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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.”
1055385-CCC (Child Care Center) Investigator(s): Rebecca Mesto Suspected Maltreatment Reported: Allegation one: It was reported that on September 8, 2022, an alleged victim (AV1) was found in a room by him/herself and had been unsupervised for 30 minutes. Allegation two: During the investigation, it was also reported that on another, unknown prior date, two alleged victims (AV2 and AV3) were found unsupervised near the facility’s parking lot. Date of Incident(s): September 8, 2022 and an unknown date. 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 site visits conducted on September 21 and October 13, 2022; from documentation at the facility; and through 15 interviews conducted with ten facility staff persons (SP1, SP2, P1-P8), two administrative staff persons (P9 and P10), a family member (FM1) of AV1, a family member (FM2) of AV2, and a family member (FM3) of AV3. This investigator attempted to contact another staff person (P11) by phone and mail, but was unsuccessful. The facility had multiple classrooms located along various hallways. Each classroom was named after a country. The China room was a toddler room and it was a large open room with tables, chairs, toys and age appropriate equipment throughout. The China room was connected by a door which led to the Peru room. At the time of the incident, the Peru room was not utilized by children, but had previously been a toddler room. The Peru room had age appropriate equipment throughout. The facility’s Supervision Policy stated that “continual visual supervision” was necessary at all times. The facility’s Risk Reduction Plan stated that staff persons were to supervise children at all times while on the playground. Staff persons were to perform head counts when leaving their classroom to transition to the playground, while on the playground, and on the transition back to their classroom from the playground. Children were to be within sight and hearing of staff persons at all times. The facility’s Missing Child Policy stated that upon arrival, all children were to be signed into their classroom on an app and on the classroom roster. Staff persons were responsible for knowing how many children were in attendance at all times. Staff persons were to perform frequent head counts in the classroom. An incident report was to be documented and sent to the Department of Human Services within 24 hours. Facility documentation showed that all staff persons interviewed received training on the facility’s policies and the Reporting of Maltreatment of Minors Act. Allegation one: It was reported that on September 8, 2022, AV1 was found in a room by him/herself and had been unsupervised for 30 minutes. AV1 was 21 months old and was enrolled in the facility’s Greenland room, which was a toddler room. Consistent information from staff persons showed that the China room was one of the facility’s opening rooms. Parents dropped off toddler children from multiple toddler rooms into the China room, with typically one staff person. As staff persons arrived at the facility, they came to the China room to pick up the children on their roster and brought them from the China room into their assigned room. The facility had video cameras in the rooms and video footage from September 8, 2022, showed the following: · On September 8, 2022, at 7:10 a.m., SP1 and SP2 were in the China room with approximately nine children. The door to the Peru room was open. SP1 was comforting a child s/he was holding, SP2 appeared to be looking at something on a shelf near the door to the Peru room, some children were sitting at a table, and some were playing on the carpet. · At 7:10:15 a.m., AV1 walked in between SP1 and SP2 and went into the Peru room and another child (C), who was a sibling of AV1, followed him/her. · At 7:10:43 a.m., a parent walked in to drop off another child and SP2 walked toward the hallway door and held that child. · At 7:11:01 a.m., the C walked back into the China room, toward SP2. SP2, still holding a child, followed the C to the door to the Peru room door, and appeared to look into the Peru room, then closed the door, with AV1 in the Peru room by him/herself. The C sat and then lay on the floor and SP2 sat down at the table with some children. Then the C got up. · From 7:10 to 7:41 a.m., AV1 walked around the Peru room, sometimes going to the China room door and the hallway door, as well as playing with various toys and paper towel. At 7:41 a.m., P1 opened the hallway door and then walked across the room toward the door to the China room. At the same time, SP2 walked towards the Peru room door and P1 opened the door. Then SP2 walked into the Peru room and picked up AV1 and brought him/her into the China room. · From 7:11 to 7:41 a.m., in the China room, SP1 and SP2 were greeting other parents as they dropped off their children and they also interacted with children in various parts of the