In re Z.D.

2006 UT 54
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, in the interest 	No. 20040837
of Z.D. and A.D., persons under
eighteen years of age.
S.B.D. and L.D.,
Respondents,
v.
F I L E D
State of Utah and Guardian
ad Litem, 	September 19, 2006
Petitioners.
---
Third District Juvenile, Salt Lake
The Honorable Olof A. Johansson
No. 169372
Attorneys: 	Sara Pfrommer, Park City, for respondents
Mark L. Shurtleff, Att’y Gen., John M. Peterson,
Asst. Att’y Gen., Salt Lake City, for the State
Robert N. Parrish, Martha Pierce, Salt Lake City, for
guardian ad litem
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	We granted certiorari to review whether the court of
appeals applied the correct standard of review when it reversed a
juvenile court determination that Z.D., the seven-month-old son
of S.B.D. and L.D., suffered a fractured femur while in S.B.D.’s
care and that Z.D. was an abused and neglected child under Utah
law. 	We remand this case to the court of appeals for application
of the standard of review as discussed below.

1 The sole issue before us concerns the standard of review
adopted by the court of appeals. 	Our recitation of the facts
should not, therefore, be taken to reflect this court’s view on
the sufficiency of those facts under the standard of review we
articulate in this opinion.
No. 20040837 	2
FACTUAL AND PROCEDURAL BACKGROUND1
¶2 	On Saturday, November 16, 2002, S.B.D. (father) cared
for his infant son Z.D. while his wife, L.D. (mother), was away
from the home. 	Before the mother left the home, she gave Z.D. a
dose of Tylenol for an earache, constipation, and teething pains
that Z.D. had been experiencing. 	Later, when Z.D. awoke from a
nap, his father observed that he was fussy and guarding his left
leg. 	The father attributed Z.D.’s apparent leg pain to a flu
shot that had been administered in Z.D.’s left leg the day
before. 	He wrapped Z.D. tightly in a blanket in what the parents
called a “burrito wrap.” 	After being wrapped and held, the
symptoms of fussiness subsided.
¶3 	That evening, when Z.D.’s mother returned home, she
also noticed that Z.D. was favoring his left leg. 	The parents
contacted the Kids Care clinic and were told that there was no
need to worry and that Z.D. did not need an examination. 	That
night Z.D. slept normally and evidenced no signs of fussiness or
pain.
¶4 	On Sunday morning, the father noted that Z.D. continued
to favor his left leg. 	He took Z.D. to Primary Children’s
Medical Center (Primary) in Salt Lake City for an examination of
the leg. 	An x-ray revealed that Z.D. had a fractured left femur.
The record reflects that Z.D. was in no apparent distress when he
was examined, but cried when his leg was manipulated.
¶5 	Primary follows certain procedures when a non-
ambulatory child is diagnosed with a fracture. 	First, the
hospital admits the child for further examination and
treatment--Primary admitted Z.D. to the hospital. 	Next, it
notifies the Division of Child and Family Services (DCFS) for
investigation of abuse--Primary did so. 	However, this case posed
complications for DCFS because the father was employed by DCFS as
an in-home child welfare investigator. 	Therefore, DCFS assigned
independent investigator Paul Dean to the case. 	Third, Primary’s
emergency room staff alerts the hospital’s in-house child abuse
investigation team, the Center for Safe and Healthy Families
(CSHF), to investigate--Primary immediately notified CSHF of
Z.D.’s condition.

