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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: 1097632-CCC (Child Care Center) Investigator(s): Thomas Nixon 651-431-2155 Suspected Maltreatment Reported: It was reported that an alleged victim (AV) was left unsupervised on a playground by two staff persons (SP1 – SP2). The AV was found by a community person (CP) who informed a staff person (P2) and the AV was brought inside. The AV was unsupervised for approximately 1 to 1.5 minutes. Date of Incident(s): July 28, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2): Failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so. Summary of Findings: Pertinent information was obtained during a site visit conducted on August 23, 2023, from documentation at the facility; and through eight interviews conducted with five facility staff persons (SP1, SP2, P2 – P4), an administrative staff person (P1), a family member (FM), and a community person (CP). The AV was 16 months old at the time to the incident and enrolled in the toddler classroom. Due to the AV’s age, s/he was not interviewed. The facility was a standalone building located between a county road and a frontage road. The facility faced the county road, the toddler and preschool playgrounds were to the rear of the building and faced the frontage road, and across the street from the playgrounds was a residential area. The facility had a bank on one side and a grass plot that ended at a gas station on the other. The facility parking lot was accessed by the frontage road and led around to the front of the building. The toddler playground was surrounded by a chain link fence that was connected by a gate to the preschool playground, and off the preschool playground there was a door that led directly into a gym. The AV’s toddler classroom was between another toddler classroom and the gym. The AV’s toddler classroom had a door to the general hallway and another that led directly onto the toddler playground. According to timeanddate.com, on July 28, 2023, between 6 a.m. and noon it was partly sunny and 72 degrees Fahrenheit in Shakopee, Minnesota. The CP provided the following information: · On July 28, 2023, around 10 a.m., the CP drove his/her car on the frontage road past the facility when s/he saw the AV sitting unsupervised alone on a plastic slide on a playground. The CP continued to drive past, pulled into the bank parking lot, turned around, and drove back towards the facility. · When the CP drove by the facility again, the AV was in the same spot. The AV appeared “to be having a great time” as s/he shook a piece a paper in his/her hand. The CP drove into the parking lot of the facility, parked, got out of his/her car, and knocked “feverously” on the front door. A staff person that answered the door appeared to be in the middle of conducting a tour. The CP told them the AV was outside and the staff person thanked the CP. · The CP walked away from the front door and saw the staff person exit the facility from a rear door inside the fenced playground area and go towards the AV. The CP called out to the staff person, “Oh good, you got [him/her].” The CP estimated it was “not more than a minute or two” from when s/he first saw the AV to when s/he saw the staff person come outside for the AV. P1 – P4 provided the following information: · The AV had been at the program since s/he was an infant. The AV was “well adjusted” and “laid back.” The AV appeared to have age-appropriate milestones and liked to play with his/her friends. The AV previously attended P1’s classroom until s/he was moved into SP1 and SP2’s classroom. · On July 28, 2023, at 9:25 a.m., based on a Child Supervision Record (documentation of a name to face check) SP1 and SP2 brought the AV and his/her classmates outside to the playground. At 10 a.m., P1 waited for a guest speaker (GS) to arrive to begin a presentation on Spider Man. At 10:05 a.m., the GS arrived and P1 met him/her at the front door. P1 brought the GS into the gym area to prepare when a tour arrived for a potential child intake. At 10:05 a.m., SP1 and SP2 brought students into the gym for the GS’s presentation and SP1 and SP2 later told P1 and P2 that the AV was accounted for in line before entering. (Note: There was no documentation that a Child Supervision Record was done at the time.) · P1 gave a tour to the prospective family while P2 was in the front hallway area of the facility cleaning. P1 and P2 were both aware of when children and other staff persons entered the gym for the GS. P2 heard the CP knock at the front door “frantically.” P2 went to see who it was and did not recognize the CP. P2 asked how s/he could help, and the CP said there was a child unsupervised on the playground. · P2 left the hallway, went into a toddler classroom where P3 and P4 were, looked out the window, and did not see anyone outside. P2 opened the door and went onto the toddler playground. P2 looked around the equipment and saw the AV sitting on the toddler play structure. P2 did not see anyone else on the playground with the AV. · As P2 went over to get the AV, the CP walked along the playground fence and watched P2 attend to the AV. The AV appeared “red and really sweaty,” but “comfortable.” When P2 worked with the AV in the past, s/he saw the AV got “sweaty and red easily.” · P2 brought the AV back into the toddler classroom where P3 and P4 were. P2 said it was two to three minutes between when s/he saw SP1 and SP2 go into the gym with the other children and when s/he brought the AV inside to P3 and P4’s classroom. The AV was given a sippy cup with water and placed on the floor. P2 told P3 and P4, who both worked with the AV in the past, what happened, and to watch the AV as s/he needed to find P1. P2 left the room to look for P1, who was in the middle of the tour. · At 10:10 a.m., as P1 was near to the end of the tour, P2 approached him/her and said s/he needed to talk. P1 asked another staff person to finish the tour and then went into his/her office with P2. P2 told P1 about what happened with the CP, that the AV was found on the playground unsupervised, and that the AV was “good” and was given water. · P3 said the AV “seemed like [his/her] normal self,” did not cry, and was “not upset” when s/he came inside. P4 said the AV was “having fun” and they wanted to give the AV time to drink his/her water. P3 