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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: 1121140-CCC (Child Care Center) Investigator(s): Beth Virden beth.virden@state.mn.us Suspected Maltreatment Reported: It was reported that an alleged victim (AV) left the playground without a staff person’s knowledge or supervision. The AV was discovered by a community person sitting on a rock in a wooded area “just east of” Highway 61 northbound. Date of Incident(s): February 29, 2024 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 March 19, 2024; from documentation at the facility and law enforcement records; and through interviews conducted with the AV’s family member (FM), a community person (CP1), facility staff persons (SP1, SP2, SP3, and P1), and a supervisory staff person (P2). The AV provided information to the FM about the incident and that information was included in this report. At that time of the incident, the AV was three years old and enrolled in the facility’s preschool classroom. The facility shared a building with a church. There was a playground connected to the south side of the building, which was fully enclosed by chain-link fencing and portions of the building, itself. To the immediately west of the playground, there was a wooded area, which was not enclosed by fencing. On the other side of the wooded area was Highway 61, which was a four-lane divided highway with a center median and a speed limit of 55 miles per hour. It was possible to see the highway through the wooded area from the playground. The surrounding area also included more than one car dealership and other businesses, various roads and traffic signals, other wooded areas, and residential homes. CP1 provided the following information: · On February 29, 2024, around 4:30 p.m., CP1 and another community person (CP2) were driving northbound on Highway 61. As CP1 was driving, CP2 abruptly said, “That’s weird.” CP2 said that s/he just saw a child sitting on a rock in the wooded area next to highway 61. CP1 and CP2 decided to circle back around, which took about five minutes. Upon doing so, CP1 also saw the child, later identified as the AV, sitting on a rock in the wooded area. [Note: Based on www.bing.com/maps, an overhead map of the area showed the rock to be about 75 feet from the edge of Highway 61 northbound. There were no barriers, including fencing, separating the rock from the highway.] · CP1 parked the car and approached the AV. The AV was not injured and appeared calm. The AV’s speech was difficult to understand but CP1 believed the AV said that s/he was dropped off at this location by his/her family member. CP1 checked with the nearby car dealership to see if the AV’s family member was inside; s/he was not. There was no one else around or looking for the AV. · CP1 called 9-1-1 and waited with the AV until law enforcement arrived. A Maplewood Police Department Report included the following information: · On February 29, 2024, at 4:43 p.m., 9-1-1 dispatch received CP1’s call for assistance and law enforcement officers (LEOs) arrived on scene. · One LEO guided the AV into the front seat of his/her squad car while another LEO went to the facility. The LEO asked staff if they had a child with the AV’s first name, which staff confirmed. At that time, the LEO explained where the AV was found and brought him/her back inside the facility. · The LEO spoke with staff persons. “[SP2] stated [s/he] was advised by [SP3] there were fifteen children in the preschool class … [SP2] stated [SP3] must have miscounted the children and that is why [SP2] did not notice [the AV’s] absence. [SP2] stated when [s/he] was bringing the children inside from playing outside around [4 p.m.], [s/he] counted fifteen children. [SP2] stated that [s/he] and the children had been inside for approximately ten to fifteen minutes, before [the LEO] arrived to talk with [him/her]. [SP3] stated that [s/he] was tending to other children in the daycare and was only outside for approximately five minutes.” The FM said that the AV went on “a very scary adventure.” The FM asked the AV about what happened and the AV “didn’t say a whole lot” but said, “[S/he] was looking for something and when [s/he] turned around no one was there.” The FM was told by the facility that the AV was unsupervised outside for 20 to 30 minutes. “[Staff] did not know [s/he] was missing.” The AV was not injured but had “a lot of apprehension about going back” to the facility the following day. The AV also had nightmares following this incident for about a week in which the AV would say, “I can’t find [the FM]” in the nightmare. SP1, SP2, and SP3 provided the following information: · The facility used a ProCare application (app) to track classroom attendance. The app was loaded on each staff person’s cellphone and included a list of enrolled children in each classroom. Staff were able to add or remove children as they were dropped off or picked up by parents throughout the day. The facility trained staff to use the ProCare app to ensure their count was always accurate and to complete name to face counts using the app’s list of children. Staff could check a box next to the child’s name as they went through a name to face count. However, the counts did not save in the app. At the time of the incident, the facility did not document or save counts on the app or via any other method. SP1, SP2, and SP3 were each familiar with the ProCare app, and its uses. · On February 29, 2024, SP1 and SP2 were working in the preschool classroom and SP3 was working in the prekindergarten (pre-K) classroom. · SP2’s own child (C) was present in the preschool classroom that day as a “drop in.” The C was added to the classroom