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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: 1089323-CCCC (Certified Child Care Center) Investigator(s): Kyle Youker/Anna Parkin 651-431-4056 Suspected Maltreatment Reported: It was alleged that a staff person (SP) held an alleged victim (AV) face down on the floor, causing abrasions to the AV’s face. Date of Incident(s): February 17, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2); subdivision 18, paragraph (a); and subdivision 23, paragraph (a): 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. "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 for this investigation was obtained remotely, including documentation from the facility and law enforcement records; and through four interviews conducted with the AV’s family member (FM), a facility staff person (P1), a supervisory staff person (P2), and the SP. The AV was seven years old at the time of the incident. The AV was interviewed by a law enforcement officer (LEO) and was not reinterviewed by this investigator. The facility was in a school located in a single-family residential neighborhood and provided care for children before and after school and on non-school days. The incident occurred on a non-school day. The interior of the facility had classrooms and a gymnasium connected by long hallways. The front side of the facility had a sidewalk, parking lot, and a front door with a vestibule in between two sets of glass doors. On the other side of the front door was a playground with a basketball court. The FM provided the following consistent information to the LEO and this investigator: · The AV had past “behavior issues” where s/he would get “physical” with staff persons and other children and was “aggressive.” In the past, when the AV was throwing things and staff persons tried to intervene and grab the AV, the AV pushed and kicked staff persons. · The morning of February 17, 2023, when the AV was dropped off at the facility s/he did not have any injuries or marks on his/her face. Later that day, at an unknown time, the SP called the FM requesting that the FM pick up the AV from the facility. The FM arrived at the facility within 15 minutes of the SP’s phone call. · When s/he arrived at the entry, the FM saw the SP “holding” the AV on the floor in the vestibule. The FM stated the AV was on his/her stomach and the SP was holding the AV’s hands behind his/her back, while s/he was sitting on the side of the AV. The SP and the AV were the only two people in the vestibule when s/he arrived. · The FM told the AV to “calm down” so the SP would let him/her go, but the AV was “scared” and initially did not calm. The SP eventually let go of the AV. The FM did not know how long it had been between his/her arrival and when the SP let the AV go. The FM stated the SP was “quiet” and not verbally trying to calm the AV. · When the SP released the AV, the FM “held” the AV while the AV was “bawling” and telling the SP that s/he hurt him/her. The FM stated the SP “argued” with the AV that s/he had not hurt him/her. The AV told the FM that the SP pushed him/her against the wall and drug him/her on the floor. · The FM stated the AV’s face was “red” from being upset and the AV had “rug burn” on one of his/her cheeks and part of his/her forehead. The AV was also bleeding from the cheek and forehead. The AV later told the FM his/her face was sore, but the FM did not take the AV to a doctor for his/her injuries. · The SP then walked out of the vestibule and got the AV’s sibling and belongings to leave the facility for the day. The SP did not have any further interaction with the FM after s/he walked out of the vestibule. The FM and the AV did not go further into the facility after the SP left the vestibule. The law enforcement report provided the following information:
· On February 20, 2023, the LEO spoke to the AV, who also provided consistent information to the FM on the date of the incident. The AV stated that on February 17, 2023, s/he was on the playground and hit another child because s/he believed the child was cheating. A staff person saw and then the AV threw an ice chunk at the staff person. The other children then went inside, and the SP came out to the basketball court. The AV hit and kicked the SP. The SP then put the AV’s arms behind the AV’s back and held them while walking the AV inside to the front door. The AV stated the SP made him/her sit down because the AV was repeatedly “attacking” the SP. The AV stated s/he kicked the SP about 10 times. Then the SP forced the AV onto his/her stomach and sat on the AV’s legs. The SP “drug” the AV back and forth while the AV was on his/her stomach. The SP’s actions caused the AV pain and the AV said s/he was frightened. · On February 21, 2023, the LEO spoke to the SP’s child (C) who was present during the incident. The C stated that s/he was a volunteer at the facility. (Note: Although the C stated that s/he volunteered at the facility, the C was 13 years old, which was within the age range of children served by certified license-exempt