room. P1 stated that on September 8, 2022, s/he was walking in the hallway when s/he heard crying coming from the Peru room. When P1 went into the Peru room, s/he saw AV1 walking around, crying. P1 opened the door to the China room and told SP2 that AV1 was in the Peru room alone. SP2 said s/he had just heard crying also and was going to investigate. P1 stated that doors that were connected to other classrooms were typically closed throughout the day. P1 did not have any concerns with how SP1 or SP2 supervised children and was not aware of any similar incidents. P9 provided the following information: · After being informed of the incident, P9 viewed the video footage and talked to staff persons about the incident. On the day of the incident, prior to SP1 and SP2 being in the China room, P11 was working in the China room. P9 found that P11 did not check children into the app, as required. · Doors that adjoined classrooms to each other were supposed to be shut during the day, but sometimes the people who cleaned the facility at night left the doors open. · Staff persons were to supervise children within sight and hearing and were to position themselves in a way to be able to see all of the children in their care. · P9 did not have any concerns regarding how any of the toddler staff persons supervised children. P10 stated that staff persons were to complete “headcounts” of children in their group, especially when transitioning into different rooms or areas. Attendance was to be taken on the app that staff persons used. SP1 provided the following information: · SP1 stated that on the day of the incident, s/he and SP2 arrived in the China room at approximately 7 a.m. P11 had opened in the China room, but left shortly after SP1 and SP2 arrived. SP1 did not notice that the door to the Peru room was open. That day, there were “a lot” of children who were crying because some of them had just recently transitioned into different classrooms, so SP1 and SP2 were each holding crying children while attending to the other children in the room and while parents dropped off more children. SP1 did not know all of the children’s names, but recalled seeing that the C was upset, but s/he could not understand what the C was saying or why s/he was upset. · SP1 did not recall seeing AV1 in the China room when s/he arrived, but did remember seeing the C. SP1 was not aware AV1 went into the Peru room and did not hear him/her crying in there. · When SP1 and SP2 arrived in the China room, not all of the children who were in the room were checked in on the app. SP2 used the app to check in any additional children who arrived. The morning of the incident was “chaotic,” and SP1 did not communicate with P11 regarding how many children were there when s/he arrived. · Staff persons were to always know how many children were in their group. Children were to be supervised within sight and hearing and were never to be alone. SP2 provided the following information: · When SP2 arrived in the China room on the day of the incident, s/he saw that the door to the Peru room was open. SP2 “glanced” into the Peru room and did not see anyone, so s/he closed the door. SP2 checked the tablet and saw that not all of the children were checked in on the app. At a later time, SP2 heard crying from the door to the Peru room, and began walking towards the door as P1 opened the door and said AV1 was in there alone, crying. AV1 cried for a “little bit,” then was “fine.” At the time, SP2 and P1 did not know who AV1 was, so SP2 took AV1 into other toddler rooms to find where s/he was supposed to be.
· Prior to seeing AV1 in the Peru room, SP2 did not recall seeing AV1 in the China room. That day was “kind of chaotic,” because there were a “bunch” of new children who had started and they were crying and wanting to look out the window, so SP1 and SP2 had to hold various children. · Staff persons were to check children in on the app when they arrived and count children throughout the day. Staff persons were also to ensure doors were shut in the classroom. Children were never allowed to be alone. FM1 stated that on the day of the incident, sometime between 6:45 and 7:10 a.m., s/he dropped off AV1 and the C in the China room, earlier than typical, with a staff person (later determined to be P11) that s/he did not recognize. FM1 told P11 AV1’s and the C’s names and then left the room. At the end of the day, when FM1 picked up AV1, s/he was “fine,” but the next morning when FM1 dropped AV1 off, AV1 cried. The facility’s Attendance History showed that on September 8, 2022, AV1 was checked into the Greenland room at 8:14 a.m. Relevant Rules and/or Statutes: Minnesota Rules, part 9503.0045, subpart 1, item A, states that children are required to have supervision at all times. Minnesota Statute section 245A.02, subdivision 18, states that supervision means when a program staff person is within sight and hearing of a child at all times so that a program staff person can intervene to protect the health and