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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: 1083305-CCC (Child Care Center) Investigator(s): Thomas Nixon/Alice Percy Minnesota Department of Human Services 651-431-2155 Suspected Maltreatment Reported: It was reported that a supervisory staff person (SP) removed an alleged victim (AV) from the classroom for approximately 20 minutes after the AV became disruptive. When the SP and the AV returned to the classroom, the AV had a red handprint on his/her face and the AV told a staff person that the SP slapped the AV’s face. Date of Incident(s): October 13, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 18, paragraph (a), and subdivision 23, paragraph (a): "Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury. Summary of Findings: Pertinent information was obtained during two site visits conducted on December 5 and 19, 2023; from documentation at the facility and law enforcement records; and through eight interviews conducted with three staff persons (P1 – P3), two supervisory staff persons (the SP and P4), the AV, and two of the AV’s family members (FM1 and FM2). The SP and P4 had an interpersonal relationship. A staff person (P5) did not respond to interview requests. The AV was three years old and enrolled in the Preschool Pathways classroom at the time of the incident. FM1 stated that the AV recently had some “behavior problems” at the facility and was disruptive and not following the classroom routine. On October 11, 2023, the AV told P2 that the SP slapped the AV, but FM1 “did not give it that much credit because it was a bizarre thing to say.” FM1 did not observe any marks on the AV’s face. Then on October 13, 2023, P2 contacted FM1 and told FM1 that on October 11, 2023, when the AV was being disruptive, the staff persons asked the SP to take the AV out of his/her classroom for a few minutes to calm. P2 told FM1 that after approximately 20 minutes, the SP brought the AV back to his/her classroom. The AV was “not himself, was shaking, sad, and emotional.” P2 believed the AV’s cheek was red and s/he saw “what looked like a handprint” on the AV’s cheek. FM1 recently learned that there were previous occasions when the AV was taken out of his/her classroom for brief periods of time to sit with the SP at the front desk in order to calm, even though it was against the facility’s policies to take a child out of the classroom unless they were on a behavior plan. The AV did not have a history of “making things up.” FM2 stated that s/he had no previous concerns about the care the AV received at the facility. The day after the incident, FM2 dropped the AV off at the facility and the AV did not appear hesitant or afraid to go in or be there. Later that week, after FM2 learned about the incident, s/he asked the AV about what happened and the AV pointed to his/her cheek and told FM2 that the SP hit him/her. The AV was interviewed by this investigator and a law enforcement officer (LEO). The AV stated that on an unknown date, s/he was not listening when s/he was at the facility and the SP slapped his/her face. The staff persons told the children that they had to use their “listening ears.” The AV stated that if you did not use your listening ears, “somebody hits you” and it hurts. The AV stated that in the past, s/he saw someone else get hit at the facility, but was unable to say who was hit. P1 and P2 provided the following information: · On October 11, 2023, P1 and P2 worked in the AV’s classroom with 15 children. At approximately 10 a.m., they went outside to the playground and at approximately 11 a.m., they returned inside to the classroom. P1 and P2 each stated that the AV did not want to return inside and P2 stated that the AV “had a meltdown.” The AV then began to act “silly” and “roar” at the other children. The AV took items from the other children’s backpacks and “stomped” on them, moved chairs around the classroom, and stood on a chair. The staff persons were unable to redirect the AV because P2 was in the bathroom assisting children with toileting and P1 was sitting on the carpet reading to a group of children. P2 told the AV that s/he could use the bathroom or sit with P1. The AV laughed and refused to do either. At approximately 11:15 a.m., P2 called the SP and asked for assistance. · P2 stated that the SP entered the classroom with a “normal and friendly demeanor,” took the AV’s hand, and said, “Let’s go,” and they walked out of the classroom. P1 believed that the SP was taking the AV to a preschool classroom. P1 stated that when the SP returned the AV to the classroom a short time later, the AV’s demeanor was “different” and his/her “energy was sad.” P2 stated that s/he saw a red mark on the AV’s left cheek which was “red to [his/her] ear.” P1 and P2 each looked at the AV’s face and saw red lines “like fingers” on the left cheek. The AV’s right cheek was not red. When P2 asked the AV what happened, the AV told them that the SP slapped the AV. P1 took a photograph of the AV’s cheek. The children ate lunch and “went on with their day.” P1 and P2 each stated that later that day, the AV tried to slap each of them, which the AV “doesn’t do.” P1 and P2 later talked to another staff person (P5) about the incident, but they did not talk to the SP about the incident until later in the week. · P1 stated that the classroom staff persons did not document when a child was taken out of the classroom by another staff person and s/he was uncertain if the SP documented those incidents. Incident reports were given to a child’s family member if there was an injury. The staff persons also let the family members know if a child had behavior issues. P1 stated that the AV did not have a history of self-injury and the AV had not previously “created things that didn’t happen.” P2 stated that the AV sometimes injured him/herself. P3, P4, the SP, and the facility’s documentation provided the following information: · The SP stated that prior to October 11, 2023, the staff persons in the AV’s classroom reported four incidents where the AV was growling, biting, not