3 	No. 20040837
¶6 	Dr. Bruce Herman, a member of the CSHF and a
pediatrician, examined Z.D. and concluded that the child likely
sustained the fracture on Saturday, November 16, and probably
became acutely symptomatic on the same day. 	Dr. Herman
determined that the fracture was most likely the result of
excessive axial loading--direct application of force or
smashing--of the femur.
¶7 	On Tuesday, November 19, 2002, Dr. Herman visited
Z.D.’s room while Z.D.’s father, mother, and grandmother were
present. 	The grandmother asked Dr. Herman if it were possible
that the fracture took place on Wednesday, November 13, 2002,
when Z.D.’s leg became stuck in a baby walker and she released it
by pulling the leg through the hole in the walker. 	Dr. Herman
did not discuss this theory with the family because, according to
his testimony at trial, he did not consider it a likely cause of
this type of fracture.
¶8 	Approximately a month later, the family requested a
meeting with Dr. Herman and the members of the CSHF team to
further discuss their “walker theory.” 	At this time, the
grandmother provided further details about the incident. 	She
said that when Z.D.’s left leg became stuck in the walker his
knee was bent. 	She then placed her left hand and thumbs on that
leg just above the knee, pushed, and pulled it through the
walker. 	Z.D. let out a shrill, vigorous cry when this happened
but calmed down quickly.
¶9 	After the grandmother gave this account and a
demonstration of her movements in extricating Z.D. from the
walker, a group of physicians from Primary met and agreed that
the walker theory and demonstration did not change their opinion
that the break was the result of some other type of axial load.
¶10 	Kari Cunningham, the hospital liaison to DCFS,
testified that the doctors agreed that it was possible for a
fracture to occur by use of one’s hand on Z.D.’s leg, but that
the force used by the grandmother in the walker was insufficient
to cause Z.D.’s fracture. 	According to Ms. Cunningham, the
doctors formed their opinion without considering either the
Tylenol that Z.D. had been given, his tight wrapping in a
blanket, or the reduced level of activity that Z.D. exhibited
between Wednesday and Saturday.
¶11 	Two additional physicians, Dr. William G. Nixon, a
pediatric radiologist, and Dr. John Smith, a pediatric
orthopedist, did not participate in the walker demonstration or
subsequent meeting, but did propose conflicting opinions.

No. 20040837 	4
Dr. Nixon had earlier expressed his opinion that the fracture was
not made by an axial load, but rather by angular leverage.
Dr. Smith explained that he thought the fracture was likely the
result of force on the leg over a fulcrum.
¶12 	The State then filed a petition pursuant to Utah Code
section 78-3a-103(1)(a)(i), alleging that Z.D. was an abused
child, that pursuant to Utah Code section 78-3a-103(1)(s)(i)(B),
Z.D. was a neglected child subjected to mistreatment or abuse,
and that pursuant to Utah Code section 78-3a-103(1)(s)(i)(E),
Z.D.’s sister, A.D., was at risk of abuse and neglect because she
resided in the same home as Z.D. 	At trial, both sides offered
dueling experts and testimony.
¶13 	During trial, the State offered the expert opinions of
several physicians, relying principally on the testimony and
opinion of Dr. Herman, that Z.D.’s injury was not sustained
accidentally. 	Dr. Herman grounded his opinion concerning
causation on three diagnostic observations: 	the type of Z.D.’s
fracture, which provided clues to the mechanism and force
associated with the cause of the fracture; the age of the
fracture; and the symptoms that were associated with Z.D.’s
fracture.
¶14 	Based on his observations, Dr. Herman expressed the
opinion that the father deliberately fractured Z.D.’s left leg on
Saturday, November 16, 2002, by direct and excessive force
applied to the bent left knee. 	Dr. Herman testified this was the
only reasonable conclusion supported by the relevant diagnostic
facts. 	His confidence in his conclusion was not, however,
without qualification. 	While Dr. Herman rejected the walker
theory, he conceded that he was “51/49” percent sure that it was
direct and excessive force that caused the fracture. 	He also
testified that, while he disagreed with Dr. Nixon’s view that
Z.D.’s injury was caused by angular force, his disagreement was
“not significant.”
¶15 	Dr. Herman’s view that the walker explanation was
implausible in his opinion because the femur fracture would have
caused Z.D. so much pain that neither the Tylenol nor the
“burrito wrap” would have been sufficient to mask Z.D.’s
discomfort from a “vigilant caretaker” between the date of the
walker incident on November 13 and November 16, the date
Dr. Herman believed the father had inflicted the injury. 	He did
not explain Z.D.’s apparent absence of pain when brought to the
hospital.