safety of the child. Conclusion for Allegation one: A. Maltreatment: On the morning of September 8, 2022, AV1 was found in the Peru room by him/herself, which was a violation of Minnesota Rules, part 9503.0045, subpart 1, item A, and Minnesota Statute section 245A.02, subdivision 18. Consistent information was provided that in the mornings, several toddler groups used the China room as an opening room where parents dropped children off and later in the morning, the children separated into their own classrooms when additional staff persons arrived. The China room had a door that connected to the Peru room, which was an unoccupied toddler room. Throughout the day, connecting door were typically shut, but sometimes in the mornings, they were left open by persons who cleaned the building. On September 8, 2022, between 6:45 and 7:10 a.m., the FM dropped off AV1 into the China room with P11. When SP1 and SP2 each went into the China room at approximately 7 a.m., it was noticed that not all children were checked in on the app, but staff persons did not communicate with each other about how many children were in attendance. P11 left the room shortly after. Video footage showed that the door to the Peru room was open and at 7:10 a.m., AV1 went into the Peru room without the knowledge or supervision of SP1 or SP2. SP1 and SP2 were each holding a child and attending to other children at the same time, and each stated that they were unaware AV1 went into the Peru room. At 7:11 a.m., video footage showed that SP2 appeared to look into the Peru room, then shut the door, closing AV1 in that room by him/herself. At 7:41 a.m., P1 found AV1 in the Peru room, alone and crying, and opened the door to the China room as SP2 was also going towards the door. Given that AV1 was unsupervised in a closed room for approximately 30 minutes and staff persons were not aware of AV1’s whereabouts; and that AV1 was only 21 months and therefore was incapable of self-preservation or getting out of the building in the event of any emergency, there was a preponderance of the evidence that there was a failure to provide AV1 with the necessary care a and a failure to protect AV1 from conditions which could seriously endanger his/her physical or mental health. 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. 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. Although P11 was in the classroom when AV1 arrived to the facility and failed to log AV1 in the attendance app, P11 left the classroom approximately ten minutes prior to AV1 going into the Peru classroom unsupervised and SP1 stated that s/he did not communicate with P11 regarding how many children were there when s/he arrived. Therefore, P1’s responsibility was mitigated. SP1 and SP2 had each received training on the facility’s policies and the Reporting of Maltreatment of Minors Act prior to the incident. Although AV1, as well as other children, were not checked in by P11, as staff persons typically did, when SP1 and SP2 arrived in the China room and P11 left they each became responsible for the care and supervision of the children in the classroom, including AV1. Neither SP1 nor SP2 verified the classroom’s attendance and neither saw AV1 leave the China room and go into the Peru room before the door was shut. SP1 and SP2 were each responsible for maltreatment of AV1. 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 found responsible did not meet statutory criteria to be determined as recurring because it was a one-time incident and was not serious because AV1 did not sustain any injury as a result of the incident. Allegation two: During the investigation, it was also reported that on another, unknown prior date, AV2 and AV3 were found unsupervised near the facility’s parking lot. AV2 was approximately 20 months old and AV3 was approximately 16 months old and each were enrolled in the facility’s Greece room, which was a toddler room. The facility had three playgrounds, (a school-aged playground, a preschool playground, and a toddler playground) all of which were enclosed by chain link fence. The toddler and preschool playgrounds were located within the school age playground. A door in the facility’s hallway lead directly onto the school-age playground. Then approximately ten to twenty feet on the right, along the building, was a fence with a gate leading to the preschool and toddler playgrounds. The preschool playground and toddler playgrounds were separated by a fence with a gate. The toddler playground had a climber with a slide and there was an area toward the back of the playground where there was sand/dirt/woodchips on the ground. On the side of the toddler playground that was opposite of the building, was another gate leading to the school-age playground. The school-age playground was a very large space with a hill towards the back. On the left side of the school-age playground was a fence with three gates spaced throughout the side, each leading down a hill toward a parking lot. Near the parking lot