State v. Miranda

Opinion

KATZ, J.

The issue in this appeal is whether a person who is not the biological or legal parent of a child but who establishes a familial relationship with a woman and her infant child, voluntarily assumes responsibility for the care and welfare of the child, and considers himself the child’s stepfather, has a legal duty to protect the child from abuse, such that the breach of that duty exposes the person to criminal liability pursuant to General Statutes § 53a-59 (a) (3).¹ After a court trial, the defendant, Santos Miranda, was convicted of six counts of assault in the first degree in violation of § 53a-59 (a) (3),² and one count of risk of injury to a child in violation of General Statutes § 53-21.³ The court concluded that the defendant had established a familial relationship with the victim and her mother, that his failure to help and protect the child from abuse constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation, and that such reckless conduct resulted in serious physical injuries to the child. The trial court found the defendant not guilty of nineteen counts of assault in the first degree. Those counts had charged him with either personally inflicting the injuries or not preventing the child’s mother from inflicting the injuries.⁴ The court imposed a total effective sentence of forty years imprisonment.

The defendant appealed to the Appellate Court, which affirmed the conviction for risk of injury to a child,⁵ but reversed the assault convictions concluding that the defendant had no legal duty to act under the circumstances of this case. State v. Miranda, 41 Conn. App. 333, 341, 675 A.2d 925 (1996). This court granted the state’s petition for certification limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the defendant could not be convicted of violating General Statutes § 53a-59 (a) (3) because he had no legal duty to protect the victim from parental abuse?” State v. Miranda, 237 Conn. 932, 677 A.2d 1372 (1996). We conclude that, based upon the trial court’s findings that the defendant had established a familial relationship with the victim’s mother and her two children, had assumed responsibility for the welfare of the children, and had taken care of them as though he were their father, the defendant had a legal duty to protect the victim from abuse.⁶ Accordingly, we reverse the judgment of the Appellate Court.

As set forth in its memorandum of decision, the trial court found the following facts. The defendant commenced living with his girlfriend and her two children in an apartment in September, 1992. On January 27, 1993, the defendant was twenty-one years old, his girlfriend was sixteen, her son was two, and her daughter, the victim in this case, bom on September 21, 1992, was four months old. Although he was not the biological father of either child, the defendant took care of them and considered himself to be their stepfather. He represented himself as such to the people at Meriden Veteran’s Memorial Hospital where, on January 27, 1993, the victim was taken for treatment of her injuries following a 911 call by the defendant that the child was choking on milk. Upon examination at the hospital, it was determined that the victim had multiple rib fractures that were approximately two to three weeks old, two skull fractures that were approximately seven to ten days old, a brachial plexus injury to her left arm, a rectal tear that was actively “oozing blood” and bilateral sub-conjunctival nasal hemorrhages. On the basis of extensive medical evidence, the trial court determined that the injuries had been sustained on three or more occasions and that none of the injuries had been the result of an accident, a fall, events that took place at the time of the child’s birth, cardiopulmonary resuscitation, a blocked air passageway or the child choking on milk. Rather, the trial court found that the injuries, many of which created a risk of death, had been caused by great and deliberate force.

The trial court further found in accordance with the medical evidence that, as a result of the nature of these injuries, at the time they were sustained the victim would have screamed inconsolably, and that her injuries would have caused noticeable physical deformities, such as swelling, bruising and poor mobility, and finally, that her intake of food would have been reduced. The court also determined that anyone who saw the child would have had to notice these injuries, the consequent deformities and her reactions. Indeed, the trial court found that the defendant had been aware of the various bruises on her right cheek and the subconjunctival nasal hemorrhages, as well as the swelling of the child’s head, that he knew she had suffered a rectal tear, as well as rib fractures posteriorly on the left and right sides, and that he was aware that there existed a substantial and unjustifiable risk that the child was exposed to conduct that created a risk of death. The trial court concluded that despite this knowledge, the defendant “failed to act to help or aid [the child] by promptly notifying authorities of her injuries, taking her for medical care, removing her from her circumstances and guarding her from future abuses. As a result of his failure to help her, the child was exposed to conduct which created a risk of death to her and the child suffered subsequent serious physical injuries . . . .”

The trial court concluded that the defendant had a legal duty to protect the health and well-being of the child based on the undisputed facts that he had established a familial relationship with the child’s mother and her two children, that he had voluntarily assumed responsibility for the care and welfare of both children, and that he considered himself the victim’s stepfather. On the basis of these circumstances, the trial court found the defendant guilty of one count of § 53-21 and six counts of § 53a-59 (a) (3).⁷

I

Before addressing the certified issue of whether the facts and circumstances of this case were sufficient to create a legal duty to protect the victim from parental abuse pursuant to § 53a-59 (a) (3), we turn our attention to the question of whether, even if we assume such a duty exists, the failure to act can create liability under that statute. In other words, by failing to act in accordance with a duty, does a defendant commit a crime, such as assault in the first degree in violation of § 53a-59 (a) (3), that is not specifically defined by statute in terms of an omission to act but only in terms of cause and result?⁸ Whether a failure to discharge a legal duty to protect a child constitutes an omission punishable as an assault is a question of law subject to de novo review by this court. State v. Solek, 242 Conn. 409, 419, 699 A.2d 931 (1997).

