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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: 830776-CCC (Child Care Center) Investigator(s): Judith Schwanke 651-431-4033 Suspected Maltreatment Reported: It was reported that an alleged victim (AV), who was an infant, was flicked in the cheeks by a staff person (SP). Date of Incident(s): January 30, 2023 (The Department of Human Services received the report on March 30, 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 February 6, 2023; from documentation at the facility; and through five interviews conducted with two supervisory staff persons (P1 and P2), two staff persons (P3 and the SP), and the AV’s family member (FM). At the time of the incident, the AV was approximately eight months old and enrolled in the facility’s infant classroom. On March 20, 2023, a law enforcement officer (LEO) was reviewing video for an unrelated incident (Licensing Investigation Report Number 202300949), dated January 30, 2023. While watching the video, the LEO saw a staff person (later identified as the SP) “flick” the AV in the cheeks and then hand the AV a bottle. On April 5, 2023, the LEO spoke with P1 and also sent a video clip of the incident to P1. No further action was taken by the LEO. The facility cared for children ages six weeks through five years. The infant classroom was near a lobby desk, the facility kitchen, and the supervisor’s office. The infant classroom had a large set of windows that looked out to a long hallway. There was a video camera in the infant classroom. The facility had video, without audio, of the incident. The video was dated January 30, 2023, at 4:52:08 p.m. and the SP was the sole staff person in the room with three infants, including the AV. A review of the video showed a physical interaction between the AV and the SP. The SP walked toward the AV, who was seated on the classroom carpet and was crying. As the SP neared the AV from behind, the SP used his/her pointer finger and thumb on each hand made a circle. The SP bent over the AV, used his/her pointer finger on each hand, and flicked the AV on both cheeks. The AV’s head and upper body flinched backwards, then forwards, and the AV appeared to cry harder. The SP walked approximately two steps away, retrieved the AV’s bottle, walked back to the AV, lay the AV onto his/her back, and gave the AV his/her bottle. The FM did not have prior concerns regarding the facility and did not recall seeing bruising on the AV’s cheeks. P1 was not aware of the incident until April 5, 2023, when informed by the LEO. P1, P2, P3, and facility documentation provided consistent information that staff persons received training which included that when a staff person felt stressed or overwhelmed, the staff person could request a break or switch responsibilities with another staff person in the classroom. Prior to the incident, P1, P2, and P3 each had no concerns regarding the SP’s interactions with children. The SP provided the following information: · When a child in the SP’s care was upset and/or crying, the SP acknowledged their feelings by getting down at the child’s eye level, speaking to them in a friendly tone, and rubbing their back or hand. · The SP had been trained to know the difference between feeling frustrated and feeling overwhelmed. If the SP was frustrated, s/he had been trained not to be in the classroom. If the SP felt overwhelmed, s/he had been trained to ask to switch tasks with another staff person in the classroom or talk with facility management. · The SP denied flicking a child in the face and stated that s/he was “playful” with the children and could have been “grabbing” or “moving” the AV’s cheeks “in a circular motion.” · The SP was trained on prohibited actions that included verbal, mental or physical abuse. The SP stated s/he considered flicking an infant on their cheeks to be physical abuse. The facility’s Behavior Guidance Policy showed that staff persons were a positive model of acceptable behavior, and tailored behavior guidance to the developmental level of the child. Staff persons were prohibited from subjecting children to corporal punishment and violence of any kind. The facility’s Staff Handbook showed that if a staff person was “feeling frustrated with a child” they should request an immediate break and if a staff person had “high stress” they should let the supervisory staff persons know immediately and would be given resources. Facility documentation showed that P1-P3, and the SP were trained on the facility’s Behavior Guidance Policy and the Reporting of Maltreatment of Minors Act. As part of his/her training, the SP wrote in answer to a question on a Preventing Abusive Head Trauma worksheet that s/he would “ask for help immediately” or give him/herself space away from a child if s/he found him/herself becoming annoyed or angry with that child. Relevant Minnesota Statutes and Rules: Minnesota Rules, part 9503.0140, subpart 3, item A, stated that the license holder must have an enforce a policy that prohibits the subjection of a child to corporal punishment. Corporal punishment includes, but is not limited to, rough handling, shoving, hair pulling, ear pulling, shaking, slapping, kicking, biting, pinching, hitting, and spanking.
Conclusion: A. Maltreatment Video showed that on January 30, 2023, when the AV was sitting on the floor crying, the SP used both hands and flicked both of the AV’s cheeks which was a violation of Minnesota Rules, part 9503.0140, subpart 3, item A. The FM stated that s/he did not recall the AV having any bruising on his/her cheeks but given the timeframe between the incident and when persons became aware it was possible that any injury went unnoticed. Although the SP denied flicking the AV on the face, given that the AV was eight months old, and that the video showed the SP flicking the AV on the face, causing the AV’s head and body to move and the AV to cry harder, there was a preponderance of the evidence that the SP’s action were not accidental and represented a substantial risk of 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 or 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 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 of the AV. Facility documentation showed the SP received training on the Reporting of Maltreatment of Minors Act and the on the facility’s Behavior Guidance Policy. The SP was responsible for the Maltreatment of the AV. C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. It was determined that the substantiated physical abuse for which the SP was responsible did not meet the statutory criteria to be determined as recurring or serious because it was a single incident and the AV did not sustain an injury. Pursuant to Minnesota Statutes, section 260E.35, subdivision 6, paragraph (c) all investigative data maintained in this report will be kept by the Department of Human Services for at least ten years after the date of the final entry in the report. Action Taken by Facility: The facility completed an internal review, and determined that policies and procedures were adequate but not followed. 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 June 2, 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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