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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.”
Minnesota Department of Human Services Suspected Maltreatment Reported: Allegation One: It was reported that an alleged victim (AV1) was unsupervised in the nap room without a staff person’s (SP1) knowledge for approximately 15-20 minutes. Allegation Two: It was reported that on a separate occasion AV1 was without a staff person’s (SP2) supervision or knowledge for approximately two minutes in the nap rom. Allegation Three: During the course of this investigation, it was reported that another alleged victim (AV2) was left in the bathroom without a staff persons’ (SP3 and SP4) supervision or knowledge for approximately three to five minutes. Date of Incident(s): Allegation One: August 17, 2023 Allegation Two: Unknown prior to August 17, 2023 Allegation Three: June 24, 2022 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 September 8, 2023; from documentation at the facility; and through eight interviews conducted with two supervisory staff persons (P1 and SP2), four facility staff persons (P2, P3, SP1, and SP3), and AV2’s family members (FM2 and FM3). Attempts were made via telephone and mail to contact SP4 and AV1’s family member (FM1), but those attempts were unsuccessful. This investigator spoke with AV1, but s/he did not provide any relevant information. The facility was located inside a charter school on the first floor. The facility had a hallway that separated the classrooms. On the left side of the hallway were the Mango (preschool) classroom, supervisory office, toddler classroom, and a shared bathroom for the children. On the right side of the hallway were the Lemon (prekindergarten) classroom, another preschool classroom, and a nap room. At the end of the hallway were doors that led to the playground. The bathroom was across the hallway from the nap room and the supervisory office was approximately 35 feet down from the bathroom. AV1 was three and a half years old at the time of the first and second incident and was enrolled in the Mango classroom. AV2 was four years old at the time of the incident and was enrolled in the Lemon classroom. The facility used ProCare (a mobile application platform used to communicate with families and streamline administrative functions). The facility’s Supervision Policy and Risk Reduction Plan stated that: · Teaching staff are positioned so they can hear and see at all times. · During transitions staff will communicate the children’s count with each other throughout the day. Staff will communicate with each other when staff enter or exit a classroom and for any reason including when children are moving from one location to another. When entering a new area staff will recount. · Children are supervised at all times when they use the toilet and wash their hands. · During naptime teachers should circulate to provide full supervision and cots should be fully visible. Facility records showed that prior to the incidents SP1-SP4 and P1-P3 were trained on the facility’s Supervision Procedure, Risk Reduction Plan, and the Reporting of Maltreatment of Minors Act. Relevant Rules and Statutes: 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. Allegation One: It was reported that AV1 was unsupervised in the nap room without SP1’s knowledge for approximately 15-20 minutes. The facility’s Incident Review stated that on August 17, 2023, SP1 was transitioning the children from the nap room back to their main classrooms. SP1 walked away leaving SP2 (who was in the hallway) with his/her children. The SP1 did not communicate how many children SP2 was supposed to have. SP2 dropped the children back to their main classrooms. AV1 was to be dropped off in the Lemon room on the day of the incident. P2 and P3 completed a check of attendance using ProCare and realized AV1 was not in class. AV1 was found in the nap classroom and was brought back to his/her the Lemon classroom. SP2 and P1-P3 provided the following information: · SP2 stated that on the day of the incident at approximately 2:30 p.m. s/he was in the office when SP1 came to the office with a phone to his/her ear. SP1 told SP2 that s/he had to take a call and asked SP2 to take his/her children. SP1 did not tell SP2 how many children s/he had but SP2 entered the hallway and saw eight children lined up and ready to go to their classrooms. AV1 was not one of the children. SP1 stepped away and SP2 did not know where s/he went to. At the same time, P2 and P3 were coming inside from the playground with their children and used the bathroom. P3 headed to the Lemon room to wait for the children as they completed toileting and hand washing. SP2 walked his/her eight children down the hallway and gave some children to the Lemon room and took the other children into the Mango room. SP1 returned after two to three minutes and then SP2 left the classroom. SP2 went to the kitchen, washed dishes, and when s/he returned to the office s/he was informed by P1 that AV1 was left unattended in the nap room. · P2 and P3 provided the following consistent information. At approximately 2:30 p.m., their classroom returned inside from the playground and used the bathroom. SP2 was in the hallway with the children from the napping room. P2 stated that SP2 was there to cover for SP1 while s/he took a phone call. P3 then headed to the Lemon room to supervise children as they completed toileting. SP2 took his/her eight children down the hallway and gave some children to P3 and took the rest to the Mango room and waited for SP1 to return. After the children completed toileting P2 returned to the Lemon room to prepare for snack. At approximately 2:45 p.m., P2 and P3 checked ProCare because they felt something was “off” and realize AV1 was not in attendance. They had 17 children in the classroom and according to ProCare they