The trend of Anglo-American law has been toward enlarging the scope of criminal liability for failure to act in those situations in which the common law or statutes have imposed an affirmative responsibility for the safety and well-being of others. See generally 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 3.3; annot., 61 A.L.R.3d 1207 (1975); annot., 100 A.L.R.2d 483 (1965). Criminal liability of parents based on a failure to act in accordance with common-law affirmative duties to protect and care for their children is well recognized in many jurisdictions. See, e.g. People v. Stanciel, 153 Ill. 2d 218, 606 N.E.2d 1201 (1992) (mother guilty of homicide by allowing known abuser to assume role of disciplinarian over child); Smith v. State, 408 N.E.2d 614 (Ind. App. 1980) (mother held criminally responsible for failing to prevent fatal beating of child by her lover); State v. Walden, 306 N.C. 466, 293 S.E.2d 780 (1982) (mother guilty of assault for failure to prevent beating); State v. Williquette, 129 Wis. 2d 239, 385 N.W.2d 145 (1986) (mother guilty of child abuse for allowing child to be with person known previously to have been abusive and who subsequently abused child again).⁹ In light of this duty to protect and care for children, courts in these jurisdictions have concluded that, where this duty exists and injury results, the failure to protect the child from harm will be “deemed to be the cause of those injuries” and the person bearing the duty may face criminal sanctions. State v. Peters, 116 Idaho 851, 855, 780 P.2d 602 (1989).

Although our research has revealed no case by this court in which we expressly have held a parent criminally liable for failure to act to save his or her child from harm,¹⁰ the Appellate Court has recognized that criminal liability may attach not only to overt acts but also to an omission to act when there is a legal duty to do so. State v. Miranda, supra, 41 Conn. App. 339; State v. Jones, 34 Conn. App. 807, 812-13, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994) (defendant’s failure to call ambulance or seek help for his obviously injured child indicated “conscious disregard of a substantial risk of death” within meaning of § 53a-59 [a] [3]). We agree that criminal conduct can arise not only through overt acts, but also by an omission to act when there is a legal duty to do so. “Omissions are as capable of producing consequences as overt acts. Thus, the common law rule that there is no general duty to protect limits criminal liability where it would otherwise exist. The special relationship exception to the ‘no duty to act’ rule represents a choice to retain liability for some omissions, which are considered morally unacceptable.” State v. Williquette, supra, 129 Wis. 2d 253. Therefore, had the defendant been the victim’s parent — someone with an undisputed affirmative legal obligation to protect and provide for his minor child¹¹— we would conclude that his failure to protect the child from abuse could constitute a violation of § 53a-59 (a) (3).

II

We next turn to the issue of whether the duty to protect can be imposed on the defendant, an adult member of the household unrelated to the child. Both the state and the defendant recognize that the determination of the existence of a legal duty is a question of law subject to de novo review by this court. Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996).

The defendant argues that there is no statutory or common-law precept “authorizing the expansion of assault under § 53a-59 (a) (3).” The state argues that there is both. We conclude that, based on the trial court’s findings that the defendant had established a family-like relationship with the mother and her two children, that he had voluntarily assumed responsibility for the care and welfare of both children, and that he had considered himself the victim’s stepfather, there existed a common-law duty to protect the victim from her mother’s abuse, the breach of which can be the basis of a conviction under § 53a-59 (a) (3). Therefore, we need not decide whether General Statutes §§ 46b-38a, 17a-101 and 17a-103 create an express statutory duty as well.¹²

There are many statutes that expressly impose a legal duty to act and attach liability for the failure to comply with that duty. See, e.g., General Statutes §§ 14-224 and 14-225. With other statutes, however, the duty to act can be found outside the statutoiy definition of the crime itself, either in another statute; see, e.g., General Statutes § 12-231 (imposing liability for failure to comply with General Statutes § 12-222); or in the common law. 1 W. LaFave & A. Scott, supra, § 3.3 (a), p. 283.

We note initially that the question of whether a duty, and thus, liability for the breach of that duty, should be recognized in this state is not foreclosed by our penal code. Although this notion “does not appear in haec verba in the penal code, that lacuna is not determinative in this case, because [General Statutes] § 53a-4 of the code provides: ‘The provisions of this chapter shall not be construed as precluding any court from recognizing other principles of criminal liability or other defenses not inconsistent with such provisions.’ The official commentary to that provision states: ‘The purpose of this savings clause is to make clear that the provisions of [General Statutes §§] 53a-5 to 53a-23, which define the principles of criminal liability and defenses, are not necessarily exclusive. A court is not precluded by sections 53a-5 to 53a-23 from recognizing other such principles and defenses not inconsistent therewith.’ Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. (West 1985) § 53a-4, p. 196.” State v. Walton, 227 Conn. 32, 44-45, 630 A.2d 990 (1993).

