author: BISHOP, J.

text:
    IN RE TAYQUON H.

    (AC 23219)
    Flynn, Bishop and Cretella, Js.
    Argued January 13
    officially released May 20, 2003

      Gary J. Wilson, for the appellant (maternal grandmother).

      John Ashmeade, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Carl A. Massaro, Jr., for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

BISHOP, J.

The issue in this appeal is whether a child’s maternal grandmother has standing to contest an order of temporary custody involving her grandchild when the child’s mother, a minor, has a court-appointed guardian ad litem and is represented by an attorney. The resolution of that issue requires a discussion of the roles of guardian ad litem and attorney for the minor and the relationship between them when both are appointed for a minor in a juvenile matter. We affirm the judgment of the trial court.

I

The facts in this case are both unusual and sad. On April 4, 2002, the commissioner of children and families (commissioner) obtained an order of temporary custody (custody order) for S, an eleven year old girl who was, at the time, six months pregnant. S had been sexually assaulted by a seventy-five year old man, regularly, for more than one year. When, in January, 2002, S had reported the assaults to her mother, C, C continued to allow the sexual perpetrator unsupervised access to the girl. When a preliminary hearing was held on the custody order concerning S on April 11, 2002, C acceded to the order and, further, agreed to undergo treatment for her chronic alcohol abuse.

S entered foster care, began receiving prenatal care and education and, on May 23, 2002, gave birth to a boy, twelve weeks prematurely. On May 24, after a preliminary determination by the commissioner that the eleven year old mother could not meet the infirmed infant’s specialized needs, the commissioner sought and obtained the custody order for the infant, subsequently named Tayquon.

In the custody order concerning Tayquon, the court appointed attorney Ellen A. Morgan as guardian ad litem for S and attorney Mary Claire Collier as the attorney for S. The court appointed attorney Carl A. Massaro, Jr., as attorney and guardian ad litem for the infant. On May 30, 2002, a preliminary hearing was held on the custody order for Tayquon. At that juncture, Morgan, as guardian ad litem for S, and attorney Collier were in accord to accede to the custody order for the infant on behalf of S. The grandmother, C, who was represented by counsel, sought, however, to contest the order. She presented the court with the argument that because S was her daughter and a minor, C automatically had standing as legal guardian to seek a ten day hearing on the custody order. The commissioner argued in response that the presence of the guardian ad litem for S effectively usurped the role of the legal guardian for the purposes of the litigation, and, thus, C, the grandmother, had no standing to contest the custody order. The court ordered briefs on the subject and scheduled a hearing for June 11, 2002.

In their briefs, both the grandmother and the commissioner largely reiterated their arguments to the court. In his brief, Massaro, the attorney for Tayquon, argued that because no statute provided a grandmother (or any relative other than the biological or adoptive parents) with standing to contest an order of temporary custody, standing could be gained only by intervention. Here, he argued, C had failed to file a motion to intervene, and, further, should one be filed, it should be denied because good reason exists for denying such a motion, namely, C’s alleged neglect of S.

Collier, the attorney for S, who initially had supported the denial of standing for the grandmother at the May 30, 2002 hearing, later filed a brief in support of having a ten day hearing. She argued that the grandmother retained legal guardianship over S and, therefore, had standing and should be afforded an evidentiary hearing to contest the custody order. She wrote: “There would be no harm to the parties to allow the grandmother the right to a hearing concerning custody of [Tayquon]. The minor mother is in favor of her mother having a hearing concerning custody of the baby.”

Morgan, the guardian ad litem for S, also filed a brief. She agreed with the commissioner and advocated a denial of standing for the grandmother. As to the conflict between herself and the grandmother, Morgan argued: “Once a [guardian ad litem] has been appointed for a minor child, the parent or legal guardian of the minor child loses the authority to assert the best interests of the minor child. That role belongs to the [guardian ad litem].”

On June 11, 2002, the parties reconvened and, after a brief oral argument, the court determined that the grandmother was not the guardian of S for the purposes of the present hearing and that she had no standing to contest the custody order. The grandmother subsequently filed this appeal. In this court, attorney Gary J. Wilson submitted a brief and made oral argument on behalf of the grandmother. Assistant attorney general John Ashmeade similarly argued and submitted a brief on behalf of the commissioner. Although he did not file a brief, Massaro, the attorney for Tayquon, presented oral argument, with this court’s permission. No one, however, appeared or spoke on behalf of S. Neither Collier nor Morgan filed an appellate brief or attended oral argument. Additional facts will be introduced as necessary.