listening to instructions, kicking a staff person, and slapping a staff person. The staff persons sent information about the incidents to FM1 and FM2 via Procare, which was a computer app used to communicate with the children’s family members. · The SP stated that on October 11, 2023, P1 and P2 requested his/her assistance with the AV because s/he was being disruptive. When the SP entered the classroom, the AV was pushing chairs around the classroom and in front of two other children who were running around the classroom. P1 and P2 told the SP that when they left the playground, the AV screamed, stomped on another child’s book, and ignored redirection from P1 and P2. The SP stated that s/he took the AV’s hand and walked out of the classroom. The SP and the AV walked down the hallway to the end of the hallway and turned around and walked back. As they walked down the hallway a second time, s/he talked to the AV about the classroom rules and asked if s/he was being kind. The AV told the SP that s/he would follow the rules “tomorrow.” The SP talked about following the rules every day and the AV said, “Okay.” The AV was calm as they walked and did not cry or yell or attempt to pull away from the SP. After a few minutes, the SP returned the AV to the classroom and the AV apologized for not listening. The SP told P2 that s/he talked to the AV and the AV “was going to listen.” The SP then left the classroom. The SP stated that the only physical contact s/he had with the AV was holding his/her hand. The SP documented the incident. The SP stated that when FM1 arrived at the facility to pick up the AV, s/he talked to FM1 about P1 and P2 needing the SP’s assistance with calming the AV earlier in the day. · P3 stated that on October 11, 2023, at 4 p.m., s/he began his/her work shift at the facility. As s/he walked by the AV’s classroom, P2 opened the classroom door and told P3 that the AV was “difficult” the last two days and s/he was “frustrated” with the AV, so earlier that day s/he asked the SP to take the AV out of the classroom to help the AV calm. When the SP and the AV returned to the classroom five minutes later, the AV had a “print” on his/her face. P1 took a photograph of the AV’s face with his/her cell phone, but P2 did not allow P3 to see the photograph. P3 told P2 to take a photograph of the AV’s face with the classroom iPad rather than his/her personal cell phone and to talk to the SP about the incident. P3 did not see the AV and did not believe the SP slapped the AV. P3 did not know if P2 talked to the SP about the incident. Later in the week, P3 asked the SP about the incident. The SP told P3 that s/he and the AV were in the hallway outside the AV’s classroom for “three minutes” and denied hitting the AV. P3 stated that P2 told several of the children’s family members about the incident and those family members asked P3 about what happened. P3 had no previous concerns about the SP’s interactions with the children. · P4 stated that on October 16, 2023, FM1 sent an email to the facility saying that they were withdrawing the AV from the facility. The SP told P4 that s/he did not hit the AV and had documented what occurred when s/he took the AV out of the classroom. P4 reviewed the documentation about the incident. P4 talked to P2, who told P4 that on the day of the incident, the AV did not want to leave the playground and return to the classroom. When they went to the classroom, the AV was crying and did not listen to the staff persons. The AV was “disruptive” and P2 asked the SP to take the AV out of the classroom to calm. When the SP returned the AV to the classroom, the AV was “different” and “very quiet.” The AV told P2 that the SP slapped the AV and P2 took a photograph of the AV’s cheek. P4 did not see the photograph. · P3 stated that when a child was disruptive, the staff persons could ask the SP to take the child out of the classroom to calm. The SP either remained in the hallway outside the classroom or walked with the child to the staff desk in the entryway where they would sit until the child calmed. The staff persons documented the actions taken in the logbook and on the classroom iPad. They also contacted the parents. P3 stated that the AV sometimes became upset and hit other children and also slapped him/herself on the face. P3 also stated that the AV was “clumsy” and frequently bumped into things or fell. · The SP stated that if a staff person asked the SP to step into the classroom to assist when a child was disruptive, the SP “assessed” the situation and determined if there was a safe area within the classroom where a child could calm or if the child needed to leave the classroom if s/he was a danger to him/herself or others. At that time, the AV did not have a behavior plan. When the SP took a child out of a classroom, s/he talked to the child about his/her behavior and why they were upset. When the child calmed, the SP returned him/her to the classroom. The SP typically documented his/her interaction with the child, but sometimes talked to the child’s family member when they picked up their child. The SP did not believe that taking a child to the hallway to calm was a “separation” from the group, but rather a safety issue. After the incident, the SP documented taking the AV out of the classroom. A review of three photographs taken by P1 of the AV’s face shortly after the incident showed that the AV’s left cheek was red and his/her right cheek was not. According to the facility’s Separation From Classroom notes, on October 11, 2023, from 11:10 – 11:15 a.m., the SP documented that s/he took the AV out of the classroom and walked in the facility and discussed using “inside voices and walking feet,” keeping hands and feet to yourself, and being kind to self and others. The SP then returned the AV to his/her classroom and talked to FM1 that afternoon when FM1 arrived at the facility to pick the AV up. According to the facility’s Parent Handbook, the facility prohibited spanking and other corporal punishment, verbal or physical abuse, and any type of physical hitting. The staff persons were to treat