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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: 1109757-CCC (Child Care Center) Investigator(s): Danielle Morrison 651-431-5647 Suspected Maltreatment Reported: Allegation One: It was reported that two alleged victims (AV1 and AV2) left the playground and went out towards the parking lot without a staff person’s (SP1) knowledge or supervision. Allegation Two: It was reported that an alleged victim (AV3) was found in a play structure in an indoor gymnasium without staff persons’ (SP2 and SP3) knowledge or supervision. Date of Incident(s):
Allegation One: July 5, 2022 (DHS notified May 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 May 17, 2023; from documentation at the facility; and through 10 interviews conducted with two supervisory staff persons (P1 and P2), four facility staff persons (SP1, SP2, SP3, and P3), AV1’s family member (FM1), AV2’s family member (FM2), AV3’s family member (FM2), and an administrative staff person (P4). The facility’s Safety and Supervision Policies stated that “All children must be within sight and sound at all times.” “When there is more than one staff member in an area (i.e., a classroom or playground), spread out in order to better supervise the entire area and place yourself in an area where you can see the entire group.” The facility’s Risk Reduction Plan stated that “The children do not go in the parking lot without staff [persons] or parental/guardian supervision.” “When transitioning from one area to another, children will form a line. One staff [person] will be at the front of the line and one staff [person] will be at the back of the line. If only one staff [person] is present, they will be at the front of the line facing the children. Staff [persons] will count the number of children transitioning to ensure all children are present.” SP1, SP2, SP3, P1, P2, and P3 were all trained on the facility’s Safety and Supervision Policies and Risk Reduction Plan, as well as the Reporting of Maltreatment of Minor Act. Allegation One: It was reported that AV1 and AV2 left the playground and went out towards the parking lot without SP1’s knowledge or supervision. The facility had playgrounds with a variety a climbing structures. The two playgrounds were separated by an interior fence and were used for different age groups. There was a five-foot-high iron fence with vertical slots for the exterior fence that surrounded both playgrounds. There was a horizontal bar about four inches from the top of the fence. There was a gate that led from one playground to a grassy area on the front and side of the building. There was a street that led into a business area and looped around by the front door of the facility and there was a shared parking lot off of that. There was no posted speed limit sign. There was a hill that led from the grassy area to a nearby main road that ran along the side of the facility’s playgrounds. The posted speed limit for this road was 50 miles per hour. AV1 and AV2 were both four years old at the time of the incident and enrolled in the Preschool C classroom. FM1 stated that on July 5, 2022, s/he picked up AV1 from the facility and later while eating dinner FM1 asked AV1 how his/her day was. AV1 told FM1 that s/he and AV2 got out of the gate and walked towards the parking lot. AV1 said SP1 realized they were not where they were supposed to be and “screamed” at them. At 5:39 p.m. FM1 received a text message from FM2 describing the same incident. AV1 told FM1 s/he was “scared” and knew s/he was not supposed to do it. The next day, FM1 told P1 about what happened. FM1 said P1 had no idea what had happened. FM1 was not sure if there was another teacher on the playground, just that AV1 said SP1 “yelled” at AV1 and AV2 and was “mean.” FM1 said P1 apologized but that was it. FM1 also spoke with P4 at the corporate office. FM2 stated that in July or August of 2022, AV2 was picked up by another family member (FM4) and AV2 told FM4 that AV2 and AV1 were out in the grass playing. They wanted to come home but did not cross the road. The gate was broken, and they got out and were in the grass. AV2 said SP1 “yelled” at him/her. FM2 sent FM1 a text message asking if AV1 said anything alarming. AV1 and AV2 shared the same story with FM1 and FM2 separately. When FM2 talked to P1, P1 did not know about the situation, but claimed the gate was not broken. FM2 stated when s/he talked to SP1, SP1 said s/he should not have yelled at AV1 and AV2. SP1 was more concerned about “screaming at them instead of [them] getting out of the gate.” SP1 said that s/he did not remember the exact date, but it was warm outside. SP1 said that AV1 and AV2 were playing in the back corner where the big and small playground met. SP1 