We do not believe that the principle of imposing a common-law duty in and of itself is inconsistent with any other principle of criminal liability provided in the code. “Failure to act when there is a special relationship does not, by itself, constitute a crime. The failure must expose the dependent person to some proscribed result. The definition of proscribed results constitutes the substantive crime, and it is defined in the criminal code. The rule regarding omissions, therefore, is not inconsistent with [the penal code].” State v. Williquette, supra, 129 Wis. 2d 254.¹³ Nor does the plain language of § 53a-59 (a) (3) preclude criminal liability from attaching to an omission to act when a legal duty to act exists and injury results. See footnote 8 of this opinion. The issue, therefore, is whether the principle should be recognized as a matter of policy under the circumstances of this case. We conclude that, under the facts of this case, it is appropriate to recognize an affirmative duty to act and to impose criminal liability for the failure to act pursuant to that duty.

“ ‘Duty is a legal conclusion about relationships between individuals, made after the fact .... The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.’ ” Clohessy v. Bachelor, 237 Conn. 31, 45, 675 A.2d 852 (1996). Although one generally has no legal duty to aid another in peril, even when the aid can be provided without danger or inconvenience to the provider, there are four widely recognized situations in which the failure to act may constitute breach of a legal duty: (1) where one stands in a certain relationship to another; (2) where a statute imposes a duty to help another; (3) where one has assumed a contractual duty; and (4) where one voluntarily has assumed the care of another. 1 W. LaFave & A. Scott, supra, § 3.3 (a) (l)-(4), pp. 284-87.¹⁴ The state argues that this case falls within both the first and fourth situations, or some combination thereof.

We begin with the duty based upon the relationship between the parties. One standing in a certain personal relationship to another person has some affirmative duties of care with regard to that person. “Legal rights and duties . . . may arise out of those complex relations of human society which create correlative rights and duties the performance of which is so necessary to the good order and well-being of society that the state makes their observance obligatory.” Annot., supra, 100 A.L.R.2d 488.

It is undisputed that parents have a duty to provide food, shelter and medical aid for their children and to protect them from harm. See In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 15, 438 A.2d 801 (1981). “The inherent dependency of a child upon his parent to obtain medical aid, i.e., the incapacity of a child to evaluate his condition and summon aid by himself, supports imposition of such a duty upon the parent.” Commonwealth v. Konz, 498 Pa. 639, 644, 450 A.2d 638 (1982). Additionally, “ ‘[t]he commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.’ ” In re Adoption of Webb, 14 Wash. App. 651, 653, 544 P.2d 130 (1975). Indeed, the status relationship giving rise to a duty to provide and protect that has been before the courts more often than any other relationship and, at the same time, the one relationship that courts most frequently assume to exist without expressly so stating, is the relationship existing between a parent and a minor child.

In addition to biological and adoptive parents and legal guardians, there may be other adults who establish familial relationships with and assume responsibility for the care of a child, thereby creating a legal duty to protect that child from harm. See, e.g., Cornell v. State, 159 Fla. 687, 32 So. 2d 610 (1947) (grandmother guilty of manslaughter in death of grandchild where she had assumed care of child but became so intoxicated that she allowed child to smother to death). “Recognizing the primary responsibility of a natural parent does not mean that an unrelated person may not also have some responsibilities incident to the care and custody of a child. Such duties may be regarded as derived from the primary custodian, i.e., the natural parent, or arise from the nature of the circumstances.” People v. Berg, 171 Ill. App. 3d 316, 320, 525 N.E.2d 573 (1988); see 1 W. LaFave & A. Scott, supra, § 3.3 (a), p. 286 (“if two people, though not closely related, live together under one roof, one may have a duty to act to aid the other who becomes helpless”).

Most courts deciding whether, under a particular set of facts, liability for an omission to act may be imposed under a statute that does not itself impose a duty to act, have looked to whether a duty to act exists in another statute, in the common law or in a contract. 1 W. LaFave & A. Scott, supra, § 3.3 (a), p. 283. Of those courts acting outside the context of a statutory or contractual duty that have held a defendant criminally liable for failing to protect a child from injury, most have relied on a combination of both the first and fourth situations described by Professors LaFave and Scott to establish a duty as the predicate for the defendant’s conviction. More specifically, these courts have examined the nature of the relationship of the defendant to the victim and whether the defendant, as part of that relationship, had assumed a responsibility for the victim.¹⁵ We find the reliance by these courts on this combination of factors persuasive.

In People v. Salley, 153 App. Div. 2d 704, 544 N.Y.S.2d 680 (1989), the court examined the issue of whether the defendant, a woman who was living with a man named Taylor and Kenneth, a three year old who was the son of Taylor’s estranged wife and another man, as well as five other children, was guilty of manslaughter in the second degree for failing to secure medical attention for Kenneth, who was being physically abused by Taylor. Taylor had inflicted approximately seventy bruises on Kenneth and Kenneth died from a combination of a fracture, internal bleeding and various wounds to his body. Because the defendant “had assumed the parental obligations of care for Kenneth,” and had been aware of and consciously disregarded the substantial and unjustifiable risk of his death in failing to get Kenneth help during the time he was being abused by Taylor, the court concluded that she properly could be convicted of manslaughter. Id., 705.