5 	No. 20040837
¶16 	In their defense, the parents offered the testimony of
various experts including Mr. David Ingebretsen, a biomechanical
engineer; Debbie Hosseini, a nurse with expertise in premature
baby development; and Dr. Steven Scott, a pediatric orthopedic
expert.
¶17 	Mr. Ingebretsen testified that the walker theory was
consistent with his interpretation of the pattern of Z.D.’s
fracture. 	Ms. Hosseini testified that she had often worked with
Z.D. and his family because Z.D. was born premature. 	She
testified that she had never seen any bruising or swelling and
that Z.D. was a very happy baby who was easily consoled.
¶18 	Finally, Dr. Scott testified that he was initially
skeptical of the parents’ explanation of Z.D.’s injury because in
his experience a fracture in a non-ambulatory infant is generally
the result of abuse. 	However, upon reviewing the medical
records, including x-rays, Dr. Scott became persuaded that Z.D.’s
fracture was, in fact, caused by the type of lateral force
explained by Z.D.’s grandmother. 	Dr. Scott also testified that
the absence of bruising was a significant issue because it is
much easier to bruise soft tissue than to break a bone. 	Finally,
Dr. Scott testified that it was not rare for a child to be
brought to the hospital days after a fracture because parents may
attribute the symptoms to other causes.
¶19 	The juvenile court issued findings of fact and
conclusions of law. 	The court acknowledged the difficulty in the
case due to its length, complex legal and factual issues, and the
emotions of all the parties involved. 	The court concluded that
Z.D.’s leg was fractured on Saturday, November 16, 2002, while he
was in the exclusive custody of his father. 	The court
acknowledged that the “details of how the child received the
femur fracture has [sic] not been provided to the [c]ourt but
sufficient and clear and convincing evidence has been established
for the [c]ourt to conclude it was non-accidental trauma without
a reasonable and acceptable explanation from either parent as to
its causation.” 	The juvenile court determined that it was
satisfied that the State had proven each of the allegations of
its petition by clear and convincing evidence.
¶20 	Z.D.’s parents appealed, claiming that the evidence was
insufficient to support the juvenile court’s result. 	The court
of appeals reversed. 	The court of appeals reasoned that
“‘[w]hile it rests primarily with the trial court to determine
whether the evidence is clear and convincing, its finding is not
necessarily conclusive.’” 	S.B.D. v. State (In re Z.D.), 2004 UT
App 261, ¶ 19, 98 P.3d 40 (quoting Lovett v. Cont’l Bank & Trust

No. 20040837 	6
Co., 4 Utah 2d 76, 286 P.2d 1065, 1068 (1955)). 	The court went
on to detail that
it is the duty of the appellate court in
reviewing the evidence to determine, not
whether the trier of facts could reasonably
conclude that it is more probable that the
fact to be proved exists than that it does
not, . . . but whether the trier of facts
could reasonably conclude that it is highly
probable that the fact exists.
Id. (emphasis in original) (internal quotation marks omitted).
¶21 	The court of appeals also pared away the deference it
afforded the juvenile court findings based on our holding in Alta
Industries v. Hurst, 846 P.2d 1282, 1284 n.2 (Utah 1993), that
appellate courts do not give factual findings made by a trial
judge the same deference as those made by a jury. 	Id. 	As a
result, it explained that “an appellate court does not, as a
matter of course, resolve all conflicts in the evidence in favor
of the appellee.” 	Id.
¶22 	The court of appeals then put these misunderstood
principles of review into practice. 	It concluded that the
evidence, particularly the testimony of Dr. Herman, did not
clearly and convincingly demonstrate that the fracture was caused
by an axial load, or that it took place on Saturday, when Z.D.
was in his father’s care. 	In re Z.D., 2004 UT App 261, ¶ 26, 98
P.3d 40. 	We granted the State’s petition for certiorari to
review the standard of review adopted by the court of appeals.
¶23 	We hold that the court of appeals used the incorrect
standard of review and should, on remand, apply the “clearly
erroneous” standard discussed below.
ANALYSIS
¶24 	Appellate courts are removed temporally and
geographically from trial courts. 	They do not see juries
impaneled or oaths administered to witnesses. 	They do not view
first-hand witnesses’ “tells” of posture, inflection, or mood
that strengthen or erode credibility. 	It is the lot of appellate
judges to take their sustenance from the printed page; to peer
into the facts as deeply as the flat plane of paper will permit.
By the time the trial transcript reaches the hands of the
appellate judge, the universal adjective describing its condition
is “cold.” 	Thus, appellate courts have ample cause to defer to