said the AV was in the room for about 15 to 20 minutes, while P4 said the AV was in the room for about 20 to 30 minutes. · P4 picked up the AV, left the classroom and walked down the hallway towards the gym. On the way, P4 and the AV passed the classroom SP1 was in, and SP1 saw the AV was with P4. P4 brought the AV to the gym and saw the GS present while the children were “running around, crying, [and] scared.” P4 brought the AV to a group of teachers in the gym and said, “Here is [the AV], can you please sign [him/her] back into your class,” and they took the AV from him/her. P4 was “not sure” which teachers s/he gave the AV to. There was no additional discussion between P4 and the teachers. · P1 said P2 told him/her that when P2 went outside to get the AV, P2 saw SP1 exit the facility onto the playground and once SP1 saw the AV was with P2, SP1 returned into the facility. However, P2 said s/he did not recall seeing SP1 outside. · According to P1, SP1 told him/her that at 10:05 a.m., SP1 and SP2 were on the toddler playground with ten children and they called the children to come inside for the GS. The children, including the AV, lined up in the toddler playground on a sidewalk along the side of the building. SP1 was at the front of the line and SP2 was at the rear of the line. The children were counted, and the AV was in the line. SP1 said s/he and SP2 started to complete a name to face while the children were entering the gym. SP1 checked off “five or six” children, then several of the children got “scared” of the GS’s costume. The scared children began to run outside and back onto the playground. Meanwhile, other children were “excited” and ran into the gym without being counted. Staff persons asked the GS to hide as to not scare the children. SP1 and SP2 went to gather the children and get them into the gym. At 10:08 a.m., a name to face was completed in the gym and it the AV was not in present. SP1 went outside to get the AV and saw him/her with P2. SP1 went back into the gym and took the scared children to the classroom while SP2 stayed in the gym with the children who were not scared of the GS. · P1 then talked with SP2 about the incident. SP2 said when the children began to run onto the playground s/he tried to gather and calm them to “get everyone safe,” while SP1 was doing the name to face. The children were “screaming and crying and running everywhere.” SP1 and SP2 provided the following information:
· On an unknown date, around 9:30 a.m., SP1 and SP2 were outside with the children including the AV on the toddler playground. (Note: The Child Supervision Record showed that on July 28, 2023, the classroom went on to the playground at 9:25 a.m. and there were ten children in the class.) The AV’s class was combined with additional children and staff persons. Around 10 a.m., SP1 went inside the facility to get an update from P1 on when the GS’s presentation might start. SP1 was inside the facility for “five minutes” and saw the GS arrive. SP1 walked the GS to the gym area to show him/her where to set up and then s/he went outside to the playground. · SP1 stood by the gate of the fenced toddler playground area and called out for the children to line up to go inside. SP2 gathered the children up in a line by the door and stood with them on the playground side of the fence. SP1 and SP2 attempted to have the children “quieted down” to get ready to enter the gym. A name to face was done, the AV was accounted for, and SP2 was the first to enter the gym. · SP2 sat on the gym floor with some of the children while the others entered the gym. When the children saw the GS’s costume several were “really scared” and began “crying uncontrollably” while others got very excited about the GS. Some of the children remained in the gym, some of the scared children went back to the playground, and some, including the AV, were still outside. SP2 remained with the children who stayed in the gym while SP1 went to gather the children who were on the playground. · Once back in the gym, SP1 attempted to do a name to face while some children continued to cry and “turn[ed] purple in the face.” SP1 was not able to complete the name to face as s/he attempted to care for the upset children. SP1 and SP2 decided to split the children into groups based on who was comfortable to stay in the gym and who was upset and needed to leave. SP1 told SP2, “I have these four, I am going to go.” SP2 said s/he had “probably four to five” children remain with him/her in the gym. · SP1 returned to the toddler room with the children who were upset while SP2 remained in the gym with some of the children for the presentation. SP1 did not recall whether P2 was already in the classroom when s/he got there, or came into the classroom later to tell him/her that AV had been left on the playground and was now in the other classroom with P3 and P4. SP1 estimated it was “no more than two minutes” from when s/he thought everyone was inside to when P2 told him/her that the AV was left outside. · The GS’s presentation lasted 15 to 20 minutes and when it ended SP2 and the children with him/her went back to the classroom. Upon arrival, SP1 told SP2 about the situation with the AV. Both SP1 and SP2 said they felt “bad” about what happened with the AV. SP2 denied that a staff person returned the AV to the gym. When the AV returned to the classroom, s/he appeared “good” and “normal.” The FM provided the following information: · The AV was “calm” and “easy going.” The AV historically liked to “explore” and walked toward items of interest which included playground equipment to climb and slide down. The AV was “treated well” by the facility and there were no prior concerns. · The day of the incident, P1 called the FM and told him/her about the situation. P1 said the AV was outside on the playground with staff persons and the other children. After the AV entered the gym, some of the children went back outside to the playground. The AV watched as other children returned outside and followed them toward the playground. However, when staff persons gathered the children to go back inside, the AV was not with the group. · P1 told the FM that the AV was “left out of a count of who came inside,” but “was accounted for shortly after.” P1 said the AV was outside unsupervised for “a minute to a minute and a half.” The AV was “quickly accounted