was a stop sign which led to a frontage road and then to a main highway. The facility’s Internal Review for August 29, 2022, stated that on August 30, 2022, administrative staff persons were informed about an incident that occurred on the playground the prior afternoon around 4:30 p.m. Staff persons who were interviewed provided individual accounts of events, detailing an incident where two unnamed toddler aged children (later determined to be AV2 and AV3) were able to leave the toddler playground and were found outside of the toddler and school age fenced in area by P2, who was supervising preschool children on an adjoining playground. P3, P4, P5, P6, and P7 each were given verbal warnings about the importance of ensuring children stayed within the gates of the toddler playground, and that staff persons were to spread out on the playground and have at least one staff person supervise the gate areas. FM3 stated that on the afternoon of the incident, s/he went outside to the toddler playground to pick up AV3 and when s/he did not see AV3, FM3 asked an unknown staff person where AV3 was. That unknown staff person said that possibly another staff person had taken AV3 inside to change his/her diaper. FM3 told the staff person that s/he had just been inside and had not seen AV3 in there either. Another unknown staff person asked what was going on and the other staff person said AV3 was not there. Then, within five minutes, a staff person found AV3 and brought him/her to FM3 and told FM3 that AV3 and another child had “snuck” into another playground. FM3 was not aware that AV3 left the fenced in playgrounds or was found by the stop sign. FM3 did not have any prior or subsequent concerns regarding the care AV3 received at the facility. P2 stated the following: · On the afternoon of August 29, 2022, P2 and several other staff persons were on the school-age playground, supervising groups of children, when one of the children told him/her that there were two “babies” by the gate (that led from the school age playground to the parking lot). The child led P2 to the middle gate that led down the hill to the parking lot. The gate was open and P2 saw AV2 and AV3 near the stop sign at the frontage road. P2 ran down the hill and picked up AV2 and AV3 and brought them back up the hill and to the toddler playground. P2 saw there were four to six staff persons on the toddler playground, but P2 did not know most of their names. P3, who had been inside the building, saw P2 walking toward the toddler playground with AV2 and AV3 and told P2 that FM3 had been looking for AV3. P3 also noticed AV3 was missing a shoe so s/he and P2 went back towards the stop sign and found the shoe. Other toddler staff persons were unaware AV2 and AV3 had left the playground and said something to the effect of, “Oops, my bad.” · P2 estimated that AV2 and AV3 were “at least 100-300 feet” from the gate and may have been outside of the fenced in playgrounds for “a couple” minutes. When P2 initially brought his/her group of children out to the playground, P2 observed that all of the gates on the school-age playground were closed. · P2 stated that in the past, s/he noticed that toddler staff persons were sometimes on their phones, talking with one another, and/or “occasionally” engaging with the children. · P2 was unsure if children could fit through the toddler gate when it was chained together to the fence, but after the incident, the gate was “reinforced.” · Sometime after the incident, P2 talked to administrative staff persons about the incident. P3 provided the following information: · On the day of the incident, P3 and P4 were working in the Greece room with a group of 12 toddlers, including AV2 and AV3, and at 4:15 p.m., they all went outside to the toddler playground. The Greece room was the first room to go outside and they counted all 12 children at each gate. Other staff persons brought their groups of children outside to the toddler playground until all five toddler classrooms were outside. · At the time of the incident, there were five toddler classrooms using the toddler playground. P3 was unaware how many children in total, but stated that when s/he was getting ready to leave, the toddler classrooms had just dropped in ratio (1 staff per 7 toddlers), which enable him/her to leave. · At 4:40 p.m., when it was almost time for P3’s shift to end, P3 told P4 and P8 that s/he was going inside to change a child’s diaper. When P3 left the toddler playground, AV3 was playing in the dirt near the gate leading to the school-age playground. P3 saw that the gate was closed. P8 was standing near a window, P6 was standing by the dirt area, P5 was by the slide, P7 was sitting on a stool near the gate to the school-age playground, and P4 was also supervising the children. P3 was inside changing the child for five to six minutes and while s/he was inside, s/he saw that P4 had come inside, to use the restroom. FM3 came into the room and asked P3 where AV3 was, and P3 told him/her that