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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: 1093592-CCC (Child Care Center) Investigator(s): Alice Percy Suspected Maltreatment Reported: It was reported that an alleged victim (AV) was left unsupervised on a playground by two staff persons (SP1 and SP2) for three to five minutes and was found by a staff person from another classroom. Date of Incident(s): October 3, 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 October 26, 2022; from documentation at the facility; and through five interviews conducted with a facility staff person (P1), an administrative staff person (P2), SP1, SP2, and the AV’s family member (FM). The AV was sixteen months old and enrolled in the young toddler classroom at the time of the incident. The facility was located in a business area next to a street with a posted speed limit of 30 miles per hour (M.P.H.). The parking lot ran along the front of the building and a playground was located on both sides of the facility. A large strip mall was located across the street from the facility on one side. A restaurant and a gas station were located across the parking lot on the other side of the facility. A large construction site and a large grassy area were located along the back of the parking lot. Both playgrounds were enclosed by a six-foot tall iron bar fence. The gate to the toddler playground was located along the front of the playground and was equipped with a lock and an alarm that sounded when the gate was opened. The playground included two large climbing structures. The doors to the toddler classrooms opened directly onto the playground. A water fountain and garbage can were located next to the AV’s classroom door. SP1, SP2, and the P, and the facility’s documentation provided the following information: · On October 3, 2022, SP1 and SP2 supervised eight children. At approximately 3 p.m., SP1 and SP2 took the children to the playground. At approximately 3:35 p.m., they lined the children up prior to taking them to the classroom. SP1 stated that they typically did head counts and name-to-face counting, but on the day of the incident, s/he only did a head count. SP1 believed s/he last saw the AV walking to join the line of children at the door. SP1 started counting the children and taking them inside while SP2 remained outside “wrangling a couple of children” who were still playing in the climber tunnels. SP1 believed s/he had “five or six” children with him/her when s/he went into the classroom and that SP2 then took the remaining children into the classroom. SP2 believed that SP1 counted all of the children prior to entering the classroom. As SP1 was standing by the door with the children, one child ran off and SP2 went to get him/her. · SP1 stated that s/he and SP2 did not count the children once all the children were in the classroom and did not talk to each other about how many children were in the group because the children’s family members were picking up children and “it kind of slipped our minds.” SP1 stated that s/he and SP2 did not do a final check of the playground prior to returning to the classroom. SP2 stated that when s/he brought the child that ran away from the group into the classroom, SP1 told him/her that all of the children were in except for the one that SP2 brought in. SP2 did not then count the children in the classroom. · SP1 and SP2 assisted the children with taking off their coats and SP2 began changing diapers as SP1 gave the children water. P1 stated that at approximately 3:40 p.m., when s/he prepared to take his/her group of children out to the playground, s/he heard the AV crying. The AV stood next to the toddler classroom door. P1 then took the AV to his/her classroom. SP2 stated that s/he had changed one diaper, when P1 came to the toddler classroom door with the AV and told SP1 and SP2 that s/he found the AV alone on the playground. SP1 and SP2 each stated that the AV was crying when P1 brought the AV to his/her classroom. SP1 stated that s/he was “very upset” that the AV was unsupervised on the playground and s/he comforted the AV. · Once P1 brought his/her children back into the facility after their playground time, s/he told P2 about finding the AV unsupervised on the playground. P2 then talked to SP1 and SP2 about what occurred and they provided information to P2 that was consistent with the information each provided to this investigator. · SP1 and SP2 each stated that they were not aware that the AV was left on the playground until P1 brought the AV to the classroom door. SP1, SP2, and P2 each believed the AV was unsupervised for three to five minutes. P1 believed the AV was unsupervised for five to eight minutes. SP1 and SP2 each stated that the AV was a slow walker. P2 believed the AV might have gone behind the door into the toddler classroom, which was why neither SP1 nor SP2 saw him/her. · After the incident, the staff persons were retrained on doing name-to-face counting each time they transitioned the children from one area to another. The FM stated that s/he had no concerns about the care that the AV received at the facility and that the staff persons “took fabulous care” of the AV. According to the facility’s Risk Reduction Plan, the staff persons were to use name-to-face counting of the children when crossing thresholds. The staff persons were to ensure that no children were out of sight and sound at any time. The staff persons were expected to do a “final check” whenever changing physical spaces. Facility documentation showed that P1, P2, SP1, and SP2 each received training on the Reporting of Maltreatment of Minors Act and on the facility’s policies prior to the incident. Relevant Rules and/or Statutes: Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A, state that a child must have supervision at all times and that supervision is defined as occurring when a program staff person is within sight and hearing of a child at all times so that the program staff person can intervene to protect the health and safety of the child.
Conclusion: A. Maltreatment: Information from all sources was consistent that on the afternoon of October 3, 2022, the AV was left on the facility’s fenced-in playground without the knowledge or supervision of a staff person for approximately three to eight minutes, which was a violation of Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A. Neither SP1 nor SP2 were aware that the AV remained on the playground when they took the other children into the facility, which was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and a violation of the facility’s policies and procedures. Being unsupervised in the facility’s playground which was visible to passersby gave the AV access to community dangers including unknown community persons, parking lots, businesses, and streets. Therefore, there was a preponderance of the evidence that there was a failure to supply the AV with necessary care and a failure to protect the AV from conditions or actions that seriously endangered the AV’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 and SP2 each received training on the Reporting of Maltreatment of Minors Act and the facility’s policies prior to the incident. SP1 and SP2 were each responsible for the supervision of the AV while on the playground. SP1 and SP2 were responsible for the 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 and SP2 were each responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident and the AV 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: The facility completed an internal review and determined that the facility’s policies were adequate, but were not followed by the staff persons. After the incident, the staff persons were retrained on name-to-face counting of children, threshold counts, and final check procedures. Action Taken by Department of Human Services, Office of Inspector General: SP1 and SP2 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 or SP2. The determination that SP1 and SP2 were responsible for maltreatment is subject to appeal. On December 2, 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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