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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: 800440-CCC (Child Care Center) Investigator(s): Kyle Youker/Anna Parkin 651-431-6225 Suspected Maltreatment Reported: It was alleged that a staff person (SP) hit an alleged victim (AV1); that the SP threw a cheese stick at an alleged victim (AV2), which struck near AV2’s eye and resulted in a scratch; that the SP restrained multiple children on multiple occasions; and that the SP yelled at children on multiple occasions. Date of Incident(s): Ongoing and including May 23, 2023
Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2); subdivision 18, paragraph (a); and subdivision 23, paragraph (a): 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. "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 June 1, 2023; from documentation at the facility; and through nine interviews conducted with six facility staff persons (P1-P4, P7, and P8), a supervisory staff person (P5), AV2’s family member (FM), and the SP. Attempts were made via telephone to contact and interview a staff person (P6), but P6 did not respond. This investigator met AV1 and AV2 but did not interview them about the incidents. The facility had a large room that was split in half by a half wall. On one side of the wall was the preschool room and on the other side of the wall was the discovery preschool room. According to AV1’s enrollment information, AV1 was approximately two years old and enrolled in the discovery preschool room. According to AV2’s enrollment information, AV2 was approximately four years old and enrolled in the prekindergarten room. Consistent information was provided that on May 23, 2023, P1 and the SP worked in the discovery preschool room while P3 worked in the preschool room. P7 and P8 previously worked with the SP in the discovery preschool room for a few months and P4 previously worked in the preschool room. P1 provided the following information: · P1 worked in another classroom at the facility until sometime in April 2023, when s/he transferred to the discovery preschool classroom with the SP. Prior to transferring classrooms, P1 heard “rumors” from P4 about the SP’s behavior. P1 stated that P4 told him/her that the SP “hit” children. P1 was not sure if P4 reported his/her concerns to P5. · On May 23, 2023, at approximately 12 p.m., AV1 was “fighting” with another child so P1 ran over and separated the children. The SP then walked over and “aggressively tapped” AV1’s forehead with his/her knuckle. AV1 cried and had “a little bit of a red mark” on his/her forehead but “nothing permanent.” Immediately after seeing the SP do this, P1 took AV1 to P5’s office to report the incident. P1 stated the SP did this to AV1 at least once per week. · P1 also spoke to P2 and told P2 that s/he was “uncomfortable” with the SP. P1 also previously discussed his/her concerns with the SP with P6. · P1 heard from P8 on a previous unknown date, while out on the playground, the SP “tried to joke around” and threw a cheese stick that was still in a wrapper at AV2. The cheese stick hit AV2 on the side of his/her face near his/he eye and caused a scratch. AV2 cried and the SP laughed about the incident. P1 stated s/he told P5 of the SP’s behavior numerous times, including about AV2 and the cheese stick, and P5’s response to P1 was that s/he would “talk” to the SP. · P1 saw the SP “restrain” AV1 when s/he had “behavioral issues” in the classroom on multiple occasions. When the SP “restrained” AV1 s/he would “bear hug” him/her, restraining AV1’s arms and legs. AV1 screamed and tried to get away from the SP so the SP held AV1 “tighter.” P1 did not see any injuries on AV1 after these incidents. P1 “stepped in” to calm the children and later on told P5 about the incidents. · On previous occasions, the SP got “aggressive” with AV1. The SP grabbed AV1’s shoulders, put his/her face “an inch” away from AV1’s face. The SP “yelled,” and spit was “coming out of [the SP’s] mouth” in AV1’s face. P8 provided the following information: · Towards the end of May 2023, P8 and the SP had the prekindergarten children, including AV2, outside for snack time on the playground. AV2 mentioned something along the lines of not getting a cheese stick for a snack and “for some reason” the SP threw a cheese stick at AV2. The cheese stick wrapper “scrapped” across AV2’s eye but did not leave a mark. P8 asked the SP why s/he did that and the SP did not respond. AV2 then started crying and the SP apologized. AV2 went off and played with other children. Later on, P8 told P1 about the incident but did not tell a supervisory staff person because s/he did not know s/he was supposed to. · P1 told P8 that the SP “hit” children but P8 did not see any incidents him/herself. The SP was generally “cordial” to P8. P8 did not remember much about when s/he first worked with the SP but after this investigation began P8 noticed more things. P8 did not tell any supervisory staff persons about his/her concerns with the SP became s/he was “in shock.” · P8 stated on previous occasions, the SP sat with AV1 in his/her lap and gave AV1 a “bear hug.” AV1 sat on the SP’s lap and “fuss[ed].” After approximately two minutes, the SP let AV1 go. AV1 did not receive any injuries during that time. The SP also did the same “bear hug” to AV3 on previous occasions and after approximately two minutes, let AV3 go. AV3 