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MALTREATMENT INVESTIGATION MEMORANDUM Minnesota Statutes, section 260E.01, paragraph (a), “The legislature hereby declares that the public policy of this state is to protect children whose health or welfare may be jeopardized through maltreatment.”
License Number and Program Type: 1090877-CCCC (Certified Child Care Center) Investigator(s): Alice Percy Suspected Maltreatment Reported: It was reported that two alleged victims (AV1 and AV2) left the facility’s playground without the supervision of a staff person and were found by a law enforcement officer (LEO1) approximately 30 minutes later walking toward a railroad track. Date of Incident(s): August 26, 2022 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2): Failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so. Summary of Findings: Pertinent information was obtained during a site visit conducted on September 14, 2022; from documentation at the facility and law enforcement records; and through six interviews conducted with three facility staff persons (SP1, SP2, and SP3), an administrative staff person (P), AV1’s family member (FM1), and AV2’s family member (FM2). AV1 was six years old and AV2 was five years old and both were enrolled in the school-age classroom. The facility was located in an elementary school at the edge of town next to a two-lane street with a speed limit of 30 m.p.h. A parking lot was located along one side of the facility. An unfenced playground was located at one end of the school building at the end of the parking lot and playing fields were located along the back of the parking lot. A line of trees ran along one side of the playing fields. A porta potty was placed between the playground and playing fields. On the opposite end of the school building, there was a grassy area. Large fields were located around the school next to the playing fields. Approximately one half mile away, on the far side of the fields, several businesses were located along a busy two-lane highway with a speed limit of 50 m.p.h. A railroad track ran along the other side of the street. Additional businesses and fields were on the far side of the railroad track. According to LEO1’s Incident Report, on August 26, 2022, at approximately 2:50 p.m., LEO1 was driving along the highway when s/he observed AV1 and AV2 running across the railroad tracks and toward another highway. LEO1 drove up to the AVs at a car wash and asked them their names, where they walked from, and where they were going. AV1 and AV2 told LEO1 that they were walking to AV2’s home. LEO1 drove the AVs to AV2’s home and talked to FM2, who told LEO1 that AV1 and AV2 were supposed to be at the facility. AV2 stayed with FM2 while LEO1 took AV1 back to the facility. The staff persons were unaware that AV1 and AV2 had left the facility. LEO1 estimated that AV1 and AV2 were away from the facility for approximately 45 minutes. SP1, SP2, SP3, the P, and the facility’s documentation provided the following information: · On August 26, 2022, at approximately 11 a.m., the P, SP1, SP2, and SP3 took 25 children outside to the playground, where they spent the majority of the day. It was the last day of the summer program, so they wanted to provide a “fun day” for the children. They set up games on the tarred area of the playground, set up a tent, and grilled hot dogs for lunch. · At approximately 1:30 p.m., the P packed up the barbeque grill and some of the games and took them to his/her home. SP2 stated that at some point, AV1 and AV2 asked SP2 if they could use the porta potty and SP2 told them they could. SP2 did not see AV1 and AV2 return to the group. At approximately 2:30 p.m., SP1 told SP2 and SP3 that s/he was going to set up a sprinkler on the grassy area at the opposite end of the school building so that some of the children could run through the sprinkler. The staff persons asked the children where they wanted to play. Some of the children remained on the playground with SP3, while a larger group of children went with SP1 and SP2 to use the sprinkler. SP1 stated that s/he last recalled seeing AV1 and AV2 prior to when s/he took a group of children to use the sprinkler and was certain that AV1 and AV2 did not go with him/her to use the sprinkler. SP2 did not recall seeing the AVs after s/he told them they could go to the porta potty. SP3 believed that AV1 and AV2 went with the group of children who played in the sprinklers and did not recall seeing AV1 and AV2 after that. · At approximately 3 p.m., the P returned to the facility and SP2 left the facility as it was the end of his/her work shift. When the P arrived at the facility, LEO1 was at the facility and then another law enforcement officer (LEO2) arrived. LEO1 told the P and SP3 that s/he found AV1 and AV2 near the highway and took them to AV2’s home, where s/he left AV2. LEO1 returned AV1 to the facility. The P telephoned FM1 and FM2 and asked them to meet with him/her at the facility. FM2 