should have had 18 children. They double checked with SP1 to make sure s/he did not have AV1. P3 ran to the nap room and found AV1. P3 stated that AV1 was lying down on his/her cot and had not appeared to be in distressed. AV1 was then brought back into the Lemon classroom. · P1 followed up with SP1. P1 stated that SP1 was upset because SP1 thought AV1 left the nap classroom and had gone to the bathroom. P1 stated that SP1 confirmed s/he had not completed transition routines. SP1 had not completed a head count prior to leaving the classroom, s/he had not completed a visual loop to make sure children were not in the classroom. SP1 had not completed a name to face transition with SP2 prior to leaving his/her group. SP1 told P1 that s/he “was distracted on her phone.” · SP1, SP2, P2, and P3 believed that AV1 was left unsupervised for approximately 15-20 minutes. · Prior to this incident P1 and SP2 had no concerns about SP1 other than the use of cell phones while on duty. · P1 notified AV1’s family member (FM1) who. P1 stated that FM1 “took the news well” and had no other concerns. AV1 still attended the facility. SP1 provided the following information to this investigator: · On the day of the incident at approximately 2:15 p.m., SP1 supervised the nap room. SP1 did not remember how many children were in the nap room that day. One or two children had toileting accidents and SP1 sent them across the hallway to the bathroom to change while s/he monitored them from the nap room’s doorway. The other children started to wake up and wanted to use the bathroom so SP1 sent the children into the hallway to wait their turn for the bathroom. SP1 stated s/he saw AV1 get up and go to the bathroom. When the classroom was empty SP1 walked to the bathroom but left the door to the nap room open. While SP1 was in the hallway with the children, P2 came and told him/her that s/he could go to his/her classroom (the Mango classroom) and that P2 would send him/her ten children. SP1 left his/her children with P2 to finish using the bathroom and headed to his/her classroom and waited at the door for his/her ten children. SP1 said that AV1 was one of the children to be sent to the Lemon classroom. · At some point, P3 came into SP1’s classroom and asked if s/he had AV1. SP1 said that s/he did not have AV1 and P3 left. SP1 said that s/he did not know that AV1 was still in the nap room until P3 came back later and told him/her. SP1 stated that s/he was not on his/her cell phone. SP1 stated that she did not go back into the nap room to double check for children. · SP1 stated that his/her daily routine when children woke up from nap time was as followed: Children woke up between 2:15 and 2:20 p.m. SP1 went around the classroom to wake up the children and make sure they had their shoes on. SP1 folded the blankets, lined the children up at the door and then the class went to the bathroom together. The children then took turns going to the bathroom while the SP stood at the bathroom door to monitor the children in the bathroom and the children waiting in the hallway. After bathroom routine was completed, the SP walked the children down the hallway and dropped off some children to the Lemon room and took the rest with him/her to the Mango room. On the day of the incident, SP1 stated that s/he did not follow this routine on the day of the incident because children began having toileting accidents. · When SP1 was asked about being on his/her cell phone SP1 replied, “I am sure I was not on the phone as my biggest fear is leaving a kid.” SP1 stated that s/he was on the phone that day but not during transitions. SP1 also stated that s/he left her/his children with P2 and did not turn over care of his/her children to any another staff person. Conclusion for Allegation One: A. Maltreatment: Consistent information was provided that on August 17, 2023, AV1 was left unsupervised in the nap room for approximately 15-20 minutes which was a violation of Minnesota Statutes, section 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item A, and was found by P3 when s/he and P2 completed a count of the children in his/her classroom and believed they were missing a child. SP1 was supervising the nap room and said that a couple of children had toileting accidents when they woke, and s/he sent the children to the bathroom. SP1 monitored the nap room and the bathroom by standing in the nap room door, which was also a violation of Minnesota Statutes, section 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item E. Then SP1 took all the children including AV1 to the bathroom. Although SP1 stated that s/he saw AV1 leave the nap room and go to the bathroom, s/he also stated that s/he did not go back to the nap room to see if there were children. SP1 said that s/he had not completed a head count prior to leaving the nap room and had not completed a visual loop of the nap room to make sure the classroom was empty. SP1 did not complete a name to face transition with SP2 or P2 when s/he left her/his group and was unaware that AV1 was in the nap room until s/he was informed by P3. SP2 stated that s/he took over supervision of SP1’s children as they were standing in the hallway because SP1 had to take a telephone call and that SP1 had not relayed to him/her know how many children would be in his/her care when SP2 walked into the hallway s/he counted eight children. SP2 brought the children to their prospective classrooms. SP2 said that AV1 was not one of the children in line. At approximately 2:45 p.m., P2 and P3 checked ProCare because they felt something was “off” and realize AV1 was not in attendance. They had 17 children in the classroom and according to ProCare they should have had 18 children. They double checked with SP1 to make sure s/he did not have AV1. P3 ran to the nap room and found AV1 on his/her cot. P3 said that AV1 was did not appear to be distressed. Given that AV1 was unsupervised in the nap room for 15-20 minutes without staff person knowledge, staff persons would not have been able to intervene in the event of an emergency or in the event AV1 was in danger, therefore, there was a preponderance of the evidence that there was a failure to supply AV1 with necessary care and a failure to protect AV1 from conditions or actions that seriously endangered his/her physical or mental health. 