II

Historically, we have found that questions of standing do not involve inquiry into the merits of a case, but merely require assertions of injury to an interest that is, arguably, protected by statute or the common law. Taff v. Bettcher, 35 Conn. App. 421, 425, 646 A.2d 875 (1994). The question of standing raised by the grandmother is, therefore, a legal one. “When . . .the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Fairfax Properties, Inc. v. Lyons, 72 Conn. App. 426, 431, 806 A.2d 535 (2002).

Here, the grandmother seeks to contest the custody order on behalf of her daughter, who is a minor. Her claim rests on the assertion that as the legal guardian of S, she can maintain an action on her daughter’s behalf, in this case, the request for the hearing on the order of temporary custody. As the grandmother’s legal status is central to her claim, we discuss as a threshold consideration the general parameters of a guardian’s duties and responsibilities.

General Statutes § 45a-606 provides that the mother and father of a minor child are, defacto, guardians of that child. General Statutes § 45a-604 (5) enumerates the rights and responsibilities of a guardian of a minor, including: “(A) [t]he obligation of [the] care and control [of the minor]; (B) the authority to make major decisions affecting the minor’s education and welfare, including, but not limited to, consent determinations regarding marriage, enlistment in the armed forces and major medical, psychiatric or surgical treatment; and (C) upon the death of the minor, the authority to make decisions concerning funeral arrangements and the disposition of the body of the minor . . . .” General Statutes § 45a-605 (a) provides guidance on the interpretation of those expansive duties: “The provisions of [§ 45a-604 inclusive]. . . shall be liberally construed in the best interests of any minor child affected by them . . . .” Arguably, the authority to make major decisions affecting the child’s welfare intended to effectuate the child’s best interest includes the authority to make legal decisions on behalf of the minor and would include, in this case, the authority to assert the child’s legal rights in a court of law.

Reference to pertinent decisional law leaves no doubt that a guardian has the ability to assert his or her ward’s legal rights. Although, generally speaking, a person has no standing to assert the rights of another, when the parties include a guardian and a minor ward, as with a mother and daughter, the guardian is indeed entitled to assert the legal rights of her ward. Our Supreme Court has opined: “It is well established that a child may bring a civil action only by a guardian . . . whose responsibility it is to ensure that the interests of the ward are well represented.” (Internal quotation marks omitted.) Orsi v. Senatore, 230 Conn. 459, 466-67, 645 A.2d 986 (1994). From our review of relevant statutory and decisional law, it is clear as a general proposition that guardianship includes both the duty and responsibility to safeguard a minor’s best interest as well as to protect the minor’s legal rights.

In this case, we are mindful that the grandmother’s claim to standing rests not only on those statutory and common-law bases, but that it also implicates a constitutional entitlement to family integrity. See Pamela B. v. Ment, 244 Conn. 296, 309, 709 A.2d 1089 (1998). “It is cardinal . . . that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . [T]he most essential and basic aspect of familial privacy [is] the right of the family to remain together without the coercive interference of the awesome power of the state.” (Citations omitted; internal quotation marks omitted.) Id., 309-10.

Nevertheless, this right to family integrity is not absolute. Our courts have long recognized that the state’s intervention in family matters is justified when it is found to be in the best interest of the child. Id., 310. Our statutes authorize such intervention when it is found, inter alia, that a child has been neglected or uncared for. General Statutes § 46b-129 et seq. “[Parents’] rights are not absolute rights; they may be forfeited by their own conduct. The relation of parent and child is a status not a contract, and that status may be altered or abrogated by the State as parens patriae in the interests of society. The welfare of the child is paramount to all other considerations, and the right of the parent to its . . . control must yield to the State when, because of the neglect of its natural guardians, the State assumes its guardianship and protection.” (Emphasis in original.) Goshkarian’s Appeal, 110 Conn. 463, 468, 148 A. 379 (1930).

The appropriateness of the state’s intervention under the unfortunate facts of this case can hardly be seriously questioned. We need not linger, therefore, on whether the state’s intervention was warranted. From a child’s perspective, family integrity consists of nurturance and protection. It is not conceptual; rather it is practical and tangible, moment by moment.

Determining the respective rights of S’s mother and the guardian ad litem to speak for S’s best interest and to assert her rights is complicated, in this case, by the fact that the court additionally appointed counsel for S. Given the status of S as both a parent and a child, our observation that the court appointed both counsel and a guardian ad litem for S should not be taken as criticism. To the contrary, we note that the court has broad discretion to appoint counsel and guardians ad litem for minor parties. In particular, General Statutes § 46b-136 provides in relevant part: “In any proceeding on a juvenile matter the judge before whom such proceeding is pending shall, even in the absence of a request to do so, provide an attorney to represent the child or youth ... if such judge determines that the interests of justice so require . . . .” Additionally, General Statutes § 45a-132 provides in relevant part: “(a) In any proceeding before a court of probate or the Superior Court . . . the judge or magistrate may appoint a guardian ad litem for any minor or incompetent, undetermined or unborn person . . . . (b) The appointment shall not be mandatory, but shall be within the discretion of the judge or magistrate.”