brought AV2 to the facility and the P talked to both of the AVs, who told him/her that they went to the porta potty and “stashed” their sweatshirts and water bottles and then hid behind the porta potty and the cars in the parking lot until they could walk by the trees near the playing fields and then across the large field to the highway. The AVs did not provide any reasons for leaving the facility. · SP1 stated that the group typically did not split up when they went outside to play, but that it was not a “typical” day. SP1 typically counted the children when they took them outside, when they took them inside, and at various times while they were outside, but stated that on the day of the incident, s/he did not do so. SP2 stated that the staff persons typically did not count the children when they were outside, except when the parents arrived at the facility to pick the children up. The staff persons checked the names off a list as they were picked up. They did not have a list of the children at the facility that day when they went outside. SP3 believed they had a list of the children when they went outside, but was uncertain which group had the list. SP3 stated that s/he “tried to keep track of the children when they switched groups.” SP1 typically did a head count of the children instead of a name-to-face count when s/he counted the children. From what the other staff persons told him/her, the P did not believe the staff persons counted the children prior to some of the children going to play in the sprinklers. · SP1 stated that “from what other people said,” AV1 and AV2 were unsupervised for approximately 40 minutes. SP1 believed that AV1 and AV2 left the group prior to when s/he and SP2 took a group of children to the sprinklers. SP3 believed AV1 and AV2 were unsupervised for approximately 20 minutes. The P believed the children were unsupervised for approximately 25 minutes. · Consistent information was provided that AV1 and AV2 did not have a history of leaving the group. SP2 stated that the children were supposed to ask a staff person when they needed to use the bathroom, but the staff persons did not accompany the children to the bathroom or to the porta potty. None of the staff persons saw AV1 and AV2 walk across the playing fields or large fields around the school building. SP1 and SP2 believed that the cars in the parking lot might have blocked the view across the fields. · After the incident, the staff persons became more “diligent” about counting the children. SP1 stated that the P always told the staff persons to keep their eyes on the children at all times. FM1 stated that s/he had no concerns about the care that AV1 received at the facility and that AV1 had apologized to the staff persons for running away from the group. FM2 stated that on the day of the incident, the LEO took AV2 to FM2’s home, which was approximately eight miles from the facility, and told FM2 that s/he found AV2 and AV1 after they left the facility unsupervised. At that time, the facility was unaware that AV1 and AV2 were not at the facility. AV2 told FM2 that one of the staff persons told AV1 and AV2 that they “should go home.” Prior to the incident, FM2 had no concerns about the care AV2 received at the facility. Facility documentation showed that SP1, SP2, SP3, and the P each received training on the Reporting of Maltreatment of Vulnerable Adults Act and on the facility’s policies prior to the incident. Relevant Rules and Statutes: Minnesota Statutes, section 245H.13, subdivision 10 states that staff must supervise each child at all times. Staff are responsible for the ongoing activity of each child, appropriate visual or auditory awareness, physical proximity, and knowledge of activity requirements and each child's needs. Staff must intervene when necessary to ensure a child's safety. In determining the appropriate level of supervision of a child, staff must consider: (1) the age of a child; (2) individual differences and abilities; (3) indoor and outdoor layout of the child care program; and (4) environmental circumstances, hazards, and risks. Conclusion: A. Maltreatment: On August 26, 2022, at approximately 11 a.m., the P, SP1, SP2, and SP3 took 25 children outside to the playground, where they spent the majority of the day. At approximately 1:30 p.m., the P packed up the barbeque grill and left the facility. SP2 stated that at some point, AV1 and AV2 asked SP2 if they could use the porta potty and SP2 told them they could. SP2 did not see AV1 and AV2 return to the group. At approximately 2:30 p.m., SP1 and SP2 took a group of children to the other end of the school building to play in a sprinkler, leaving SP3 with the remaining children. Consistent information was provided that the staff persons did not count the children during the afternoon. At approximately 3 p.m., the P returned to the facility and LEO1 and LEO2 arrived at the facility and told the staff persons that AV1 and AV2 were found near the highway