules of Evidence is not mandatory. In short, the Department asserts that the juvenile court may decide which Rules should apply.

The Department notes that the determi ²⁸³ nations made at a permanency planning hearing are virtually identical to those listed in Rule ll-115d. and that certain evidence may be considered by the court in permanency planning hearings that otherwise would not be admissible. According to the Department, because permanency planning hearings are properly considered disposition hearings, “strict application” of the Rules of Evidence is not necessary, and the court did not abuse its discretion in declining to do so. The Department also asserts that Ms. Traum, Ms. Duncan, and Mr. Mathews cannot properly be considered members of the general public because all are employees of the Department, were involved in the case, and had access to the confidential information at issue. Therefore, the Department states that it was not error for the court to decline to exclude them from the hearing.

Disposition Hearings Under Maryland Rule 11-115 In 1969, the Rules Committee formulated, and the Court adopted, Maryland Rule 913 to govern the conduct of disposition hearings in juvenile causes. Minutes of the Standing Committee on Rules of Practice and Procedure Meeting, June 31, 1969. The draft version of Maryland Rule 913 stated: Rule 913. Disposition Hearing a.

Conduct of the Hearing 1. By Judge or Master. The judge or master who presided at the adjudicatory hearing shall, wherever possible, preside at the disposition hearing. 2. Availability of Social Study Report.

Any social study report made available to the court at the hearing shall be made available to the parties before the court or their counsel, if any. b. Disposition of Case. The disposition of the case shall be entered on the docket by the clerk. Each commitment shall be made subject to the further order of the court.

If the disposition order includes placement of the child out side his home, the court shall announce and dictate to the court stenographer or reporter or prepare and file ²⁸⁴ with the clerk a brief statement of the reasons why such placement is necessary. Md. Rule 913 (draft, 1969); Md. Rule 913 (1970). In 1975, in response to a new statewide juvenile code enacted by the General