each child with respect and to model appropriate behavior for the children. If a child was given a “time out” to “cool down,” they were to remain in the classroom within sight and under the control of the staff persons. According to the facility’s Employee Handbook, the use of corporal punishment, including hitting, spanking, shaking, slapping, twisting, pulling, squeezing, and biting, was prohibited. Facility documentation showed that the SP, P1, P2, P3, and P4 each received training on the Reporting of Maltreatment of Minors Act and on the facility’s policies prior to the incident. Relevant Rules and Statutes: Minnesota Rules, part 9503.0055, subpart 3, item A, states that the license holder must have and enforce a policy that prohibits the following actions by or at the direction of a staff persons: Subjection of a child to corporal punishment, which includes, but is not limited to, rough handling, shoving, hair pulling, ear pulling, shaking, slapping, kicking, biting, pinching, hitting, and spanking. Minnesota Rules, part 9503.0055, subpart 4 states in part that no child may be separated from the group unless the license holder has tried less intrusive methods of guiding the child’s behavior which have been ineffective and the child’s behavior threatens the wellbeing of the child or other children in the center. A child who requires separation from the group must remain within an unenclosed part of the classroom . . . When separation from the group is used as a behavior guidance technique . . . the child must be returned to the group as soon as the behavior that precipitated the separation abates or stops. Conclusion: A. Maltreatment: On October 11, 2023, P1 and P2 worked in the AV’s classroom with 15 children. At approximately 11 a.m., when they brought the children into the facility from the playground, the AV became upset, “roared” at the other children, took items from the other children’s backpacks and “stomped” on them, moved chairs around the classroom, and stood on a chair. The staff persons were unable to redirect the AV and called the SP for assistance. The SP went to the classroom and asked the AV to walk with him/her. The SP and the AV left the classroom for several minutes and then returned. The SP stated that s/he held the AV’s hand as they walked and talked about the need to follow the classroom rules. After the SP returned the AV to the classroom, s/he left the room. P1 and P2 observed a red mark on the AV’s left cheek and asked the AV what happened. The AV told them that the SP slapped him/her. That evening, the AV told FM1 that the SP slapped him/her. When FM2 learned of the incident, s/he asked the AV about what happened, and the AV pointed to his/her cheek and told FM2 that the SP hit him/her. The AV later told this investigator and the LEO that the SP slapped him/her. The SP denied slapping the AV. The SP stated that when P1 and P2 requested his/her assistance with the AV, s/he removed the AV from the classroom and walked back and forth in the hallway with the AV rather than remain in the classroom and attempt to get the AV to calm. At the time of the incident, the AV did not have a behavior plan. Information from all sources was consistent that on multiple occasions, when a child was not behaving, staff persons called the SP and the SP removed the child, including at times the AV, from the classroom as a form of behavior guidance, which was a violation of Minnesota Rules, part 9503.0055, subpart 4. Although the SP denied slapping the AV’s face, given that the AV provided consistent information about the incident to multiple people over a length of time and that the SP had reason to minimize his/her actions for fear of repercussions, it was determined that the AV was more credible. The AV did not sustain any injury beyond a transitory red mark during the incident. However, the SP’s actions of slapping the AV on the face was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; was a violation of the facility’s policies; and was a violation of Minnesota Rules, part 9503.0055, subpart 3, item A. Therefore, given that the AV was three years old, there was a preponderance of the evidence that slapping the AV on the face represented a substantial risk of physical or mental injury to the AV. It was determined that physical abuse occurred ("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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Minors Act and on the facility’s policies prior to the incident. The SP was responsible for maltreatment of the AV. The SP had significant administrative and supervisory authority over the operation of the facility and ensuring that the facility maintained compliance with Minnesota Rules and Statutes. Therefore, the facility was also responsible for the maltreatment of the AV. C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. The Office of Inspector General is also required to evaluate whether substantiated maltreatment by a facility meets the statutory criteria to be determined as “serious.” Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. It was determined that the substantiated physical abuse for which the SP and the facility were each responsible did not meet statutory criteria to be determined as recurring because this was a single incident and was not serious because although the AV sustained a red mark on his/her face, the make was transitory so the AV did not sustain a serious injury. 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 the facility’s policies were adequate and were followed by the staff persons. 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 April 5, 2024, the license holder was ordered to forfeit a fine of $1000 as a result of the substantiated maltreatment for which the facility was responsible. The maltreatment determination and the Order to Forfeit a Fine are each subject to appeal. In addition, on April 5, 2024, the facility received a Correction Order for separating children out of the classroom. 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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