did not have any injuries and P8 did not tell anyone about the incidents. P5 provided the following information: · On May 23, 2023, at approximately 2 p.m., P1 came into P5’s office with AV1 and stated the SP “hit” AV1 on the forehead a few minutes prior. P1 demonstrated to P5 how the SP used his/her knuckle on AV1’s forehead. When P5 questioned P1 about what happened, P1 “took it back” and told P1 the SP did not hit AV1 but “knocked” AV1 on the forehead using his/her knuckles. AV1 was “calm” and P5 did not see a mark or injury on AV1’s face. · Since P5 was meeting with another staff person, P5 asked P1 if s/he was “comfortable” bringing AV1 back into the classroom, so that s/he could talk to P1 without AV1 and P1 stated s/he was. P1 then went back to the classroom with AV1. Shortly after, P5 went to find P1 to discuss the incident and discovered P1 left the facility. P5 had not spoken to P1 since. · Later that same day P5 spoke to the SP. The SP told P5 that AV1 was hitting and spitting at other children, so the SP used his/her knuckle on AV1’s forehead in a “playful” way and told AV1 to stop spitting on another child. P5 gave the SP feedback on how to handle those situations better. P5 did not have any prior concerns with the SP hitting AV1 or other children. · P5 then called P9 and told him/her about the incident. P9 stated since there was no injury or previous incidents with the SP, they “kind of left it at that.” · P1 had a history of not providing accurate information about other staff persons and was going through personal conflicts that affected his/her work performance at the facility. P5 denied being aware of the incident with the SP throwing a cheese stick at AV2; denied being aware the SP yell at children; and denied being aware that the SP restrained children. P5 previously saw the SP place a child in his/her lap when reading books but did not have concerns. P2 provided the following information: · On May 23, 2023, while s/he was in the kitchen area of the facility, P1, who was carrying AV1, walked up to P2. P1 told him/her that the SP had just “hit” AV1 in the forehead. P2 did not see a mark on AV1’s forehead and AV1 was not crying or distraught. P2 told P1 to go tell P5. · P2 stated on a previous occasion, P1 came to him/her and said that the previous day, the SP threw a cheese stick at AV2 and it hit him/her on the face. P2 then called AV2 over and did not see a mark on AV2’s face. P2 reminded AV2 that if someone hurt AV2, s/he should tell P2. AV2 did not say anything to P2 at that time. · On previous occasions, the SP had children sitting on his/her lap during reading time but the SP was not “applying pressure.” P2 did not have concerns with the SP’s interactions with the children. On one occasion, when P2 walked through the discovery preschool room, s/he saw a child sitting on the SP’s lap crying. P2 did not know if the child had been crying prior to sitting on the SP’s lap or not. P2 stated the SP would “raise” his/her voice to get children’s attention but the SP never yelled at children. P3 was able to hear the SP throughout the day and at times saw him/her over the half wall. P3 denied seeing the SP “hit” any children in the classroom, including AV1. Approximately once per week, during story time, when AV1 ran around the room, the SP sat AV1 on his/her lap for two or three minutes but P3 did not have concerns with these interactions. Sometimes when children were “not listening” and did things they were not supposed to such as climbing bookshelves, the SP told children in a “firm voice” to behave. P3 stated s/he has never witnessed the SP “yell” at children. P3 did not have concerns with the SP’s interactions with children. P4 stated that the SP was “affectionate” towards AV1 and P4 denied seeing the SP harm AV1 or other children. P4 did not have concerns with the SP’s interactions with children, including AV1, and P4 never saw the SP yell at any children. P4 denied having conversations with P1 or any other staff persons at the facility about the SP. P7 did not have concerns with the SP’s physical interactions with the children and did not see the SP yell at children or restrain children. The SP provided the following information: · On May 23, 2023, P1 was talking with AV1 and AV1 spit and hit P1. AV1 was “stubborn” and “lashed out” when s/he was upset. P1 had been “stressed out” earlier in day, so the SP came over and told AV1 to “stop it” and the SP “tapped” AV1 on the head with his/her knuckle. AV1 looked at the SP and P1 and began crying because s/he “knew [s/he] was in trouble.” P1 picked up AV1 and left the room. Approximately ten minutes later, P1 and AV1 returned to the room. The SP did not see any marks on AV1’s forehead. P1 did not say anything to the SP and eventually just left the room and did not return. · The SP denied throwing a cheese stick at AV2 and/or causing a scratch on AV2’s face. · The SP stated on previous occasions, if AV1 had issues with sitting during reading time, the SP walked over, picked AV1 up under his/her arms, and carried AV1 back to a chair. The SP sat with AV1 on his/her lap and continued reading until AV1 calmed. The SP denied restraining children including AV1. · The SP stated on occasion, if the discovery preschool room was loud, the SP raised his/her voice “a decibel” so the children were able to hear the SP. The SP denied yelling at children including AV1.