Because the court appointed both a guardian ad litem and counsel for S, the question before us is whether the certain right that would allow S’s mother to assert her daughter’s legal right to a hearing on the order for temporary custody has been superseded by the appointment of a guardian ad litem by the court, and, additionally, whether the answer to that question is impacted by the appointment of a lawyer to represent the daughter as well. Answers to those interrelated questions implicate the parameters of the guardian ad litem’s role in juvenile proceedings and the relationship of the guardian ad litem to counsel when one is separately appointed.

We begin our analysis in that regard with the observation that nowhere in our decisional law or statutes are the duties and responsibilities of a guardian ad litem delineated. The actions of S’s representatives in response to the issue of standing raised by S’s mother evince confusion on the question of their respective roles and the delineation between them.* ***

Our Supreme Court has declined to formulate general instructions for either counsel or guardians ad litem in such situations. In Schult v. Schult, 241 Conn. 767, 769, 699 A.2d 134 (1997), the Supreme Court deliberated the question of whether, when a child had the representation of a guardian ad litem as well as counsel, it was permissible for counsel to advocate a position contrary to that of the guardian ad litem. The court eschewed a bright line rule, holding “that it is within the trial court’s discretion to determine, on a case-by-case basis, whether such dual, conflicting advocacy of position is in the best interests of the child.” Id., 777.

In Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998) (en banc), our Supreme Court took up the question of the roles of a minor’s representatives when both a guardian ad litem and an attorney are present. The court added definition to the role of counsel for a minor child by stating that the attorney’s role when representing a minor should mirror as closely as possible the attorney’s role when representing “unimpaired adults.” Id., 438.

Subsequently, in its 2001 session, the General Assembly, in Public Acts 2001, No. 01-148, § 1, amended General Statutes § 46b-129a (2), regarding the appointment of counsel and guardians ad litem, to provide in relevant part that in a proceeding under § 46b-129, “a child shall be represented by counsel knowledgeable about representing such children who shall be appointed by the court to represent the child and to act as guardian ad litem for the child. The primary role of any counsel for the child including the counsel who also serves as guardian ad litem, shall be to advocate for the child in accordance with the Rules of Professional Conduct. When a conflict arises between the child’s wishes or position and that which counsel for the child believes is in the best interest of the child, the court shall appoint another person as guardian ad litem for the child. The guardian ad litem shall speak on behalf of the best interest of the child and is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children. In the event that a separate guardian ad litem is appointed, the person previously serving as both counsel and guardian ad litem for the child shall continue to serve as counsel for the child and a different person shall be appointed as guardian ad litem, unless the court for good cause also appoints a different person as counsel for the child. No person who has served as both counsel and guardian ad litem for a child shall thereafter serve solely as the child’s guardian ad litem. ...” General Statutes § 46b-129a.

Our review of Schult and Ireland and that subsequent legislation instructs us that in the protection of a child who is the subject of a § 46b-129a petition, the court, in the first instance, must appoint a person to serve as guardian ad litem and counsel for the child, who is to be charged with protecting the child’s best interest as well the child’s legal rights in the process. It also is clear from that review that the obligation of the person appointed as counsel is shaped by the Rules of Professional Conduct, which, in pertinent part, obligate counsel to abide by a client’s decisions concerning the objectives of representation. See Rules of Professional Conduct 1.2 (a). It is when counsel perceives that this obligation is in conflict with the child’s actual best interest that counsel must bring that to the court’s attention, and the court, in turn, must appoint a separate guardian ad litem to protect and to promote the child’s best interest in the process. Neither the cases nor the legislation, however, discuss the manner in which a guardian ad litem’s duties should complement those of the attorney. The case before us farther implicates questions concerning the role and responsibilities of a guardian ad litem, both in relation to the minor’s natural guardian as well as to the minor’s attorney.

It is well established that the role of the guardian ad litem is to speak on behalf of the best interest of the child. Although the term “best interest” is elusive to precise definition, one commission study aptly observed that “[t]he best interests of the child has been generally defined as a measure of a child’s well-being, which includes his physical (and material) needs, his emotional (and psychological) needs, his intellectual and his moral needs.” The specific duties of the guardian ad litem necessary to execute that general mandate properly have been suggested by many experts and advisory committees. Some of the commonly discussed duties include investigation of the facts necessary to get a clear picture of the child’s situation, a determination of the child’s best interest, frequent communication with the child and the court, and the making of recommendations to the court through testimony.

