|
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: 1036934-CRF (Children’s Residential Facility) Investigator(s): Gessner Rivas/Carla Harvieux Minnesota Department of Human Services Office of Inspector General, Licensing Division PO Box 64242 Saint Paul, Minnesota 55164-0242 gessner.rivas@state.mn.us 651-431-3970 Suspected Maltreatment Reported: It was reported that on January 20, 2023, an alleged victim (AV) was in mechanical restraints (handcuffs) in the back of patrol car kicking the car door but stopped when a staff person (SP) directed the AV to stop. The SP then grabbed and pulled the AV out of the car, slamming the AV to the ground and rubbing the AV’s face into the road. The AV sustained injuries to her/his face, lip, and knee. Date of Incident(s): January 20, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, 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 8, 2023; from documentation at the facility; and through six interviews conducted with the AV, the SP, and facility staff persons (P1-P4). The facility was a juvenile residential facility operated by the Department of Corrections (DOC), it had five living units and a secured unit which served as the facility’s intake and discipline unit. The facility offered residents numerous services, such as: counseling, academics, and vocational courses to prepare youth to re-enter the community. The AV was a resident at the facility for a non-violent offense. The facility’s Response to Resistance, Restraint Systems, and Escape policy set forth definitions and guidelines for correctional staff persons on the response to resistance, the use of force, and restraints. The policy defined response to resistance as the “skillful use of tactics and techniques identified and approved by the DOC, intended to resolve a situation with the least amount of force that is reasonable under the totality of circumstances.” The policy defined reasonable force as “no reasonably effective alternative appears to exist and the response to resistance used is reasonable to effect the lawful purpose intended.” The policy stated that staff persons “must only use the least amount of force reasonable to control/resolve the situation,” and “make every reasonable effort to de-escalate a potential use-of-force situation…” Regarding the use of chemical irritants; the policy stated that chemical irritants were to be used before the application of physical force when practical and the watch commander and/or unit supervisor had to authorize its use, except in spontaneous situations where delay would result in bodily harm, death, or loss of control of an area or if the safety of staff persons and residents was in jeopardy. The facility’s Juvenile Restrictive Procedures policy defined a device called the WRAP as “a safe restraint system, used to restrain a resident in an upright and seated position to maximize respiratory recovery and to escort a resident to disciplinary room time when the resident refuses to walk on the resident’s own accord, and designed to protect residents and staff [persons] by reducing the possibility of injury and death.” The policy further emphasized the need for staff persons to manage situations through de-escalation, and to treat residents humanely and respectfully during the use of restrictive procedures. Information from the facility showed that on the evening of January 20, 2023, a resident at the Stanford cottage of the facility reported to a staff person that the AV had “hooch,” a homemade spirit. The SP, P3, and another staff person asked the AV to come out of her/his room. The AV refused and the facility’s Incident Command System (ICS: A system to request additional support from other staff persons) was activated at the request of the SP. The SP took out her/his chemical irritant and pointed it at the AV, who then became compliant. The SP and P3 applied handcuffs to the AV and the AV was escorted to a patrol car to transfer the AV to the Dayton Security Unit (DSU) for Disciplinary Room Time (DRT). What happened next was the focus of the report alleging that the SP used excessive force in removing the AV from the patrol car after kicking the rear driver’s side door of the car. The AV provided the following information: · The AV stated that as s/he was escorted out of the building to the car, s/he was handcuffed behind her/his back and was not resisting. Once inside the car, the AV kicked the rear driver’s side door about four times. The AV was seated sideways with her/his whole body on the backseat, feet towards the driver’s side and her/his head towards the passenger side. The AV stated that s/he kicked the door out of frustration because s/he was being sent to DSU and would not be able to visit with her/his mother that weekend. The AV stated that a staff person (the AV did not identify this staff person) opened the door and told her/him to stop kicking. The AV stated that s/he agreed and then went to the other side of the car because s/he saw staff persons surrounding the car. · The AV stated s/he saw the SP shake up her/his chemical irritant and aim it at the car, the AV asked the SP if s/he was going to spray the AV, and the SP replied, “Yes.” The AV replied, “Over nothing, I’m not resisting anymore.” · The AV stated that the SP reached in and grabbed her/him by her/his shirt collar on the right side and another unknown staff person grabbed the AV by the left side shirt collar and pulled her/him with “a lot of force,” and her/his “head flung out of the car and smack[ed] the pavement and they jumped on top of me and you know proceeded to restrain me.” · The AV noted that when s/he had been restrained twice before, s/he would be asked many questions, given directions to follow but this time staff persons were quick to act. The AV noted that on previous occasions, staff persons would use a two or four point take down, but this time staff persons just grabbed her/him by the collar and flung her/him out of the car as hard as they could, hitting and skidding across the ground. The AV noted that the pavement outside of the Stanford cottage was icy and slushy. · The AV stated that the SP applied pressure on her/his head and felt like her/his head was rubbed into the pavement. The AV noted that s/he tried to adjust her/his head