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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 March 28, 2025, which should be destroyed. As a result of an administrative reconsideration, the original determination of maltreatment determined as to neglect of a child was changed to nonmaltreatment mistake. For additional information, see Administrative Reconsideration section of this document. On June 18, 2025, licensing functions for child care centers, family child care programs, and child foster care programs, and maltreatment investigations involving child care centers, transferred from Minnesota Department of Human Services, Office of Inspector General (DHS), to the new Minnesota Department of Children, Youth, and Families (DCYF), as directed by state law. While this investigation began under DHS, pursuant to Minnesota Statutes, section 15.039, subdivision 2, this Amended Investigation Memorandum is being issued by DCYF pursuant to that transfer.
License Number and Program Type: 830968-CCC (Child Care Center) Investigator(s): Van Mulheron 651-431-6592 thu-van.mulheron@state.mn.us Suspected Maltreatment Reported: It was reported that three alleged victims (AV1, AV2, and AV3) left the playground, crossed a road, and played on a residential playset without two staff persons’ (SP1 and SP2) knowledge or supervision for an unknown amount of time. Date of Incident(s): August 9, 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 August 28, 2024; from documentation at the facility; and through ten interviews conducted with two supervisory staff persons (P1 and P2), five staff persons (P4, P5, P6, SP1 and SP2), AV1’s-AV3’s three family member (FM1-FM3 respectively). Attempts were made via phone and email to contact and interview a staff person (P3), but P3 did not respond. P3 provided a written statement to P1 and P2 and that information is included below. AV1, AV2, and AV3 were all two years old at the time of the incident and were enrolled in the toddler classroom. Due to their ages, AV1-AV3 were not able to provide information for this investigation. The playground the facility used was a community playground located near the facility at the corner of two roads (3rd Avenue and 4th Street) and each had a speed limit of 30 miles per hour. The playground was bordered on two sides by the two roads respectively. Further down one road (3rd Avenue) and bordering a third side of the playground was an unfenced playground, a cement play area, and then the facility. Further down the other road (4th Street) and bordering a fourth side of the playground was a church with multiple buildings and parking lots. Across both roads were single family homes and a large open lot (used for parking) located next to a baseball field. The home located on the corner across the road from the church and the large open lot, was three houses down from gate A, and had a wooden playset in the front yard. The playground was a square approximately 125 feet by 125 feet and was enclosed by a chain link fence on the four sides. There were multiple play structures and a circular raised platform located in the center of the playground. The raised platform was used as an infant classroom play area and was surrounded by decorative fencing that allowed staff persons to look into and outside of the raised platform. A sandbox was on the playground nearest the corner of the intersections of the two roads. A picnic table located between the sandbox and the infant play area. On the other side of the infant play area outside the fence was a church parking lot and then a church building. The playground fence had two gates(A and B). Gate A was located in the corner of the playground nearest the church parking lot and the road and opened toward the church parking lot. Gate B was located in the middle of the fence opening to the unfenced playground. The facility used Daily Sheets to communicate to families about their child’s day. FM1 said that on the day of the incident at 3:45 p.m., s/he picked up AV1 and an unknown staff person told FM3 about the incident. At approximately 5 p.m., FM3 received an email from P1 that stated that the back gate (later identified as gate A) was left open, but staff persons “assumed” that it was closed and some children, including AV1, left the playground and crossed the road to another play set. At the time of the incident, one staff person was writing daily log reports and another staff person was helping another child. FM1 said that AV1 was not injured. FM1 had no prior concerns about the facility and “trusted” the staff persons there. FM2 said that on the day of the incident when s/he picked up AV2 s/he was not told about the incident, but later that evening s/he received an email from P1 that stated that the AV2 and two other children left the playground, crossed the road, and were playing on a play set. Once staff persons realized the three children were missing, they “promptly” looked for, found, and brought the children back to the playground. FM2 initially thought