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AMENDED 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.” NOTICE: This Amended Maltreatment Investigation Memorandum supersedes a version dated January 26, 2024, which should be destroyed. As a result of an administrative reconsideration, the original determination that a staff person (SP) was responsible for serious (nonrecurring) maltreatment for physical abuse and neglect was changed. It was determined that the substantiated maltreatment constitutes physical abuse only, and that the substantiated maltreatment for physical abuse does not meet statutory criteria to be determined as serious (or recurring). The SP’s disqualification was rescinded. For additional information, see the Administrative Reconsideration section of this document.
License Number and Program Type: 1090035-CCC (Child Care Center) Investigator(s): Anna Parkin 651-431-6225 Suspected Maltreatment Reported: It was reported that a staff person (SP) picked up an alleged victim (AV) aggressively and dropped him/her to the floor. The AV then put his/her hand near his/her tailbone and sustained a bruise. Date of Incident(s): November 17, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2); subdivision 18, paragraph (a); and subdivision 23, paragraph (a): Failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so. "Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury. Summary of Findings: Pertinent information was obtained during a site visit conducted on December 11, 2023; from documentation at the facility; and through six interviews conducted with a supervisory staff person (P1), two facility staff persons (P2 and the SP), a family member (FM1) of another child who attended the facility, and the AV’s family members (FM2 and FM3).
According to the AV’s enrollment information, the AV was 26 months old at the time of the incident and in the toddler room. The facility’s preschool room was on the lower level of the facility and had different color carpet squares that the children sat on. Consistent information was provided that the toddler and preschool rooms combined at the beginning and end of each day in the preschool room. P2 and the SP were staff persons assigned to the preschool room on the morning of the incident. FM1 provided the following information: · On November 17, 2023, at approximately 9 a.m., FM1 brought his/her child (C1) to the preschool room. FM1 saw two other children (later determined to be C2 and the AV) hitting each other with toys near the carpet squares. The SP yelled from across the room to “knock it off and find your carpet square.” · The AV and C2 continued to play roughly so the SP stood up and walked over to the AV (who was two feet away from FM1), lifted the AV by his/her arms, swung the AV up so fast that the AV’s legs “flew out” from under him/her and were parallel to the SP’s waist. The AV was in the air approximately five feet high and when the AV was approximately the height of the SP’s knees, the SP dropped the AV onto a carpet square. The AV landed on his/her tailbone. The AV cried, rolled over, and reached for his/her tailbone area. P2 was in the same vicinity as FM1 but FM1 was not sure if P2 saw the incident. The SP looked at FM1, did not say anything, and turned around.
· Later that day, FM1 spoke to P1 on the phone and told him/her about the incident. P1 and FM1 agreed to meet on November 21, 2023, at the facility to discuss the incident further. (Note: P1 provided a different date in which s/he and FM1 met.) · On November 21, 2023, FM1 met with P1 and the SP (FM1 was not aware the SP was going to be at the meeting). FM1 explained to P1 and the SP what s/he saw during the incident. P1 and the SP continually told FM1 how “good” C1 was and FM1 told them s/he was not there to discuss C1. The SP then told FM1 that since FM1 was standing behind the SP during the incident, FM1 was not able to see the entire incident. P1 told FM1 that what s/he saw was “not accurate” and FM1 continued to reiterate what s/he saw. P1 discussed with FM1 what it would take to “regain FM1’s trust.” · C1 attended the facility for approximately four months prior to this incident. On a previous occasion approximately two months prior to the incident, the SP and another child (C3) had a conversation because C3 was not paying attention at drop off. The SP “got down really close to [C3’s] face” and told C3 to “not patronize [the SP].” · On another previous occasion, the SP called C1’s family member (FM4) and told FM4 that C1 burned his/her hand from picking up a hot cookie. FM1 later looked at the AV’s hand and it was clear it was burned by a cookie sheet. After several discussions with P1, the incident report was updated from a cookie to a cookie sheet. The two previous incidents and lying created “distrust” between FM1, FM4, and the SP. The SP provided the following information: · On the day of the incident, at approximately 