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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: 1082346-CCC (Child Care Center) Investigator(s): Alice Percy Suspected Maltreatment Reported: It was reported that an alleged victim (AV) was left unsupervised on the facility’s playground by two staff persons (SP1 and SP2) for approximately five minutes. A parent of another child saw the AV on the playground and told a staff person that the AV was outside. Date of Incident(s): September 20, 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 3, 2022; from documentation at the facility; and through four interviews conducted with a facility administrative staff person (P), SP1, SP2, and the AV’s family member (FM). The AV was three years old and enrolled in the preschool classroom at the time of the incident. The facility was located on a corner of a four-lane street and a two-lane street that each had a posted speed limit of 30 miles per hour (M.P.H.) in a busy urban area with several businesses surrounding the facility. The facility had a main door was located on the two-lane street with the preschool playground was located to the side of the building. The playground was accessed by doors opening directly onto the playground from several of the facility’s classrooms, including the AV’s classroom. The playground area was enclosed by a metal railing fence. A gate gave access to the facility’s parking lot, which was also located at the back of the building along the sides of the playground. The latch to the gate was high on the outside of the gate and not accessible to any child inside the playground. A sidewalk ran along the gated side of the fence from the parking lot to the main entrance of the facility. A large climbing structure was located in the middle of the playground and included two towers, an elevated walkway, and two slides. Persons driving, walking, or riding by the facility or parking in the parking lot could see into the playground. A video camera was located on the end of the facility overlooking the playground. A video recording from the time of the incident showed the following: At the beginning of the video, the time stamp was 4:10:00 p.m. SP1 and a group of children were on the playground. At 4:11:10 p.m., SP2 opened a door nearest the camera and walked onto the playground with three children. At 4:12:01 p.m., SP2 opened a different door and took one child into the facility, leaving SP1 with the other children on the playground. At 4:12:57, the AV was seen crawling on the ground from the back of the climber to the side nearest the camera and lay on the ground. At 4:13:12 p.m., SP2 returned to the playground with the child. At 4:14:00 p.m., SP2 opened a third door (the classroom door), walked into the classroom, and held the door as the children gathered and entered the classroom. At 4:14:26, SP1 walked into the classroom while there were still children on the playground. The children continued to gather at the door and walk in. At 4:14:33 p.m., SP1 walked back outside and to the climber where s/he picked up a child and then went back to the door and entered the classroom as SP2 held the door open. At 4:15:12 p.m., SP2 came out t and picked up another child who was near the gate and at 4:15:33 p.m., SP2 and the child entered the building and the door closed. A few seconds later, SP2 opened the door briefly, took something from the outside handle, and then reclosed the door. At this point, the AV continued to lay next to the climber on the ground. At 4:16:10 p.m., a car pulls into the parking lot and stops next to the gate putting the car flasher lights on. The AV stood and walked around the back of the climber towards to side of the playground facing the street. At the same time, the driver of the car got out of the car and walked on the sidewalk near the AV towards the main entrance to the facility. At 4:16:52 p.m., the AV comes back into view walking around the front of the climber as a car pulls out of the parking lot in the direction of the street and stops to park. The AV appears to look at the car and then continued to the classroom door where s/he looked in the window. At 4:1:06, a person gets out of the car and walks towards the main entrance of the facility. The AV continues to look in the window until 4:17:31 when s/he turned and walked away. At 4:17:41 p.m., the AV walked to another door and looked in and at 4:17:53 p.m. the AV walked away from that door and by the climber where s/he sat down next to the climber where s/he previously sat. At 4:18:49 p.m., the two persons who previously went into the facility, came out with their respective children got in their cars. The second car starts to back up to leave but then the person gets out of their car and walked back towards the facilities main door. At 4:20:13 p.m., the AV stood and walked to the front of the climber as the P comes into view outside fence nearest the two lane road/main entrance of the facility. At 4:20:27 p.m., the P entered the playground from the gate and at 4:20:34, a staff person opened the classroom door and the AV and the P entered the classroom. [The entire time the classroom and/or the AV were on the playground, cars and pedestrians were passing on the street and cars were entering and leaving the parking lot.] The FM stated that the facility informed him/her about the incident. Prior to the incident, the FM had concerns about the care the AV received at the facility when the AV sustained an injury to his/her fingernail. SP1, SP2, and the P, and the facility’s documentation provided the following information: · On September 20, 2022, at approximately 3:15 p.m., SP1 and SP2 took 16 children to the facility’s playground. At approximately 4:15 p.m., SP1 and SP2 told the children that it was time to return to the classroom. SP2 entered the classroom and held the door for the children to enter the classroom. SP1 picked up a child and carried him/her