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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: 1051952-CCC (Child Care Center) Investigator(s): Beth Virden 651-431-6572 Suspected Maltreatment Reported: It was reported that a staff person (SP) “open-handed” slapped an alleged victim’s (AV’s) face and head, hit the AV’s leg and arm, and flicked the AV’s ear. Date of Incident(s): April 4 and 5, 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 April 18, 2023; from documentation and video footage at the facility; and through interviews conducted with facility staff persons (the SP, and P1-P3), and a supervisory staff person (P4). (Note: P1 was also the AV’s family member.) At the time of the incident, the AV was two years old and enrolled in the facility’s toddler classroom. The facility provided childcare services to children, infant to preschool. The facility had cameras in common areas that recorded movement but not audio. The facility’s Behavior Guidance policies and procedures included the following: · Staff persons were supposed to develop a supportive and trusting relationship with children. If a child had a “challenging behavior,” staff were supposed to modify the environment if able; clearly and positively communicate expectations; provide choices; etc. · Staff persons were prohibited from using corporal punishment, including but not limited to, rough handling, slapping, hitting, etc. Facility documentation stated that the staff persons interviewed for this investigation received training on the facility’s Behavior Guidance policies and procedures and the Reporting of Maltreatment of Minors Act. Regarding April 4, 2023, between 5:25 and 5:35 p.m.: Video footage showed the following: · At 5:31:05 p.m., the SP was sitting on a child size chair near the middle of the classroom. The SP had long nails that were visible on the video. The AV was sitting at a table slightly behind and to the SP’s right. There were approximately six other children moving in and out of the frame. A second staff person (P5) was walking around the room. · A child (C1) walked up to the AV and began interacting with something near the AV’s feet. The AV lifted his/her feet and kicked into C1. The SP reached his/her right arm toward the AV and then moved it downward hitting the AV’s left leg with an open hand. The SP kept his/her hand on the AV’s left leg, as the AV then kicked C1 with both feet. The SP got off the chair and moved into a squatting position facing the AV and blocking the view of C1. The SP reached his/her left hand to the AV’s right ear and used his/her fingers to flick the AV’s ear three times. Because the AV’s hair covered his/her ear, it was not clear if physical contact occurred. · The AV leaned forward, and the SP used his/her left hand to hit downward appearing to strike the AV’s left hand with an open hand. The SP stood as the AV sat on the floor holding his/her left hand to his/her forehead. The SP walked away, said something to C1, and then walked out of the classroom. During this interaction, P5 was partially off camera and/or had his/her back turned. [Note: During the facility’s internal review, P5 said that s/he did not see anything like what was alleged, and the video footage showed P5 likely was not looking in the direction when the incident(s) occurred.] · Shortly after the SP left the classroom, P4 walked in and picked the AV up giving him/her a hug. P4 then lowered the AV to the floor and walked out of the classroom. · The SP then reentered the classroom followed by P2. The AV was sitting at a table with his/her back to them. P2 approached and touched the back of the AV’s right shoulder. The AV turned to look and P2 bent down appearing to speak to the AV. At one point the AV looked away from P2. P2, in response, placed his/her right hand on the AV’s chin and turned the AV’s head to look at P2. P2 continued to speak to the AV and the video ended shortly thereafter. P2 recalled that on the day of the incident, “[The AV] was giving [the SP] a hard time.” The AV liked P2 and had a history of responding well to him/her. The SP called P2 to the toddler classroom to talk to the AV. P2 followed the SP into the classroom and spoke with the AV at a table. At one point the AV looked away from P2, which indicated to P2 that s/he was being “sassy” and “not cooperating.” To regain the AV’s attention, P2 placed his/her hand on the AV’s chin and turned his/her head. P2 acknowledged that s/he should not have touched the AV’s face, but said that his/her actions did not have any potential to cause injury to the AV. P1 said that s/he was notified