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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: 1099328-CCC (Child Care Center) Investigator(s): Kimberly Huettl Anderson kimberly.huett.anderson@state.mn.us Suspected Maltreatment Reported: Allegation One: It was reported that an alleged victim (AV1) left the playground through a broken spindle in the facility’s playground fence. Allegation Two: It was reported that an alleged victim (AV2) was left on the facility’s playground for approximately thirty minutes without staff persons’ (SP1 and SP2) knowledge or supervision. Date of Incident(s): Allegation One: Unknown prior to May 16, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2): 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. Summary of Findings: Pertinent information was obtained during a site visit conducted on June 9, 2023; from documentation at the facility; and through four interviews conducted with facility staff persons, AV1’s family member, and AV2’s family member. The facility was a standalone building located on the corner of a rural highway and across the street from a grain elevator and storage bins. There were two playgrounds adjacent to the building and surrounded by a metal fence that was approximately three feet tall with spindles that were four inches apart. The preschool playground faced the rural highway. There was a gate that was secured with a slide lock that led to the facility’s parking lot. All doors to the facility were locked from the outside. The entrance door to the building from the playground was two doors away from the preschool classroom and separated by a hallway. The facility’s Child Care Center Risk Reduction Plan stated that children were supervised at all times while on the playground to ensure safety. Staff persons were to count heads regularly and were trained on proper supervision for all children. The facility’s personnel files showed that the P, SP1, and SP2 were trained on the facility’s Child Care Center Risk Reduction Plan and the Reporting of Maltreatment of Minors Act prior to the incident. Relevant Rules and Statutes: Minnesota Statutes, section 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item A, state that “supervision” means a program staff person is within sight and hearing of a child at all times so that the program staff person can intervene to protect the health and safety of the child; and that children are required to be supervised at all times. Allegation One: It was reported that AV1 left the playground through a broken spindle in the facility’s playground fence. AV1’s enrollment file showed that AV1 was approximately twenty months old and enrolled in the facility’s preschool classroom at the time of the incident. AV1’s family member (FM1) stated that a community person (CP) told FM1 that s/he saw AV1 going through a part of the playground fence that was broken. The CP told FM1 that s/he helped AV1 back into the playground. FM1 talked to a facility management person (P) about the information that the CP shared with FM1. The P told FM1 that s/he was not aware that the fence was broken at the time of the incident and assured FM1 that the fence would be fixed immediately. The P stated through an interview with this investigator and his/her written documentation that SP2 told the P that late one afternoon while on the playground, AV1 tried to go through a broken spindle on the fence by the facility’s parking lot. SP2 saw AV1 trying to go through the fence and stopped AV1 from leaving the gated playground. SP2 told the P that the fence spindle was broken the morning after the incident but did not tell the P that AV1 tried to go through the fence. The P stated s/he had the fence repaired as soon as SP2 told him/her that the spindle was broken. SP2 stated that one of the spindles on the fence was lose because the screw had fallen out. SP2 was on the playground with AV1 and three other children and saw AV1 at the fence. AV1 was moving the spindle back and forth before trying to squeeze his/her body between the spindles. SP2 stated that AV1 had one leg and half of his/her body outside of the fence when SP2 got to the fence. SP2 opened the gate and helped AV1 back inside the playground. SP2 stated that s/he did not tell FM1 or the P about the incident, because s/he did not think it was an incident since AV1 did not leave the playground without SP2’s knowledge or supervision. The next morning SP2 told the P that the fence was broken and needed to be repaired. AV1 was never out of SP2’s sight or supervision and did not leave the playground without SP2’s knowledge. Conclusion Allegation One: Although initial information received stated that AV1 left the playground through a broken spindle on the outside fence, information from SP2 who was supervising AV1 at the time of the incident stated that s/he saw playing with a broken spindle on the fence and then squeezing his/her body out the fence. According to SP2, half of AV1’s body was outside the fence when s/he got to the fence, and s/he assisted AV1 back onto the playground. Given that SP2 was supervising AV1 in accordance with Minnesota Statutes, section 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item A and saw AV1 playing with the broken spindle and squeeze his/her body out of the fence, and then intervened before AV1 left the playground, there was not a preponderance of the evidence that there was a failure to provide AV1 with supervision or a failure to protect AV1 from conditions or actions that seriously endangered AV1’s physical health. It was not 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 and 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). Allegation Two: It was reported that AV2 was left on the facility’s playground for approximately thirty minutes without SP1 and SP2 knowledge or supervision. AV2’s enrollment file showed that AV2 was three years old at the time of the incident and enrolled in the facility’s preschool classroom. The facility’s written documentation regarding the incident stated that