We also find useful principles that have been advanced by the National Court Appointed Special Advocate Association (NCASAA), an organization that trains and provides volunteer guardians ad litem for use by courts nationwide. Among the responsibilities of a volunteer guardian ad litem are to maintain complete written records about the case, report any incidents of child abuse, interview the parties, including the child, determine if a permanent plan has been developed for the child, assure that the child’s best interest is being represented at every stage of the case, attend all hearings, monitor the case by visiting the child as often as necessary to verify that court orders are being followed, participate in formulating the child’s permanent plan and remain engaged in the case until discharged by the court. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1995 Sess., p. 1434.

Further illumination of the role of the guardian ad litem can be found in a publication of the American Academy of Matrimonial Lawyers (Academy) regarding standards for the representation of children in family proceedings. Although those standards focus primarily on the role of counsel for a minor child, in its discussion of guardians ad litem, the Academy espouses the view that the primary task for the guardian ad litem, at trial, is to make the decision maker aware of all the facts and to offer evidence as a sworn witness, subject to cross-examination. Those standards also recommend that the guardian ad litem engage in frequent communication with the child, and generally help to expedite the process and to encourage settlement of disputes. American Academy of Matrimonial Lawyers, Representing Children (1995) p. 4. In the Academy’s standards, the authors correctly observe that to ensure performance of those functions, the court must notify the guardian ad litem of all conferences and hearings, and make clear to the guardian ad litem his or her obligation to attend all court activities unless excused by the court. Id.

As a general matter, we endorse all of those enumerated functions as a menu of responsibilities from which a trial court may derive specific instructions to a guardian ad litem at the time of his or her appointment.

While helpful in their instructions, the various guidelines for a guardian ad litem or counsel for a minor child offer little guidance to each concerning the delineation of their responsibilities when both are appointed. The absence of either general parameters or case specific directions has the potential to lead to confusion, which is neither in the best interest of a child nor consonant with the efficient use of resources.

Although we understand from the guidance of Schult that no bright line can be drawn to delineate, for all cases, the roles of a guardian ad litem and counsel for a minor child, it is useful to observe that the legal rights of a child often may be distinct from the child’s best interest, and although there frequently may be overlap between the two, it is only because, in such cases, the rights of a child and the child’s best interest coincide. While the best interest of a child encompasses a catholic concern with the child’s human needs regarding his or her psychological, emotional, and physical well-being, the representation of a child’s legal interests requires vigilance over the child’s legal rights. Those legal rights have been enumerated as the right to be a party to a legal proceeding, the right to be heard at that hearing and the right to be represented by a lawyer. When both a guardian ad litem and an attorney have been appointed for a child, their respective roles and the duties attendant to those roles should adhere to that basic distinction. Specifically, the guardian ad litem should refrain from acting as a second attorney for the child. Just as it is not normally the province of the attorney to testily, it is not the province of the guardian ad litem to file briefs with the court.

The duties of the guardian ad litem, however, are contextually specific to the case at hand, and the scope of those duties should be set by the trial court judge and communicated to the guardian ad litem. Because those duties may subsume those traditionally performed by counsel when counsel is the child’s sole representative; see General Statutes § 46b-54 (c); counsel’s duties must be similarly articulated by the court.

Ill

Although the issues are clouded by the appointment of an attorney as well as a guardian ad litem to represent the interests of the child, S, the absence of an enumerated list of the duties of the guardian ad litem does not prevent us from resolving the issues presented by this case because we conclude that the guardian ad litem supersedes the role of the natural guardian to speak for the child’s best interest in the present litigation. In contrast to a guardian of a person who has physical control of the minor or a guardian of an estate who has legal control over the minor’s financial affairs, the guardian ad litem is appointed by a court and granted limited powers to represent the interest of the child in a particular court proceeding.

Although it is a question of first impression whether the limited powers of a guardian ad litem usurp a parent’s right to speak on behalf of the minor, our Supreme Court has provided us with guidance in related decisions. In Orsi, the court opined: “When a guardian has been appointed to protect the interests of a child, the guardian is usually the proper person to bring an action on behalf of the child.” Orsi v. Senatore, supra, 230 Conn. 467; see also Williams v. Cleaveland, 76 Conn. 426, 56 A. 850 (1904). Although that is the general rule adopted by our courts, it allows for exceptions, such as when the nominal guardian is absent, unwilling or unable to fulfill his or her duties, or there exists a conflict of interest or other “ ‘exceptional circumstances.’ ” Orsi v. Senatore, supra, 467. The court must therefore determine whether such circumstances exist and, if they do, who is best suited to make a claim on behalf of the child. Id.