remembered AV2 was sitting on the large blocks and AV1 stacked a couple of blocks, stood on them, and reached toward the top of the fence. SP1 said AV1 was holding a cross bar about six inches from the top of the fence and was hanging from it. SP1 was across the playground so s/he “yelled” AV1’s name and went over and told AV1 to “get down.” SP1 said AV1 got down and walked away, SP1 said the situation was over. A day or two later, FM1 asked SP1 about AV1 getting out of the playground. SP1 said s/he had no idea and then when SP1 thought about it, s/he realized that AV1 was talking about the day s/he was hanging on the fence and standing on the blocks. SP1 asked AV1 if s/he got out of the fence and AV1 said, “Yes.” SP1 asked AV1 to clarify where his/her feet were and AV1 said, “The woodchips,” which were inside the fence. SP1 thought AV1 and AV2 “game planned” trying to get out of the gate. SP1 told FM1 what SP1 thought happened, that AV1 climbed on the blocks, and “game planned” getting out, but did not get out. FM1 “seemed okay,” and SP1 thought that was it. SP1 said there was a carabine on the lock of the gate which was difficult to open. SP1 said to his/her knowledge AV1 and AV2 did not get out of the gate. P1, P2, and P4 provided the following information: · P1 stated that FM1 came to him/her and said that AV1 climbed over the fence, since P1 was not there at the time of the incident, s/he and FM1 went to talk to SP1. SP1 stated that AV1 was climbing on the blocks and trying to get over the fence. SP1 was across the playground so s/he “yelled” at AV1. At that point P1 said FM1 was more concerned that SP1 “yelled” at AV1 than about AV1 getting out of the playground. When FM2 asked P1 about the incident, P1 told FM2 that s/he was not at the facility at the time and that if children got out of the gate, P1 assumed s/he would know. P1 told FM2 that s/he needed to ask SP1 about it and SP1 told FM2 what happened. SP1 told P1 that AV1 and AV2 were trying to build with the outdoor blocks and SP1 told them they needed to get down, and that they “never” got out of the gate. P1 said s/he did not look into this further “because [FM2] seemed to be at an understanding when [FM2] spoke with [SP1].” · P1 stated that there was “typically” a carabine clip in the gate to prevent children from lifting the latch and getting out. P1 stated that it would not be possible for a child to open it as you have to lift the latch, and push it open, and sometimes the grass on the other side was higher up and it was hard even as an adult to open the gate. (Note: When this investigator visited the facility on May 17, 2023, there was no carbine clip in the latch of the gate.) · P1 stated there were cameras on the playground, but because SP1 told P1 that AV1 and AV2 were trying to climb on the blocks, not that they had gotten out of the gate, P1 never reviewed the video footage. · P2 heard from P1 that AV1 and AV2 said that AV1 got out of the fence. When SP1 was asked s/he said that AV1 tried to climb the fence and SP1 told AV1 not to build blocks next to the fence. P2 did not know if anyone talked to AV1 and AV2 about what happened. · P2 said there was “always” a carabine clip on the gate. P2 did not know if there was another teacher outside with SP1, but SP1 stated s/he “yelled” at AV1 to “get down.” P2 heard that FM1 was “upset” that a teacher “yelled” at the children. P2 stated s/he did not check video footage and did not know if anyone else did. P2 said that P1 talked with SP1 and SP1 spoke with FM1, and it was that AV1 was climbing nowhere near the gate and did not get out of the fence. · P4 stated s/he received a telephone call from FM1 about the incident. When P4 spoke with P1, P4 was told that AV1 and another child were building with blocks and trying to put their legs over the fence and a group of other children were saying AV1 and the other child got out of the playground. P1 told P4 that AV1 and the other child never got out, that the staff person got to them when they were climbing and got them down. Conclusion for Allegation One: On July 5, 2022, AV1 and AV2 went home, and each told family members (AV1 told FM1 and AV2 told FM2 and FM4) that they got out of the fence and were in the grassy area by the parking lot but did not go out into the street. AV1 and AV2 said they got “yelled” at by SP1. SP1 stated that AV1 built with blocks and stood on the blocks trying to reach the top of the fence. SP1 was across the playground so s/he “yelled” AV1’s name and went over to tell AV1 to “get down.” A day or two later FM1 asked SP1 about AV1 and AV2 getting out of the gate, and SP1 did not know about that. SP1 thought about it and realized what AV1 was talking about was when s/he was building blocks by the fence. SP1 asked AV1 if