Instead, the Dunsmores learned they will have to wait longer for a resolution, months or possibly years. The top court on Tuesday sent the Dunsmore case back to the Utah Court of Appeals for reconsideration but stopped short of suggesting its earlier decision in favor of the family was in error.

That, along with the prospect of reforming Utah's child welfare system, is what keeps the Dunsmores going.

"It would have been nice to have it done, but we're feeling pretty positive," Brig Dunsmore said. "We want the system to change, and we think the appellate court will uphold its earlier ruling."

The couple temporarily lost custody of their two children in November 2002 after child welfare caseworkers accused Brig Dunsmore of breaking his infant son's leg by smashing it against a hard surface. After a trial, complicated by the fact that Brig Dunsmore worked as a caseworker for Utah's Division of Child and Family Services (DCFS), a juvenile court judge held him responsible for the injury.

A three-judge panel of the Utah Court of Appeals reversed the judge's decision, ruling the state failed to prove its case.

The appeals panel said it had the power to decide there was insufficient evidence, even if it was "more probable than not" that disputed facts had been proved.

But Utah Supreme Court justices said the panel should have used a tougher standard: It should have focused on whether the judge's decision was "clearly erroneous."

An appellate court can only overturn a judge's findings that "offend the 'clear weight' of the evidence," the justices said.

They asked the appeals court to reconsider the case, using the new standard. That request does not suggest that the panel's ultimate ruling - that there was insufficient evidence against Brig Dunsmore - also was flawed, the justices noted.

"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 . . . by clear and convincing evidence," they wrote.

The state presented "no evidence" of how the alleged abuse occurred, the justices said.

Absent any other explanation, the juvenile court presumed Brig Dunsmore to be responsible under a section of Utah law that has since been repealed.

Sara Pfrommer, the Dunsmores' attorney, took heart in Tuesday's ruling, noting, "That's a pretty clear statement that they think the juvenile court was wrong."

But lawyers for DCFS downplayed the court's commentary, declaring victory.

"We got what we wanted," said Utah Solicitor General Annina Mitchell. “The appellate court doesn't get to reverse trial judges' findings of fact just because the appellate court looks at the transcript of a trial and decides, 'We would have reached a different conclusion.' ”

kstewart@sltrib.com