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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: 810886-CCC (Child Care Center) Investigator(s): Judith Schwanke 651-431-4033 Suspected Maltreatment Reported: It was reported that staff persons (SP1 and SP2) used a “magic eraser” to remove permanent marker from an alleged victim’s (AV) arm, stomach, and leg, which resulted in injury. Date of Incident(s): June 28, 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 July 20, 2023; from documentation at the facility; and through six interviews conducted with two supervisory staff persons (P1 and SP2), facility staff persons (P2, P3, and SP1), and the AV’s family member (FM). The AV was two years old and enrolled in the Toddler 1 classroom at the time of the incident. On the day of the incident, the Toddler 1 classroom napped with the children in the Toddler 2 classroom. The Toddler 2 classroom was a large open area with tables for children to eat and do activities and carpeted areas for play. At nap time, the children slept on cots. Along one wall of the classroom was a changing table and in the upper corner of the classroom wall was a video camera. The FM, who was a medical professional, provided the following information: · On June 28, 2023, at approximately 5:30 p.m., s/he picked up the AV from a large playroom in the facility. Typically, the AV ran to the FM but on this day the AV limped, and the FM saw a large “red welt” on the AV’s left leg. The FM asked SP2 what happened to the AV to cause the mark. SP2 told the FM the AV had colored on his/her skin with a permanent marker and SP1 and SP2 used a baby wipe to try to remove the marker. The FM stated that the AV had used that same baby wipe since s/he was three months old and had never had a reaction. The FM then pulled up the AV’s shirt and also saw a red welt on the AV’s stomach. · The FM took the AV to the AV’s classroom, followed by SP2, and looked more closely at the marks on the AV. The FM asked SP2 two additional times what had been used on the AV’s skin and SP2 told the FM that only the wipe had been used and that s/he had put a cool cloth on the AV’s marks to provide comfort to the AV. The FM and the AV left the facility and while the FM drove, the AV cried because the marks hurt. · When they arrived home, the FM called the facility and asked P1 to watch the video footage from the classroom and let the FM know if s/he should take the AV to see a doctor. P1 told the FM s/he could not get the video that night. The FM tried to bathe the AV that evening but when the water touched the AV’s body, the AV “screamed and cried.” That night, the FM gave the AV alternating Tylenol and Motrin for pain. The next morning P1 called the FM and asked him/her to stop by the facility office for an update. · When FM1 arrived at the facility, P1 told the FM that s/he had reviewed the video footage and saw that SP1 and SP2 had used Dawn dish soap and then a magic eraser to remove the permanent marker from the AV. The FM googled what happened to the AV’s skin from the magic eraser use and learned the AV had received a “friction burn.” The FM was upset that s/he had asked SP2 three times what was used on the AV and SP2 was not truthful. Had SP2 been truthful, the FM would have been “better prepared” to care for the AV’s injury had s/he known the magic eraser was used. The burns on the AV’s stomach and leg scabbed over and on July 11, 2023, the AV still had dark marks on his/her skin where the burns had been. P1, P2, P3, SP1, and SP2 provided the following consistent information: · On June 28, 2023, at approximately 3 p.m., SP1 was in the Toddler 2 classroom when SP2 entered the room and saw that the AV had used a Sharpie (permanent marker) to draw on his/her arms, left leg, and stomach. SP2 brought the AV to the changing table and used wet wipes on the AV to remove the marker. When SP2 saw that the wipes did not take off the marker, s/he took a step back from the changing table to think. SP1 walked to the classroom next door and told P2 that a child played with a permanent marker and asked for a washcloth. SP1 and P2 provided consistent information that SP1 did not say the marker was on the AV or that the magic eraser was to use on the AV. P2 told SP1 that a cloth would not take the permanent marker off a surface and gave SP1 a magic eraser and then SP1 went back to the Toddler 2 classroom. The magic eraser was not in its original packaging because P2 had already used it in the classroom. P2 stated that typically, magic erasers were kept in the office but on June 28, 2023, there was a magic eraser in a locked cabinet in his/her classroom because s/he had been deep cleaning the classroom. · When SP1 returned to the classroom SP2 had already used Dawn dish soap and paper towels on the marker on the AV. SP1 asked SP2 if it was “ok” to use the magic eraser on the AV because SP2 had more authority. SP1 stated that SP2 told him/her to wet the magic eraser and wipe the marker with it. SP2 stated s/he did not tell SP1 not to use the magic eraser because s/he did not “think straight” and “froze in the moment.” SP1 wet the corner of the magic eraser and wiped the AV’s legs, stomach, and left arm and “most of the marker came off.” After using the magic eraser, SP1 asked SP2 if s/he could try hand sanitizer on the AV and was told s/he could. The sanitizer did not take the marker off of the AV’s skin. As SP1 and SP2 attempted to remove the marker, the AV lay on the changing table and