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 was trained on the facility’s Supervision Policy, Risk Reduction Plan, the Reporting of Maltreatment of Minors. Regardless of whether SP2 took over care of SP1’s children in the hallway so SP1 could take a call or whether SP1 went from the bathroom to a classroom, SP1 was responsible for the care and supervision of the children in the nap room, including AV1. SP2 stated AV1 was not in the group in the hallway and P3 found AV1 in the nap room. Therefore, SP1 was responsible for maltreatment of AV1. 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 was responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident for which AV1 did not sustain an injury. Allegation Two: It was reported that on a separate occasion AV1 was without SP2 supervision or knowledge for approximately two minutes in the nap room. P3 stated on an unknown date in August prior to August 17, 2023, s/he was in the hallway with his/her children who had come in from the playground and were in the process of using the bathroom and handwashing prior to having snack. At that time, SP2, who was supervising the children from the nap room, including AV1, was also in the hallway with his/her children. SP2’s children woke up from nap and were standing in line to use the bathroom before heading to their afternoon classrooms. While the children were using the bathroom and waiting in line, P3 completed a headcount using ProCare and realized that AV1 was not in line. P3 stated that AV1 was supposed to be in his/her class after nap time. P3 told SP2 that AV1 was not inline SP2 immediately walked into the nap room and brought AV1 into the hallway. SP2 said that on an unknown date prior to August 17, 2023, s/he supervised the nap room and had approximately nine children, including AV1. Between 2:15 and 2:30 p.m. SP2 woke the children from nap and lined them up to go to the bathroom. At that time, AV1 was in line, and they went into the hallway where the children took turns using the bathroom located across the hall from the nap room. As SP2 directed children into the bathroom, s/he counted and realized that s/he did not have the right number of children. The nap room door remained open and SP2 saw AV1 asleep on his/her cot. SP2 stated that AV1 was left unsupervised for approximately two minutes and even though AV1 was not in sight s/he was within “earshot.” SP2 said that no other staff persons were present and that s/he reported the incident to P1. When this investigator spoke with P1, P1 stated that s/he was not aware of the incident. Conclusion for Allegation Two: Information provided by P3 and SP2 was consistent that on an unknown date in August prior to August 17, 2023, AV1 was left unsupervised for approximately two minutes without the knowledge or supervision of a staff person which was inconsistent with the facility’s Supervision Policy and was a violation of Minnesota Statutes, section 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item A. At the time of the incident SP2 was supervising the children in the bathroom and hallway. Although SP2 did not see AV1 go back to the nap room s/he stated that AV1 initially left the nap room and was in line waiting for the bathroom. SP2 stated there were no other staff persons present but P3 stated s/he was also in the hallway and completed a head count using ProCare and noticed that AV1 was not in attendance. SP2 realized s/he did not have the correct number of children using the bathroom. The nap room door was open and across from the bathroom. SP2 found AV1 asleep on his/her cot. 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 nonmaltreatment mistake was made by the individual. A nonmaltreatment mistake occurs when: (1) at the time of the incident, the individual was performing duties identified in the center's child care program plan required under Minnesota Rules, part 9503.0045; (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 nonmaltreatment 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 (3) 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, it’s unclear how AV1 would have gone into hallway with SP2 yet return and be asleep on his/her cot within two minutes, P3 and SP2 were consistent that AV1 was left unsupervised for only a few minutes with SP2 supervising and engaging with the children in the hallway outside the open nap room door. The incident was determined to be a nonmaltreatment mistake for the following reasons: (1) At the time of the incident, SP2 was preforming job-related duties. SP2 was monitoring children in the bathroom and in the hallway. SP2 stated s/he saw AV1 leave the room and when P3 counted s/he discovered AV1 was not with the group. (2) SP2 had not previously been found responsible for a similar incident that resulted in a finding of maltreatment. (3) SP2 had not previously been found responsible for a similar incident that resulted in a finding of a nonmaltreatment mistake in the past. (4) AV1 was uninjured and did not require medical care after the incident. (5) Except for this period when the incident occurred, the facility and SP2 were in compliance with licensing requirements. A nonmaltreatment mistake to AV1 by SP2 was not maltreatment. Allegation Three: During the course of this investigation, it was reported that AV2 was left in the bathroom without SP3’s and SP4’s supervision or knowledge for approximately