In State v. Orosco, 113 N.M. 789, 833 P.2d 1155 (1991), the court examined whether the defendant, who lived with the victim and his mother and who failed to intervene when one of his friends sexually abused the victim, could be held criminally liable for the abuse. Relying on State v. Walden, supra, 306 N.C. 466, the court held that, by assuming the care and welfare of the child, the defendant stood in the position of a parent.¹⁶ State v. Orosco, supra, 796.

In Leet v. State, 595 So. 2d 959 (Fla. App. 1991), the court examined whether the defendant could be held criminally responsible for abuse of a child by his mother although he was not the child’s father. The statute at issue required the state to prove “[w]hoever ... by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment, or who, knowingly or by culpable negligence, inflicts or permits the infliction of physical or mental injury to the child . . . .” Id., 961. Despite the broad language of the statute imposing liability on “whoever,” the court discussed at length the nature of the defendant’s relationship with the child victim, and his assumption of responsibility for the child’s care and held that, because the defendant had “assumed responsibility for [the child’s] well-being when he established a family-like relationship with [the child] and his mother,” he could be held responsible for permitting the child’s abuse by his mother. Id., 962-63. Although the defendant had argued that he was not financially responsible for the child and could not have authorized his medical treatment, the court, nevertheless, concluded that he had the authority, and indeed, the duty to prevent the mother’s conduct. Id.

In People v. Wong, 182 App. Div. 2d 98, 588 N.Y.S.2d 119, rev’d on other grounds, 81 N.Y.2d 600, 619 N.E.2d 600, 601 N.Y.S.2d 440 (1993), the court examined whether the defendants, who had been babysitters for the child victim’s parents, could be convicted of manslaughter for harming the child and for failing to provide him with necessary medical care. To support a conviction based upon their failure to provide medical attention, the prosecution relied on two theories: (1) that the defendants had contracted with the child’s parents to care for the child while the parents worked; and (2) that the defendants voluntarily had assumed care for the child. Id., 108. The court embraced both theories, recognizing that the voluntary assumption of care, as well as a contractual babysitting agreement, were sufficient to trigger a legal duty. Id. The court concluded that by assuming care for the child, the defendants created a legal duty “substantially coextensive with those which would be borne by a parent . . . .” (Citations omitted.) Id. Although the New York Court of Appeals reversed the conviction of the defendants due to insufficient evidence, it nevertheless endorsed the state’s theory of prosecution as “legally sound.” People v. Wong, supra, 81 N.Y.2d 607.

As these cases demonstrate, the traditional approach in this country is to restrict the duty to save others from harm to certain very narrow categories of cases. We are not prepared now to adopt a broad general rule covering other circumstances.¹⁷ We conclude only that, in accordance with the trial court findings, when the defendant, who considered himself the victim’s parent, established a familial relationship with the victim’s mother and her children and assumed the role of a father, he assumed, under the common law, the same legal duty to protect the victim from the abuse as if he were, in fact, the victim’s guardian. Under these circumstances, to require the defendant as a matter of law to take affirmative action to prevent harm to the victim or be criminally responsible imposes a reasonable duty.¹⁸ That duty does not depend on an ability to regulate the mother’s discipline of the victim or on the defendant having exclusive control of the victim when the injuries occurred. Nor is the duty contingent upon an ability by the state or the mother to look to the defendant for child support.¹⁹ Moreover, whether the defendant had created a total in loco parentis relationship with the victim by January, 1993, is not dispositive of whether the defendant had assumed a responsibility for the victim. Leet v. State, supra, 595 So. 2d 962. “If immediate or emergency medical attention is required from a child’s custodian it should not matter that such custodian is not the primary care provider or for that matter a legally designated surrogate.” People v. Berg, supra, 171 Ill. App. 3d 320 (wherein court concluded that although defendant had duty as “any person” under child endangerment statute based upon evidence that he lived with victim and her mother, would play with victim, feed and clothe her, discipline her and take her places, under circumstances of case there was insufficient evidence that defendant had endangered victim’s health by not obtaining medical treatment).

Nor should we reject the concept of a duty in this case because the defendant might not have been able to authorize medical treatment for the victim had he taken her to the hospital. The status required to impose the legal duty to safeguard the victim is not coextensive with the status that permits one to authorize treatment. Quite obviously, had the defendant brought the victim to the hospital at any time throughout the four month period during which she was abused by her mother, a physician would have had the ability to examine and treat her, and the costs would be paid by her parent, guardian or the state, if necessary. “Any physician examining a child with respect to whom abuse is suspected shall . . . have the right to keep such child in the custody of a hospital . . . and . . . perform diagnostic tests and procedures necessary to the detection of child abuse with or without the consent of his parents, guardian or other person having responsibility for his care .... The expenses for such temporary care and such diagnostic tests and procedures shall be paid by the parents or guardian of such child or, if they are unable to pay, by the commissioner of children and families.” General Statutes (Rev. to 1995) § 17a-101 (d).²⁰