AV3 was outside. Then, P3 brought the child s/he was changing back out to the toddler playground and FM3 asked toddler staff persons where AV3 was. Staff persons said that they were unaware what AV3 looked like so FM3 went back inside the facility. P3 was upset and started “yelling” at P5 and P6, asking them why they were standing by the gate and had not noticed it was “cracked” open. P3 then saw P2 walking towards the toddler playground with AV2 and AV3. P2 told P3 that s/he found AV2 and AV3 outside of the fence, down the hill. AV3’s shoe was missing and P3 went down the hill and found AV3’s shoe by the stop sign. When P3 brought AV3 to FM3, P3 “made up a story” that AV3 had been playing on the school-age playground, because P3 was “scared” to tell FM3 that AV3 had been outside of the fenced in area. P4 returned to the playground after AV2 and AV3 were found. · In the past, children were able to get out of the gates on the toddler playground. There was a latch on each gate that ensured the gate was closed and secured to the fence. There was also a chain at the top which also kept the gates closed, but P3 was unaware if the chains were there at the time of the incident or if they were added after the incident. AV3 was able to lift up the latch on the gate that connected to the preschool playground and sometimes was able to squeeze through the opening. · Staff persons were to have “eyes on” the children at all times, and children could never be alone. Attendance was tracked on an app. Children were counted children during transitions, before leaving their original destination and after arriving at their destination. P4 provided the following information: · On the day of the incident, P3 and P4 brought the children from the Greece room outside to the toddler playground, counting the children in the hallway and at the gate. After they arrived onto the playground, other groups of staff persons and toddlers came outside as well. At some point, P3 went inside because his/her shift was over and P4 also went inside to use the restroom. Before P4 went inside, s/he “yelled” to the other staff persons and told them s/he was going inside. P4 recalled seeing AV2 and AV3 by the gate, but was unsure if the gate was open or closed. P4 saw that P6 and P5 were also by the gate. Five minutes later, when P4 returned to the toddler playground, staff persons informed him/her of what happened with AV2 and AV3. · Staff persons were to have “eyes on” children and were to count how many children were in their attendance. Children were never to be outside of a staff person’s sight and hearing. P5 provided the following information: · P5 did typically not work in the toddler rooms, but sometimes helped in various rooms. On the afternoon of the incident, P5 and staff persons from four or five toddler rooms brought their classrooms outside onto the toddler playground. At some point, P6 told P5 that AV2 and AV3 left the toddler playground, but P5 did not see how or when the children left. P5 was not aware of FM3 asking where AV3 was that day. · The toddler gate that led to the school-age playground had a three to five inch gap at the bottom, where children could get out by crawling. P5 was unsure if any child had gotten out of the gate previously. · Children were to be within sight and hearing of a staff person and were never to be left alone. P6 provided the following information: · At the time of the incident, P6 was outside on the playground with a group of toddler children and there were “a lot” of other staff persons with other toddler groups outside as well, but P6 could not recall exactly which staff persons, besides P5, were outside or how many children were outside. P6 did not know who AV2 or AV3 were and could not recall seeing either of them on the playground, but said there were “a lot” of children on the toddler playground. P6 did not see AV2 or AV3 leave the toddler playground, but later, was informed by another staff person that they left and were brought back. One of the gates (P6 did not specify which one) did not close “properly,” which may have allowed enough room for a child to “slip through,” and after the incident, the gate was “fixed” with a chain. The gate at the back of the toddler playground was typically not utilized. · Staff persons were to have “eyes and ears” on the children at all times. Children were counted at transition times. Attendance was taken, typically, whenever any child was picked up. P7 provided the following information: · On the day of the incident at about 4:30 p.m., P7 brought his/her toddler group out to the toddler playground and two other toddler classrooms, including the Greece room, were already outside. Then two other classrooms of toddlers came outside to join them. There were “a lot” of staff persons and children. P3 had taken a child inside to the restroom. P7 did not know where P4 was at the time, but the other classrooms were outside on the toddler playground when FM3 came outside, looking for AV3. Staff