talked. SP2 noticed the AV’s skin was irritated and told SP1 to stop. SP1 and SP2 then wiped off the AV with paper towels and put him/her down on the floor and then the AV played. · At approximately 4 p.m., SP1 changed the AV’s diaper and saw a rash on the AV’s leg and stomach that was “red and warm,” and so s/he applied a wet, cool paper towel to the rash. SP1 stated that the rash bothered the AV because when SP1 tried to touch it, the AV pushed his/her hand away and told him/her, “No.” SP1 showed the rash to SP2 and then SP2 left the room and told P1 that they had used wet wipes on the AV. P1 went into the toddler room to look at the AV and did not think the marks “looked bad,” and told SP2 to message or call the FM. (At this point, P1 believed that only wet wipes had been used on the AV.) SP2 told P1 that s/he would talk with the FM when s/he picked up the AV that evening. SP2 did not tell P1 that a magic eraser had been used on the AV because s/he was “overwhelmed” and “scared in the moment.” · Neither SP1 nor SP2 wrote an incident report regarding the marks on the AV’s arm, legs, and stomach. SP1 thought that either SP2 or P1 talked with the FM. · After P1 left the room, SP2 took the Toddler 1 children, including the AV, back to their room. At approximately 5:30 p.m., the FM arrived to pick up the AV. The AV had visible marks on his/her stomach and left leg. The FM asked SP2 how the AV had gotten the marks and SP2 told the FM that the AV had colored on his/herself and that s/he had used wet wipes to remove the marks. The FM asked the AV if the marks hurt, and the AV told him/her they did. Then the FM and the AV left the facility. · At approximately 6 p.m., the FM called the facility and spoke with P1. P1 provided information regarding his/her conversation with the FM that was consistent with the information provided by the FM. P1 also told the FM that s/he would connect with SP1 and SP2 again in the morning. · On the morning of June 29, 2023, P1 talked with SP1 and learned that the AV was on his/her cot when SP1 and SP2 noticed that s/he drew on his/herself with a permanent marker. It was then that SP1 told P1 s/he used a magic eraser on the AV. · P3 stated that on June 29, 2020, s/he worked in the Toddler 1 classroom and saw red marks that looked like a sunburn on the AV’s stomach, left leg, and a tiny mark on the AV’s arm. The FM requested that P3 wrap the mark on the AV’s leg before going outside because s/he did not want sunscreen on the mark. · SP1, SP2, and P2 stated they had never used a magic eraser on skin before. SP2 stated the magic eraser should not be used in the classroom when children were present. SP1 stated s/he had never been told not to use cleaning products when children were present. Prior to this incident, SP1 thought the magic eraser was a “normal sponge.” The facility provided video footage, without sound, that was two hours, fourteen minutes, and forty seconds long and included the incident. The video started at 13:30:01 on June 28, 2023. The video was from the camera in the Toddler 2 classroom. The changing table was in the upper left corner of the video. o At the beginning of the video, the children were lying on cots and the classroom lights were off. SP1 sat near a child on a cot. The AV is positioned near a window and the sunlight coming through the window caused a glare on the AV in the video footage so it was difficult to establish where and when the AV got the permanent marker. o At 14:33:44, the AV sat up on his/her cot while SP1 sat next to a child, looking at his/her cell phone, and approximately eight feet away from the AV. The AV drew on his/her leg and at 14:33:54, the AV lifted his/her shirt and drew on his/her stomach. The AV continued to draw on his/herself. o At 14:35:25, SP2 entered the classroom and walked across the room to the AV and SP1 put down his/her cell phone. SP2 pointed to the AV while s/he looked at SP1 and SP1 crawled over to the AV and put his/her hands in the air while SP2 took a marker from the AV. SP1 and SP2 both walked away from the AV and then SP1 walked out of the classroom and camera view. SP2 went back to the AV, picked him/her up, carried him/her to the changing table, and lay him/her down on the table. SP2’s back was to the camera at the changing table. SP2 took something out of the cabinet above the changing table and paper towels and moved above the AV. o At 14:38:05, SP1 walked back into the classroom with the magic eraser in his/her hand. SP1 wet the magic eraser and then moved over the AV. Both SP1 and SP2 stood over the AV with their backs to the camera. For the next fourteen minutes, SP1 and SP2 moved over the AV, took items out of the cabinet above the changing area with their backs to the camera., and took turns stepping away from the changing table. o At 14:52:05, SP2 lifted the AV from the changing table and set him/her on the floor. The AV walked away from the changing table and SP1 bent down and looked and talked with the AV as SP2 left the classroom. SP1 then held out his/her arms and the AV put his/her arms up and SP1 picked up and held the AV.