roster as a “write in.” This roster was kept on a clipboard in the classroom. However, the facility did not add the C to the ProCare app for various reasons, including that the C only attended once or twice a year. SP1, SP2, and SP3 were each aware they had one extra child compared to what it showed on the ProCare app. [Note: The facility maintained an enrollment and attendance record for the C.] · Around 3 p.m., SP1 and SP2 brought 16 preschool aged children, including the AV, outside to the playground. This included the 15 children listed on the ProCare app plus the C for a total of 16. SP1 and SP2 did not bring the clipboard to the playground but had the ProCare app with them on their cellphones. · Around that same time, SP3 brought four pre-K aged children to the playground. The preschool and pre-K classrooms typically combined on the playground at this time of day and remained combined until closing. · The preschool/pre-K classroom remained on the playground until the toddler classroom came out. At that time, the preschool/pre-K classroom moved out of the playground and began playing in the wooded area (that was not fenced and located next to Highway 61). SP1, SP2, and SP3 remained with the group, supervising in the wooded area. At various points, SP2 and SP3 brought different children inside to use the bathroom, and also during this time, some of the children were picked up by parents. SP1, SP2, and SP3 were using the ProCare app to track the changes. [Note: The act of allowing children to play in the wooded area, which was not enclosed despite being located adjacent to traffic was in violation of Minnesota Rules, part 9503.0155, subpart 7, item C. A licensing violation was determined.] · Around 4:20 or 4:30 p.m., it was time to go inside. SP1 brought the children from the wooded area up to facility and instructed the children to line up outside the door. SP2 and SP3 were simultaneously coming back outside after assisting various children in the bathroom. SP1 did a name to face count when they were all back together and lined up. At that time, SP1 believed the AV was near the back of the line. SP1 counted 15 children using the ProCare app plus the C for a total of 16 children. Some children had already been picked up by parents, so the 15 children included the combined preschool/pre-K classrooms. [Note: SP1’s written statement provided to the facility immediately following the incident stated that s/he counted “a few times because we were off by one.” However, SP1 determined the count was accurate because a child had just been picked up his/her parent.] · Around this same time, SP2 asked SP1 how many children they had and SP1 said, “15.” SP3 also heard SP1 say “15.” SP2 and SP3 each counted 15 children in line using a head count method. SP2 and SP3 did not complete a name to face count. SP3 believed that SP1 and/or SP2 had already done a name to face count. SP2 said that s/he “dropped the ball” and should have completed a name to face count at that time but did not. · SP3 held the door while SP1 led the children inside. SP2 was at the back of the line and they led the children into the classroom. SP1, SP2, and SP3 each counted 15 children, using a head count method, as they passed the threshold. [Note: SP2’s written statement provided to the facility immediately following the incident stated that s/he was at the front of the line and that SP1 was at the back of the line.] · SP1 said that s/he was not able to count again upon entering the classroom because two children were hitting each other, and one was crying. SP1 helped those children and believed SP2 and SP3 would “ensure everyone was in.” “I left it to [SP2 and SP3] to, hopefully, do the final count.” “I was assuming they did counts while I was helping kids calm down.” · SP2 did not count the children because s/he almost immediately left with a group of children to put their jackets away. SP2 knew how many s/he had but did not count the entire classroom at that time or access the ProCare app. · SP3 counted upon entering the classroom and, again, counted 15. However, SP3 did not check to see how many children should be present or access the ProCare app. Instead, SP3 said that SP1 said they had 15 and so SP3 believed this number was accurate. · SP2 and SP3 then each went to go to the bathroom, themselves, before SP1’s shift ended. · SP3 said that after using the bathroom, s/he returned to the classroom where SP1 was reading a book to children. SP2 had not yet returned from the bathroom. SP3 took this time to merge the preschool classroom and the pre-K classroom on the ProCare app. In doing so, SP3 also did a count of the children, although it was not a name to face count, s/he did notice that the AV was not in the classroom. However, SP3 also had not been with the group the entire time and so believed the AV might have been picked up by his/her parent and that the parent forgot to sign the AV out in the ProCare app. SP3 asked SP1 if the AV went home. SP1 did not answer because s/he was actively reading a book to the children. SP3 believed that SP1 heard him/her and since SP1 did not react or say anything, and so the AV must have been picked up or might be with SP2 at the bathroom. SP3 decided to wait a few minutes to see if the ProCare app updated and/or ask SP2 when s/he returned. · Around 4:40 or 4:45 p.m., SP2 returned to the classroom. At that time, SP1’s shift ended, and s/he left for the day. Also, at that time, SP2 told SP3 to go work the remainder of the day in the toddler classroom while SP2 would remain with the preschool/pre-K classroom. · SP3 then left to the toddler classroom but forgot to ask further about the AV. SP3 thought that they had been inside