into the classroom. SP2 then walked onto the playground, picked up a child, and carried him/her into the classroom. Once SP1 was in the classroom, a child began to cry and SP1 comforted the child and gave him/her water. When SP2 entered the classroom, SP1 believed all of the children were in the classroom and did not go back to the playground to ensure all the children were inside. SP2 said s/he asked SP1 if “that was all the kids” and SP1 told SP2 that it was. · The P stated that s/he was working in the infant classroom when the parent of another child entered the classroom and told the P that a child was on the playground alone. The P went to the playground and found the AV, who was crying. SP1 stated that s/he heard a “commotion” in the hallway between the P and a child’s family member. SP1 then saw the AV standing outside the classroom window and went to the door to the playground as the P entered the playground from the gate. SP1 opened the classroom door and took the AV into the classroom. The P followed them inside and asked SP1 and SP2 how many children they were supervising. SP1 and SP2 then began to count the children and the P told them that they should know how many children were in their care at all times. SP1 stated that the AV was not crying when s/he brought the AV into the classroom, but looked “concerned.” · SP1 stated that on the day of the incident, persons/he did not count the children prior to taking them into the classroom from the playground and s/he did not believe that s/he counted the children once they were inside the classroom. SP1 did not know why s/he did not count the children. SP1 stated that the staff persons had a computer app that listed the children in each classroom, but on the day of the incident, s/he did not use the app. SP2 stated that s/he typically counted the children after they returned to the classroom and that on the day of the incident, the children were “moving around so the numbers were off.” Prior to leaving the playground, a staff person typically walked around the playground to ensure there were no children left on the playground. SP1 stated that on the day of the incident, neither s/he nor SP2 checked the playground prior to entering the facility. SP1 and SP2 each believed the AV was unsupervised on the playground for approximately five minutes. · SP1 stated that when it was time to return to the classroom from the playground, s/he typically had the children line up at the door, where s/he counted them, and then had them go into the classroom, where s/he counted them again. At times, not all of the children wanted to line up and the staff persons had to bring some of the children to the door. The P stated that the staff persons should have the children hold on to a rope when they transitioned from one area to another so that it was easy to see how many children were present. SP1 and SP2 did not have the children hold onto the rope that day. · SP1 stated that the gate to the playground was locked and had an alarm on it. The children were not able to reach the latch to open the gate. SP1 and SP2 each stated that the AV sometimes played “hiding games.” According to the facility’s Welcome to Day One training, all children must be within sight and hearing at all times and children must never be left unsupervised. The staff persons were trained to always know “the exact number of children you are responsible for, their names, and where they are at all times.” In addition, children “must always be supervised on the playground.” Attendance was to be taken by both counting and name to face recognition during major transitions, including going outside and going back into the facility or when leaving one area and arriving at another. SP1’s and SP2’s job descriptions were signed by each respectively and showed that they were both child care aides. The first principal duty and responsibility stated, “Supervise and ensure the safety and well-being of children at all times, being alert to the needs and/or problems of the children as individuals and as a group.” Facility documentation showed that SP1, SP2, and the P each received training on the Reporting of Maltreatment of Minors Act and the facility’s policies prior to the incident. A request was made for the Unqualified Sub List and this investigator was told that the facility did not have one. 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. Minnesota Rules, part 9503.0040, subpart 2, states that the license holder must ensure that staff distributions are met. Conclusion: A. Maltreatment: Information from all sources was consistent that on the afternoon of September 20, 2022, the AV was left on the facility’s fenced-in playground without the knowledge or supervision of a staff person for approximately five 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. At the time of the incident SP1 and SP2 were each responsible for the supervision of the AV while on the playground. However, there was no other staff person working in the classroom and because they were child care aides, SP1 and SP2 were not allowed to work together without a teacher and/or assistant teacher. This was a violation of Minnesota Rules, part 9503.0040, subpart 2. The facility’s failure to ensure staff distributions were met does not mitigate SP1’s or SP2’s responsibility because 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; and SP1 and SP2 each signed their job descriptions where the first principal duty and responsibility stated in part, “Supervise and ensure the safety and well-being of children at all times . . .” SP1 and SP2 were each 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 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. 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 November 30, 2022, the facility was issued a Correction Order for the violations 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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