Finally, we recognize the continuing demographic trend reflecting a significant increase in nontraditional alternative family arrangements. United States Bureau of the Census, Marital Status and Living Arrangements: March 1984, Current Population Reports, Series p-20, No. 399 (1985). Consequently, more and more children will be living with or may depend upon adults who do not qualify as a natural or adoptive parent. The attachment by children to the adults who care for them does not, however, depend exclusively upon whether the caregiver is the natural or adoptive parent or another person who has assumed the caretaker role. Children become attached to people who care for them, and this attachment is “rooted inevitably in the infant’s inability to ensure his own survival. . . .” J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1973) p. 18. To distinguish among children in deciding which ones are entitled to protection based upon whether their adult caregivers have chosen to have their relationships officially recognized hardly advances the public policy of protecting children from abuse.

The defendant acknowledges that he could not simply close his eyes to evidence of the brutality the child suffered and that his failure to protect her was punishable under § 53-21.²¹ Moreover, he contends that “the risk of injury statute implements the state’s public policy of protecting the health and welfare of children and imposes a specific criminal penalty for failure to provide such protection,” by punishing any person who causes or permits a child to be placed in such a situation that the life or limb of that child is endangered. Nevertheless, the defendant argues that although he had a duty under § 53-21, he did not have a duty under § 53a-59 (a) (3).²² The logic of his argument is flawed. Indeed, it is well established that this court will look to other relevant statutes governing the same or similar- subject matter because the legislature is presumed to have created a consistent body of law. Daly v. DelPonte, 225 Conn. 499, 510, 624 A.2d 876 (1993). Therefore, as to the issue of duty, because § 53-21, without any explicit restriction, holds responsible any person who permits abuse of a child to occur, to prescribe a duty in connection with § 53a-59 (a) (3) to prevent such abuse furthers “a harmonious and consistent body of law” as opposed to antagonizing legislative intent.²³ We conclude that the defendant had a duty, under the facts and circumstances of this case, to protect the victim and prevent further harm to her, and that for violating that duty to her, he can be found guilty of having violated § 53a-59 (a) (3).²⁴

The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the defendant’s remaining claims.²⁵

In this opinion CALLAHAN, C. J., and BORDEN and NORCOTT, Js., concurred.

PALMER, J.,

with whom MCDONALD, J., joins, concurring. I join the opinion of the majority. A serious question remains, however, as to whether the defendant, Santos Miranda, had fair warning that his failure to act, in the particular circumstances of this case, could give rise to the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The legal duty that we recognize today has never before been expressly recognized in this state; indeed, the Appellate Court, upon consideration of the defendant’s appeal, unanimously concluded that no such duty existed. State v. Miranda, 41 Conn. App. 333, 340-41, 675 A.2d 925 (1996). In such circumstances, it is by no means clear that the due process clauses of the federal and state constitutions permit such a duty to be imposed on this defendant for purposes of criminal liability under the assault statute.¹ See, e.g., United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997) (“[T]he canon of strict construction of criminal statutes . . . ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered. . . . [Ajlthough clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute . . . due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope . . . .” [Citations omitted.]); Bouie v. City of Columbia, 378 U.S. 347, 354-55, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964) (“[w]hen a[n] . . . unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime”); State v. Webb, 238 Conn. 389, 531, 680 A.2d 147 (1996) (vagueness doctrine “requires statutes to provide fair notice of the conduct to which they pertain ... so that an individual may steer between lawful and unlawful conduct” [citation omitted; internal quotation marks omitted]). Since the defendant will have the opportunity to raise a due process claim on remand, however;² see footnote 25 of the majority opinion; and because I agree with the analysis and conclusions of the majority, I join the opinion of the majority.

1 General Statutes § 53a-59 provides in relevant part: “Assault in the first degree: Class B felony: Nonsuspendable sentences, (a) A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

2 The defendant was convicted of two counts of unspecified reckless conduct, two counts of reckless conduct by allowing the victim to live in a situation of child abuse and two counts of reckless conduct by failing to take measures to prevent the child from living in such a situation.

3 General Statutes § 53-21 provides: “Injury or risk of injury to, orimpairing morals of, children. Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.”

4 Although the trial court never stated who actually had caused the injuries, we take judicial notice that the child’s mother entered a plea of nolo conten-dere to the crimes of intentional assault in the first degree and risk of injury to a minor. She received a sentence of twelve years incarceration suspended after seven years.

5 The Appellate Court refused to consider the sufficiency of the evidence claim on the risk of injury count on the basis that it had been briefed inadequately. State v. Miranda, 41 Conn. App. 333, 338, 675 A.2d 925 (1996).

6 The defendant does not claim on appeal that the trial court’s findings of fact were clearly erroneous. See Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992) (“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” [Internal quotation marks omitted.]). We, therefore, accept those findings for purposes of this appeal.

7 The issue on appeal was limited to the question of whether the defendant had breached a duty to protect the child victim. The parties have raised the issue of whether the evidence was sufficient to support the assault convictions, however, we leave that issue to the Appellate Court on remand.