8:30 a.m., the AV and C2 were playing on the floor with toys while the SP sat at a table across the room. P2 and approximately eight other children were also in the preschool room. At one point, C2 came over to the SP and said that the AV “hit” C2 with toys. The SP asked the AV and C2 to return to their carpet squares and they did. · A “short time later,” C2 and the AV were back together in the middle of the floor hitting each other with the toys. The SP walked over to C2 and the AV and said that they needed to sit on the carpet and play with their own toys. C2 moved to his/her carpet square but the AV did not return to his/her carpet square, so the SP picked up the AV from behind under both arms and put the AV down on the carpet square. The SP was not sure but thought s/he took approximately two steps backwards while holding the AV. The SP did not remember how the AV’s body was during that time. · When this investigator asked about the AV swinging through the air, the SP said s/he did not recall that happening or moving the AV aggressively. The SP did not remember the AV crying and holding his/her tailbone area once s/he was set on the floor. P2 stated s/he generally worked with the SP in the preschool room in the mornings. When children arrived, the SP greeted the children while P2 cleaned and “focused” on preparing breakfast. P2 did not have concerns with the SP’s interactions with children or how the SP spoke to children. P1 provided the following information: · On the day of the incident, FM1 emailed P1 requesting to speak to P1. P1 called FM1 who said that s/he saw the SP “abruptly” pick up a child and move him/her to the carpet. Prior to that, the child and other children were playing with toys. P1 did not recall the rest of the conversation but did remember telling FM1 that s/he would “look into it” and follow up with FM1. · P1 immediately called the facility and spoke to the SP and asked him/her about the incident. The SP said that the AV, C2, and possibly another child (C4) fought over toys and hit each other three to four times. The SP tried separating the AV, C2, and possibly C4 and verbally redirecting them but they continued to move together and fight. The SP said s/he picked up the AV moved him/her to another area. P1 asked the SP if it was in an “aggressive way” and the SP responded, “No.” The SP said s/he picked the AV up and moved him/her over two feet. P1 stated that the AV, C2, and C4 had a history of being aggressive so the SP moved the AV for safety reasons because s/he did not want them to get hurt. · P1 then spoke to P2 who said s/he was in the bathroom area assisting children and did not see anything. P1 then spoke to the SP again and said P1 wanted a meeting with the SP and FM1. P1 then emailed FM1 and arranged a meeting. · On November 20, 2023, P1, the SP, and FM1 met at the facility. FM1’s explanation of what s/he saw during the incident and the SP’s explanation were “very different.” P1 stated that FM1 had a history of explaining previous incidents different from what staff persons and what P1 saw at the facility. An example was that FM1 told P1 that the SP did not smile when they saw each other at drop off. P1 spoke to multiple staff persons who said that the SP smiled. · Later on that day, P1 had the SP show him/her how s/he picked up the AV. The SP picked up P1’s child and moved him/her over two feet and set him/her on the carpet. P1 said it did not look aggressive “at all.” The SP told P1 that the SP’s back faced FM1 so FM1 possibly did not see the incident correctly. · P1 did not complete an incident report or notify FM2 and FM3 about the incident because s/he “believe[d]” the SP’s version of the incident and P2 did not notice anything unusual during the incident. P1 did not have previous concerns with the SP’s interactions with children. · Regarding the incident where C1 was burned, FM1 “complained” because the app message about the incident, the accident report, and what FM1 was verbally told by the SP did not align with how C1 was burned. It was one word difference in the app and incident report and “wasn’t a big deal” because the rest of the story was consistent. FM2 and FM3 provided the following information: · FM2 and FM3 were not notified about the incident until December 12, 2023, after this investigator was at the facility. P1 told FM2 that approximately one month prior, another family member witnessed children including the AV throwing toys and that the family member thought the SP’s interactions with the AV were “aggressive.” P1 told FM2 that FM1 was “overreacting” because P1 did not have concerns with the staff person involved in the incident. · Around the time of the incident, FM2 noticed a bruise on the AV’s buttocks but it was difficult to determine if it was from the incident or not since s/he had not received notification of the incident or an incident report which would have prompted him/her to check the AV. Around