for 15 minutes at this point. SP3 believed that s/he returned from the bathroom and noticed the AV missing towards the beginning of this 15-minute timeframe but that by the time SP2 came to the classroom, it had “slipped [SP3’s] mind.” · SP2 said that after s/he returned to the classroom and SP1 left for the day, about five minutes later, the LEO was at their door with the AV in hand. SP2 believed the AV was outside or away from the group for 15 to 20 minutes. · The AV was not injured or upset. · In hindsight, SP2 wondered if, when s/he asked SP1 how many children they had, SP1 meant that they had “15” on the ProCare app plus the C. · SP1, SP2, and SP3 each provided information that they believed others were counting when they were not, and that the communication during this time was not adequate. P2 said, “There was a lot of transition happening at that time.” P1 did not have prior concerns with SP1’s, SP2’s, and/or SP3’s conduct. P1 added that at the time of the incident, staff could keep their roster up to date using a whiteboard in the classroom, a clipboard, or the ProCare app. Regardless of what method they used, all staff were required to complete name to face counts before and after each transition using the whiteboard, the clipboard, or the ProCare app. The preschool classroom had a history of using a whiteboard. [Note: SP1 and SP3 each said that the count on the whiteboard was not updated after they returned inside on February 29, 2024.] P2 stated that it was routine practice for children to play in the unfenced wooded area. P1 said that there was a camera mounted outside the facility by the exterior door; however, it was not functioning on the day of the incident. P2 believed that staff counted 15, and repeatedly counted 15, but forgot about the C making the total 16. P2 did not have previous concerns with SP1’s, SP2’s, and/or SP3’s conduct. The facility’s policies and procedures stated the following: · All children will be supervised by sight and sound at all times. · When children are in attendance, all staff working with the children will know how many children are under their supervision at all times. · Teachers will do a name-to-face count during transitions to or from outside … A name-to-face count will be conducted in the ProCare app before heading outside and again upon arrival to the playground. Before returning indoors, a name-to-face count will be documented in the ProCare app and again upon return to the facility. Name-to-face counts will also be done periodically throughout the day and any other time that it is appropriate, such as during arrival and departure times. Facility documentation stated that SP1, SP2, SP3, P1, and P2 received training on the facility’s policies and procedures, and the Reporting of Maltreatment of Minors Act.
Relevant Minnesota Statutes and Rules: Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A, states that a child must have supervision at all times and that supervision is defined as occurring when a program staff person is within sight and hearing of a child at all times so that the program staff person can intervene to protect the health and safety of the child. Conclusion: A. Maltreatment: On February 29, 2024, CP1 and CP2 found the AV sitting on a rock near Highway 61 without the knowledge or supervision of a staff person, which was a violation of Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A. SP1, SP2, and SP3 did not know that the AV did not return inside with them until a law enforcement officer came to the facility with the AV. The AV was outside unsupervised for between 15 and 20 minutes. Given the AV’s age; the amount of time that passed before staff became aware the AV was missing; that the AV was discovered by an unrelated community person near a highway with no barriers between him/her and the highway; and that while the AV was unsupervised outside, s/he was exposed to community persons, vehicle traffic, and other hazards, there was a preponderance of the evidence that there was a failure to supply the AV with necessary care and a failure to protect the AV 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; and/or 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, SP2, and SP3 were responsible for the AV’s care and supervision at the time of the incident. SP1, SP2, and SP3 received training on the facility’s policies and procedures, and the Reporting of Maltreatment of Minors Act. Although the facility was issued a citation regarding children playing in an unfenced area located directly next to traffic, this did not mitigate staff persons responsibility to ensure that they maintained supervision of all the children and ensure that all the children returned inside. Therefore, SP1, SP2, and SP3 were 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, SP2, and SP3 were responsible did not meet statutory criteria to be determined as recurring or serious. It was a single incident of maltreatment for which the AV did not sustain a serious injury that reasonably required the care of a physician. 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 but not followed. The facility provided additional training on counting children. The children were no longer allowed to play in the wooded area. Action Taken by Department of Human Services, Office of Inspector General: SP1, SP2, and SP3 were not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1, SP2, and SP3 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 disqualification. The determination that SP1, SP2, and SP3 were each responsible for maltreatment is subject to appeal. On April 18, 2024, 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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