Furthermore, where the court appoints counsel for a minor child, but no guardian ad litem to speak for the minor, we have concluded that because counsel for the child is more appropriately situated to exercise sound legal judgment, that creates a presumption that the court-appointed counsel is the proper person to fill the role of guardian for a particular legal action, absent an independent guardian ad litem. Taff v. Bettcher, supra, 35 Conn. App. 428; see also Lord v. Lord, 44 Conn. App. 370, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125 (1998). In such a situation, if the court wanted to have an adult, other than a parent, speak for the child in a juvenile proceeding, and not merely advocate on behalf of the child, it would be well for the court either to appoint a separate guardian ad litem or to give specific instructions to counsel concerning the limits of his or her responsibilities of advocacy. Reciprocally, if counsel for a minor finds himself or herself in a conflict between advocating for the child’s desires and speaking for the child’s best interest, counsel should immediately bring that conflict to the court’s attention.

On the basis of those allied decisions and amplified by our understanding of the fundamental role of a guardian ad litem, we believe that as between a guardian ad litem and a natural guardian, the presumption should be that the court-appointed guardian ad litem is the proper person to speak for the child for the purposes of the litigation, barring a showing that he or she cannot properly fulfill the guardian ad litem role and that another is better suited to the role. The maternal grandmother has made no showing that the court-appointed guardian ad litem could not fulfill her role, nor has the grandmother alleged that the guardian ad litem has misspoken or that the grandmother was more properly suited to speak on behalf of S’s best interest. The facts in the record support the opposite conclusion: The grandmother, who was seeking to act as S’s guardian for the purposes of this proceeding, recently had acquiesced to an order of temporary custody removing S from her own custody and was undergoing substance abuse treatment.

From the record, it is apparent that the court weighed those considerations in its ruling. Judge Jones stated: “The court agrees with the position set forth by the commissioner that in [the] circumstances of this case, where the court has appointed a guardian ad litem . . . and given the circumstances under which the child, the young mother [S], was removed from the care of . . . [the maternal grandmother, the grandmother] is not the ‘guardian’ of the child for the purpose of this proceeding.” We agree with the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       To protect the identity of the underage victim and her family, their names are not used in this opinion. See General Statutes § 54-86e.

       The perpetrator currently is serving a twelve year term of incarceration, having been convicted of one count of sexual assault in the first degree and one count of risk of injury to a child.

       General Statutes § 46b-129 (f) provides in relevant part: “Upon request, or upon its own motion, the court shall schedule a hearing on the order for temporary custody or the order to show cause to be held within ten days from the date of the preliminary hearing. . . .”

       See General Statutes § 46b-129 (c).

       We note with approval that the commissioner has not challenged the party status of the grandmother to bring this appeal. Cf. State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999). The court found that the grandmother was served properly. We believe that her interest as the natural guardian of S, a minor, is adequate to accord her party status. Cf. Practice Book (1998) § 26-1 (k) (2), now (h) (2); see also General Statutes § 46b-142 (b); In re Jonathan M., 255 Conn. 208, 764 A.2d 739 (2001).

       “It is axiomatic that due process rights are personal, and cannot be asserted vicariously.” (Internal quotation marks omitted.) Taff v. Bettcher, supra, 35 Conn. App. 425.

       We disagree with the commissioner’s claim that the provisions of General Statutes § 46b-129a provide authority for the appointment of counsel and a guardian ad litem for a minor parent in this setting. We believe, rather, that § 46b-129a relates to the appointment of counsel and guardian ad litem for the child whose protection is the object of a petition and not a parent who also happens to be a child, as is the case here.

       Evidence of the confusion comes from the fact that the guardian ad litem submitted a brief to the court on the question of the grandmother’s standing to request a hearing on the order of temporary custody. Also, as noted, neither counsel nor the guardian ad litem for S participated in the appellate proceedings. We note, too, that the record is silent as to whether the trial court issued any specific instructions to the guardian ad litem or to the attorney on their respective roles at the time they were appointed.
      In fairness, we acknowledge that jurisprudence on the subject has been sparse and that both court-appointed guardians ad litem and attorneys provide invaluable services to the children of Connecticut and the judicial system alike, and are, generally speaking, grossly underpaid, if paid at all.

       When a guardian ad litem is appointed, the court concluded that, while “ordinarily the attorney should look to the guardian [to ascertain the best interest of the minor-ward]”; (emphasis in original) Schult v. Schult, supra, 241 Conn. 783; such action is not required in every case. The court further concluded that “[l]eaving the determination to the sound discretion of the trial court is particularly important in [these] difficult cases .... The trial court is in the best position to evaluate the child’s need for representation as the case and the evidence unfold.” Id., 780-81.

       But see Rules of Professional Conduct 1.14, titled “Client under a Disability,” authorizing counsel to seek the appointment of a guardian when a client’s ability to make an adequately considered decision is impaired.

