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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: 1060203-CCC (Child Care Center) Investigator(s): Danielle Morrison 651-431-5647 Suspected Maltreatment Reported: It was reported that a staff person (SP) hit an alleged victim’s (AV’s) backside with a shoe to go to sleep. Date of Incident(s): March 16, 2023 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 March 27, 2023; from documentation at the facility; and through six interviews conducted with two supervisory staff persons (P2 and P3), two facility staff persons (the SP and P1), the AV, and the AV’s family member (FM). The facility had one large preschool room split into two sides (east and west). During naptime cots were placed on rugs in the classroom. The facility had video cameras in the classroom that had a direct view of the rugs the cots were on during naptime. On the date of the incident the AV’s cot was on the east side of the classroom. The AV said, “A teacher pats my back really hard, and it will hurt.” “[Him/her] pat really hard and I said, ‘ow’ and then I cried, and then everyone open their eyes and they say shut up every times.” P1 stated that on March 16, 2023, s/he was in the classroom with the AV and the SP during naptime, around 12:45 p.m. The SP had his/her back to P1 and P1 was rubbing two children’s backs. P1 stated that the AV was crying and not wanting to go to sleep. The SP told the AV, “You are okay,” “You are keeping my friends up,” and “You are being a crybaby.” The SP was seated on the floor and was trying to get a child next to the AV asleep, then the SP reached over that child and tried to pat the AV and “stomped” on the AV’s back with his/her foot three times and then a couple of minutes later, took off his/her “Croc” (a lightweight, extremely comfortable foam clog) and “hit” the AV on his/her back with that four times causing the AV to cry more. P1 said s/he could tell the SP was “frustrated” with the AV because the SP kept sighing, the SP’s face was red, the SP kept looking back at P1, and saying “I’m about to…,” and then grunted. P1 went over to calm the AV. P1 did not say anything to the SP. P1 went on his/her 30-minute break, and when s/he returned and when P3 came into the classroom, P1 told P3 about what s/he saw. P3 stated that when s/he returned to the classroom after his/her break, P1 spoke to P3 and provided information that was consistent with the information P1 provided during his/her interview. P3 went to the office and talked to P2 about what P1 said. P3 watched the video footage and saw the SP reach his/her foot over another child and “aggressively pat [his/her] foot on [the AV’s] back ‘really hard’ and then took [his/her] shoe off and hit [the AV’s] back ‘really hard’.” P3 thought it was at least three times if not more for each occurrence. P3 stated that P1 stepped in and calmed the AV by rubbing his/her back and got the AV to sleep. P3 stated that the SP seemed “kind of irritated” with the AV and that it did not look like the AV was doing anything other than not going to sleep. P2 stated that s/he was notified of the incident by P3. P2 reviewed the video footage and saw the SP reach over another child on a cot and use his/her foot to pat the AV. P2 said it looked like the SP was “kicking [the AV]” at least four times. The SP then used his/her shoe to pat the AV. P2 said it was tough to determine from the video if it was a “pat or a hit” but either way it was not appropriate. When P2 spoke with the SP about what happened, the SP “hesitated” and “kind of denied” it, so P2 offered to show the SP the video, but the SP declined and then left the facility. The FM said that the AV did not complain of any pain and there were no bruises on the AV. The FM had no previous concerns. The SP stated that on March 16, 2023, between 12:30-1 p.m., s/he covered the AV with a blanket and it “accidentally” went over the AV’s face and the AV started screaming. The SP asked the AV to be quiet because others were trying to sleep. The AV started to calm, so the SP went to two other children to pat their backs. The SP was only one child away from the AV when the AV started getting louder. The AV was lying face up and because the SP was rubbing two other children’s backs, the SP put his/her leg across one of the children to “lightly” pat the AV’s stomach once with his/her shoe and then rubbed the AV’s stomach with his/her foot because that was the only part of the SP’s body s/he could use. The SP stated that s/he took off his/her shoe because the room was hot, and it accidentally hit the AV in the face. The SP stated that s/he did “pat” the AV’s stomach twice with his/her shoe while in the SP’s hand but did not do it “hard.” The SP then asked P1 to “take over” with the AV. P1 came over, calmed the AV, and the AV fell asleep. The SP went on break at 1:30 p.m. and when s/he returned at 2 p.m., s/he was asked to come to the office by P2 and another supervisor. The SP stated that they had “weird looks” on their faces like “disgusted.” P2 explained everything and the SP became “teary-eyed.” The SP was asked if s/he wanted to see the video and the SP said, “No,” because s/he was already getting “depressed.” When asked what the video would show, the SP stated that it would show the SP patting the AV’s back with his/her hand and foot and that is “all that happened.” The SP denied calling the AV a “crybaby.” The SP denied “hitting” the AV on the AV’s back and