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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: 800453-CCC (Child Care Center) Investigator(s): Lindsay Arth Suspected Maltreatment Reported: It was reported that an alleged victim (AV) was unsupervised on a playground for three minutes and that a community person found the child. Date of Incident(s): July 12, 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 August 10, 2022; from documentation at the facility; and through four interviews conducted with the AV, two supervisory staff persons (P1 and P2), and a staff person (SP). Attempts were made via phone and U.S. mail to contact and interview the AV’s family member (FM) but the attempts were not successful. Additionally, this investigator made an attempt to reach a community person (CP) regarding the incident. The CP and this investigator were not able to connect via phone but the CP left this investigator a detailed voicemail regarding the incident and that information is provided below. The AV was approximately four years old at the time of the incident and enrolled in the pre-k classroom. The AV enjoyed playing with toy cars, being outside, and spending time with his/her sibling. The facility had two playgrounds, including one for toddler aged children and one for preschool through school aged children. Both playgrounds were enclosed by a six foot tall chain link fence. The classrooms accessed the playgrounds via classroom doors that exited onto the playground. The preschool through school aged playground had various play areas, including slides and an enclosed tunnel. The playground faced the facility parking lot and there was a gate from the playground that opened to the parking lot. To open the gate, there was a latch near the top of the gate. Past the parking lot were multiple businesses and behind the facility, and separated by a fence, was a freeway. The CP said that on the date of the incident, the CP arrived to the facility to drop off his/her own child. As the CP was walking inside the facility, the CP heard the “sound of crying.” The CP then looked towards the playground, through the fence, and saw the AV crying. The AV was otherwise “fine.” The CP then went inside and told staff persons that the AV was outside and staff persons went “right out” to get the AV. The AV said that at some point, the AV was in a tunnel by him/herself on the playground and was “crying” because “no one want[ed] to play with [him/her].” However, the other children were also outside during this time. The AV said there were no times s/he was on the playground by him/herself. P1 and the Brooklyn Center Internal Review provided the following information: · On the morning of July 12, 2022, the school age and pre-K classrooms were combined with the SP. At 7:50 a.m., the classrooms went outside. At that time, there were “less than ten children” with the SP. · Around 8:27 a.m., the SP brought the children inside. The CP then arrived to drop off his/her child and at that time, the CP told a staff person that the AV was “alone” on the playground. The AV was crying but was not injured. Based on the time the SP’s classroom went inside to when the CP arrived, it was determined that the AV was unsupervised for approximately three minutes.
· Following the incident, P1 spoke to the SP who was “very upset with [him/herself] that the incident happened.” The SP told P1 that the AV was not part of his/her “initial group” when the classroom went outside. However, the AV arrived to the facility when they were outside (Note: The child supervision record (CSR) showed that the AV arrived at 8:14 a.m.) The SP said that s/he did name to face checks as they were going in. However, another child was dropped off around this time and the SP “got confused” and an “error was made” when conducting the CSR to transition inside. Because of this, the AV was left unsupervised on the playground as the class went inside. The CSR showed that the AV was not marked off on the CSR when they went inside which was an “oversight” during a “transition” time. · The playground was enclosed and the AV was not able to get out of the playground space. The playground gates were “always” closed via a latch and persons had to be “tall” to open them. The AV was not tall enough to unlatch the gate. P1 said that if a community person knew how to open the gate, they could access the playground. However, there were staff persons who “still could not figure out” how to open the gate. · The classroom doors were locked and the AV would not have been able to get back inside on his/her own. The next class was scheduled to go outside at 9 a.m. · Staff persons were trained to do name to face checks via the CSR every two hours. · There were no other similar concerns with the SP or the AV. P2 provided the following information: · P2 did not recall the date of the incident but on that date, P2 was bringing children who arrived to the facility to their classrooms. This included children to the SP’s classroom, who were outside on the playground. P2 told the SP when s/he brought the children outside so that the SP was “aware.” At some point when P2 brought children to the SP’s classroom, the SP was bringing children inside from the playground. The SP had the CSR in his/her hand and was telling the children to go inside but P2 did not see the SP using the CSR (Note: Although P2 did not see the SP using it, documentation from the CSR showed that all children, except the AV, were marked off on the CSR at 8:27 a.m., when the classroom went inside). No other staff person helped the SP bring the children inside, although another staff person (P3) arrived to the SP’s classroom shortly after (P3’s time entry showed that P3 arrived to the facility at 8:26 a.m. but it was not known what time P3 arrived to the classroom after signing in).
· P2 then went to the facility entrance to bring the CP’s children inside. At that time, the CP told P2 that a child was on the playground and was crying. P2 went outside and “heard” crying. P2 then saw the AV in the tunnel crying because the AV said that s/he “wanted [his/her sibling].” There were no injuries to the AV but the AV was “shaky.” P2 then took the AV inside to his/her classroom. The AV was “fine” shortly after P2 brought the AV inside. · P2 then asked the SP if s/he was aware that the AV was outside unsupervised and the SP said, “No.” The SP said that when s/he did the “count,” that the AV was present but that another child was trying to leave the group as they were going inside and that the SP was “distracted” with that child. · P2 thought that the AV was unsupervised for three minutes. P2 thought this because of the time the SP documented that the children came inside on the CSR to when the CP notified P2. · The name to face checks via the CSR were done every two hours and during transitions, which the SP was trained on.
