Estimated read time: 2-3 minutes
This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.
SALT LAKE CITY (AP) -- The case of a former state family services worker accused of breaking the leg of his own infant son is in the hands of the Utah Supreme Court.
Brig and Lisa Dunsmore temporarily lost custody of their two children in November 2002 after child welfare caseworkers accused the father of breaking his baby's leg by smashing it against a hard surface.
A juvenile court judge determined the injury was not an accident.
But the Utah Court of Appeals reversed the judge's decision, ruling the state failed to prove abuse by "clear and convincing evidence."
The state Division of Child and Family Services -- Brig Dunsmore's employer until the abuse allegations were made -- has asked the Utah Supreme Court to reinstate the juvenile court judge's ruling.
The high court heard arguments Thursday.
Assistant Attorney General John Peterson fears the appeals court ruling would require DCFS to prove the mechanism or precise cause of injury in future child abuse cases.
The Supreme Court is looking just at whether the Court of Appeals used the correct standard to assess the evidence-- Peterson argued before the high court Thursday that the appeals judges overstepped their bounds by retrying the case. He said the reversal was arbitrary and based on a "patchwork quilt of evidence" carefully parsed from the juvenile court record.
"When you come to appeal, you don't try (the case) again. It's not a second chance," said Peterson.
He said appellate court justices are handicapped in weighing conflicting evidence because they aren't privy to nuances at the trial, such as the demeanor of witnesses.
The appeals court accepted the Dunsmores' theory that a grandmother accidentally broke the child's leg by forcing it into the harness of a walker, said Peterson.
The Dunsmores' lawyer, Sara Pfrommer, argued that the state failed to prove its own theory, of abuse. The appeals court determined the facts viewed together did not support the juvenile court's decision, said Pfrommer.
On Nov. 17, 2002, Brig Dunsmore took his then six-month-old son to Primary Children's Medical Center because something was wrong with his left leg. Examination showed it was broken.
At the time, neither parent could explain how the fracture could have happened, which made the doctors suspicious.
The justices could affirm or reverse the appellate decision, or order a retrial in juvenile court.
(Copyright 2005 by The Associated Press. All Rights Reserved.)