that AV2 had gone onto the preschool playground but then realized that AV2 had crossed a road, which was “very busy.” FM2 had some prior concerns about the facility but did not want to provide additional information. FM3 said that on the day of the incident at 2:30 p.m. when s/he picked up AV3 s/he was not told about the incident, but “multiple hours” later FM3 received an email from the P1 telling him/her about the incident. FM3 said that when s/he picked up AV3, who was normally on the playground, FM3 noticed that the gate latch was “hinky” and was sticking straight up and not latched around the pole. FM3 was concerned about how the children crossed the road and that the other play set was at least “a block” from the playground. FM3 had seen people drive 40 miles per hour on the roads by the playground and the children could have been hit by a car. Information obtained showed that on the day of the incident, SP1 and SP2 worked in the toddler classroom with five children, including the AV1-AV3. P3-P5 worked in the infant classroom and P6 worked in the preschool classroom. SP1 provided the following information: · On an unknown in August 2024, at approximately 9:50 a.m., SP1 and SP2 took five children, including AV1-AV3, to the toddler playground and when they arrived P3-P5 were on the infant play area with their children. SP1 and SP2 entered the toddler playground through gate B (by the preschool playground) and as they neared the picnic table, SP1 and SP2 both turned to look at gate A. SP1 saw that the gate was closed. SP1 said s/he just looked at gate A but did not physically go to the gate to check because it looked like it was latched to the pole. SP1 was about three feet from gate A when s/he looked at the gate latch. SP1 said that because P6 and the preschool children had just been outside on the playground, SP1 believed P6 would have ensured that the gates were secure. · SP1 and SP2 both sat at the picnic table as the toddler children playing with trucks near the picnic table near SP2 or played in the sandbox. SP2’s back was towards the road. SP2 was writing the bathroom break on each child’s daily sheet. SP1 then walked over to the infant play area and spoke with P3. SP1’s back was toward gate A as s/he showed P3 a picture on his/her phone of an art project s/he was “excited to do” with the children. After SP1 showed P3 the picture s/he remained at the infant play area and continued talking with P3. · “A minute or two later,” SP1 heard SP2 say, “Where is [AV2]?” and “[SP1’s name] the door is open.” SP1 turned around and saw SP2 running out of gate A. SP1 then ran to gate A as s/he saw SP2 run across the road and to the house on the corner across from the church where AV1-AV3 were on a play set in the front yard. SP2 went to AV1-AV3 and they all returned to the playground. AV1-AV3 were smiling and ran onto the playground and continued to play. · When SP2 returned to the playground, s/he told SP1 that prior to realizing AV1-AV3 had left, s/he saw socks and shoes on the ground and knew that they belonged to AV2. When SP2 saw them, s/he stood up and was looking for AV2 when s/he saw gate A open. SP2 said that when s/he got to gate A s/he saw a toy dump truck on the grass near the sidewalk and the church parking lot by the road, and then s/he saw AV1-AV3 across the road on the playset in front of a house. · SP2 then closed gate A and made sure that the latch was tight around the pole so that if a person “wiggled” the gate it would not open. SP1 then went inside to tell P1 and P2. · SP1 said that for a “few months” gate A had not closed properly but did not tell anyone about it. Other staff persons also knew the gate did not close properly so SP1 “assumed” they told P1 or P2 about the gate. SP2 provided the following information: · On the day of the incident at approximately 10 a.m., SP1, SP2, and five children, including AV1-AV3, went to the playground. SP2 normally went to check gate A each time s/he went to the playground because the latch did not close properly. On the day of the incident, s/he did not do so because P6 and the preschool children were on the playground five minutes before they arrived and when SP2 reached the picnic table, s/he looked over toward gate A and saw that it was closed. · SP2 sat on the picnic table, with his/her back toward the fence and the road and began to write bathroom breaks on a daily sheet as the children played near him/her or in the sandbox while SP1 spoke with the P3 next to the infant play area. Two to three minutes later, s/he looked down on the ground and saw shoes and socks that belonged to AV2. SP2 stood up to look for AV2 and saw SP1 by P3, and then SP2 saw that gate A was open. · SP2 looked past the gate and saw a dump truck that was similar to the trucks used in the sandbox, on the grass by the church parking lot and the road just outside of gate A. SP2 then looked and saw AV1-AV3 on a playset that was at a house across the road from the church. SP2 ran out of the playground to the house and got AV1-AV3. They