persons could not find AV3 and P7 saw that the gate to the school-age playground was closed with the latch, but open enough so that a child could fit through. “A second later,” P2 brought AV2 and AV3 back to the toddler playground. Staff persons were unaware AV2 and AV3 were missing until FM3 came to look for AV3. The gates were closed the “whole time” that P7 was outside, but the gate to the school-age room had a “gap” due to uneven ground. After the incident, the gate and “gap” were fixed. · At the end of the day, five toddler classrooms typically combined outside on the toddler playground. P7 stated that when that many children and staff persons were outside at one time, with children being picked up by family members, staff persons got “confused” who was outside, which was a “red flag.” Staff persons did not know all of the children in the toddler rooms and having all of the classrooms out at the same time was a “chaotic mess.” All staff persons who were on the playground were responsible for all the children. All staff persons were able to use the tablets to check children out when they were picked up by their family members. · Children were to be in within sight and hearing of children at all times. Children were counted at transition times and when “a big amount” of children were being picked up by their family members. P8 provided the following information: · On the afternoon of the incident, P8 was on the toddler playground, with an unknown amount of staff persons and between 50 to 60 toddlers. P8 was near the climber, watching the gate to the preschool playground and recalled seeing AV2 sitting next to him/her at one point. P8 saw AV3 try to open the gate to the preschool playground, and when s/he was unsuccessful, AV3 went towards the back of the toddler playground to play. P8 could not recall exactly which staff persons were on the playground, but remembered that P3 had gone inside the building. When FM3 came to pick up AV3, P8 and other staff persons looked for AV3, but could not find him/her. P8 saw that there were two staff persons at that end of the playground and was unaware how or when AV3 and AV2 left the playground, but knows they did not leave through the gate to the preschool room, because s/he had been watching that gate. · The gate to the school-age playground had a “gap” that children could “squeeze” through, if staff persons were not supervising the gate. · Staff persons were to supervise the children within sight and hearing. Children were counted during transitions. SP1 stated that on the afternoon of the incident, SP1 had been on the toddler playground and then left for the day. Before SP1 left, s/he recalled seeing AV2 on the toddler playground at the gate to the preschool playground. The next day, P3 told SP1 about the incident. According to the facility’s Staff Attendance, on the day of the incident, SP1 left at 4:25 p.m. The facility’s Playground Schedule showed that on Mondays, Wednesdays, and every other Friday, the England and Greece classrooms were scheduled to use to the toddler playground from 3:40 to 4:40 p.m. On Tuesdays, Thursdays, and every other Friday, the Greenland classroom was scheduled to use the toddler playground from 3:40 to 4:40 p.m. The China, Peru, Norway, and Italy classrooms each were scheduled to use the toddler playground from 4:50 to 6 p.m. While outside, staff persons were to engage with the children and designate a staff person to “keep track” of the children leaving. P9 provided the following information: · P9 was not at the facility on the day of the incident. · Each toddler classroom had a playground schedule that indicated when they were supposed to go outside, which enabled a staggered presence on the playground. At around 4:50 or 5 p.m., when there may have been 40 toddler aged children remaining at the facility, all six of the toddler classrooms were on the toddler playground. · On the toddler playground, staff persons were to engage with the children and position themselves around the playground to supervise the children. Staff persons tracked attendance of the children on an app and when they were outside, staff persons were able to leave as ratios allowed. · P9 was not aware of any issues with the gates on the toddler playground and children being able to open them or go through them on their own. P10 provided the following information: · P10 was not outside at the time of the incident and was not aware of what happened until the next morning. P10 talked to staff persons and found that each staff person’s recollection of the incident was “a little different,” but staff persons provided consistent information that at the time of the incident, P3 was inside changing a child and P4 was inside using the restroom, and SP1 had just left for the day.