so that it did not hurt as much but more force was applied as a result. The AV stated that s/he was told to stop resisting but said, “I’m not resisting what the fuck are you talking about?” · While the AV was being restrained on the ground, the AV made threats against staff persons. The AV was then placed in a WRAP and then put back in the backseat of the car and driven to the DSU to be placed in a DRT room. Prior to being placed in DRT, the VA remained in the WRAP for approximately 30 minutes, while staff persons waited for the AV to calm down, the AV was periodically checked on by staff persons. Note: Photographs taken of the AV shortly after the incident, showed a large abrasion to the AV’s right cheek below the eye with dark colored debris within and surrounding the site of that abrasion and the abrasions to the AV’s right knee. Photographs taken showed partial redness on the lower lip but could not be determined if that was because of the incident. When investigators met with the AV, the abrasion on the cheek still had remains of scab tissue. P1 provided the following information: · P1 arrived at Stanford cottage in response to the facility’s ICS system being activated. The SP and P3 were restraining the AV on the floor, face down in the hallway outside of the AV’s room. The SP and P3 handcuffed the AV, stood the AV up and walked her/him to the front door towards the patrol car. P1 stated that once they were outside, things changed. The SP yelled at the AV to get her/his feet in the car, the AV said they were, and the SP slammed the door shut. · The AV began to kick the rear driver’s side door, swearing, and yelling at the SP; there was yelling back and forth between the SP, P3 and the AV. The SP asked for the WRAP, P1 stated s/he asked to de-escalate the situation, but the SP insisted on using the WRAP. The AV then stated, “I’m done kicking,” multiple times. The SP again asked for permission to the use the WRAP; permission was granted. The SP went to the rear passenger side, the SP and another staff person (P1 thought it was P3) grabbed the AV and in a “lightning quick” manner the AV went “real hard” face down onto the road. · P1 stated that the SP had her/his hand on the AV’s head and the AV spat out a mouth full of busted up asphalt, some of which got on the SP. P1 stated that the AV’s “cheekbone was bleeding pretty good at that point.” P1 noted that the AV began to make threats against staff persons. P1 stated that staff persons heard threats all the time, such as, “I better not catch you on the outside.” · P1 characterized the manner in which the AV was removed from the car as excessive because it was unnecessary and intense, and P1 had offered to try to de-escalate the situation. P1 thought that the SP and another staff person may have fallen on top on the AV when s/he was removed from the car. P1 retrieved the WRAP after the AV was removed from the car. · P1 stated that de-escalation was part of the annual training staff persons received on restraints. P2 provided the following information: · P2 stated that when the AV kicked the door, the SP asked the AV to stop and took out her/his chemical irritant to get the AV to stop kicking the door. P2 stated that P1 offered to de-escalate the situation before P1 retrieved the WRAP. · P2 stated that the SP reached in the car and grabbed the AV by the arm, pulled the AV out, and the AV hit the ground and the SP went down to the ground at the AV’s side. P2 recalled that s/he only saw the SP reach into the car and grab the AV. P2 stated s/he believed it was excessive but did not say anything because s/he felt uncomfortable speaking up amongst senior officers after the offer from P1 to de-escalate was ignored; the “mindset” was that the AV was going in the WRAP. · P2 stated s/he assisted in restraining the AV by holding down the AV’s ankles while P3 secured the AV’s upper left body. P2 noted that while on the ground the AV did not attempt to kick or spit at any staff person.
P3 provided the following information: · P3 recalled that the AV did not stop kicking the door when s/he was asked to stop so the SP requested permission to use the WRAP. P3 stated that s/he opened the rear passenger door and P2 helped the SP remove the AV from the car. · P3 stated that s/he did not see how the AV was removed because s/he was looking down because it was slippery outside, but s/he did hear the AV hit the ground. P3 stated that the SP was on the right side of the AV and P2 got down to secure the AV’s left side, placed her/his hand on the AV’s shoulder and held the AV’s handcuffed hand. · P3 stated that a staff person asked for a spit hood but it was not used. The SP provided the following information: · The SP stated that when the AV was placed in the car, s/he refused to put her/his feet in the car, so another staff person put her/his feet in, and the SP slammed the door shut. · The SP stated that after the AV kicked the door another staff person (the SP did not recall who) called for the WRAP; it was approved. The SP noted that s/he took her/his chemical irritant out when the AV was kicking the door but the AV yelled and licked the window. P3 tried to open the rear driver’s side door but it would not open so the SP and P3 then went to the passenger’s side. · The SP stated that the AV was sitting on the edge of the seat facing out with her/his feet facing the rear passenger side door. The SP stated s/he took the AV’s right arm and shoulder and took the AV to the ground. Once on the ground, the AV’s feet were towards the car. The SP stated that s/he could not recall if another staff person also reached in to remove the AV from the car, but it could have been P2. · The SP said it took “little” effort to remove the AV from the car but noted that the AV was struggling and pulling away. The SP stated that once on the ground, the AV kept thrashing her/his head side-to-side while kicking her/his legs. The SP denied rubbing the AV’s face into the pavement or using excessive force and that s/he did not place her/his hand on the AV’s face, only on the AV’s right shoulder. The SP noticed the abrasion on the AV’s face when the AV was sat up after the WRAP was applied and stated the asphalt caused the abrasion. The SP stated that the AV spat at her/his