then returned to the playground, where SP1 was waiting for them at the gate. SP2 said that AV1-AV3 were “happy” and were not crying. AV1-AV3 then continued to play with the other children. · SP2 “fiddled” with the gate latch until the gate was closed and latched and then SP1 went inside to tell P1 and P2 about the incident. SP2 said that gate A had been “vandalized” at an unknown time and the gate was no longer straight but hung with an angle. SP2 said that s/he was always able to close the gate, but if a person shook the gate the latch would “most likely” disengage but not always. SP2 said that s/he did not tell P1 or P2 that the gate did not close properly because other staff persons were aware the gate did not close properly and SP2 thought that they told P1 or P2. P4, P5, and a statement written by P3 provided information regarding the incident that was consistent with SP1 and SP2. In addition, P4 and P5 each stated that prior to SP1 and SP2 realizing children were missing, each had seen a child outside the fence playing but each thought it was a community person’s child. P4 and P5 each stated that they did not know the gate latch was broken prior to the incident. P6 said that on August 9, 2025, s/he was outside on the playground with his/her class from 9 to 10 a.m. They were the first to go outside that day so s/he checked both gates to ensure they were closed because the playground was shared with the community and the community people often did not shut the gates. At 10 a.m., when P6 left the playground, s/he made sure both gate A and gate B were closed before taking his/her classroom inside. P6 said that the toddler classroom was always scheduled to be on the playground at 10 a.m. just after P6’s scheduled time. Approximately 30 minutes later, SP1 came to P6’s classroom and asked P6 where P2 was. SP1 then said that some children had gotten out of the playground. P6 called P2 and P2 came into the classroom and spoke with SP1. P1 and P2 provided the following information: · P2 said that on August 9, 2024, after 10 a.m., s/he spoke to SP1 who provided information to P2 that was consistent with the information SP1 provided during his/her interview. SP1 told P2 that AV1-AV3 were gone for “a quick minute” and” less than a minute.” · SP1 told P2 that the latch on gate A was not working “for a long time” and that the children must have gone over to the gate and shook it and then the gate opened. · P2 then spoke with SP2 said that it was “my fault.” SP2 provided information to P2 that was consistent with the information SP2 provided during his/her interview. · P1 and P2 spoke with P3-P5. P4 and P5 each provided information to P1 and P2 that was consistent with the information each provided during their interview. · Later that day, P1 and P2 went to the playground and tried to close and latch gate A but the gate latch would not close properly around the pole, so the gate was not completely secure. P1 and P2 said that the gate would stay closed but if a child was to shake and/or push the gate, the gate would swing open. The gate was fixed that day. · P1 and P2 said that because the playground was shared with the community, staff persons were trained to walk to the gates and check that the latch was secured around the post. Staff were to notify supervisors if/when they found anything broken or not working properly. P2 said that in May 2024 s/he noticed the latch on gate A was not working properly and told P1 and another supervisor, but the issue was not fixed. P1 said that in the fall 2023 s/he heard that the latch on gate A was not working properly but P1 did not check on gate A. P1 said that from his/her understanding the gate would close if staff persons moved the fence a little bit and that the gate hook was not broken. P1 then said that the few times s/he used the gate after it was reported s/he was “always” able to close the gate so P1 did not submit a report to the janitor to fix the gate. · P1 and P2 said that staff persons were trained to supervise children on the playground by monitoring the gates and putting themselves in areas to be able to see all the children. · P1 and P2 said that they had prior supervision concerns about SP1 using his/her cell phone while with the children and that had been addressed with SP1. P1 and P2 had no prior concerns about SP2. The facility’s Supervision Policy stated that all children will be directly supervised at all times when they are in care. The facility’s Risk Reduction Plan stated, “Staff will make sure latches are locked after entering playground area. Staff is appropriately distributed among the children on the playground, so all are being monitored.” Facility records showed that prior to the incident, P1-P6, SP1, and SP2 were trained on the facility’s Risk Reduction Plan, Supervision Policy, and the Reporting of Maltreatment of Minors Act. Relevant Rules and/or Statutes: Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A, state 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: Information was consistent that