that time, when FM2 placed the AV in his/her highchair, s/he complained that his/her buttocks hurt. On Thanksgiving (six days after the incident), when a family member changed the AV’s diaper s/he told FM2 about a bruise on the AV’s buttocks. · Around the time of the incident, the AV had an increase in anxiety at drop off time. The AV was “clingy” to FM2, “terrified,” and did not want FM2 to leave, which was a change in the AV’s usual behavior at drop off around that time. According to the facility’s Code of Ethics, staff persons “never” harmed a child. According to the facility’s Behavior Guidance Policies and Procedures: · Staff persons ensured each child was provided with a positive role model of acceptable behavior; redirected children and groups away from problems and toward constructive activity to reduce conflict; taught children how to use acceptable alternatives to problem behaviors to reduce conflict; protected the safety of other children and staff persons; and provided immediate and directly related consequences for a child’s unacceptable behavior. · Staff persons were prohibited from subjecting a child to corporal punishment which included but was not limited to: rough handling, shoving, hair pulling, ear pulling, shaking, slapping, kicking, biting, pinching, hitting, and spanking. · Staff persons redirected children when misbehaving such as but not limited to: explaining that the behavior was not safe; having the child apologize; providing a new activity; playing one on one with a child; moving the child to a different area of the room; or taking the child outside to play. Facility documentation showed that the SP and other staff persons interviewed in this investigation received training on the facility’s Code of Ethics, Behavior Guidance Policies and Procedures, and the Reporting of Maltreatment of Minor’s Act prior to the incident. Relevant Rules and/or Statutes: Minnesota Rules, part 9503.0055, subpart 3, item A, states that the license holder must have and enforced 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. Conclusion: A. Maltreatment: On November 17, 2023, at 9 a.m., the AV and C2 were playing rough together on the carpet. FM1 stated that the SP yelled from across the room to “knock it off and find your carpet square.” When they continued to play rough, the SP stood up and walked over to the AV, lifted the AV by his/her arms, swung the AV up so fast that the AV’s legs “flew out” from under him/her and were parallel to the SP’s waist. The AV was in the air approximately five feet and when the AV was approximately the height of the SP’s knees, the SP dropped the AV onto another carpet square. The AV landed on his/her tailbone. The AV cried, rolled over, and reached for his/her tailbone area. The SP denied interacting in the manner described by FM1. The SP said s/he walked over to C2 and the AV and said that they needed to sit on the carpet and play with their own toys. C2 moved to his/her carpet square but the AV did not, so the SP picked up the AV from behind under both arms and put the AV down on the carpet square. The SP was not sure but thought s/he took approximately two steps backwards while holding the AV. The SP did not remember how the AV’s body was during that time, did not recall the AV’s legs swinging in the air, did not recall moving the AV aggressively, and did not remember the AV crying and holding his/her tailbone. Although P1 provided information that FM1 had a history of explaining previous incidents different from what staff persons provided and P1 did not have concerns with how the SP showed P1 how s/he moved the AV, the SP had reason to minimize his/her actions for fear of repercussions and there was no reason provided as to why FM1 would have reason to provide an inaccurate account. Given this and that FM2 saw a bruise on the AV’s buttocks within days of the incident and the AV had increased anxiety at drop off, it was more than likely FM1’s information about the incident was more accurate than the SP’s information. In addition, the SP provided information that C2 had already moved to his/her carpet square so there was no need for the SP to physically intervene to keep the children safe. Picking the AV up and setting the AV down in the manner described by FM1 was not accidental; were inconsistent with the standards of a professional caregiver in a program licensed by the Minnesota Department of Human Services; were violations of facility policies and procedures; and a violation of Minnesota Rules, part 9503.0055, subpart 3, item A. Given that at the time of the incident the AV was no longer a danger to him/herself or others because C2 already started moving away from the AV, that FM1 saw the AV cry and immediately hold his/her tailbone, and that FM2 said that the AV had complaints about his/her buttocks and had a bruise, there was a preponderance of the evidence that the SP’s actions were a failure to supply the AV with reasonable and necessary care, a failure to protect the AV from conditions or actions that seriously endangered the AV, and that a person responsible for the AV’s care inflicted an injury on the AV other than by accidental means. It was determined that neglect and physical abuse occurred (Failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so. "Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a