· P2 said that risks to the AV being unsupervised included that the AV could have gotten “out of the gate.” P2 did not think that the AV could open the gate but said that “children surprise you.” The AV also could have “pushed” tables to the fence and the AV could have “climbed over.” However, a child had not left the playground prior. The gates were “latch[ed]” but did not have locks. A person from outside the playground could open the playground gate. · P2 did not have concerns with the SP’s supervision of children prior to the incident. The SP provided the following information: · The SP did not recall the date of the incident but on that date, the SP took his/her classroom outside. The SP was the only staff person and the SP “probably [had] eight or nine” children and was in ratio. The SP did not recall the time they went outside but said that they typically went outside around 9 a.m. The AV had not yet arrived to the facility. However, at some point when they were outside, the AV and his/her sibling arrived to the facility and came outside. The SP did not recall who brought the AV outside. The SP then “wrote” the AV and his/her sibling on the CSR. The SP said that s/he was still within ratio at that time. · At some point, the SP was “gathering” the children, including the AV, near the classroom door to go inside. Staff persons typically had the children line up prior to going inside and staff persons did a name to face count and then watched the children walk into the classroom. The SP did that on the date of the incident but was also assisting another child who did not want to line up. The SP then documented the count on the CSR checklist and the AV was on the checklist. When this investigator told the SP that there was information that the SP did not use the CSR checklist, the SP said that it “could have happened.” However, the SP typically used the checklist. · The SP then went inside and around this time, P3 arrived to the facility. The SP and P3 then did a head count and the SP realized that s/he was “missing somebody” but did not know who s/he was missing. P2 then brought the AV inside and said that someone found the AV unsupervised in the tunnel. When the SP heard that the AV was unsupervised, the SP was “scared.” However, the AV was not injured but was a “little scared” due to being left outside and was crying for a “couple minutes.” The SP said that there were no risks to the AV from being unsupervised outside. The AV was not able to open the playground gates as the AV was “short” and the gates were “taller” than the AV. · The AV was left unsupervised for two to three minutes. · The SP did not typically work in the AV’s classroom. At the time of the incident, the AV’s sibling was also outside and had similar hair to the AV so the SP thought that the AV went inside. The CSR Teacher Training said that the safety of the children was staff persons “first priority.” The CSR’s along with “thoughtful transitions [were] critical for creating a great experience” for staff persons and children while keeping children safe. The CSR’s were a document used to track where children and teachers were throughout the day. Staff persons were to check the “name to face” every two hours and “every hour at pick up time.” Transitions made up most of the day in the classroom which was why transitions were “such a large part of the CSR.” Transition times were most frequently times where children were left unsupervised. The CSR had name to face transition checks and a “transition” column.” The transition columns allowed staff persons to check a box to acknowledge that the child was present at the start and end of a transition. The undated Challenging Times said that the opening staff person was to create the CSR for each classroom. The staff person was to sign children into their respective CSR’s as the children arrived. The Child Care Center Risk Reduction Plan said that children could be potentially left unattended. Children could exit the playground/fenced area into the parking lot or street through gates without supervision. Staff persons were to position themselves to ensure children were never out of sight and sound. Staff person were to use the children supervision records to take regular attendance. The CSR’s promoted keeping regular and accurate attendance and establishing accountability for children in attendance and keeping children safe. Facility documentation showed that the SP, P1, and P2 each received training on facility policies and procedures, including the Reporting of Maltreatment of Minors Act and the risk reduction plan. Related Rules and/or Statutes: Minnesota Statutes, section 245A.02, subdivision 18; and Minnesota Rules, part 9503.0045, subpart 1, item A, stated that staff persons were to be within sight and hearing of a child 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: The SP, the CP, P1, and P2 provided consistent information that on July 12, 2022, the AV was left outside on the facility playground unsupervised and without a staff person’s knowledge, for approximately three minutes. Although the AV was not injured, leaving the AV unsupervised was inconsistent with the facility’s policies and procedures and a violation of Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A. Given that the AV, who was approximately four years old, was outside unsupervised without the knowledge or supervision of staff persons, and that the AV had access to dangers including community persons entering the playground or the AV exiting the playground which was accessible to community dangers, there was a preponderance of 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. The SP was responsible for the care and supervision of the AV at the time of the incident. However, there was no other staff person working in the classroom and because the SP was a child care aide, s/he not allowed to work 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 the SP’s responsibility because, the SP received training on the facilities policies and procedures, including the Risk Reduction Plan and the Reporting of Maltreatment of Minors Act. The SP was 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 the SP was 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 policies and procedures were adequate but not followed by the SP. Staff persons were retrained on the CSR, including “engaging transitions,” name to face checks, and accountability around transition times. The incident was not similar to any prior incidents. Action Taken by Department of Human Services, Office of Inspector General: The SP was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, the SP 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 of the SP. The determination that the SP was 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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