of the incident by the SP. On April 4, 2023, sometime after 5:35 p.m., the SP approached P1 in the hallway while holding the AV, who was crying. The SP told P1, “If [the AV] snitches on me, just so you know, I popped [him/her].” The AV then said to P1, “[The SP] hit me.” P1 took the AV and shortly after saw P4 talking to the SP in the hallway. P1 believed P4 was aware of and addressing the SP’s conduct. P1 did not see injuries on the AV. P4 provided the following information: · On April 4, 2023, P4 was passing by the classroom when s/he heard the AV crying. P4 stopped in the classroom to console him/her. P4 did not know why the AV was crying and did not ask. However, in hindsight and after reviewing the video, P4 discovered that s/he happened to stop in immediately after the SP’s interaction with the AV. · P4 also said that later in the day on April 4, 2023, s/he happened to walk by a conversation between P1 and the SP. P4 overheard P1 talking about the AV’s behaviors being “naughty” and that at-home, P1 sometimes had to “pop” the AV. The SP then responded, “I had to pop [him/her] too.” P4 interrupted the conversation and talked with both staff about the facility’s Behavior Guidance policies and procedures; to which, P1 and the SP each stated they were aware of. P4 told P1 and the SP that they should not be talking about “popping” a child at work. P4 considered this to be a “teachable moment” with the staff; however, also acknowledged, “I didn’t know what a ‘pop’ was until I watched the video.” The SP provided the following information: · The AV had a history of hitting other children’s faces with toys. The SP was not aware of any biting or times the AV made another child bleed. · On April 4, 2023, the AV hit C1 with a shoe. The SP responded by flicking the AV’s ear with his/her fingers. The AV reacted to this by getting “upset.” · The SP said s/he did not make full contact with the AV’s ear, and instead, believed his/her fingernail might have contacted the AV’s ear during the flicking. · The SP said that s/he checked the AV for injuries after and did not see any. · Following this, the SP told P1 about what happened. P4 overheard their conversation and told them, “Don’t do it.” · The SP said that s/he flicked the AV’s ear the one time and did not do it again after P4’s direction to stop. · The SP also said that s/he did not hit the AV, but instead grabbed the AV at various points to prevent him/her from kicking others. The SP did not believe that the way s/he grabbed the AV had a potential to cause injury because it was not that “hard” of a grab. Regarding April 5, 2023, between 10 and 10:20 a.m.: Video footage showed the following: · The SP and two other staff persons gathered children to form a line at the door. At which point (10:04:41 a.m.), four children and two staff persons left the room, leaving the SP as the sole staff person in the classroom with nine children. · The AV sat at a table eating and reached across the table appearing to wipe something away. The SP walked behind the AV and used his/her open left hand and hit/tapped the AV’s right face/cheek/ear with the SP’s left open hand. The AV looked at the SP and opened his/her mouth. The SP sat down at a table facing the AV. Another staff person (P6) entered the room. · At 10:06:18 a.m., as the SP continued to sit on a table and the AV was standing at the table location s/he had previously been sitting, two children on the opposite side of the room, behind the SP’s back, threw unidentified cloth items onto the floor a few feet away from them. The AV then picked up a toy off the table and threw it a few feet away towards the other two children. The SP appeared to say something to the AV and the AV shook his/her head and appeared to say, “No,” multiple times. · Next, the SP reached his/her left hand toward the AV’s right ear and as the AV leaned away, the SP touched the AV’s ear/face. Then as the SP took a drink out of a tumbler, it appeared that the SP used his/her left hand and pushed the back of the AV’s head forward because the AV’s head/upper body moved forward and back in a quick motion. The AV looked at the SP, and the SP used his/her left hand and grabbed ahold of the AV’s hair bun and slightly moved the AV’s head. The AV appeared to make a noise/grunt at the SP and the SP used his/her left hand to smooth and pat the AV’s head and face. · At 10:08:17 a.m., the AV stood and moved between the SP’s legs which blocked most of the view of the AV. However, the SP put his/her right hand on top of the AV’s head and tilted the AV’s head backwards. (It could not be seen what the SP