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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: 1090712-CCC (Child Care Center) Investigator(s): Alice Percy Suspected Maltreatment Reported: It was reported that after an alleged victim (AV) kicked a supervisory staff person (SP), the SP kicked the AV three times and then slapped the AV three times. Date of Incident(s): October 25, 2022 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 18, paragraph (a), and subdivision 23, paragraph (a): "Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury. Summary of Findings: Pertinent information was obtained during a site visit conducted on November 16, 2022; from documentation at the facility; and through seven interviews conducted with four facility staff persons (P1 – P4), an administrative staff person (P5), the SP, and the AV’s family member (FM). The AV was five years old and enrolled in the preschool classroom at the time of the incident. According to the AV’s Behavior Intervention Plan, when the AV had “target behaviors” such as engaging in physical aggression with the other children or staff persons, including slapping, kicking, and pushing. The staff persons were to redirect the AV, encourage him/her to engage in quiet time activities or take a walk with a staff person, move the AV away from the other children, and to document the AV’s behaviors and the action taken by the staff persons. The FM stated that prior to the incident, s/he had no concerns about the care the AV received at the facility. The AV had no injuries after the incident. The AV no longer attended the facility. The AV’s classroom was located to the left of the facility’s main entrance as you entered the facility. A short hallway ran from the entryway to the classroom. Cubbies were located in the hallway to hold the children’s outerwear. On the opposite side of the entryway was a staff office area, which included the SP’s office. A second hallway ran from the main entryway to the rear of the facility and led to additional classrooms, the gym, and the door to the playground. Video cameras were located in the classrooms. According to the Incident Report, P5 watched a video recording of the incident from a camera located in the preschool classroom. P5 documented that the SP and the AV entered the classroom while the SP held the AV’s left arm. The SP sat on a chair and talked to the AV while holding both of the AV’s arms. The AV “wrestled multiple times” and then kicked the SP, who then kicked the AV three times. The SP then slapped the AV’s face three times before the SP pulled the AV toward him/herself and hugged the AV. The AV continued to wrestle against the SP as the SP talked to the AV. The AV dropped to the floor and the SP pulled up the AV’s pants, which had pulled down during the incident, to cover his/her underwear and “patted” the AV’s buttocks. The AV stood up and threw his/her coat at the SP and the SP stood, took the AV by the arm, and they both left the classroom. P1, P2, P3, P4, P5, and the SP, and the facility’s documentation provided the following information: · On October 25, 2022, P1 and P2 worked in the preschool classroom that included the AV. At approximately 10:40 a.m., P1 and P2 took the children to the hallway so that they could put on their outerwear prior to going outside to the facility’s playground. The AV did not want to put his/her coat on and began to have a “meltdown,” screamed, and ran down the hallway. P4 saw the AV run down the hallway away from the staff persons and followed the AV so that s/he could bring the AV back to his/her group. P4 picked the AV up and brought him/her back to the group. One of the staff persons “yelled” for the SP to assist them with calming the AV, as the other staff persons continued to assist the other children with putting on their coats in the hall. · The SP took the AV back into the classroom to keep the AV away from the other children until s/he calmed so that the AV did not harm the other children. The SP stated that the AV attempted to hit the other children as they walked by them, so the SP walked between the AV and the other children so that the AV could not hit them. As the SP and the AV entered the classroom, the SP closed the classroom door so the AV would not run back to the hallway. The SP sat in a chair and had the AV stand in front of him/her. The AV began to hit the SP and the SP “moved” his/her hand and “probably” hit the AV on his/her side or shoulder. The SP did not hit the AV hard and the AV did not “jump back,” but continued to “slap at” the SP. The AV kicked the SP and the SP “moved [his/her] foot” and told the AV not to kick him/her. The SP stated that s/he was unable to recall exactly what happened during the incident or if s/he actually kicked the AV, but said that s/he was “frustrated” with the AV. The SP watched the video and did not recall events. P1 stated that s/he heard the AV “screaming” and the SP talking while they were in the classroom. P2 and P3 did not recall hearing anything while the AV and the SP were in the classroom. · P1 believed the SP and the AV were in the classroom for “two to five minutes” before the SP took the AV from the classroom to his/her office. The SP stated that s/he waited approximately five minutes for the AV to calm and that the AV was “screaming and kicking” the entire time. As the AV walked by the other children, the AV grabbed another child by the shirt. P1 stated that the other children then grabbed the AV’s neck, causing a scratch on the AV’s neck. The SP moved the AV away from the child and continued walking with the AV to the SP’s office. · P1 and P2 took the other children outside to the playground. After a few minutes, the AV calmed and the SP took the AV to the playground to join the other children. At some point that afternoon, the AV told P1 that s/he had a scratch on his/her neck from when the other child grabbed him/her. None of the staff persons observed any other injury to the AV after the incident. The SP then talked to P5 about the incident. P5 stated that on the following day, the FM talked to P5 and told him/her that on the previous day, the AV told the FM that the SP hit the AV. P5 and the FM watched a video recording from the classroom, which showed that the SP hit and kicked the AV. The FM told P5 that s/he did not observe any marks or injuries to the AV. P5 talked to the SP, who told P5 that s/he had “gotten rough” with the AV, but did not recall hitting or kicking the AV. · P1 stated that s/he documented the separation of the AV from the other children. None of the staff persons had previous concerns about the SP’s interactions with the AV or other children and they believed the SP “worked well” with the children. The SP stated that s/he had never had any previous similar incidents with children.