on August 9, 2024, AV1-AV3 left the toddler playground without the knowledge or supervision of SP1 and SP2 which was inconsistent with the facility’s Risk Reduction Plan and Supervision Policy and was a violation of Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A. At about 10 a.m., SP1 and SP2 took the toddler children to the toddler playground, and both looked and gate A and saw that the gate was closed. Around the same time P6 left the playground with the preschool children and P6 stated that prior to leaving the playground s/he made sure both gate A and gate B were closed before taking his/her classroom inside. Both SP1 and SP2 said that the toddler children were playing near the picnic table and the sandbox when SP1 walked over to the infant area to talk with P3 while SP2 sat at the table writing on Daily Sheets. Between one to three minutes later, SP2 saw AV2’s shoes and socks on the ground, saw that gate A was open, and that AV1-AV3 were across the road on a play set SP2 ran to and returned AV1-AV3 to the playground. P4 and P5 both said that they saw a child on the church parking lot prior to SP2 seeing the gate open, but both thought the child was a community person because families often walked by the playground. Minnesota Statutes, section 260E. 30, subdivision 3 states that rather than making a determination of substantiated maltreatment by an individual, the commissioner of human services shall determine that a nonmaltreatment mistake was made by the individual. A nonmaltreatment mistake occurs when: (1) at the time of the incident, the individual was performing duties identified in the center's child care program plan required under Minnesota Rules, part 9503.0045; (2) the individual has not been determined responsible for a similar incident that resulted in a finding of maltreatment for at least seven years; (3) the individual has not been determined to have committed a similar nonmaltreatment mistake under this paragraph for at least four years; (4) any injury to a child resulting from the incident, if treated, is treated only with remedies that are available over the counter, whether ordered by a medical professional or not; and (5) except for the period when the incident occurred, the facility and the individual providing services were both in compliance with all licensing requirements relevant to the incident. Regarding SP1: Although AV1-AV3 were unsupervised for an unknown length of time (likely a few minutes) without staff persons’ knowledge and when AV1-AV3 were found, they were across the road on a residential play set and staff persons were not able to intervene, if necessary, SP1’s actions and conduct were determined to be a non-maltreatment mistake for the following reasons: (1) At the time of the incident, SP1 was preforming job-related duties. When they arrived at the playground, SP1 looked and saw that gate A was closed. The toddler children then played near the picnic table and sandbox prior to the incident when s/he went to talk to the infant classroom staff persons who were also on the playground. (2) SP1 had not previously been found responsible for a similar incident that resulted in a finding of maltreatment. (3) SP1 had not previously been found responsible for a similar incident that resulted in a finding of a nonmaltreatment mistake in the past. (4) AV1-AV3 were uninjured and did not require medical care after the incident. (5) Except for this period when the incident occurred, the facility and SP1 were in compliance with licensing requirements. The nonmaltreatment mistake to AV1-AV3 by SP1 was not maltreatment. Regarding SP2: A. Maltreatment Although SP2 was performing job related duties at the time of the incident, AV1-AV3 were not injured, and the facility and SP2 were in compliance with all licensing requirements relevant to the incident, SP2 had been determined responsible for another incident that resulted in a finding of a maltreatment determined. Therefore, SP2 was not able to be considered under a non-maltreatment mistake for this report. Given that AV1-AV3 were unsupervised without staff persons’ knowledge, and when AV1-AV3 were found, they were across the road at a house, on a playset and staff persons were not able to intervene if necessary, there was a preponderance of the evidence that there was a failure to supply AV1-AV3 with necessary care and a failure to protect AV1-AV3 from conditions or actions that seriously endangered his/her physical or mental health. It was determined that neglect occurred (failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so).