       We recognize that those cases and the 2001 amendment to General Statutes § 46b-129a concern the appointment of counsel and a guardian ad litem for a child who is the subject of a petition and not for a child who is the parent of an infant. Given the unfortunate reality, however, that the status of being a child as well as a parent in a juvenile proceeding is not a rarity, we believe a discussion of the respective responsibilities of counsel and guardian ad litem for a child, here, is equally germane.

       Quebec Bar Committee, “The Legal Representation of Children: A Consultation Paper Prepared by the Quebec Bar Committee,” 13 Can. J. Fam. L. 49, 54 (Robin Ward trans.) (1996).

       See R. Heartz, “Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness,” 27 Fam. L.Q. 327,341 — 46 (1993); see also American Academy of Matrimonial Lawyers, Representing Children (1995) p. 4.

       NCASAA, under a cooperative agreement with the office of juvenile justice and delinquency prevention in the United States Department of Justice, was formed to promote the development of Court Appointed Special Advocate — or volunteer guardian ad litem — programs. R. Heartz, “Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness,” 27 Fam. L.Q. 327, 337 (1993). NCASAA trained volunteer guardians ad litem currently are serving in courts in every state. Id., 328.

       NCASAA includes among its recommendations that a guardian ad litem should submit written reports to the court,. We find that suggestion troublesome, as we believe it more appropriate that a guardian ad litem testify as a witness, subject to cross-examination.

       See also Ireland v. Ireland, supra, 246 Conn. 439-40. While acknowledging that a distinction between the two roles was proper, the court stopped short of defining the “precise parameters of the functions of the guardian ad litem . . . .” Id., 440.

       Quebec Bar Committee, “The Legal Representation of Children: A Consultation Paper Prepared by the Quebec Bar Committee,” 13 Can. J. Fam. L. 49, 61-64 (Robin Ward trans.) (1996).

       “We do not allow submission of attorneys’ personal opinions in other areas of the law and we see no reason to do so in this case.” Ireland v. Ireland, supra, 246 Conn. 438.
      Our Supreme Court also emphasized the restricted role of counsel in Schult. The court provided the following guidance: “[Representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.” Schult v. Schult, supra, 241 Conn. 778. “[T]he attorney should honor the strongly articulated preference . . . of a child who is old enough to express a reasonable preference.” (Internal quotation marks omitted.) Id., 779. In other words, the attorney should maintain, as closely as possible, a lawyer-client relationship that is as normal as possible. See Rules of Professional Conduct 1.14.
      The guidelines for the Court Appointed Special Advocate (CASA) programs; see footnote 14; support that view. The guidelines list the duties that the guardian ad litem should not perform: (a) taking home or sheltering a child; (b) giving legal advice or therapeutic counseling; (c) making placement arrangements for a child; (d) giving money or expensive gifts to the family or to a child. See footnote 14. “The CASA volunteer does not provide legal representation in the courtroom. That is the role of the attorney. However, the CASA volunteer does provide crucial background information that assists attorneys in presenting their cases. It is important to remember that CASA volunteers do not represent a child’s wishes in court. Rather, they speak to the child’s best interests.” Conn. Joint Standing Committee Hearings, supra, p. 1433; see also American Academy of Matrimonial Lawyers, supra, rule 3.1, p. 4.

        Although we have observed that a distinguishing of the roles of attorney and guardian ad litem is proper, we find one fundamental overlap in their duties to the child; that is their appearance at all hearings to represent the child’s interest in their respective capacities. See R. Heartz, “Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness,” 27 Fam. L.Q. 327, 341-46 (1993); see also 43 C.J.S. 610, Infants § 234 (1978).

       “A guardian ad litem ... is always subject to the supervision and control of the court, and he may act only in accordance with the instructions of the court.” 43 C.J.S. 609, Infants § 234 (1978).

       “[A] [tjrial judge who appoints counsel for [a] child in [a] custody matter should tell [the] appointed counsel what is expected since, absent firm guidelines from [the] legislature or other sources, [the] best solution regarding [the] counsel’s role appears to lie in precise, clear-cut orders by [the] court after input from counsel.” 43 C.J.S. 609, Infants § 234 (1999). We conclude that this is especially true when the corut has also appointed a guardian ad litem, and equally true with respect to the duties of the guardian ad litem.

       E. Sokolnicki, “The Attorney as Guardian Ad Litem for a Child in Connecticut,” 5 Conn. Prob. L.J. (1991); see also 43 C.J.S. 609, Infants § 234 (1978) (“rights and powers of a guardian ad litem ... are strictly limited to the performance of the precise duties imposed on him by law. Ordinarily, his authority is recognized only for certain specific purposes”).

