¶ 18 For the reasons so well expressed in the supreme court's decision, I believe the factual findings of the juvenile court are clearly erroneous. See In re Z.D.,2006 UT 54, ¶¶ 40-44, 147 P.3d 401. I therefore dissent.
¶ 19 Under the clearly erroneous standard, we' can set aside the factual findings of a trial court only if the findings "`are against the clear weight of the evidence, or if [we] otherwise reach a definite and firm conviction that a mistake has been made.'" Id. at ¶ 32 (quotingState, v. Walker, 743 P.2d 191, 193 (Utah 1987)). In its opinion reversing our original decision in this case, the supreme court explained that it is "appropriate when evaluating whether a result was `clearly erroneous' for the reviewing court to consider the standard of proof the prevailing party below was required to meet." Id. at ¶ 40; see alsoLovett v. Continental Bank Trust Co., 4 Utah 2d 76,286 P.2d 1065, 1067-68 (1955) (requiring a "higher degree of proof to sustain a finding of fact which must be established by `clear and convincing' evidence" than where a mere preponderance is sufficient). After considering both the record and the high standard of proof required at the trial below, I am convinced that the juvenile court mistakenly ruled against Father, and that its findings are clearly erroneous in that they are not supported by clear and convincing evidence.
¶ 20 In finding that the injury was caused by Father's physical abuse, rather than by the incident involving Z.D.'s baby walker, the juvenile court pointed to Z.D.'s relatively asymptomatic behavior after the walker incident until just prior to the discovery of Z.D.'s broken femur. But the record contains abundant evidence suggesting why Z.D.'s injury could have been difficult to discover earlier. This includes uncontradicted testimony that Z.D. showed no signs of injury when first examined at the hospital; statements from multiple doctors that Z.D. was consolable and had no bruising on the injured leg; testimony that Z.D. was taking painkillers after the baby walker incident for an unrelated ailment; and evidence that Father and Mother routinely swaddled Z.D. in a manner that medical experts testified could have comforted Z.D. despite an injury.
¶ 21 More significantly, there is little evidence, much less clear and convincing evidence, regarding the type and cause of Z.D.'s fracture. The State's medical expert could only testify that he was "51/49" percent certain that the fracture was caused by axial force, and not a type of force consistent with the baby walker theory. The parents' medical expert testified that the absence of bruising and swelling around the injury, the lack of which was noted by multiple doctors, made the State's theory highly unlikely. The juvenile court relied on a statutory presumption, no longer in effect, allowing the court to *Page 849 presume that Father was responsible for any abuse or neglect during the time Z.D. was under Father's direct care.See Utah Code Ann. § 78-3a-305.1 (2002) (repealed 2005). Although the supreme court has directed us to analyze this case without applying the presumption of responsibility against Father, see In re Z.D., 2006 UT 54 at ¶ 44 n. 6, 147 P.3d 401, the majority persists in applying that presumption, albeit under the rubric of "common sense."
¶ 22 The record as a whole reflects that the juvenile court's findings fail to correlate with uncontradicted testimony from hospital personnel. Therefore, without the presumption against Father, there is insufficient evidence on the record concerning the cause of Z.D.'s injury. I am convinced that the State failed to prove its allegations of abuse and neglect by clear and convincing evidence and that the juvenile court's findings "are against the clear weight of the evidence."Id. at ¶ 32 (quoting State v. Walker,743 P.2d 191, 193 (Utah 1987)). In any event, I am left with a "definite and firm conviction that a mistake has been made."Id.
¶ 23 For the foregoing reasons, I would reverse.