centers. As such, the C was not a volunteer.) The C stated on February 17, 2023, s/he was outside, saw the AV hit the SP with an ice chunk. The AV also punched and kicked the SP multiple times. The C stated the SP “restrained” the AV’s arms behind his/her back and “escorted” the AV into the vestibule. While in the vestibule, the SP tried to have the AV sit down two or three times, but the AV kept standing up to punch and kick the SP. The SP then put the AV onto his/her stomach and sat on the AV’s legs while holding the AV’s arms behind his/her back. The C said the SP did this so that the AV would not hurt himself/herself or someone else. A short time later the FM arrived. · On February 22, 2023, the LEO spoke to P3. P3 stated s/he was inside with children when P1 contacted him/her via a walkie-talkie and went out to the playground to assist with the AV on the playground. P3 stated s/he did not see the interaction between the SP and the AV. · The LEO provided this investigator with a photograph of the AV’s face. The photograph showed two abrasions: one above the AV’s left eyebrow and the other below the AV’s left eye, on his/her cheek. · The LEO provided this investigator with two photographs of the SP. The first photograph was of the top of the SP’s left hand. There appeared to be a small red mark on the hand of the SP. The second photograph was of one of the SP’s legs with what appeared to be a scar leg that appeared to be older than one week. · The LEO forwarded the case to the county attorney for review of possible charges. The SP provided the following consistent information to the LEO and this investigator: · The AV had past “behaviors” at the facility and at school that were “aggressive” and “outbursts,” but the facility did not have any written plans to help mitigate the AV’s “behaviors.” The SP stated s/he was not given any behavioral guidance by the facility. · On February 17, 2023, at around 12:00 p.m., some of the children, including the AV, were told it was time to go outside to the playground. At that time, the SP went home to eat lunch while P1 brought the children to the playground. The C was at the facility for the entire day and was initially on the playground with the group. · When the SP returned to the facility s/he received a call from P1 on the walkie-talkie asking for assistance because the AV was throwing ice chunks. P3 initially went outside to assist P1, but immediately via walkie-talkie asked the SP to assist because the AV was “escalating.” · The SP and the C went outside to the open area next to the basketball court and P3 came back inside. When the SP went outside the AV was sitting next to a bench near the playground with an ice chunk in his hand and others “lined up” next to the bench. · The SP told the AV s/he needed to come inside, or the SP was going to call the FM to come pick him/her up. The AV then told the SP, “Fuck you,” and started “charging” towards him/her with the ice chunk that was bigger than the AV’s hand. The SP told the AV not to hit him/her with the ice chunk, but the AV hit the SP with the ice chunk in the left palm. The SP said it did not leave any marks but hurt. The SP immediately called the FM and said the AV needed to be picked up from the facility. · The SP stated the AV then “swung at me.” The SP then grabbed the AV’s right hand with his/her right hand and put it behind the AV’s back. The AV started spitting and kicking at the SP, so the SP grabbed the AV’s left hand with his/her left hand and put it behind the AV’s back too. The AV’s spit landed on SP’s legs, and the AV’s kick left a bruise on his/her right leg. The SP stated s/he tried to calm the AV while holding the AV’s arms/hands were behind the AV’s back, but the SP did not recall what exactly s/he said. · The SP started “guiding” the AV from their location at the open area next to the basketball court towards the vestibule continuing to hold the AV’s arms/hands behind his/her back. The SP described the “guiding” as keeping his/her feet behind the AV to avoid being kicked. · Once in the vestibule with the AV and the C, the SP “gently pulled” the AV backwards to the floor onto his/her buttocks and then let go of the AV. As soon as the SP let go of the AV, the AV turned around and started “throwing fists” and spitting at the SP. The SP stated the AV “clawed” his/her wrists and hands with his/her fingernails that left marks on the SP’s hand. · After getting into the vestibule, the AV “came at” the SP a total of three times. The first time the SP “gently pushed” the AV back to the floor by his/her shoulders. The second time the SP placed his/her hands on the AV’s shoulders and “kicked” the AV’s feet out from under him/her to sit the AV on his/her buttocks. At some point during the interaction, the AV told the SP, “I’d probably kill you.” · On the third time, the AV “swung” at the SP. The SP then grabbed the AV’s wrists and placed them behind his/her back and “gently” brought the AV to the floor. The SP stated s/he first pulled the AV’s arms down to “bend” the AV down to his/her