       In the Texas case, Grunewald v. Technibilt Corp., 931 S.W.2d 593 (Tex. App. 1996), however, the court found that a minor’s parents had no standing when a guardian ad litem had been appointed. Id., 596.

       See General Statutes § 46b-129a. The question of when a child can express a reasonable preference is one that is particularly ill-suited to a bright line rule. It is nevertheless a question that requires the trial court’s guidance and counsels vigilance. “One view is that a child’s ability to make a thoughtful decision depends on his or her abilities to understand, to reason, and to communicate, together with having a set of values. Another recommendation is that the advocate respond differently to the very young child, and the middle child aged seven to fourteen, while allowing the child’s wishes to be determinative at age fourteen.” R. Heartz, “Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness,” 27 Fam. L.Q. 327, 335 (1993). The question is best left to the discretion of the trial court and the minor’s representatives.


source: Caselaw Access Project

license: Public Domain

text:
    WATER POLLUTION CONTROL AUTHORITY OF THE CITY OF NEW HAVEN v. OTP REALTY, LLC
    (AC 22981)
    Schaller, Dranginis and Bishop, Js.

      Argued February 18
    officially released May 20, 2003

      Max F. Brunswick, for the appellant (defendant).

      Alfred J. Onorato, for the appellee (plaintiff).
   Opinion

BISHOP, J.

In this foreclosure action, after the defendant, OTP Realty, LLC, appeared but did not plead, it was defaulted for failure to plead, and the court, on January 14, 2002, rendered a judgment of foreclosure by sale, setting a sale date of April 20, 2002. On March 19, 2002, the defendant filed a motion to open the judgment on the ground that the plaintiff water pollution control authority of the city of New Haven did not have sufficient interest in the subject property to foreclose. It is from the court’s denial of that motion that the defendant now appeals. We affirm the judgment of the trial court.

Normally, a motion to open a judgment is addressed to the court’s discretion. See Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn. App. 481, 487, 764 A.2d 1273, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001). Therefore, when a court denies a motion to open a judgment, the usual question on review is whether the court abused its discretion in denying the motion.

In its motion, the defendant offered no explanation for not presenting the arguments contained in its motion prior to the entry of judgment in defense of the foreclosure complaint. Furthermore, as noted by the plaintiff, the defendant’s motion to open is, for the most part, not in conformity with the requirements of our rules of practice for such motions. Specifically, the motion failed to set forth “reasonable cause, or that a good . . . defense in whole or in part existed at the time of the rendition of such judgment ... or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. ...” Practice Book § 17-43 (a). Additionally, the defendant’s motion is not verified by oath, either by the defendant or by counsel as required by Practice Book § 17-43 (a), it is not an abuse of discretion for a court to deny a motion to open that does not set forth facts, upon oath, to demonstrate that a defendant has been prevented by mistake, accident or other reasonable cause from making a defense. See Fontaine v. Thomas, 51 Conn. App. 77, 83, 720 A.2d 264 (1998). Here, the defendant’s motion to open was devoid of any such representations.

The defendant claims, nevertheless, that because it asserts that the plaintiff does not have sufficient legal interest to pursue foreclosure, the motion to open implicates the subject matter jurisdiction of the court. We agree.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the . . . subject matter of the controversy.” (Internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). The question of standing, therefore, implicates the ability of the court to hear a matter. Standing “is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticable interests and that judicial decisions which may affect the rights of others are forged in hot controversy . . . .” (Internal quotation marks omitted.) Id. Because the question of whether the court has subject matter jurisdiction presents a legal issue, it is subject to plenary review. Therefore, we treat as a question of law subject to plenary review the defendant’s argument that the court should have granted its motion to open because the plaintiff had no legal right to a foreclosure judgment.

The gravamen of the defendant’s novel legal claim, which is unsupported by any germane decisional law, is that the plaintiff forfeited its hen on the subject property in a prior strict foreclosure action by not redeeming on its assigned law day. To assess that claim, we take judicial notice of the prior action, Breen Capital Corp. v. Bonito, Superior Court, judicial district of New Haven, Docket No. 385885, a strict foreclosure action involving the same property that is the subject of this appeal. In Breen Capital Corp., the plaintiff in this case and the South Central Regional Water Authority (South Central) were defendants in a strict foreclosure action as a result of hens each had placed on the subject property. In conjunction with the judgment of strict foreclosure, both defendants were assigned the same law day. Between the date of judgment and the law day, South Central assigned its hen rights to the defendant in this case, which redeemed on the law day, while the plaintiff in this case did not redeem. As a consequence, the defendant claims, the plaintiff lost its hen rights and, therefore, has no legal claim on the property that is the subject of this foreclosure action. In short, the defendant asserts that the plaintiff has no legal right to foreclose on property in which it has no legal interest.