child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury). B. Responsibility pursuant to Minnesota Statutes, section 626.556, subdivision 10e, paragraph (i): When determining whether the facility or individual is the responsible party, or whether both the facility and the individual are responsible for determined maltreatment in a facility, the investigating agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were according to, and followed the terms of, an erroneous physician order, prescription, individual care plan, or directive; however, this is not a mitigating factor when the facility or caregiver was responsible for the issuance of the erroneous order, prescription, individual care plan, or directive or knew or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) comparative responsibility between the facility, other caregivers, and requirements placed upon an employee, including the facility’s compliance with related regulatory standards and the adequacy of facility policies and procedures, facility training, an individual’s participation in the training, the caregiver’s supervision, and facility staffing levels and the scope of the individual employee’s authority and discretion; and (3) whether the facility or individual followed professional standards in exercising professional judgment. The SP was trained on the facility’s Code of Ethics, Behavior Guidance Policies and Procedures, and the Reporting of Maltreatment of Minor’s Act prior to the incident. The SP was 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 and physical abuse for which the SP was responsible was not “recurring” because it was a single incident that met two definitions of maltreatment, but was “serious” maltreatment because the AV sustained a bruise on his/her buttocks as a result of the incident. Pursuant to Minnesota Statutes, section 260E.35, subdivision 6, paragraph (c) all investigative data maintained in this report will be kept by the Department of Human Services for at least ten years after the date of the final entry in the report. Action Taken by Facility: The facility completed an Internal Review and determined that policies and procedures were adequate and followed. P1 provided verbal training with the SP on “appropriate and gentle touch.” Action Taken by Department of Human Services, Office of Inspector General: The SP was disqualified from a position allowing direct contact with, or access to, persons receiving services from programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal. On January 26, 2024, the facility was issued a Correction Order for the violations outlined in this report, failing to ensure children did not have access to hazardous items, and failing to complete an incident report. In addition, it was determined that facility mandated reporters had knowledge of the alleged incident and did not report the incident as required. The license holder was ordered to forfeit a fine of $200 for failure to report maltreatment. The Order to Forfeit a Fine is subject to appeal. Certification: The information collection procedures followed in this investigation were pursuant to Minnesota Statutes, section 260E.30, subdivision 6, paragraph (c). All individuals that are subjects of data in this investigation have the right
to obtain private data on themselves which was collected, created, or maintained by the Department of Human Services. Administrative Reconsideration: The disposition of the investigation is amended from substantiated maltreatment of AV by SP by physical abuse and neglect, to substantiated maltreatment of AV by SP by physical abuse only. The disposition is further amended to conclude that the substantiated maltreatment by physical abuse is not “serious,” as that term is defined under the applicable statute. As a result, SP is not disqualified from providing direct contact services. To the extent that the language in the Administrative Reconsideration conflicts with the language in the remaining part of the Amended Investigative Memorandum, the language in the Administrative Reconsideration controls. The disposition was amended based on the following: Amended Summary of Findings: The following are amendments to the “Summary of Findings” of the original Investigative Memorandum. The deletions are struck out and amendments shown in bolded and underlined text. - “According to the AV’s enrollment information, the AV was 26 months old approximately 2.5 years old (or 30 months) at the time of the incident and in the toddler room.”