s/he got out of the gate and AV1 said, “Yes.” SP1 asked AV1 to clarify where his/her feet were and AV1 said on the woodchips, which were inside the fence. SP1 thought AV1 and AV2 “game planned” on trying to get out of the gate, so SP1 told FM1 what s/he thought. To SP1’s knowledge, AV1 and AV2 did not get out of the playground. P1, P2, and SP1 all stated that there was a carabine hook that secured the gate latch, however when this investigator was on site, there was no carabine hook in the gate latch. Although AV1 and AV2 provided consistent information to FM1, and FM2 and FM4 respectively, AV1 also told SP1 that s/he was standing on woodchips that were inside the playground and not outside. Given that it was not likely that AV1 or AV2 were able to climb over the fence, that SP1 did not see AV1 or AV2 go out or back in through the fence gate, and that there was no further information to determine if AV1 and AV2 were unsupervised, there was not a preponderance of the evidence whether SP1 failed to provide supervision to AV1 and AV2. It was determined that neglect did not occur (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). Allegation Two: It was reported that AV3 was found in a play structure in an indoor gymnasium without SP2’s and SP3’s knowledge or supervision. The facility had an indoor gymnasium that had a multicolored tunnel in the design of a caterpillar. The tunnel was approximately six feet in length with large circular openings on both ends, and had circle cut outs along both sides to see into the tunnel. There was a hallway that ran along the indoor activity space that led to the toddler classroom. The doorway to the toddler classroom was approximately 12-15 feet away from where the caterpillar was positioned. AV3 was two years old at the time of the incident and enrolled in the Toddler B classroom. Sometime in April 2023, FM2 was picking up his/her child (C) and they saw a child in the caterpillar tunnel. FM2 stated s/he brought the child to a classroom and said, “There is a kid out here,” and the staff person responded, “Oh crap.” FM2 stated that it was not a child s/he knew and FM2 did not remember the name of the staff person other than they were a “floater.” P3 said that s/he was leaving for the day and the C’s family member approached P3 and said, “I hope you know there was a child under there hiding,” indicating the caterpillar tunnel in the little gymnasium. P3 said s/he was distraught and brought the child back to the Toddler classroom. P3 said the door was shut and s/he entered the classroom and told the teachers they forgot a child. P3 stated this was about 4 months ago (April 2023) and P3 did not remember the child’s or teachers’ names. P3 said the child was just playing and did not know what had happened. P3 stated that the caterpillar tunnel was around a corner in the little gymnasium and the teachers would not have been able to see if from the Toddler classroom. P3 stated that P2 was in the office so P3 let P2 know what just happened, that a parent saw the incident, and was upset and would notify them. P1 and P2 provided the following information: · P1 stated that sometime in April 2022, FM2 told P1 about finding a child in the caterpillar tunnel in the gymnasium, but that when P1 talked with SP2 and SP3, it happened months ago. When P1 talked with SP2 and SP3, they stated they were in the classroom door counting children coming into the classroom from the gymnasium and one was not there, and that was when FM2 approached and said there was a child in the caterpillar. · P2 said that FM2 told him/her that P2 was picking up his/her child and saw a child in the playroom who was left in the caterpillar tunnel. P2 stated that this was before FM2’s child moved up to the next classroom “right before summer started, so maybe a month before.” P2 brought it to P1’s attention when s/he heard, to figure out what happened. P2 said that P1 found out that the classroom walked back into the classroom, conducted a name to face, realized the numbers were off so a teacher went out the door, and P2 walked in. P2 heard that AV3 was the child and that SP2 and SP3 were the teachers. P2 said that from the Toddler classroom doorway, you would “partially” be able to see the caterpillar tunnel. SP2 stated that sometime in January or February 2023, s/he and SP3 were leaving the little gymnasium to bring their class back to the Toddler classroom. SP2 told SP3 s/he had six children, and SP3 was walking back slowly with the remaining children and checking places children could be. SP2 got to the room and started counting the children as SP3 came in with the remaining children. SP2 stated that both s/he and SP3 were inside the classroom, but the door was still open when SP2 noticed they were missing