2 Examples of circumstances in which we extend less
deferential review to findings of fact include our review of
challenges to searches and seizures conducted without a warrant,
issues of “constitutional fact” implicating First Amendment
guarantees, and punitive damage awards, which by their nature
carry the risk of infringing due process protections. 	Jensen v.
Sawyers, 2005 UT 81, ¶ 61, 130 P.3d 325; State v. Brake, 2004 UT
95, 103 P.3d 699; Campbell v. State Farm Mut. Auto. Ins. Co.,
2004 UT 34, 98 P.3d 409.
7 	No. 20040837
the judgment of trial judges on matters that cannot be reliably
extracted and examined from such a two-dimensional record. 	The
doctrine that shapes and guides judicial review is that it is not
within the province of an appellate court to substitute its
judgment for that of a front line fact-finder except when
exceptional circumstances warrant more rigorous scrutiny. 2
¶25 	On this occasion, a unanimous panel of the court of
appeals overcame its reluctance to disturb factual findings and
reversed a juvenile court judge’s determination that the father
was responsible for fracturing the left femur of his seven-month-
old son Z.D. 	The court of appeals evaluated the factual record
for its sufficiency with the aid of a two-part test. 	In re Z.D.,
2004 UT App 261, ¶ 19, 98 P.3d 40. 	First, the court looked to
the burden of proof--clear and convincing evidence in this
case--required to sustain the juvenile court’s conclusion that
Z.D. was an abused and neglected child. 	Id. (citing our opinion
in Lovett v. Cont’l Bank & Trust Co., 286 P.2d 1065, 1068 (Utah
1955)). 	The court of appeals concluded that, where the degree of
proof required to support a result exceeds a mere preponderance
of the evidence, an appellate court may set aside an outcome
based on the insufficiency of its factual basis even if one could
reasonably conclude that it was more probable than not the fact
to be proved existed. 	Id. 	The court of appeals read Lovett to
require an appellate court to conduct the more searching inquiry
into “whether the trier of facts could reasonably conclude that
it is highly probable that the fact exists.” 	Id. (emphasis in
original) (internal quotation marks omitted).
¶26 	The court of appeals coupled its view that appellate
deference to factual findings was linked to burden of proof with
the principle that lesser deference was due factual
determinations made by a trial judge than factual findings
incorporated within a jury’s verdict. 	Id. (citing Alta Indus. v.
Hurst, 846 P.2d 1282, 1284 n.2 (Utah 1993)). 	With these
implements, the court of appeals cleared the way to reverse the
juvenile court decision.

No. 20040837 	8
¶27 	We acknowledge that both burden of proof and identity
of the finder of fact may under appropriate circumstances affect
the degree of deference extended by an appellate court to
findings of fact. 	These are, however, tools that are subordinate
to the standard of review set out in rule 52(a) of the Utah Rules
of Civil Procedure.
¶28 	Despite attempts by the father to characterize the
question under review as a mixed question of law and fact, his
challenge to the juvenile court’s ruling was one of pure fact:
was there sufficient evidence to establish the father’s
culpability for his son’s injury?
¶29 	An appellate court must launch any review of factual
findings from rule 52(a) of the Utah Rules of Civil Procedure and
its “clearly erroneous” test, yet rule 52(a) goes unacknowledged
by the court of appeals.
¶30 	The absence of an attempt to explain its reasoning
within the context of the “clearly erroneous” standard of rule
52(a) exposed the court of appeals to the charge advanced by the
State in its brief that it conducted an appellate trial de novo,
affording no deference to the juvenile court’s factual findings
or to its advantaged position with regard to determining
credibility of expert and fact witnesses.
¶31 	We reiterate the observation made above that the
considerations which persuaded the court of appeals that it was
justified in examining with more rigor the juvenile court’s
ruling--a heightened standard of proof and findings made by a
judge instead of a jury--are relevant to a sufficiency of the
evidence review conducted under rule 52(a). 	These are, however,
subsidiary principles that exist only in the service of an
accurate evaluation of whether findings were “clearly erroneous.”
They cannot be applied independently from a “clearly erroneous”
inquiry.
¶32 	We provided sound guidance to appellate courts
regarding the scope of their authority to review factual findings
under the clearly erroneous standard of rule 52(a) in State v.
Walker, 743 P.2d 191 (Utah 1987). 	There we stated that
the content of [r]ule 52(a)’s clearly
erroneous standard, imported from the federal
rule, requires that if the findings (or the
trial court’s verdict in a criminal case) are
against the clear weight of the evidence, or
if the appellate court otherwise reaches a