- FM1 described SP’s conduct, in part, as, “The AV and C2 continued to play roughly so the SP stood up and walked over to the AV (who was two feet away from FM1), lifted the AV by his/her arms, swung the AV up so fast that the AV’s legs “flew out” from under him/her and were parallel to the SP’s waist the floor. The AV was in the air approximately five feet high three feet high, the SP then moved the AV approximately five feet, and when the AV was approximately the height of the SP’s knees, the SP dropped the AV onto a carpet square. Amended Conclusion: A. Maltreatment Upon administrative reconsideration of the disposition, it is determined that, on November 17, 2023, SP maltreated AV by physical abuse. The determination for physical abuse is supported by FM1’s specific and detailed account of how SP physically moved AV—that SP, in reaction to AV’s noncompliance to directions to return to his/her spot, lifted AV by his/her arms, swung/pivoted AV around in great speed so that the child’s legs “flew out” from under him/her and became parallel to the floor, then dropped AV onto a carpet square on the child’s tailbone area from the height of SP’s knees. FM1 further stated that, immediately after being dropped to the spot, AV rolled over and started crying while reaching for his/her tailbone area. Per SP’s account, at the moment SP decided to physically move AV, at least one of the children were already moving back to his/her spot, and AV was not behaving dangerously to him/herself or to others. Minnesota Rules, part 9503.0055, subpart 3, item A, prohibits child care center staff persons from subjecting a child to rough handling. Moreover, under Minnesota Statutes, section 260E.03, subdivision 18, paragraph (a), “physical abuse” includes any threatened injury inflicted onto a child by a person responsible for the child’s care, other than by accidental means. Section 260E.03, subdivision 23, paragraph (a), defines “threatened injury” to include “a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury.” SP received trainings from the facility regarding the rules prohibiting subjecting a child to rough handling and other forms of abusive behavior. It was also reasonably foreseeable that, by handling AV as described above, SP would place the child at substantial risk of bodily injury. In all, SP’s conduct toward AV constitutes maltreatment of AV by physical abuse. The maltreatment in this matter consists of a single conduct that was correctly determined to be physical abuse, however, the SP’s conduct during the incident does not also independently meet the definition of neglect. As a result, the finding for neglect is rescinded. B. Responsibility pursuant to Minnesota Statutes, section 626.556, subdivision 10e, paragraph (i) Minnesota Statutes, section 260E.30, subdivision 4, paragraph (a), clauses (1) and (2). The title of this section is amended to reflect the most up-to-date statutory citation. The rest of the section remains unchanged from the original Investigative Memorandum. C. Recurring and/or Serious Maltreatment The original Investigative Memorandum concluded that the maltreatment attributable to SP was not “recurring,” but “serious.” The conclusion for the maltreatment being not recurring remains unchanged. Upon administrative reconsideration, however, it is determined that the substantiated maltreatment for physical abuse, for which SP was found responsible, is not “serious” under the applicable statute. Under Minnesota Statutes, section 245C.03, subdivision 18, “serious maltreatment” includes “abuse resulting in serious injury.” For purposes of this definition, “abuse resulting in serious injury” includes “bruises,” in addition to other types of physical injury. When speaking to the DHS investigator in December 2023, AV’s family member (FM2) recalled noticing a bruise on AV’s buttocks around Thanksgiving of that year. The investigation was not able to obtain any contemporaneous evidence (such as photographs) of the bruising. Although FM1 reported seeing AV cry and reach for his/her tailbone area after being dropped, FM1 did not see any injuries on the child at the time of the incident. When those circumstances were considered with the additional information received by DHS for administrative reconsideration, the evidence for bruising did not meet the required preponderance standard. In turn, SP’s substantiated maltreatment for physical abuse does not meet the statutory criteria to be determined as “serious.” Amended Action Taken by Department of Human Services, Office of Inspector General: The SP was notified that s/he is responsible for substantiated maltreatment of AV by physical abuse, but no longer responsible for neglect. The SP was also notified that the substantiated maltreatment for physical abuse does not meet the statutory criteria to be deemed as “serious,” and therefore s/he is no longer disqualified from providing direct care services as a result of the maltreatment determination. The SP was also 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 meet the criteria for “recurring” and will result in his/her disqualification. The determination that the SP is responsible for maltreatment by physical abuse is subject to appeal.
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