8 In recognition of the broad term “engage in conduct,” as chosen by the legislature in § 53a-59 (a) (3), suggesting at least the want of due care, the failure to respond and the disregard of responsibility, the defendant does not claim that the plain language of the statute precludes criminal liability from attaching to an omission to act when there is a legal duty to do so. Nor does the defendant challenge the long-standing and fundamental principle that “conduct” can include the failure to act when there is a duty to act. 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 3.3 (a).

9 The attempt by Justice Berdon in his dissent to undermine our reliance on these cases in his discussion of whether we can recognize a common-law duty to protect a child from abuse misses their import. Despite the presence of statutes in those cases, the courts address at length the inherent duty of parents to provide for the safety and well-being of their children, noting that this duty has long been recognized by the common law as well as by statute. See, e.g., State v. Walden, supra, 306 N.C. 475 (“[W]e believe that to require a parent as a matter of law to take affirmative action to prevent harm to his or her child or be held criminally liable imposes a reasonable duty upon the parent. Further, we believe this duty is and has always been inherent in the duty of parents to provide for the safety and welfare of their children, which duty has long been recognized by the common law and by statute.”); State v. Williquette, supra, 129 Wis. 2d 255 (“[i]t is the right and duty of parents under the law of nature as well as the common law and the statutes of many states to protect their children” [internal quotation marks omitted]); id., 260 (“We are unpersuaded that the child abuse reporting statute was intended to reheve parents of their common law duty to protect their children. We construe the statute as creating duties for persons who otherwise had no obligation to protect children because they do not have a recognized special relationship with the child.”).

10 In State v. Tomassi, 137 Conn. 113, 119, 75 A.2d 67 (1950), this court recognized that an act or omission that causes death may constitute murder or manslaughter.

11 The defendant does not dispute that a parent has a duty to provide for and protect his or her child, but only whether, under the facts and circumstances of this case, he should be treated similarly. See part II of this opinion.

12 General Statutes § 46b-38a provides: “Family violence prevention and response: Definitions. For the purposes of sections 46b-38a to 46b-38f, inclusive:

“(1) ‘Family violence’ means an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear of imminent physical harm, bodily injury or assault between family or household members. Verbal abuse or argument shall not constitute family violence unless there is present danger and the likelihood that physical violence will occur.

“(2) ‘Family or household member’ means (A) spouses, former spouses; (B) parents and their children; (C) persons eighteen years of age or older related by blood or marriage; (D) persons sixteen years of age or older other than those persons in subparagraph (C) presently residing together or who have resided together; and (E) persons who have a child in common regardless of whether they are or have been married or have lived together at any time.

“(3) ‘Family violence crime’ means a crime as defined in section 53a-24 which, in addition to its other elements, contains as an element thereof an act of family violence to a family member and shall not include acts by parents or guardians disciplining minor children unless such acts constitute abuse.

“(4) ‘Institutions and services’ means peace officers, service providers, mandated reporters of abuse, agencies and departments that provide services to victims and families and services designed to assist victims and families.”

General Statutes § 17a-101 provides in pertinent part: “Protection of children from abuse. Mandated reporters. Training program for identification and reporting of child abuse and neglect, (a) The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family. . . .”

General Statutes § 17a-103 provides: “Reports by others. Any person other than those enumerated in subsection (b) of section 17a-101 having reasonable cause to suspect or believe that any child under the age of eighteen is in danger of being abused, or has been abused or neglected, as defined in section 46b-120, may cause a written or oral report to be made to the Commissioner of Children and Families or his representative or a law enforcement agency. The Commissioner of Children and Families or his representative shall use his best efforts to obtain the name and address of a person who causes a report to be made pursuant to this section.”

13 Although there is no relevant legislative history illuminating whether a person who voluntarily assumes responsibility for and stands in a particular status relationship to a child may be prosecuted under § 53a-59 (a) (3), “[i]n the absence of guidance from the language of the statute or the legislative history, we look to common law principles .... It is assumed that all legislation is interpreted in light of the common law at the time of enactment.” (Internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 153, 680 A.2d 1231 (1996). Section 53a-4 expressly authorizes judicial application of common-law principles of criminal liability that are not expressly included in the penal code where, as here, such application does not otherwise conflict with our penal statutes. See State v. Walton, supra, 227 Conn. 44.

In his dissent, Justice Berdon accuses us of “ Tashionpng] additional substantive offenses,’ ” which the penal code precludes. Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. (West 1994) § 53a-4, p. 223. Were we to fashion a truly separate and distinct substantive offense, such as those recently under consideration by the legislature; see Substitute House Bill No. 6967 (1997), entitled “An Act Concerning Child Abuse”; Substitute House Bill No. 5283 (1998), entitled “An Act Concerning Facilitation of Abuse of a Child”; the dissent’s accusations could be viewed with more legitimacy. That is not, however, what this case is about. This case presents an issue, albeit of first impression, whether, under very specific facts, to recognize a common-law duty to protect a child from abuse, and whether the breach of that duty is conduct that falls within an existing statute. If the dissent were correct, even a parent with an undisputed duty to protect a child from abuse could not be held hable under § 53a-59 (a) (3). Rather than usurping a legislative function, we merely recognize a long-standing principle of criminal liability that there are certain crimes that may be committed either by affirmative action or by the failure to act under circumstances giving rise to a legal duty to act. See 1 W. LaFave & A. Scott, supra, § 3.3 (e), p. 294.