9 	No. 20040837
definite and firm conviction that a mistake
has been made, the findings (or verdict) will
be set aside.
Id. at 193.
¶33 	Several interpretative observations may be fairly drawn
from the Walker commentary on rule 52(a). 	These include the
recognition that it is simply unrealistic to expect an appellate
court to conduct a review of a sufficiency of the evidence
challenge without weighing evidence. 	The appellate court must,
however, go about weighing the evidence with one eye on the
scales and the other fixed firmly on its duty of deference to
findings of fact. 	Thus, it may only disturb findings that offend
the “clear weight” of the evidence. 	An appellate court must be
capable of discriminating between discomfort over a trial court’s
findings of fact--which it must tolerate--and those that require
the court’s intercession. 	It must forebear disturbing the “close
call.”
¶34 	Judge Richard Posner made an able attempt to give
practical meaning to the rule 52(a) standard when he wrote:
It requires us appellate judges to
distinguish between the situation in which we
think that if we had been the trier of fact
we would have decided the case differently
and the situation in which we are firmly
convinced that we would have done so. 	Our
scrutiny of the district judge’s findings of
fact thus is deferential, but it is not
abject. 	As the Supreme Court pointed out in
the Concrete Pipe case, we need not, to
overturn a finding under the clear-error
standard, adjudge the finding “so unlikely
that no reasonable person would find it to be
true.”
Carr v. Allison Gas Turbine Div. Gen. Motors, 32 F.3d 1007, 1008
(7th Cir. 1994) (emphasis in original) (quoting Concrete Pipe &
Prod. of Cal., Inc. v. Constr. Laborers Pension Trust, 508 U.S.
602, 623 (1993)).
¶35 	It is the role of subsidiary principles, like the ones
employed by the court of appeals here, to help make principled
distinctions between a belief that a trial court was mistaken and
a firm conviction of error. 	Thus, an appellate court may
consider whether the findings were made by a judge or by a jury.

No. 20040837 	10
This distinction matters. 	An appellate court must indulge
findings of fact made by a jury that support the verdict. 	No
such indulgence is required of findings made by a judge. 	We made
this point in Walker in the context of interpreting rule 52(a)
when we looked favorably to the position adopted by Wright &
Miller concerning federal rule 52(a) that
“[i]t is not accurate to say that the
appellate court takes that view of the
evidence that is most favorable to the
appellee, that it assumes that all conflicts
in the evidence were resolved in his favor,
and that he must be given the benefit of all
favorable inferences. 	All of this is true in
reviewing a jury verdict. 	It is not true
when it is findings of the court that are
being reviewed.”
Walker, 743 P.2d 191, 193 (quoting Wright & Miller, Federal
Practice and Procedure § 2585 (1971) (citations omitted)).
¶36 	The degree of skepticism to which an appellate court
subjects a factual record can significantly affect the firmness
of a court’s conviction that a trial court was mistaken and
influence its reading of the scale that weighs those facts. 	Yet,
neither this principle nor any of its associated subsidiary rules
of factual review can substitute for rule 52(a) analysis.
¶37 	It is with some trepidation that we attempt to
elaborate further on the dimensions of the Walker operational
guide to determining what is “clearly erroneous.” 	We will
mention, however, two issues of importance that bear on this
case: 	the duty to conduct a review of the “whole record” where a
sufficiency challenge is made, and the propriety of considering
heightened standards of proof as part of a “clear error” review.
¶38 	Like rule 52(a) itself, the interpretive tool that we
announced in Walker was borrowed from federal jurisprudence. 	Id.
(citing Wright & Miller, Federal Practice and Procedure § 2585
(1971)). 	Walker acknowledged as much when it adopted “the
definition of ‘clearly erroneous’ in the federal rule” as defined
in United States v. United States Gypsum Co., 333 U.S. 364
(1948). 	The Gypsum definition explained that “[a] finding is
‘clearly erroneous’ when although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
Id.