· From May to October, up to six toddler classrooms combined on the toddler playground in the afternoons, staggering their arrival from 4:15 to 4:30 p.m. At that time, there were typically 40 to 50 toddler children and staff persons began to leave as soon as ratio allowed. Staff persons were to check children out on the ipad when parents picked up, but sometimes the attendance was not accurate because staff persons checked out a few at a time, so they were not constantly on the ipad. · P10 was not aware if there was a maximum number of children who could be on the toddler playground at one time. · Staff persons were trained to have someone stationed by each of the gates and some staff persons were to be moving around the playground, monitoring for safety issues. The incident occurred sometime between 4:30 and 4:45 p.m., so some of the classrooms may have just transitioned to the playground shortly before AV2 and AV3 left the gate, and staff person’s duties on the playground may not have been established yet. · In June 2022, a work order was requested and completed, to add a chain on the gates because some of the toddlers could open the latches. At the time of the incident, there was a latch and a chain on the gates. After the incident, another work order was submitted because staff persons told P10 that the gap between the fence and the gate latch was growing “bigger over time.” The facility’s maintenance team installed a wider gate. FM2 did not have concerns about the care AV2 received at the facility, but found it “shocking” that AV2 was able to leave the playground without the knowledge of staff persons. The toddler playground measured 2608 square feet, which therefore determined the capacity for a maximum of 34 children on the playground at one time. Relevant Rules and/or Statutes: Minnesota Rules, part 9503.0040, subpart 1, states that the minimum staff to child ratio for the toddler room is one staff person for seven toddlers. Minnesota Rules, part 9503.0045, subpart 1, item A, states that children are required to have supervision at all times. Minnesota Statute section 245A.02, subdivision 18, states that supervision means when a program staff person is within sight and hearing of a child at all times so that a program staff person can intervene to protect the health and safety of the child. Minnesota Rules, part 9503.0155, subpart 7, item A states that a center must have an outdoor activity area of at least 1500 square feet, and there must be at least 75 square feet of space per child within the area at any given time during use. Conclusion for Allegation two: A. Maltreatment: On the afternoon of August 29, 2022, two toddlers, AV2 and AV3, were found outside of the facility’s fenced in playgrounds, unsupervised, which was a violation of Minnesota Rules, part 9503.0045, subpart 1, item A, and Minnesota Statute section 245A.02, subdivision 18. AV2 and AV3 were noticed by a school age child who was playing on the school age playground and the child told P2. P2 then found AV2 and AV3 by the parking lot and stop sign. AV2 and AV3 had been playing on the toddler playground and left toddler playground, walked across the school-age playground, through another gate, and down a hill to a stop sign near a frontage road without staff persons knowing they were gone. No staff persons on the toddler playground who were unaware AV2 and AV3 were missing until FM3 came to pick up AV3. It was likely that AV2 and AV3 were gone for approximately five minutes. Given that AV2 and AV3 were found outside of the facility’s fenced-in playgrounds, near a parking lot, at a stop sign near a frontage road, after being seen by a school age child who alerted a staff person who was not responsible for their care at the time and that toddler staff persons were unaware that AV2 and AV3 were missing, there was a preponderance of the evidence that there was a failure supply AV2 and AV3 with necessary care and a failure to protect AV2 and AV3 from conditions that seriously endangered their physical or mental health. 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. 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: (2) 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; (3) 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 (4) whether the facility or individual followed professional standards in exercising professional judgment. Facility documentation showed that all staff persons interviewed received training on the facility’s policies and the Reporting of Maltreatment of Minors Act. Staff persons interviewed provided consistent information: · That they were aware that children were to be supervised by sight and hearing at all times. Their procedure for tracking children was to count them at transition times and to track their attendance on the app; · That when they were on the playground at that time of the day, the afternoon, it was a busy time as family members picked up their children; · That it was common practice in the summer months for all five or six toddler classrooms to go outside in the afternoon and a staff person would leave as ratios allowed; · That at least one of the gates on the toddler playground had a gap where it was possible for children to maneuver