o At 14:52:32, SP1 put the AV down on the floor and the AV walked away. SP1 went back to the changing table. o Between 14:53:20 and 14:59:59, the AV played with other children and toys in the classroom. During this time, SP1 changed three diapers without washing his/her hands, the children’s hands, or sanitizing the changing table after each diaper change which was a violation of the facility’s diaper changing procedures. (Note: These were also violations of Minnesota Rules, part 9503.0140, subparts 12, 13, and 14, which states: that a center must have and follow diaper changing procedures that have been developed in consultation with a health consultant that a child’s hands must be washed with soap and water after a diaper change; and that a staff person must wash his or her hands with soap and water after changing a child’s diaper.) The facility used Mr. Clean Magic Erasers (magic erasers) to clean surfaces. According to the Mr. Clean Magic Eraser’s Safety Data Sheet (SDS) the cleansing pads contained no “hazardous ingredients” but if the eraser came into contact with the skin, the area should be rinsed with “plenty of water” and “get medical attention if irritation develops and persists.” The back of the packaging stated, “Do not use on skin or other parts of the body, using on skin will likely cause abrasions,” and “Do not use with chlorine bleach or other household cleaners.” According to the facility’s Child Care Center Risk Assessment and Risk Reduction Plan, when cleaning products were used in a classroom, staff persons kept children away from the area being cleaned and children did not have access to hazardous items. The facility’s Child Care Risk Assessment and Risk Reduction Plan showed that when chemicals and cleaning products were used in a classroom, staff persons kept children away from the area and the accessibility of hazardous items by children was prohibited at all times. The facility’s cleaning policy stated that all staff persons must read labels or Material Safety Data Sheets prior to using any cleaning product. The facility’s Diapering policy showed that in preparation of a diaper change, a staff person washed their hands with soap and running water. After changing a diaper, a staff person washed his/her hands and the child’s hands with soap and running water, following the handwashing policies and procedures. Once that was complete and the child was removed from the changing table, a staff person disinfected and wiped down the changing table using a disinfected spray. After this step, a staff person washed his/her hands again. Facility documentation showed that P1, P2, P3, SP1, and SP2 were each trained in the Reporting of Maltreatment of Minors Act, the facility’s policies and procedures, and pediatric first aid. Conclusion: Consistent information was provided that on June 28, 2023, during nap time, the AV drew on him/herself with a permanent marker. SP1 and SP2 attempted to remove the permanent marker on the AV by different means. SP1, with SP2’s permission, used a magic eraser on the AV’s skin which caused red friction burns on the AV’s stomach and leg. In a supervisory position, SP2 had the responsibility to implement and enforce the facility’s policy of not using a cleaning product while children were present in the classroom, and on the AV. Neither SP1 nor SP2 wrote an injury report for the AV and when talking with the FM and P1, SP2 provided false and misleading information, which was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services. Although the AV did not require medical care, given that SP1 and SP2 used a magic eraser on the AV’s skin; that the magic eraser packaging stated, “Do not use on skin or other parts of the body, using on skin will likely cause abrasions; that SP2 providing inaccurate information to the FM and P1 which caused a delay in proper care and likely an increased amount of time the AV experience pain, there was a preponderance of the evidence that SP1’s and SP2’s actions were not accidental and were a failure to supply the AV with necessary care and a failure to protect the AV from conditions or actions that seriously endanger the child's 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 and/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 trained on the Reporting of Maltreatment of Minors Act, the facility’s policies and procedures, and pediatric first aid. SP2 had supervisory authority over SP1 and ensuring the facility maintained compliance with Minnesota Rules and Statutes and facility policies and procedures. SP1 stated s/he asked SP2 if it was “ok” to use the magic eraser on the AV and that SP2 told him/her to wet the magic eraser and wipe the marker with it. SP2 stated s/he did not tell SP1 not to use the magic eraser because s/he did not “think straight” and “froze in the moment.” Regardless, each were working in the Toddler 2 classroom and we were responsible for the care of the children, including the AV, and were responsible to ensure that an item used on the AV was safe for use on the AV. SP1 and SP2 worked together for over 14 minutes to get the marker off the AV. Therefore, SP1 and SP2 was each 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 neglect for which SP1 and SP2 were responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident of maltreatment and the marks on the AV did not require medical care. 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 adequate but not followed. SP1 and SP2 were retrained on the use of cleaning products. 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 the disqualification of SP1 or SP2. The determination that SP1 and SP2 were responsible for maltreatment is subject to appeal. On October 18, 2023, the facility was issued a Correction Order for the violations 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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