on May 18, 2023, the preschool and pre-kindergarten combined due to staffing concerns for the day. There were eighteen children in the preschool room with SP1 and SP2. A few minutes before noon, SP1 told the P that AV2 was left outside on the playground without SP1’s and SP2’s knowledge or supervision for approximately thirty minutes. AV2’s family member (FM2) stated that s/he received a telephone call from the P after the incident happened. FM2 stated that the incident was not “ideal” but was thankful that AV2 was not harmed. FM2 was satisfied with how the P handled the situation and did not have any other concerns about the care that AV2 received at the facility. The P stated that s/he was working in a different classroom at the time of the incident and was told about the incident as soon as SP1 and SP2 realized what happened. According to the P, SP1 and SP2 were trained to count the children whenever the group transitioned from one area to another. One staff person was to stand in the front of the group while the second staff person stood at the end of the group. On the day of the incident, the P believed that SP1 and SP2 counted the children before they entered the building from the playground, but that they did not count the children when they entered the classroom. The P thought that AV2 “snuck” out of line after being counted. AV2 was unsupervised on the playground that was surrounded by a fence. The P stated that the doors leading inside the building from the playground were locked from the inside and AV2 would not have been able to open the door to let him/herself back into the facility. AV2 was outside on the playground without supervision for approximately thirty minutes. SP1 and SP2 provided the following information: · On May 18, 2023, SP1 and SP2 were supervising seventeen children on the playground. At approximately 11 a.m., SP1 and SP2 called the children to line up to go inside for lunch. SP1 stood by the door and SP2 counted the children. When SP2 was counting the children’s heads there was an incident where other children started shoving each other so SP2 took each of their hands and the group proceeded inside. · SP1 and SP2 served lunch to the children and when lunch was over SP1 asked SP2 if s/he knew where AV2 was. At that time, SP1 and SP2 realized that AV2 did not eat lunch with the other children and started to look for AV2. At 11:35 or 11:40 a.m., SP1 went outside to the playground and found AV2 sitting by the door with a bucket of sand and tears in his/her eyes. · SP1 and SP2 each stated that they counted heads of the children before coming inside. SP2 stated that s/he “typically” counted the heads of the children again when they were inside, but on the day of the incident, SP2 did not count the children when they were inside. SP1 stated that s/he counted the children’s heads when they lined up but did not count them again when they came inside. · According to SP2, AV2 did not want to come inside on the day of the incident because s/he wanted to continue playing outside. However, SP2 stated that s/he counted AV2’s head when they lined up to come inside. SP2 thought that AV2 ran out of line after being counted to continue to play. · SP1 and SP2 each stated that AV2 had tears in his/her eyes when SP1 found AV2 outside, but that AV2 was not “crying.” AV2 told SP1 that s/he was “scared.” AV2 could not have opened the door to come inside because it is locked from the inside, but AV2 could have opened the gate to the playground and left the facility. Conclusion Allegation Two: A. Maltreatment: On May 16, 2023, AV2 was left on the playground without SP1’s or SP2’s supervision for approximately thirty to forty minutes which was a violation of which was a violation of Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A. SP1 and SP2 each stated that there were seventeen children on the playground at the time of the incident and that they counted heads when the children lined up to go inside but that they did not count the children again when they got inside. Although AV2 was unharmed, the conduct of leaving a three-year-old child outside for thirty to forty minutes without staff persons’ knowledge or supervision exposed to community persons and community hazards and did not allow for staff persons’ intervention in the event of an emergency. Therefore, there was a preponderance of the evidence that there was a failure to supply AV2 with necessary care and a failure to protect AV2 from conditions or actions that seriously endangered his/her physical or mental health when reasonably able to do so. 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). 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. SP1 and SP2 were responsible for the supervision of AV2 at the time of the incident. SP1 and SP2 were trained on the facility’s Child Care Center Risk Reduction Plan and the Reporting of Maltreatment of Minors Act prior to the incident. SP1 and SP2 were responsible for maltreatment of AV2. 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 neglect for which SP1 and SP2 were responsible did not meet statutory criteria to be determined as recurring or serious because this was a single incident and AV2 did not sustain an injury that required the care of a physician. 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 their policies and procedures were not adequate and changed their supervision policy requiring all staff persons to count children by using a list and verifying the name and face to the number of children present during all transitions. All staff persons were trained on the new policy. Action Taken by Department of Human Services, Office of Inspector General: SP1 and SP2 were not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1 and SP2 were each 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 disqualification. The determination that SP1 and SP2 were each responsible for maltreatment is subject to appeal. On August 30, 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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