did at that point, whether the SP wiped something off the AV’s mouth or gave the AV something to drink.) At 10:08:26 a.m., the SP let go of the AV’s head. During this time P6 was walking around the classroom and it did not appear that P6 saw any of the interactions between the SP and the AV. [Note: During the facility’s internal review, P6 said that s/he did not see anything like what was alleged, and the video footage showed P6 likely was not looking in the direction when the incident(s) occurred.] · At 10:09:24 a.m., the AV threw his/her food away and walked away from the table and began to play and walk around the room. · At 10:18:44 a.m., as the SP was sitting on the table combing a child’s hair, the AV walked up to the SP and the SP swatted at the AV’s right cheek with the SP’s open left hand, it could not be determined if the SP made contact with the AV’s face. The AV appeared upset and put his/her hands on the SP’s legs and stomped his/her feet. P6 was bent over at this time putting toys away. The AV leaned into the SP and the SP used his/her left fingers to flick the AV’s right face/check/ear. The AV put his/her right hand up to his/her right ear and held it while beginning to cry. P6 was looking in another direction of the classroom when this occurred. The AV stood still holding his/her ear, crying, and looking at the SP. The SP then picked the AV up and carried him/her out of the classroom. P6 was sitting in another area of the classroom when this occurred. The video ended shortly thereafter. P1 said that s/he was again notified of this incident by the SP. On April 5, 2023, sometime after 10:20 a.m., the SP approached and said, “I popped [the AV] again. Just so you know.” The AV was not with the SP during this time and later, did not say anything to P1 about what happened. P1 did not see injuries on the AV. P1-P3 each never saw the SP flick the AV’s ear or act in a manner that might cause injury to the AV, and they also never saw the AV react toward the SP in a manner that might indicate the AV did not like the SP.
The SP said that s/he did not flick the AV’s ear at any point after April 4, 2023, when P4 told him/her to stop. Instead, the SP began responding to the AV’s behaviors by implementing a “timeout.” The SP did not believe that s/he received adequate training on how to handle a child, like the AV, who did not listen to redirection. The SP sometimes switched classrooms with P1 or P2, temporarily, to allow them to talk to the AV. The SP also sometimes brought the AV to his/her co-teacher in the classroom. However, the AV had a history of “not listening.” The facility did not provide additional instruction to staff persons on how to respond to a child, like the AV, who did not listen. Relevant Minnesota Statutes and Rules: Minnesota Rules part 9503.0055, subpart 3, item A, states that the license holder must have and 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: The facility’s video footage for April 4 and 5, 2023, showed the SP flicking and hitting the AV’s face/ear more than once and swatting at the AV’s arms and legs. The SP said s/he flicked the AV’s ear on April 4, 2023, but denied doing so on April 5, 2023. However, the SP told P1 on April 4, 2023, that s/he “popped” the AV and on April 5, 2023, s/he told P1 that s/he “popped [the AV] again,” and the AV told P1, “[The SP] hit me.” The AV did not sustain injuries. However, the conduct of popping/flicking/hitting a child on the face and/or ear was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; was a violation of the facility’s Behavior Guidance policies and procedures; and a violation of Minnesota Rules, part 9503.0055, subpart 1, Item A, and subpart 3, item A. Given that the AV was two years old at the time of the incident and started crying after at least one of the ear flicking incidents, there was a preponderance of the evidence that the SP’s actions 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, 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 responsible for the AV’s care and supervision of the AV at the time of the incident. The SP received training on the facility’s Behavior Guidance policies and procedures and the Reporting of Maltreatment of Minors Act. 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 was not “recurring” or “serious” maltreatment because the SP’s pattern of behavior was considered 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 was no longer employed 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 23, 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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