3 The Gypsum language “has become standard fare in
subsequent [U.S.] Supreme Court opinions. 	[Moreover,] [m]ost of
the cases in the circuits that define clearly erroneous also
routinely follow the Gypsum formula.” 	Childress & Davis, Federal
Standards of Review § 2.05 (3d ed. 1999).
11 	No. 20040837
¶39 	The Gypsum definition, which has lost none of its
vitality over the decades, includes the important recognition
that the scope of review contemplated by rule 52(a) encompasses
the entire factual record. 3 	It is, therefore, the responsibility
of the appellate court to provide some indication that it
performed its sufficiency of the evidence review in the context
of the whole record, or at least that portion of the record to
which its attention was drawn by the appellant’s marshaling
obligation or the appellee’s response to the appellant’s
marshaled evidence.
¶40 	It is also 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. 	See Lovett, 286 P.2d at 1067. 	The Walker standard
requires reversal under rule 52(a) when a result is “against the
clear weight of the evidence.” 	Walker, 743 P.2d at 193. 	The
amount and quality of evidence required to sustain a result based
on a preponderance of evidence is, of course, less than that
required to meet a clear and convincing standard. 	Accordingly,
it is more difficult to demonstrate that the evidence supporting
a “preponderance” based outcome is so wanting as to be “clearly
erroneous” than it is to demonstrate the required dearth of
evidence under a more exacting evidentiary standard. 	Still, it
is not the role of the appellate court to reverse a trial court
merely because it is convinced that the evidence is inadequate to
sustain the result under the standard of proof applied below.
Walker demands more. 	The result must be against the clear weight
of the evidence or leave the appellate court with a firm and
definite conviction that a mistake has been made.
¶41 	We stop short of applying the proper standard to the
facts in this case, electing instead to remand the matter to the
court of appeals. 	By finding the standard of review applied by
the court of appeals to be flawed, we do not intend to suggest
that its result is likewise in error. 	To the contrary the record
as a whole may well leave the court of appeals with a firm
conviction that the juvenile court was mistaken in concluding
that the State had established each of the allegations of its
petition by clear and convincing evidence.

4 The juvenile court’s finding reads: 	“The [c]ourt is both
astonished and dumbfounded why the symptoms would be absent on
Wednesday [through Saturday morning], but yet make such a sudden
and demonstrative appearance on the afternoon . . . after being
in the sole care of the father all day.”
5 It provided:
In determining whether a minor is an abused
child or neglected child it may be presumed
(continued...)
No. 20040837 	12
¶42 	For example, the juvenile court’s conclusion that
Z.D.’s fractured femur was the result of abuse by his father on
Saturday was based primarily on its finding that Z.D. was
asymptomatic from Wednesday, the day of the walker incident,
until Saturday. 4 	But this finding does not account for an
abundance of evidence that explains the absence of symptoms,
including the painkillers Z.D. had been taking at the time and
the “burrito wrap,” which stabilized Z.D.’s leg. 	The finding
also leaves unexplained the uncontradicted testimony that Z.D.
was in no apparent distress when he was first examined at Primary
Children’s Hospital. 	He was described by hospital workers as
cheerful, interactive, alert and slightly fussy, but consolable.
In fact, the first physician at Primary observed Z.D.
independently move his leg. 	Even after moving Z.D.’s leg around,
the physician could not find anything wrong. 	Far from being the
“sudden and demonstrative appearance” of symptoms that
“dumbfounded” the juvenile court, the record reveals that Z.D.’s
distress was transient and muted.
¶43 	Moreover, there is scant evidence regarding the
causation of Z.D.’s injury. 	The State’s medical expert testified
that he was only “51/49” percent certain that the injury was
caused by axial force, which was consistent with the State’s
theory of the case, rather than angular leverage, which was
consistent with the parents’ explanation of the walker incident.
And while the defense’s expert admitted the possibility that
Z.D.’s injury could have been caused by axial force, he testified
that the absence of any bruising, swelling, and contusions
surrounding the fracture rendered this mechanism of injury highly
unlikely.
¶44 	Finally, the juvenile court was unable to reach any
conclusion about what actually caused Z.D.’s injury. 	Instead,
the court relied entirely on Utah Code section 78-3a-305.1, which
created a presumption that any abuse or neglect suffered by a
minor was caused by the person having the minor “under his direct
and exclusive control” at the time of the abuse. 5 	Inasmuch as