three to five minutes. SP3 stated that on an unknown date during the summer 2022 (Later determined to be June 24, 2022), s/he and SP4 were supervising the children in the bathroom and after went outside to the playground. SP3 was unaware AV2 was left in the bathroom until P1 brought AV2 outside. SP3 thought that AV2 was without supervision for approximately three to five minutes. This was from the time the class left to the bathroom to go outside until P1 brought AV2 the playground. SP3 said AV2 was upset when s/he was returned to the class but calmed within a few minutes. SP3 stated that after washing hands in the bathroom, s/he had not checked the bathroom for children and had not completed a head count of the children when they left the bathroom or when they reached the playground. P1 stated that the incident happened in the morning, and s/he was in the toddler room next to the bathroom. P1 stated that SP3’s and SP4’s class had used the bathroom and had just walked outside to the playground when s/he heard a noise from the bathroom and immediately walked into the bathroom and found AV2. P1 then took AV2 to the playground and returned AV2 to his/her class. P1 said s/he did not know exactly how long AV2 was in the bathroom but the SP3 and SP4 had just walked outside when s/he went into the bathroom. AV2 was out of sight “very briefly.” FM2 and FM3 were not able to provide any information and were unaware of the incident and were “a little shocked” to hear of the allegation. FM2 and FM3 had no prior concerns about the facility. Conclusion for Allegation Three: On June 24, 2022, AV2 was left unsupervised in the bathroom which was a violation of Minnesota Statutes, section 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item A. SP3 and SP4 were monitoring the children in the bathroom and the children were done in the bathroom SP3 and SP4 took the children outside. SP4 did not provide information for this report. However, SP3 said that s/he had not completed a check of the bathroom to ensure that there were no children left in the bathroom and had not completed a headcount of the children prior to going outside or when the class reached the playground. P1 said that SP3’s and SP4’s classroom had just walked out to the playground when s/he heard a noise form the bathroom. P1 immediately walked into the bathroom and found AV2. P1 brought AV2 outside to join his/her class. P1 said the AV2 was out of sight “very briefly.” It was estimated that AV2 was left unsupervised for approximately three to five minutes, which was a violation of Although, SP3’s and SP4’s left the bathroom and AV2 was unsupervised in the bathroom, P1 heard AV2 and immediately went into the bathroom and found AV2. The incident was determined to be a nonmaltreatment mistake for the following reasons: (1) At the time of the incident, SP3 and SP4 were preforming job related duties. SP3 and SP4 were transitioning children from the bathroom to the outdoor playground and although they failed count or ensure that they had all of the children prior to leaving the bathroom, P1 immediately heard AV2 in the bathroom and went to the bathroom. SP3 and SP4 had just gotten to the playground when P1 returned with AV2. (2) SP3 and SP4 had not previously been found responsible for a similar incident that resulted in a finding of maltreatment. (3) SP3 and SP4 had not previously been found responsible for a similar incident that resulted in a finding of a nonmaltreatment mistake in the past. (4) AV2 was uninjured and did not require medical care after the incident. (5) Except for this period when the incident occurred, the facility, SP3, and SP4 were in compliance with licensing requirements. The nonmaltreatment mistake to AV2 by SP3 and SP4 was not maltreatment. 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: Allegation One: The facility completed an internal review and determined that policies and procedures were adequate but not followed at the time of the incident. In the response the facility added that all staff would be retrained as a precaution and a reminder. SP1 no longer worked at the facility. Allegation Two: The facility completed an internal review and determined that policies and procedures were adequate and followed at the time of the incident. Allegation Three: The facility completed an internal review and determined that policies and procedures were adequate but not followed at the time of the incident. SP3 and SP4 both received written Employee Counseling Notices. SP3 no longer works at the facility. Action Taken by Department of Human Services, Office of Inspector General: SP1 was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1 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. SP2 was not determined as a perpetrator of maltreatment of AV1 because the Department of Human Services found that the incident for which SP2 was responsible met the criteria to be determined a nonmaltreatment mistake. SP2 was notified by the Office of Inspector General that any future incident of possible neglect of an alleged victim for which the SP2 is responsible might not be considered a nonmaltreatment mistake. SP3 and SP4 were not determined as perpetrators of maltreatment of AV2 because the Department of Human Services found that the incident for which SP3 and SP4 were each responsible met the criteria to be determined a nonmaltreatment mistake. SP3 and SP4 were notified by the Office of Inspector General that any future incident of possible neglect of an alleged victim for which the SP3 or SP4 is responsible might not be considered a nonmaltreatment mistake. On February 23, 2024, the facility was issued a Correction Order for the violations outlined in this report and for failing to report maltreatment as required. 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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