general direction, so s/he called for a spit hood but it wasn’t used. · The SP stated that s/he did not fall on top of the AV but did not know if another staff person did because s/he was not paying attention to what other staff persons were doing at the time. The SP took control of the AV’s right arm and P3 had the AV’s left while other staff persons put the AV into the WRAP and placed the AV back in the car. The SP noted s/he was not certain who or how many staff persons put the AV back in the backseat because s/he was walking around the front of the car to start it and the AV did not become compliant until s/he was in the WRAP cart at the DSU. · The SP stated that the WRAP was used because the AV did not verbally comply when s/he was asked multiple times to stop kicking the door and once the other door was opened, the AV refused to get out of the car to place her/him in mechanical leg restraints. · The SP stated that the AV was threatening staff persons. The SP stated that staff persons were threatened all the time. When asked if there was any training on how to handle threats from residents, the SP stated, “Just ignore them.” The SP stated that threats from residents was something “you get used to.” · The SP did not recall any staff person offering to de-escalate the situation. The SP stated that staff persons tried de-escalating back in the cottage and again when the AV was asked to stop kicking the door. Note: The SP’s personnel records showed that the SP had previously received a written reprimand for failing to attempt to de-escalate situations with residents. P4 provided the following information: · Throughout the period of the incident, P4 observed and relayed information back and forth to the watch commander. · P4 stated that the SP and P3 asked the AV to stop kicking the door. P4 noted that the SP tried to de-escalate the situation by explaining to the AV what was going to happen. The SP directed P4 to ask permission to use the WRAP. P4 stated that the SP and possibly another staff person removed the AV the car but could not recall because “it was a bit of a blur when [the AV] was removed from the car.” · P4 stated that s/he did not see the AV’s head hit the ground but once the AV was on the ground other staff persons descended on the AV. Once the AV was on the ground, the AV became combative by whipping her/his head, trying to kick, flailing, and making threats against staff persons. P4 noted that threats against staff persons were common. · P4 stated that s/he had been involved in several incidents where a resident was placed in a WRAP and had never seen an abrasion on a resident’s face like the AV had, and most times when a resident was placed in a WRAP, it happened indoors. P5 provided the following information: · P5 reviewed reports submitted by staff persons and reviewed video footage from a security camera located about 100 yards from the location of the incident. The video was too grainy to show details but was sufficient to support concerns raised by staff persons about how the AV was taken out of the car and to the ground while handcuffed behind her/his back and the SP may have “overreacted.” · De-escalation techniques involve reflective listening, explaining to the resident the pros and cons of resolving a situation peacefully, and lowering the overall tone of a situation. Incident Reports filed by staff persons were inconsistent on whether or not another staff person assisted the SP in removing the AV from the car. The Incident Report filed by the SP only stated, “I took control of [AV’s] right side and escorted [her/him] out of the vehicle, placing [her/him] on the ground.” The SP and P1-P5, were trained on the above policies and Reporting of Maltreatment of Minors Act. Conclusion: A. Maltreatment: Information showed that while the AV was handcuffed behind her/his back and sitting in the back of a patrol car, s/he kicked the rear driver’s side door. The AV was directed to stop and complied. The SP asked for and was granted permission to use the WRAP. P1 offered to try to de-escalate the situation but got no response, this was corroborated by P2. The SP reached in and removed the AV, forcing the AV to the ground with excessive force causing the AV to sustain injuries to her/his face and knee. There was inconsistent information from P1-P4 whether policy was followed and whether any other or which staff person assisted the SP in removing the AV from car. P1 and P2 believed the injuries could have been avoided if further de-escalation had been attempted but that the “mindset” was that the AV was going in the WRAP. The SP and P1-P4 each noted that verbal threats from residents were common and typically ignored. There was no information that throughout the incident the AV physically attempted to kick or spit on any staff persons. Given the testimony provided through interviews with staff persons and the facility’s requirement per policy to de-escalate a potential use-of-force situation, to use the least amount of force reasonable, the physical injuries sustained by the AV, and staff persons belief that the SP used excessive force or overreacted there was a preponderance of the evidence that the SP’s conduct was not accidental and caused the AV physical injury. It was determined that physical abuse occurred (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 the facility’s relevant policies and the Reporting of Maltreatment of Minors Act prior to the incident. 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 was not recurring maltreatment because it was a single incident but did meet the statutory criteria to be determined as serious maltreatment because the AV sustained an injury resulting in a large abrasion to the AV’s right cheek and small abrasions to the right knee. 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: Pursuant to policy, the facility conducted an administrative review of the incident and determined there was support for concerns raised by staff persons about how the AV was taken to the ground while handcuffed behind her/his back. The facility reported the incident to the DOC’s Office of Professional Accountability and DHS. 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. 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.
|