5 (...continued)
that the person having the minor under his
direct and exclusive care and control at the
time of the abuse is responsible for the
abuse or neglect.
Utah Code Ann. § 78-3a-305.1
6 As the presumption was simply an evidentiary rule that did
not “enlarge, eliminate, or destroy” a substantive right of the
parties, its repeal is to be applied retroactively. 	Goebel v.
Salt Lake City S. R.R. Co., 2004 UT 80, ¶ 39, 104 P.3d 1185.
Even when existing procedural rules have been followed at trial,
a party whose case has not yet reached final judgment has the
right to take advantage of changes in those procedural rules.
See B.A.M. Dev. v. Salt Lake County, 2006 UT 2, ¶¶ 17-21, 128
P.3d 1161 (applying a procedural statute retroactively to an
appeal).
13 	No. 20040837
the State presented no evidence of how the abuse occurred, the
juvenile court’s conclusion that the broken femur was the result
of abuse levied by Z.D.’s father, rather than an accidental
injury, was entirely dependent upon this presumption. 	We note
that subsequent to the court of appeals’ opinion, the Utah
Legislature repealed this presumption. 	See 2005 Utah Laws 1889
(H.B. 89). 6 	Thus, we ask the court of appeals to determine,
under the standard announced today, whether the complete lack of
evidence--let alone clear and convincing evidence--regarding the
mechanism of Z.D.’s injury, coupled with the juvenile court’s
failure to account for the evidence that Z.D. was in no apparent
distress upon his arrival at Primary supports a reversal of the
juvenile court.
CONCLUSION
¶45 	Because it is beyond the scope of the issue we agreed
to take up on certiorari, we decline to comment on whether we
believe that the juvenile court’s findings and result satisfy
rule 52(a). 	We therefore remand this matter to the court of
appeals for the purpose of applying the “clearly erroneous”
standard as illustrated in Walker.
---
¶46 	Chief Justice Durham, Justice Durrant, and Justice
Parrish concur in Justice Nehring’s opinion.
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No. 20040837 	14
WILKINS, Associate Chief Justice, concurring in the result:
¶47 	I accept the decision of the majority today that
addresses the degree to which appellate judges may substitute
their own view of the import of facts for those of the trial
judge. 	I agree that this matter is best referred back to the
court of appeals to apply the correct standard to the review of
the challenged facts and process. 	However, I write separately to
express my misgivings about the willingness of appellate judges
generally to presume that they can reach a sound determination on
review of facts presented at trial.
¶48 	In my view, it is virtually impossible for appellate
judges to do anything other than speculate about which facts are
susceptible to legitimate challenge and which are not. 	Despite
the urging of my colleagues that cautious review of facts demands
consideration of the record as a whole, the whole of the trial
experience, as it bears on factual questions, is not available to
the appellate judge.
¶49 	The trial judge sees the witnesses, the parties, and
counsel. 	He or she is able to read the subtle, and not so
subtle, human clues to which we attach so much importance in our
personal interactions. 	The trial judge is able to form a
thoughtful, experience-based evaluation of these players in the
drama of the courtroom. 	An item of evidence, testimony or
otherwise, may only be presented reluctantly, or with a flourish
of drama, or entirely by accident. 	The setting makes a
difference to the way we evaluate the reliability and importance
of the content. 	Bluster and bravado may indicate insincerity, or
bluff, or simply bad lawyering with good facts.
¶50 	The relative competence of counsel plays an important
role. 	Throughout the trial, the experience level, competence,
preparation, intelligence, and skill of trial counsel become
apparent to the trial judge. 	They may help or hinder, facilitate
or prevent, the presentation of evidence.
¶51 	The demeanor of witnesses, as has been said so many
times by appellate courts, is nearly impossible to perceive from
the written record.
¶52 	It is extremely rare for either the trial judge, or
counsel, to enter on the trial record detailed indications of
these various and important bits and pieces of human behavior.
It is usually enough to say, in findings, that the trial judge
does not find the witness or the evidence presented to be
believable, and to append a few words indicating the most obvious