through, even when the gate was closed; and · That no staff person knew exactly how or when AV2 and AV3 left the toddler playground or how long they were unsupervised. Prior to the incident, there were seven staff persons on the playground with an unknown number of children. There was no information provided that at the time of the incident, the facility did not maintain staff to child ratios when they were on the playground so it was likely that there were seven staff and between 42 and 49 children on the playground shortly before the incident. When SP1 left the toddler playground and clocked out at 4:25 p.m., s/he remembered seeing AV2 on the toddler playground at the gate to the preschool playground. Later, at the time of the incident, there were five groups of toddlers and six staff persons (P3-P8) who were supervising an unknown number of children on the toddler playground. (P8 stated that s/he was on the toddler playground with an unknown amount of staff persons and between 50 to 60 toddler.) Ratios in the toddler room were 1:7 and therefore, if six staff persons were on the playground, it was likely that there were between 36 and 42 children on the playground at 4:40 p.m., when P3 went inside to take a child to the restroom. P10, who was an administrative staff person/supervisor, stated that in the afternoons, it was common for up to six toddler classrooms, or 40 to 50 toddlers, to be outside on the toddler playground at once. P9 stated that the toddler classrooms were to stagger their time on the playground, but at approximately 4:50 or 5 p.m., there may have been approximately 40 children on the toddler playground. The toddler playground’s capacity was 34 children and the facility’s common practice in the summer months, allowed by supervisory and administrative staff persons, was to have over that amount of children on the playground during pick up time in the afternoon, which was a violation of Minnesota Rules, part 9503.0155, subpart 7, item A. Allowing more children than the area was designed for likely made the playground difficult to supervise. In addition, it was highly unlikely for each individual staff person to know all of the children from each of the five to six toddler classrooms that utilized the toddler playground at the same time in the afternoons, or where the children from their individual classrooms were at any given moment. Therefore, individual staff person responsibility was mitigated and the facility was responsible for maltreatment of AV2 and AV3. D. Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by a facility meets the statutory criteria to be determined as “serious.” 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 maltreatment for which the facility was responsible did not meet statutory criteria to be determined as serious because neither AV2 nor AV3 sustained 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 internal reviews. Regarding allegation one: The facility determined that their policies and procedures were not adequate and created a new policy regarding supervision. A new “name to face roster” was also in the process of being created. Staff persons received “coaching” to ensure all children were within sight and sound at all times and to ensure doors to adjacent classrooms were closed at all times. Staff persons were to be retrained on the new supervision policy and attendance roster was created. Regarding allegation two: The facility determined that their policies and procedures were adequate, but an addendum to the Risk Reduction Plan was to be added stating that “a staff member needs to be supervising the gated area at all times to ensure the children do not leave the playground area.” Staff persons did not follow the facility’s Playground Safety Policy and “at least four of the staff members” who were on the playground at the time of the incident did not see the children leave the toddler playground. The Risk Reduction Plan was not followed by staff persons when they when staff persons were not spread out to properly supervise all children. Staff persons each received verbal warnings. A new supervision roster and supervision policy were being created. 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 of that staff person. The determination that SP1 and SP2 were responsible for maltreatment is subject to appeal. On December 21, 2022, the license holder was ordered to forfeit a fine of $1000 as a result of the substantiated maltreatment for which facility was responsible. The maltreatment determination and the Order to Forfeit a Fine are each subject to appeal. In addition, it was determined that facility mandated reporters had knowledge of the alleged incident for allegation two and did not report the incident as required. The license holder was ordered to forfeit a fine of $200 for failure to report maltreatment. The Order to Forfeit a Fine is subject to appeal. 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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