The FM stated on June 1, 2023, after s/he was made aware of the investigation by the facility, s/he spoke to AV2. The FM asked AV2 if any staff persons threw an item at AV2 and AV2 said, “No.” The FM asked AV2 if a staff person threw a cheese stick at AV2 and AV2 responded that the SP had and it hit AV2 on his/her shoulder. AV2 said s/he cried and then helped another staff person with something before going inside the facility. AV2 was “not traumatized in any way.” The FM did not recall seeing a scratch near AV2’s eye. The FM asked AV2 how s/he felt around the SP and AV2 said that the SP was “nice.” The FM asked if the SP purposely hit AV2 with the cheese stick or if it was an accident and AV2 responded that s/he did not know. The FM also said that earlier that week, when leaving the facility, AV2 said s/he “forgot something” and ran back inside to give the SP a hug goodbye. The FM did not have prior concerns with the SP. According to the facility’s positive guidance policy, staff persons used various techniques including redirection, praise, and distraction to reinforce positive behavior. In an “extreme” situation, staff persons guided a child to an alternate activity away from the group for the benefit of that child as well as the other children. The child was allowed to return to the group activity when they felt ready to do so. Staff persons “never” used corporal punishment. Facility documentation showed that staff persons, including the SP, received training on the facility’s positive guidance policy and the Reporting of Maltreatment of Minor’s Act prior to the incident. Relevant Rules and/or Statutes: Minnesota Rules, part 9503.0055, subpart 3, item A states that the license holder must have and enforce a policy that prohibits 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: P1 stated on May 23, 2023, at approximately 12 noon, AV1 was “fighting” with another child so P1 went over and separated the children. The SP then walked over and “aggressively tapped,” “hit,” or “knocked” AV1’s forehead with his/her knuckle. AV1 cried and had “a little bit of a red mark.” However, P2 and P5 provided consistent information that when they saw AV1 soon after the incident, there was no mark on AV1’s forehead. The SP stated s/he “tapped” AV1 on the head with his/her knuckle. AV1 looked at the SP and P1 and began crying because s/he “knew [s/he] was in trouble.” Consistent information was provided that on a previous occasion, the SP and P8 were outside with prekindergarten children including AV2. Although the SP denied throwing a cheese stick that results in a scratch on AV2’s face, given that AV2 told the FM that the SP threw a cheese stick and that P8 said that s/he saw the SP throw a cheese stick at AV2 and that it was more than likely not the SP threw a cheese stick that hit AV2’s face or shoulder. P1 and P8 provided information that on previous occasions, the SP “restrain[ed]” AV1 when s/he had “behavioral issues” in the classroom on multiple occasions. When the SP “restrained” AV1 s/he would “bear hug” him/her, restraining AV1’s arms and legs. Given that information obtained showed that AV1 was at times aggressive towards other children, it was likely reasonable for the SP to intervene to protect the other children from harm. Although there was consistent information provided that after the incidents with AV1, AV2, and the other children there were no injuries to them aside from a possible transitory red mark on AV1, the SP using his/her knuckles on AV1’s forehead and throwing items at AV2’s face, were not accidental; were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; were a violation of the facility’s positive guidance policy; and were a violation of Minnesota Rules, part 9503.0055, subpart 3, item A. Therefore, there was a preponderance of the evidence that the SP’s actions were a failure to supply AV1 and AV2 with necessary care, a failure to protect them from conditions or actions that seriously endangered their physical or mental health, and threatened injury to each. It was determined that neglect and physical abuse 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. "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 care of the children and trained on the facility’s positive guidance policy and the Reporting of Maltreatment of Minors Act. The SP was responsible for maltreatment of AV1 and 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 and physical abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious. The SP’s actions represented a pattern of behavior that was considered a single incident and AV1’s mark on his/her forehead was considered transitory in nature and although P1 said there was a scratch on AV near his/her eye, consistent information was provided that AV2 did not have an injury shortly after the incident. 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 and followed. There was not correction action taken. 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 September 15, 2023, the facility was issued a Correction Order for the violation outlined in this report, not having personnel files accessible, and not meeting the needs of a child. The Correction Oder is subject to appeal. On September 15, 2023, the facility was issued a $200 fine for a background study violation. The Order to Forfeit a Fine is 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.
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