15 	No. 20040837
reason. 	It is rare to find a thoughtful discourse in the trial
transcript detailing the fabric of indicators leading the fact-
finder to accept, or not accept, any particular fact or version
of fact.
¶53 	It is for precisely this reason that, historically,
appellate judges have pledged their deference to the trial level
fact-finders, judges or juries. 	We are at least honest enough to
note that we cannot possibly reach as informed a decision on the
factual questions as the trial judge or the jury did. 	This,
however, does not, and has never, prevented appellate judges from
substituting their own judgment of the fact question for those of
the trial judge.
¶54 	We are much more reluctant with juries, partly out of
respect for the role of the jury and the secrecy of their
deliberation process. 	We cannot know, and dare not ask, on what
basis the jury decided. 	Only when the jury reaches a finding
that cannot possibly have come from any of the evidence presented
to it do we venture to modify the facts so found.
¶55 	On the other hand, our behavior toward trial judges
suggests a very different attitude. 	The willingness of appellate
judges to second-guess factual determinations by trial judges
suggests a sense that we consider ourselves to be their equals
(or betters) in every relevant way, including our ability to sort
the evidence presented at trial, and to reach more sound, more
correct factual determinations. 	This we do with a nod to the
more advantaged position of the trial judge, and to the
difficulty of doing a fair and accurate job from reading only the
two-dimensional and “cold” trial record. 	Nonetheless, we do it.
And we do it on the basis that we are “convinced” that the trial
judge got it wrong. 	It is of small comfort to me that we limit
ourselves to only those times when we are really convinced.
¶56 	This case deals with the severe injury of a very young
child. 	It is a civil proceeding designed by our legislature to
protect the child and to assist the family in resolving
difficulties that endanger the child. 	It is not a criminal trial
of the accused abuser.
¶57 	The determination made by the juvenile court in this
and similar cases is the basis of jurisdiction, not an
adjudication of guilt. 	Without the finding of abuse or neglect,
about which my colleagues express doubt, the juvenile court has
no jurisdiction to address the dangers to which this particular
child has been exposed by those charged by law with his
protection and nurture. 	As a court of limited and specified

No. 20040837 	16
jurisdiction, absent such a finding, the juvenile court can
marshal none of the services or protections available to a child
in his or her defense.
¶58 	No one suggests that this young child broke his own
leg. 	He was too young to engage in any purposeful activity that
presented such a danger. 	He was injured either by the abuse or
neglect of his father, as the juvenile court found, or by the
abuse or neglect of someone else into whose care his father or
mother had placed him. 	When parents do not, or cannot, protect
infants from serious physical injury, the legislature has adopted
statutory policy requiring the state to step in. 	The protection
from excessive state intervention is the independence, the
experience, and the judgment of juvenile court judges statewide.
¶59 	My colleagues make much of a theory of injury they find
inadequately explained by either the state or the trial judge in
his formal findings. 	They overlook the fact that the timing of
the injury, and the custodial adult at the time of the injury,
are not in factual dispute. 	They, as our colleagues in the court
of appeals before us, simply do not accept the factual theory
upon which the trial court acted. 	This they do, apparently,
based upon their own superior evaluation of the evidence
presented, and not presented, as disclosed by the record on
appeal.
¶60 	I would reverse the court of appeals on its re-finding
of the facts, affirm the factual determinations made by the trial
judge, and apply a standard to facts found by trial judges at
least as deferential as that applied to juries. 	Trial judges are
selected for, and experienced in, conducting trials. 	The
advantages of being present for the trial, of hearing and seeing
all of the participants through the entire proceeding, simply
cannot be replicated in the record. 	No matter how compelling the
case made on appeal, it is only a portion of the case seen by the
trial judge. 	Marshaling the evidence in support of the trial
judge’s decision is limited to a superficial extract of
information contained in the record. 	Much of importance is not
in the record to be marshaled. 	Consequently, I believe that
appellate judges should trust their trial judge colleagues to do
their jobs properly, and reserve their correction of factual
errors to those few and rare instances when the determination is
so clearly wrong that we would reverse not only a trial judge,
but also a jury.
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