knees. Once the AV was on his/her knees, the SP “laid” the AV to his/her stomach, so the AV was face down on the floor. · The SP stated initially when the AV was on the floor, his/her right hand was holding the AV’s hands behind his/her back and his/her left hand was holding the AV’s legs down, while on the left side of the AV. · After a few minutes the AV became “too strong” for the SP, so the SP “straddled” the AV’s legs, but did not “sit” on the AV. During this time, the AV was swearing and threatening the SP as well as “thrashing.” The SP did not know how long s/he “straddled” the AV but did so until the FM arrived in the vestibule. The SP stated the C walked out of the vestibule as the FM arrived. · The AV had some marks on his/her forehead prior incident but also had “rug burn” from being face down in the vestibule because the vestibule was carpeted. When the FM arrived, the SP told the AV s/he would let him/her up if the AV calmed and the FM told the AV to calm was well. · Less than five minutes after the FM arrived, the SP felt the AV’s body “relax” so the SP let go and stood. The SP stated that the FM told the AV, s/he “would’ve done the same thing.” The AV went to the FM and began “sobbing” and having a “panic attack,” saying the SP s/he hurt him/her. · The SP and the FM talked for 10 minutes about the incident and why the SP chose to restrain the AV. The SP then got the AV’s sibling and items to leave with the FM for the day and the FM, the AV, and the AV’s sibling left. · The SP “messaged” P2 on February 18, 2023, asking about “a hold report” for the restraint of the AV. The SP did not tell P2 immediately about the incident because s/he “didn’t think it was a big deal,” based on the FM’s reaction in the vestibule. P1 provided the following consistent information to the LEO and this investigator: · On February 17, 2023, P1 was on the playground with half of the children, including the AV, while P3 and the SP were inside the facility with the other children. At some point, the AV began “acting up” and got into a disagreement with another child and hit that child in the face. P1 stated the AV was “angry” during this time. P1 then contacted the SP via walkie-talkie asking for assistance with the AV. · The SP then told P1, via walkie-talkie, to come inside. P1 stated the AV was sitting on a bench near the playground with an “ice chunk” in his/her hand the size of a softball. P1 asked the AV if s/he was going to come inside, and the AV threw the ice chunk at P1 without responding. P1 stated the AV refused to come inside the facility. P1 requested the SP, via walkie-talkie, come to the playground area but P3 came out instead and P1 then went inside. Prior to returning inside, P1 did not see any injuries on the AV’s face. P1 did not see the AV and SP in the vestibule. · About 20 minutes later, after the SP came back inside the facility, the SP told P1 that the AV had hit him/her in the hand with an “ice chunk.” P1 was not aware that the SP did not tell him/her about putting the AV’s hands behind his/her back or holding the AV on the ground. P1 did not see any injuries on the SP’s hand. P2 provided the following information: · During the morning of February 18, 2023, the SP asked P2 if there was documentation for a “hold report” but did not say why. P2 “did not think to ask” the SP why s/he wanted to know about the hold report and the SP did not tell him/her about the incident. P2 stated the SP was not given any behavioral support training by the facility. (Note: Minnesota Statutes 245H does not require training specific to behavior guidance or management, or restraints/holds.) P2 did not have any prior concerns with the SP. · On February 20, 2023, the FM came to the facility to speak about the incident. Prior to speaking with the FM, P2 called the SP and asked about the incident. The SP provided information to P2 that with consistent with the information the SP provided during his/her interview and to the LEO. P2 then talked to the FM who provided information to P2 that was consistent with the information the FM provided during his/her interview and to LEO. · Afterwards, P2 again called the SP and the SP was “distraught” and “upset.” The SP later told P2 that s/he had “bruising” on his/her shins, and they were “sore” and “back and blue,” but P2 never saw the SP in person again. There were three video cameras that viewed the basketball court/playground, the front sidewalk area, and one that viewed the inside hallway towards the vestibule. A review of the recording from the time of the incident showed the following: · At 12:44:04 p.m. the SP and the C came into view and stood next to the basketball court, near the playground. At 12:44:42 p.m., the AV, ran towards the SP from the playground and appeared to be holding something in his/her right hand. · At 12:44:49 p.m., the AV appeared to throw and/or strike the SP with the object. The AV then hit and swung at the SP multiple times. · At 12:45:22 p.m. the SP took and held the AV by the arms as the AV struggled and tried to kick the SP. At 12:46:35 