14 A leading case first outlining these four situations added a requirement to the fourth that appears to have been omitted in recent years. See Jones v. United States, 308 F.2d 307, 310 (D.C. App. 1962) (“where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid” [emphasis added]). This refinement would not seem applicable to an infant, or for that matter a child of tender years, because a child is always dependent on others for care and intervention when sick or in danger.

15 As we have stated, some courts in other jurisdictions have held that liability can flow from the breach of a duty created by contract; see, e.g., Commonwealth v. Pestinikas, 421 Pa. Super. 371, 617 A.2d 1339 (1992) (because there was evidence that victim’s death had been caused by appellant’s failure to provide food and medical care that he had agreed by oral contract to provide, omission to act was sufficient to support conviction for criminal homicide); Davis v. Commonwealth, 230 Va. 201, 335 S.E.2d 375 (1985) (defendant guilty of involuntary manslaughter in death by starvation and exposure of his elderly mother, where defendant breached implied contract to care for mother, in return for which he was allowed to live in mother’s home and share her social security benefits). The state is not relying on that theory as a basis for conviction and, therefore, we express no opinion as to whether that relationship can serve as a theory of liability.

16 As an additional basis for its decision, the court reasoned that the defendant’s failure to protect the child could be regarded by the attacker as support of the abusive conduct and, therefore, made him an aider and abettor.

17 Many other countries have adopted a more inclusive view in determining what classes of persons shall have a duty to rescue another from harm when they can do so without unreasonable risk to themselves. See J. Dawson, “Negotiorum Gestio: The Altruistic Intermeddler,” 74 Harv. L. Rev. 1073, 1101-1106 (1961); see also L. Frankel, “Criminal Omissions: A Legal Microcosm,” 11 Wayne L. Rev. 367, 368-69 (1965).

18 Because, as the trial court found, the defendant “failed to act to help or aid [the child] by promptly notifying authorities of her injuries, taking her for medical care, removing her from her circumstances and guarding her from future abuses,” we need not decide whether one or more of these measures would have been sufficient to shield the defendant from liability under § 53a-59 (a) (3).

19 Certainly, if the defendant had been the biological father of only one of the two children, it would be absurd to suggest that he would have had an obligation to stop the mother from abusing one of the children but not the other.

20 This provision was deleted in 1996 and was replaced by General Statutes § 17a-101f. Public Acts 1996, No. 96-246, §§ 1, 8. The current provision permits the commissioner of children and families to recover the cost of treatment “from the parent if the parent has been found by a court to have abused or neglected such child.” General Statutes § 17a-101f.

21 Additionally, the defendant points to the risk of injury statute to argue that the legislature already criminalizes his conduct and that, therefore, § 53a-59 (a) (3) should not be read to apply to that same conduct. This court has rejected the notion that merely because one criminal statute covers certain conduct it is therefore exclusive. State v. Perruccio, 192 Conn. 154, 162, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). Furthermore, we have held that “where the elements of two or more distinct offenses are combined in the same act, prosecution for one will not bar prosecution for the other.” State v. Chetcuti, 173 Conn. 165, 169, 377 A.2d 263 (1977).

22 The defendant attempts to distinguish some of the cases cited by the state and referenced in this opinion because they involve child endangerment statutes (hat resemble § 53-21. See, e.g., Leet v. State, supra, 595 So. 2d 959; People v. Berg, supra, 171 Ill. App. 3d 316. This argument is misplaced. Although the courts in those cases were deciding whether the defendant could be criminally liable for child endangerment, a.nd although the statutes held responsible “whoever” had failed to act, the courts, nevertheless, first examined whether the defendant had a duty vis-a-vis the child. Therefore, their discussion of when a duty should be imposed is pertinent.

23 Although today we decline the state’s invitation to decide whether the defendant had an express statutory duly pursuant to §§ 17a-101, 17a-103 and 46b-38a to protect the victim in this case, we nevertheless appreciate the important public policy of protecting children from abuse and neglect as set forth in those statutes. The legislature has specifically recognized that “family violence crimes” are not confined to family members but may also involve unrelated household members; General Statutes § 46b-38a; and expressly stated that the public policy of the state is to “protect children whose health and welfare may be adversely affected through ipjuiy and neglect . . . and to make the home safe for children . . . .” General Statutes (Rev. to 1995) § 17a-101. Moreover, there is an express duty on all persons “having reasonable cause to suspect or believe that any child under the age of eighteen is in danger of being abused or neglected . . . [to] immediately cause a written or oral report to be made to the state commissioner of children and families .... Any such person who in good faith makes the report . . . shall be immune from any liability, civil or criminal . . . .” General Statutes (Rev. to 1995) § 17a-103. Imposing a common-law legal duty on the defendant in this case is consistent with the legislature’s creation of a legally cognizable relationship, advances its express public policy to protect children and fosters the notion that ultimate responsibility for a child’s safety transcends biology.