and railroad tracks approximately a half-mile from the facility. None of the staff persons were aware AV1 and AV2 left the group and none of the staff persons recalled seeing AV1 and AV2 after they asked SP2 if they could use the porta potty. Allowing AV1 and AV2 to be unsupervised in the community was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; a violation of the facility’s policies and procedures; and a violation of Minnesota Statutes, section 245H.13, subdivision 10. Although AV1 and AV2 were Kindergarten age, being unsupervised, according to the LEO for approximately 20 minutes, in the community gave AV1 and AV2 access to community dangers including unknown community persons, parking lots, businesses, as well as railroad tracks and highways. Staff persons were not aware that AV1 and AV2 were gone for over 45 minutes until law enforcement arrived and notified them. Therefore, there was a preponderance of the evidence that there was a failure to supply AV1 and AV2 with necessary care and a failure to protect AV1 and AV2 from conditions or actions that seriously endangered AV1’s and AV2’s physical or mental health when reasonably able to do so. It was determined that neglect occurred (failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so and/or failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so). B. Responsibility pursuant to Minnesota Statutes, section 260E.30, subdivision 4, paragraph (a), clauses (1) and (2): When determining whether the facility or individual is the responsible party, or whether both the facility and the individual are responsible for determined maltreatment in a facility, the investigating agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were according to, and followed the terms of, an erroneous physician order, prescription, individual care plan, or directive; however, this is not a mitigating factor when the facility or caregiver was responsible for the issuance of the erroneous order, prescription, individual care plan, or directive or knew or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) comparative responsibility between the facility, other caregivers, and requirements placed upon an employee, including the facility’s compliance with related regulatory standards and the adequacy of facility policies and procedures, facility training, an individual’s participation in the training, the caregiver’s supervision, and facility staffing levels and the scope of the individual employee’s authority and discretion; and (3) whether the facility or individual followed professional standards in exercising professional judgment. Facility documentation showed that SP1, SP2, and SP3 each received training on the Reporting of Maltreatment of Minors Act and the facility’s policies prior to the incident. Although it was unknown when AV1 and AV2 left the facility, information showed that SP1, SP2, and SP3 were each responsible for the supervision of the children at the time of the incident. SP1, SP2, and SP3 were responsible for maltreatment of the AV. C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. It was determined that the substantiated neglect for which SP1, SP2, and SP3 were each responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident and AV1 and AV2 did not sustain an injury that required the care of a physician. Pursuant to Minnesota Statutes, section 260E.35, subdivision 6, paragraph (c) all investigative data maintained in this report will be kept by the Department of Human Services for at least ten years after the date of the final entry in the report. Action Taken by Facility: After the incident, the facility retrained all of the staff persons on active supervision. When using the playground, the staff persons were to place cones between the playground and parking lot to create a “visual boundary” for the children. The staff persons were to ensure that any child using the porta potty returned to the group. Action Taken by Department of Human Services, Office of Inspector General: SP1, SP2, and SP3 were not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, each was notified by the Office of Inspector General that any further substantiated act of maltreatment, whether or not the act meets the criteria for “serious,” will automatically meet the criteria for “recurring” and will result in the disqualification SP1, SP2, or SP3. The determination that SP1, SP2, and SP3 were responsible for maltreatment is subject to appeal. On November 9, 2022, the facility was issued a Correction Order for the violation outlined in this report. Certification: The information collection procedures followed in this investigation were pursuant to Minnesota Statutes, section 260E.30, subdivision 6, paragraph (c). All individuals that are subjects of data in this investigation have the right to obtain private data on themselves which was collected, created, or maintained by the Department of Human Services.
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