p.m. the SP held both of the AV’s arms behind the AV’s back as the SP stood behind the AV. The SP then began walking forward, holding both of the AV’s hands still behind the AV’s back. They walked from the open area next to the basketball court, across the front sidewalk towards the entry. The C was walking next to the AV and the SP. · The video then froze. As a result, the three arriving to the vestibule and the incident in the vestibule was not recorded. The Student Discipline policy that stated a staff person may use reasonable force when it is necessary under the circumstances to restrain a student or prevent bodily harm or death to another. The facility documentation showed the SP, P1, P2, and P3 each received training on the Maltreatment of Minors Act and on the facility’s policies prior to the incident which did not include physical intervention training.
Relevant Rules and/or Statutes: Minnesota Statutes, section 245H.13, subdivision 9, clause (5) states that a certified center must ensure that staff and volunteers use positive behavior guidance and do not subject children to the use of physical restraints other than to physically hold a child when containment is necessary to protect a child or others from harm. Conclusion: A. Maltreatment: Information was consistent that on February 17, 2023, the AV was on the playground of the facility and became physical aggressive towards the SP including throwing or hitting the SP with ice chunks, and kicking and hitting the SP. The SP then took and held the AV’s hands behind the AV’s back and walked the AV to the vestibule of the facility. Although video of the incident was not available, information from the AV, the C, and the SP was consistent that while in the vestibule the AV attempted to repeatedly kick and punch the SP but was unable to because the SP held the AV. The SP placed the AV on the floor four separate times while in the vestibule, and on one of those times, the SP kicked the AV’s legs out from underneath him/her. On the fourth time the SP held the AV face down onto the floor of the vestibule and “straddled” his/her legs while the AV “thrashed” around. The AV provided information to the LEO that while in the vestibule, the SP “drug” the AV back and forth while the AV was on his/her stomach. The SP’s actions caused the AV pain and the AV said s/he was frightened. The AV suffered abrasions to his/her face and was bleeding when the FM arrived at the vestibule to pick up the AV. The FM, the AV, and the SP provided consistent information that the AV was crying and frightened after the incident. Although there were points during the incident when it was reasonable for the SP to intervene to prevent the AV from harming him/herself or others, there was no information provided that the SP tried any less intrusive means and the SP’s actions of holding the AV’s arms behind his/her back while walking from the playground to the vestibule and once in the vestibule the SP put the AV on the floor three to four times likely continued to escalate the AV. In addition, after putting the AV on the floor in a prone position (face down), the SP “straddled” the AV’s legs for an unknown amount of time (at least 15 minutes). The AV sustained abrasions and bleeding on his/her face because of the incident. In addition, the AV told the LEO that the SP “drug” the AV back and forth while the AV was restrained and right after the incident, the AV told the FM that the SP “hurt” the AV. Given the aforementioned, there was a preponderance of the evidence that the SP’s actions were not accidental; were a violation of Minnesota Statutes, section 245H.13, subdivision 9, clause (5); were a failure to provide the AV with necessary care; a failure to protect the AV from conditions or actions that seriously endangered his/her physical or mental health; caused physical injury to the AV; and represented a substantial risk of injury to the AV. 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.) 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. At the time of the incident the SP was responsible for the care and supervision of the AV. 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 and neglect for which the SP was responsible was not recurring maltreatment because it was a single incident that met two definitions of maltreatment. However, it was serious maltreatment because it resulted in tissue damage and skin lacerations on the AV’s face that caused the AV to bleed. The SP was disqualified from providing direct contact services. 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 conducted an internal review and determined that the policies and procedures were 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 disqualified from a position allowing direct contact with, or access to, persons receiving services from programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal. On May 24, 2023, the facility was issued a Correction Order for the violation 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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