did not recall that s/he used his/her foot or shoe seven times on the AV. This investigator reviewed the video footage and saw the SP sitting between two cots sitting with his/her legs crisscrossed in front of him/her rubbing two children’s backs. The AV was one cot over from one of the children the SP was seated between. The AV was lying face down on his/her cot covered with a blanket. There was no sound on the video. At one point the SP looked at another child who was kneeling on his/her cot, then the AV moved his/her arms and the SP looked in the AV’s direction. After 20 seconds, the SP rearranged his/her legs and lifted his/her right leg over the child next to the AV, whose back the SP was rubbing, and proceed to bring his/her foot down on the AV’s buttocks/hip area seven times in a matter of five seconds. The SP’s actions caused the AV’s body to bounce. The SP then sat there and recrossed his/her legs and after six seconds took off his/her left “Croc” and used that to “hit” the AV’s bottom seven times in a matter of four seconds again causing the AV’s body to move. The SP then appeared to say something to the AV and after nine seconds the SP “hit” the AV one last time with his/her “Croc” on the AV’s lower back. The SP then appeared to be upset as s/he waved his/her hands up and down several times and then turned to say something and/or yell to someone behind him/her in the room. When the SP was talking his/her head aggressively moved back and forth twice and then s/he used his/her hand to point/gesture. During this time the AV appeared to take some deep breaths and then lifted his/her head and put it in his/her hands. P1 came over to sit by the AV and rub his/her back. Also during the entire incident, the other child who was kneeling on his/her cot, watched the SP’s actions and at times stood up on his/her cot, eventually getting off the cot and walked near the SP eventually hugging the SP from behind. The facility’s Family Handbook stated that “each child is provided with a positive model of acceptable behavior” and “prohibited actions, subjection of a child to corporal punishment, which included but not limited to: kicking, hitting, and spanking.” The facility’s Child Behavior Process stated that “staff [persons] are aware if they are unable to assist a child in their unacceptable behavior, they are encouraged to seek assistance from coworkers and/or management immediately and remove themselves from the situation until [the] child is under control to avoid any possible corporal punishment.” Facility records showed that the SP, and P1-P3 were trained on behavior guidance and the Reporting of Maltreatment of Minors Act. Relevant Rule and/or Statute Minnesota Rules, part 9503.0055, subpart 1, item A, states that facilities must ensure that each child is provided with a positive model of acceptable behavior. Minnesota Rules, part 9503.0055, subpart 3, item A, prohibits the use of corporal punishment including but not limited to in part, rough handling, kicking, hitting, and spanking. Conclusion: A. Maltreatment: On March 16, 2023, between 12:30-1 p.m., P1 saw the SP reach over a child and try to pat the AV and “stomped” on the AV’s back three times and then took off his/her “Croc” a couple minutes later and “hit” the AV with that four times. P1 said s/he could tell the SP was “frustrated” with the AV because the SP kept sighing, the SP’s face was red, and the SP kept looking back at P1 and saying, “I’m about to…,” and then grunted. The SP stated s/he used his/her foot to reach over a child who was lying on their cot, to “pat” the AV’s stomach once to calm him/her down. The SP then removed and used his/her shoe to “pat” the AV on the stomach twice, but it was not “hard.” The SP denied “hitting” the AV on the AV’s back and did not recall using his/her foot or shoe seven times on the AV. Although the SP denied the actions, given that there was video footage of the incident showed the SP bringing his/her foot down on the AV’s back seven times causing the AV’s body to move and then used his/her shoe a total of eight times to “hit” the AV on the buttocks and lower back, there was a preponderance of the evidence that the SP engaged in the aforementioned actions. The SP’s actions were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services, and violations of Minnesota Rules, part 9503.0055, subpart 1, item A; and subpart 3, item A. There was no information provided that the AV sustained an injury but given the manner that the SP’s foot and shoe came into contact with the AV, and that the SP’s actions caused the AV’s body to move, there was a preponderance of the evidence that the SP’s actions were not accidental and represented a substantial risk of physical injury. 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. The SP was trained on behavior guidance and the Reporting of the Maltreatment of Minors Act. The SP was responsible for the care of the AV at the time of the incident. Therefore, 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 physical 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 that did not result in an injury to the AV. 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 found their policy and procedures adequate, but not followed by the SP. The SP no longer worked at the facility. 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 May 19, 2023, 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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