B. Responsibility pursuant to Minnesota Statutes, section 260E.30, subdivision 4, paragraph (a), clauses (1) and (2): When determining whether the facility or individual is the responsible party, or whether both the facility and the individual are responsible for determined maltreatment in a facility, the investigating agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were according to, and followed the terms of, an erroneous physician order, prescription, individual care plan, or directive; however, this is not a mitigating factor when the facility or caregiver was responsible for the issuance of the erroneous order, prescription, individual care plan, or directive or knew or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) comparative responsibility between the facility, other caregivers, and requirements placed upon an employee, including the facility’s compliance with related regulatory standards and the adequacy of facility policies and procedures, facility training, an individual’s participation in the training, the caregiver’s supervision, and facility staffing levels and the scope of the individual employee’s authority and discretion; and (3) whether the facility or individual followed professional standards in exercising professional judgment. SP1 and SP2 were trained on the facility’s Risk Reduction Plan, Supervision Policy, and the Reporting of Maltreatment of Minors Act. SP1 and SP2 were both responsible for the AVs’ supervision because it was unknown when the AVs left the playground. However, given that SP1’s conduct met the requirements for a non-maltreatment mistake, SP1 was not responsible for maltreatment of AV1-AV3. SP2 did not meet the requirements for a non-maltreatment mistake, therefore SP2 was responsible for the maltreatment of AV1-AV3. 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 SP2 was responsible in this report was not serious or recurring. However, information obtained by the Department of Human Services, in combination with this report, resulted in SP2 being disqualified for recurring maltreatment. SP2 was disqualified from providing direct contact services.
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 and internal review and found that their policies and procedures were adequate but not followed by SP1 or SP2 at the time of the incident. All staff persons received additional training on policies and procedures for outside play areas and phone use. The facility created updates to their Missing Child Policy and added that parents/caregivers would be notified within 15 minutes if the child is not found or was missing from the facility. SP2 no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: SP1 was not determined as a perpetrator of maltreatment of AV1-AV3 because the Department of Human Services found that the incident for which SP1 was responsible met the criteria to be determined a nonmaltreatment mistake. SP1 was notified by the Office of Inspector General that any future incident of possible neglect of an alleged victim for which SP1 is responsible might not be considered a non-maltreatment mistake. SP2 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 SP2 was responsible for maltreatment and the disqualification of SP2 are each subject to appeal. On March 28, 2025, the facility was issued a Correction Order for the violation outlined in this report. Administrative Reconsideration: The disposition of the investigation is amended from maltreatment determined as to neglect of AV1-AV3 by SP2 to nonmaltreatment mistake of AV1-AV3 by SP2. 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: There are no pertinent findings to amend. Amended Conclusion: SP2’s actions and conduct were determined to be a non-maltreatment mistake for the following reasons: (1) At the time of the incident, SP2 was performing job-related duties. When they arrived at the playground, SP2 looked and saw that gate A was closed. The toddler children then played near the picnic table and sandbox prior to the incident while SP2 wrote bathroom breaks on a daily sheet. (2) SP2 had previously been found responsible for an incident that resulted in a finding of maltreatment. However, the incident was not “similar” because the behavior in the prior incident was distinguishably different from the behavior here. See Minnesota Statutes section 260E.30, subdivision 3(b)(1) (nonmaltreatment mistake occurs when the individual has not been determined responsible for a similar incident that resulted in a finding of maltreatment for at least seven years) (emphasis added). (3) SP2 had not previously been found responsible for a similar incident that resulted in a finding of a nonmaltreatment mistake in the past. (4) AV1-AV3 were uninjured and did not require medical care after the incident. (5) Except for this period when the incident occurred, the facility and SP2 were in compliance with licensing requirements. Therefore, the Investigative Memorandum issued on March 28, 2025, is amended to nonmaltreatment mistake to AV1-AV3 by SP2, which was not maltreatment. Amended Action Taken by Department of Children, Youth, and Families, Office of Inspector General: The maltreatment determination is rescinded as to SP2. This Amended Maltreatment Investigation Memorandum has been sent to the Background Studies Division of the Minnesota Department of Human Services, Office of the Inspector General. 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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