Court Backs Care Home Against Abuse Allegation : Courts: Lack of evidence is cited in recommendation that O.C. operator’s license be reinstated.

In a surprising defeat for the state Department of Social Services, a judge has recommended that child abuse charges against a day-care operator be dismissed and that her license be reinstated.

Administrative Law Judge Paul Hogan declared last week that the department had insufficient evidence to revoke Terri Borzoni’s license, leaving social services officials stunned. It is rare, they said, for a judge to rule against the state agency in such matters.

“That probably happens under 10 times a year,” said John L. Baine, assistant chief counsel for the Department of Social Services. He said the department brings about 125 revocation cases a year against licensed care providers in California.

“But it will not affect future cases (involving child abuse charges) because we look at each case individually as to what we think could be proven,” Baine said. “This is not a precedent-setting case.”

Contacted at her Cypress home Monday, Borzoni said in an telephone interview that she was “excited” about the judge’s recommendation. However, she said, the ruling in her favor still does not erase the anguish she and her family have experienced since March when the accusations of child abuse surfaced.

In the case, a woman said her 4-year-old told her that Borzoni and an assistant had molested her at the Cypress day-care home. State social services officials subsequently suspended Borzoni’s license temporarily and ordered her to close down.

“We shouldn’t have had to prove we didn’t do this in the first place,” said Borzoni, 36. “There was absolutely no evidence, nothing against us, so how could this have happened?”

Her assistant, Vicki Jimenez, who was also accused of sexual abuse charges, added: “Until I found out the judge’s ruling, I’ve been really depressed.

“My whole life I’ve wanted to be an elementary teacher and now because of this, I won’t be able to do that,” she added, pointing out that the allegations will resurface whenever she applies for a teaching job.

Hogan in April presided over a three-day administrative hearing in which the state charged Borzoni and Jimenez, 21, with sexual molestation of a 4-year-old girl. The judge’s ruling is not legally binding and state officials have 100 days to contest the decision.

Meanwhile, Francine T. Kammeyer, the department attorney who handled the case, said she was disappointed with Hogan’s decision and maintained that she is “absolutely convinced that the molestation occurred.”

Kammeyer has the option of accepting Hogan’s recommendation, ignoring it or “alternating” it by having an outside state attorney review the proceedings and recommend his own ruling.

Kammeyer on Monday refused to say which action she plans to pursue. However, Borzoni’s attorney said he received a letter from Kammeyer stating that she will not pursue charges against Borzoni if the day-care home owner follows certain guidelines when she returns to her operation.

The letter stated that Borzoni must agree not to accept children ages 4 years and 9 months or younger. Otherwise, Kammeyer said in the letter, she will seek to permanently revoke Borzoni’s license, pending the attorney’s alternate decision. In that instance, Borzoni would have to fight the state in Orange County Superior Court.

For her part, Borzoni said she has no intention of limiting the ages of her charges.

“I can’t accept her offer,” said Borzoni. “I’ve already made plans with the kids’ parents and they have been great about bringing the kids over for contact. We’re ready to get to know each other again. I’ll fight the state on this.”

Her attorney, Herbert Dodell, said he is nonplussed that the state will continue in its fight. “We’re not interested in making deals with the state,” Dodell said. “They lost; they should give up and be gracious about it.

“But if they think they have a shot in removing her license, then that’s the way it’s going to be,” he added. “If the state wants to fight, we’ll fight until the end.”

He added that he is confident that Borzoni will win in court as “we don’t think a judge will ignore a fellow judge’s evaluation.”

The state took its case to revoke Borzoni’s license to Hogan after prosecutors with the Orange County district attorney’s office announced April 10 that they would not file criminal charges because they lacked sufficient evidence of criminal behavior.

During the administrative hearing, Kammeyer presented the state’s evidence, which included testimony from the mother of the alleged 4-year-old victim who testified that her daughter told her she had been sexually molested at Borzoni’s day-care home.

The child’s mother, whose name along with her daughter’s is being withheld to protect the girl, told Hogan that not long after her daughter attended the center, she became abnormally sexually aggressive. The child would often undress and touch herself and would want to be kissed on her tongue, the mother testified.

The mother also testified that her daughter told her she witnessed sexual activities between Jimenez and Borzoni, who is married and has three children.

However, it was the testimony of the state’s star witness, the 4-year-old girl, that weighed the most in Hogan’s recommendation that charges against Borzoni’s be dropped. The child refused--out of Borzoni’s presence--to confirm that she was molested at the day-care home.

While Kammeyer gently but repeatedly questioned the girl about the allegations, the youngster either answered “poo-poo no” or “poo-poo yes.” Once, when asked if Borzoni ever kissed her, the girl replied: “She kissed me on my tongue . . . in the bathroom . . . and I flushed her down the toilet.”

Kammeyer Monday blamed the child’s confusing testimony on, simply, “being asked the same question one too many times.”

“She had told me and four different people what had happened. She was telling the truth and she knew what she was saying,” Kammeyer said. “I think she couldn’t deal with it one more time, under those circumstances.”