24 In his dissent, Justice Berdon relies heavily upon the introduction of the facilitator abuse statute; Substitute House Bill No. 5283, § 1 (a) (1998) (H.B. No. 5283); and on the legislature’s failure ultimately to enact that statute to support the proposition that the assault statute, § 53a-59 (a) (3), does not punish the defendant’s behavior. The dissent maintains that H.B. No. 5283 would not have been introduced if the legislature thought that § 53a-59 (a) (3) could be used to punish behavior similar to that prohibited by H.B. No. 5283. The dissent also claims that the bill was not acted upon by the judiciary committee, at least in part, because the behavior punishable by the facilitator abuse statute was already prohibited by § 53-21, the risk of injury statute. In addition to the fact that these theories are diametrically opposed, this reliance on legislative silence is misplaced. It is a basic tenet of statutory construction that we rely on the intent of the legislature as that intent has been expressed. Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 301, 57 A.2d 128 (1948) (“we are confined to the intention which is expressed in the words [the legislature] has used”); see Madison Education Assn. v. Madison, 174 Conn. 189, 192, 384 A.2d 361 (1978). There has been no affirmative expression of legislative intent linking the failure to enact the facilitator abuse statute to § 53a-59 (a) (3). As the dissent acknowledges, the judiciary committee took no action on H.B. No. 5283 and the dissent points to no affirmative statement indicating the reason for this inaction. “Ordinarily, we are reluctant to draw inferences regarding legislative intent from the failure of a legislative committee to report a bill to the floor, because in most cases the reasons for that lack of action remain unexpressed and thus obscured in the mist of committee inactivity.” In re Valerie D., 223 Conn. 492, 518 n.19, 613 A.2d 748 (1992).

Although we have relied on the failure to amend a statute as an indication of legislative intent regarding that statute or statutes within the same legislative scheme; see, e.g., Anderson v. Ludgin, 175 Conn. 545, 555, 400 A.2d 712 (1978); cf. State v. McVeigh, 224 Conn. 593, 619-21, 620 A.2d 133 (1993) (subsequent amendments held not relevant to legislative intent at time of enactment of underlying statute); we hesitate unilaterally to assign motives to the legislature where it has failed to enact a statute other than the one whose interpretation is before us. Cf. In re Valeri.e D., supra, 223 Conn. 517-18 (noting significance of legislature’s failure to pass one of two alternative provisions covering the same subject matter upon which simultaneous hearings were held). As a corollary to that principle, we likewise hesitate to derive legislative intent from the mere introduction of a bill and from committee hearings on that bill. Committee hearings provide a useful laboratory in which to explore new legislative approaches. To rely on dialogue between interested members of the public would place a high cost on the dynamic nature of the legislative process and unnecessarily chill the introduction of bills and discourse attendant thereto, finally, the fact that the state and the dissent have suggested opposing theories to explain the legislature’s failure to enact II.B. No. 5283 best illustrates that one guess is as good as the other, and is the epitome of why we cannot engage in this kind of speculation.

25 The defendant has argued that he did not actually know that the child had been abused by her mother and that knowledge of her injuries should not be equated with knowledge of their cause. He also argues that there was no evidence that he had the ability to prevent any harm from occurring to the child. Those claims of insufficiency of evidence are to be considered on the merits by the Appellate Court on remand. See footnote 7 of this opinion. We note that the attorney who represented the defendant before the Appellate Court was placed on inactive status in June, 1997. As a result, following the granting of certification by this court, in order to ensure that the defendant be properly represented, the trial court ordered the appellate unit of the office of the chief public defender to assign the case to new appellate counsel in order to represent the defendant in the certified appeal. Attorney Susan M. Cormier entered an appearance on behalf of the defendant and currently represents him in this appeal. Under the unique circumstances of this case, in the exercise of our supervisory authority, we order that the Appellate Court consider, on the merits, any constitutional claims of due process and double jeopardy arising as a result of this decision that appellate counsel seeks to raise. Finally, in light of the problems experienced by the defendant’s initial appellate counsel, we also order that current appellate counsel be permitted to rebrief the issue of sufficiency of the evidence as it relates to the risk of injury charge. See footnote 5 of this opinion.

1 There is, of course, a difference between the recognition of an existing duty, on the one hand, and the creation of an altogether new duty, on the other. Whether that distinction is significant for due process purposes under the specific facts of this case remains to be seen.

2 The importance of this issue to the defendant cannot be overstated in view of the fact that he received a cumulative sentence of thirty years imprisonment on the six counts of assault in the first degree. Because the defendant also received a consecutive ten year prison term on the one count of risk of injury to a child, his total effective sentence is forty years imprisonment. By contrast, the child’s mother, who, it appears, actually caused the child’s ii\juries, received a total effective sentence of only seven years imprisonment. See footnote 4 of the majority opinion.