· Consistent information was provided that the AV sometimes became upset and was “aggressive” with the other children and the staff persons. In the past, the AV had hit, bit, and kicked other children and staff persons. The staff persons developed a plan so that P4 or the SP could assist the staff persons when the AV became upset. The staff persons also worked with the school district on following an individual education program (IEP) for the AV, where a staff person would remove the AV from the group and give him/her time to calm. A video recording of the preschool classroom on October 25, 2022, showed that the SP and the AV were in the classroom for approximately from 10:35:24 to 10:36:36 a.m. The video had no sound and showed the following: · At 10:35:24 a.m., the AV and the SP entered the classroom and the SP sat on a chair near the door and held the AV by both upper arms as s/he appeared to talked to the AV. Another staff person was in the classroom and immediately left. · At 10:35:47 a.m., the AV began to struggle and tried to pull away from the SP. The SP’s grip on the AV moved from the AV’s upper arms to the AV’s lower arms and/or wrists. The AV then kicked at the SP and missed and then kicked the SP on the front left foot/ankle one time and the SP kicked the AV on the back/side left thigh. The AV kicked the SP a second time on the front of the SP’s tennis shoe and the SP kicked the AV on the front left shin. The AV kicked at the SP a third time but his/her foot went under the chair and did not make contact with the SP and the SP kicked the AV a third time on the front left shin/leg. · At 10:35:56, the SP let go of the AV’s right wrist and moved his/her hand to the AV chin and the AV moved his/her head backwards and went to grab/move the SP’s hand away from his/her face. The SP then slapped the AV on the face three times in a row with his/her left hand as the AV’s mouth appeared open and s/he continued to struggle and move his/her right hand towards his/her face and/or the SP’s hand. · At 10:36:03, immediately after slapping the AV’s face for the third time, the SP grabbed the AV’s right wrist. The AV pulled away as the SP continued to hold his/her right arm. The SP bent to pick up the AV’s coat that hand fallen to the floor but then pulled the AV back to him/her and put his/her arms around the AV in a hugging manner as s/he talked to him/her. · At 10:36:17, the AV leaned back against the SP and then dropped on his/her knees to the floor. As the AV lay there, the SP pulled the AV’s pants up to cover the AV exposed underwear and then the SP patted the AV’s buttocks. · At 10:36:25, the AV kneeled and turned, while picking his/her coat and throwing it at the SP. The AV then crawled away from the SP. The SP immediately stood up and followed the AV. The SP then used his/her right hand and grabbed the AV’s left arm, lifted the AV from the floor, and at led the AV out of the classroom while still holding the AV’s arm ending at 10:36:37 a.m. According to the facility’s Parent/Child Handbook, the staff persons were to provide a positive role model of acceptable behavior to the children. The staff persons were prohibited from using corporal punishment, including rough handling, shoving, biting, pulling hair, ear pulling, hitting, pinching, spanking, slapping, shaking, and kicking. Children were not to be separated from their group unless less intrusive methods of guiding the child’s behavior were tried and found to be ineffective and the child’s behavior threatens the well-being of the child or other children. Facility documentation showed that the SP, P1, P2, P3, and P4 each received training on the Reporting of Maltreatment of Minors Act and on the facility’s policies prior to the incident. Relevant Rules and Statutes: Minnesota Rules, part 9503.0055, subpart 1, item A, states that the license holder must ensure that the policies and procedures are carried out. The policies and procedures must ensure that each child is provided with a positive model of acceptable behavior and provide immediate and directly related consequences for a child’s unacceptable behavior. Minnesota Rules, part 9503.0055, subpart 3, item A, states that the license holder must have and enforce a policy that prohibits the following actions by or at the direction of a staff persons: Subjection of a child to corporal punishment, which includes, but is not limited to, rough handling, shoving, hair pulling, ear pulling, shaking, slapping, kicking, biting, pinching, hitting, and spanking. Conclusion: A. Maltreatment: On October 25, 2022, the AV ran away from the other children and staff persons as they put their coats on in the hallway and ran down another hallway. P4 followed the AV and brought him/her back to the group. The SP then took the AV into the classroom, sat on a chair and held the AV’s arms as s/he talked to him/her. The AV kicked/kicked at the SP four times and the SP kicked the AV in the left thigh/leg/shin three times. The SP then continued to hold the AV by the arms in front of him/her. The AV pulled against the SP’s hold and the SP slapped the AV’s face three times with his/her left hand. The AV then dropped to the floor, threw his/her coat at the SP, and crawled away from the SP. The SP stood, pulled the AV up by his/her arm, and they both walked out of the classroom as the SP held the AV’s arm. The AV did not sustain an injury. However, the SP’s actions of kicking and slapping the AV were not accidental; were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; were a violation of the facility’s policies; and violations of Minnesota Rules, part 9503.0055, subpart 1, Item A, and subpart 3, item A. Therefore, there was a preponderance of the evidence that kicking a child and slapping a child on the face represented a substantial risk of physical or mental injury to the AV. It was determined that physical abuse occurred ("physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury). 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 the SP, who was a supervisory staff person, received training on the Reporting of Maltreatment of Minors Act and on the facility’s policies prior to the incident. The SP was 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 abuse 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 any marks or serious injury during the incident. 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 SP. The SP no longer works directly with the children but in more of an administrative role. 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. In addition, on January 6, 2023, the facility received 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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