AV3. SP2 was just coming out of the classroom when FM2 and the C were there and FM2 said there was a child in the little gymnasium. SP2 said s/he found AV3 laying in the tunnel, and s/he seemed “fine.” SP2 stated that P3 let P1 and/or P2 know about the incident because s/he was coming out of another classroom and saw the incident take place with FM2. SP3 stated that s/he and SP2 were coming back from the little gymnasium and as the children were walking through the doorway SP2 was doing a name to face check and was in the middle of that when the C’s family member came in and said there was a child left in the tunnel. SP3 said it was AV3 and SP2 went and got AV3 right away. SP3 said that AV3 “seemed fine” and was “doing [his/her] own thing.” SP3 stated that P1 and P2 were aware of the incident. FM3 was not aware of the incident but had no prior concerns. AV3 was “happy” and liked to go to most of the staff persons. Relevant Rules and/or Statute Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A, states that a child must have supervision at all times and that supervision is defined as occurring when 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.
Conclusion for Allegation Two: Consistent information was provided by FM2, SP2, SP3, and P3 that AV3 was left in the little gymnasium in the caterpillar tunnel without staff person supervision or knowledge for an undetermined amount of time. SP2 and SP3 stated that they were in the middle of a transition back to the Toddler classroom when the incident occurred, the door was still open, they were counting children, and had just realized that a child was not with the group. FM2 stated that the staff person s/he spoke to was not aware that the child was not with the group, and P3 said when s/he brought the child back to the Toddler classroom the door was shut. Minnesota Statutes, section 260E. 30, subdivision 3 states that rather than making a determination of substantiated maltreatment by an individual, the commissioner of human services shall determine that a non-maltreatment mistake was made by the individual. A non-maltreatment mistake occurs when: (1) at the time of the incident, the individual was performing duties identified in the center's child care program plan; (2) the individual has not been determined responsible for a similar incident that resulted in a finding of maltreatment for at least seven years; (3) the individual has not been determined to have committed a similar non-maltreatment mistake under this paragraph for at least four years; (4) any injury to a child resulting from the incident, if treated, is treated only with remedies that are available over the counter, whether ordered by a medical professional or not; and (5) except for the period when the incident occurred, the facility and the individual providing services were both in compliance with all licensing requirements relevant to the incident. Although AV3 was unsupervised for an undetermined amount of time without staff persons’ knowledge which was a violation of Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A, SP2’s and SP3’s actions and conduct were determined to be a non-maltreatment mistake for the following reasons. (1) at the time of the incident, SP2 and SP3 were performing job related duties, as required by the facility’s policies; (2) SP2 and SP3 had not been determined responsible for a previous incident that resulted in a finding of maltreatment; (3) SP2 and SP3 had not been determined to have committed a similar non-maltreatment mistake under this paragraph; (4) There were no injuries to AV3 as a result of this incident; (5) except for the period when the incident occurred, the facility, SP2, and SP3 were in compliance with all licensing requirements relevant to the incident. Pursuant to Minnesota Statutes, section 260E.35, subdivision 6, paragraph (b), the investigative data in this report will be maintained by the Department of Human Services for a period of five years. Action Taken by Facility: The facility completed an Internal Review and found their policies and procedures adequate and followed by staff persons. Action Taken by Department of Human Services, Office of Inspector General: SP2 and SP3 were not determined as perpetrators of maltreatment of AV3 because the Department of Human Services found that the incident for which SP2 and SP3 were responsible met the criteria to be determined a non-maltreatment mistake. SP2 and SP3 were notified by the Office of Inspector General that any future incident of possible neglect of an alleged victim for which SP2 and SP2 are responsible might not be considered a non-maltreatment mistake. On September 15, 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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