for” and the facility “follow[ed] their protocol.” The FM was “grateful” to be informed and P1 was “apologetic” for what happened. · That afternoon, when the FM went to the facility to pick up the AV, s/he appeared “fine” and “happy” to see the FM. The AV continued to attend the facility after the incident. According to the facility’s Risk Reduction Plan, when children transitioned between areas staff persons were to complete a name to face “prior to leaving original location and upon entering destination.” Facility documentation showed that SP1, SP2, and P1 – P4 each received training on the Reporting of Maltreatment of Minors Act and on the facility’s supervision policies prior to the incident. Relevant Rules and/or Statutes: Minnesota Statutes, section 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item A, state that “supervision” means 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; and that children are required to be supervised at all times. Conclusion: A. Maltreatment: Information was consistent that on July 28, 2023, the AV was on the toddler playground with SP1 and SP2 prior to the GS’s presentation in the gym. The AV lined up with the other children on the toddler playground sidewalk and was accounted for before the children began to go into the gym. As SP2 and the start of the line of children began to enter the gym, several children were scared by the GS’s costume and ran back outside. The AV followed the other children who returned to the playground. SP1 went to gather the children on the playground and returned them to the gym. P1 said that SP1 and SP2 told him/her they completed a name to face in the gym at 10:08 a.m., noticed the AV was not present, and SP1 went to the playground to look for the AV, where s/he saw P2 with the AV. However, this conflicted with information from SP1 and SP2, who each said a name to face was attempted in the gym, but they were unable to complete it due to the distressed children; with information from SP1, who did not say s/he saw the AV with P2 on the playground; and also with information from P2, who said s/he did not see SP1 outside when s/he went to get the AV from the playground. SP1 and SP2 divided up the children based on their emotional state and some remained with SP2 in the gym, while others returned to the classroom with SP1. The CP drove by the facility and saw the AV alone on the toddler playground. The CP turned around, drove back to the facility and around to the front door, parked his/her vehicle, knocked on the front door, and informed P2 there was a child alone on the playground. P2 went through the building to look for the AV out the window to the playground and did not see him/her. P2 then went outside and saw the AV alone on the toddler playground equipment. P2 brought the AV into P3 and P4’s classroom, gave the AV water, and informed P1 of what happened. The AV did not show any signs of injury or distress. SP1 said s/he did not know the AV was unsupervised on the playground until s/he was informed by P2, and SP2 learned of the incident from SP1, showing that neither SP1 nor SP2 were aware that the AV was unaccounted for while s/he was on the playground. Although the precise amount of time the AV was outside without staff persons’ knowledge or supervision was unknown, it was more likely than not one minute or longer, given that the CP had time after seeing the AV to turn his/her vehicle around, drive to the facility’s front door, park his/her vehicle, knock on the door, speak with P2, and then P2 walked to the back of the facility, looked out the window, and stepped outside to look for the AV before locating the AV. The AV was on the playground without staff persons’ knowledge or supervision for at least one minute, which was a violation of Minnesota Statutes, section 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item A. Although the AV was not injured or in distress when s/he was found by P2, given the AV’s age of 16 months, that the design of the fence meant the AV was visible to community persons, and that neither SP1 nor SP2 completed a name to face or headcount after transitioning to the gym and before splitting up their group, there was a preponderance of the evidence that there was a failure to supply the AV with necessary care of a failure to protect the AV from conditions or actions that seriously endangered his/her physical or mental health when reasonably able to do so. It was determined that neglect occurred (failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so; failure to protect a child from conditions or actions that seriously endanger the child's physical 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. Facility documentation showed that SP1 and SP2 received training on the Reporting of Maltreatment of Minors Act and on the facility’s policies prior to the incident. SP1 and SP2 were responsible for the care and supervision of the children, including the AV, and were responsible to ensure all the children in their care were accounted for. Therefore, SP1 and SP2 were each responsible for maltreatment of the AV. C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. It was determined that the substantiated neglect for which SP1 and SP2 were responsible did not meet statutory criteria to be determined as recurring or serious, as it was a single incident for which the AV did not sustain a serious injury that required care of a physician. Action Taken by Facility: The facility conducted an Internal Review and found the policies and procedures were adequate, but not followed by SP1 and SP2. All staff persons at the facility were retrained on the facility’s Child Supervision Record. Action Taken by Department of Human Services, Office of Inspector General: SP1 and SP2 were not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1 and SP2 were each notified by the Office of Inspector General that any further substantiated act of maltreatment, whether or not the act meets the criteria for “serious,” will automatically meet the criteria for “recurring” and will result in the disqualification. The determination that SP1 and SP2 were each responsible for maltreatment is subject to appeal. On December 11, 2024, the facility was issued a Correction Order for the violation 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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