We agree with the proposition advanced by the defendant that if the lien rights of the plaintiff were foreclosed in the Breen Capital Corp. strict foreclosure, then the plaintiff would not have standing to prosecute this action.

We also agree that the defendant assumed all the rights of South Central by accepting an assignment of its lien. We find no statutory authority or basis in the common law, however, for the proposition that when there are two lienholders of equal priority who are assigned the same law day in a strict foreclosure, the redemption by one entity forecloses the hen of the other. We think the better reasoning is that when the defendant redeemed and took title to the property, it foreclosed all subsequent encumbrances only, but not the lien rights of the plaintiff. That result is consistent with Practice Book § 23-17 (b), which provides in relevant part: “Unless otherwise ordered by the judicial authority at the time it renders the judgment of strict foreclosure, the following provisions shall be deemed to be part of every such judgment: (1) That, upon the payment of all of the sums found by the judicial authority to be due the plaintiff, including all costs as allowed by the judicial authority and taxed by the clerk, by any defendant, after all subsequent parties in interest have been foreclosed, the title to the premises shall vest absolutely in the defendant making such payment, subject to such unpaid encumbrances, if any, as precede the interest of the redeeming defendant. ...”

Although that rule does not specify that a redeeming party takes subject to unpaid encumbrances of equal priority, such an outcome is consistent with the portion of the rule that states that it is subsequent encumbrances that are foreclosed by a party’s redemption. The rule provides no basis for arguing that by redeeming, the defendant foreclosed its equal encumbrancer, the plaintiff. Rather, we believe a more sensible understanding is that the defendant took title subject to the plaintiffs continuing hen. Therefore, in this instance, when the defendant redeemed, it foreclosed all subsequent encumbrances, but it did not foreclose the hen of the plaintiff, a lienholder equal in priority. As a consequence, the plaintiff had standing to maintain this foreclosure action.

The judgment is affirmed and the case is remanded for the puipose of setting a new sale date.

In this opinion the other judges concurred.

       We note that in Breen Capital Corp., no party objected to the order of law days proposed by the plaintiff in that case in its motion for a judgment of strict foreclosure. See Practice Book § 23-17 (a).


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. JOSEPH P. INNAMORATO, JR.
    (AC 22650)
    Foti, Dranginis and Bishop, Js.
    Argued January 16, 2002
    officially released May 20, 2003

      Paul Gozzi, for the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Barbara Hoffman, assistant state’s attorney, for the appellee (state).

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle ... in any parking area for ten or more cars . . . .”

   Opinion

DRANGINIS, J.

The defendant, Joseph P. Innamorato, Jr., appeals from the judgment of conviction on the charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) following his entry of a conditional plea of nolo contendere. The sole issue presented in this appeal is whether the trial court properly denied the defendant’s motion to dismiss when it found that he had operated his motor vehicle in a “parking area for ten or more cars.” We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On March 24,2001, at approximately 3 a.m., the state police observed the defendant driving a vehicle a few feet in a parking lot adjacent to Humphrey’s Restaurant at the comer of Route 1 and Hammock Road in Old Saybrook. The defendant was arrested and charged with one count each of operating a motor vehicle without insurance in violation of General Statutes § 38a-371 and operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a). Prior to trial, the defendant sought to dismiss the drunk driving charge, claiming that the private parking lot in which he operated his vehicle contained only nine spaces, and, therefore, was not a “parking area for ten or more cars” as defined by § 14-227a (a). Following a hearing, the court denied the defendant’s motion to dismiss, concluding that the parking lot at issue did fall within the meaning of § 14-227a (a). Thereafter, the defendant appealed from that decision to this court, and we dismissed the defendant’s appeal for lack of a final judgment. The defendant then entered a conditional plea of nolo contendré to operating a motor vehicle while under the influence of intoxicating liquor, reserving the right to appeal from the denial of the motion to dismiss. The court sentenced the defendant to six months imprisonment, suspended after forty-eight hours, and eighteen months probation. The defendant then filed the present appeal.

The defendant claims that the court improperly denied his motion to dismiss when it found that the nine space parking lot in which he was parked at the time of his arrest was a “parking area for ten or more cars” within the scope of § 14-227a (a). In particular, the defendant argues, as he did before the court, that the legislature intended that the number of parking spaces designated in a site plan approved by a local zoning commission should be used in determining whether the parking area in question is a parking area for ten or more cars. Therefore, the defendant maintains that the actual past use of the parking area is irrelevant in determining whether a parking lot is subject to the statute. The state contends, to the contrary, that the court correctly concluded that because the parking area regularly accommodates and is used by ten or more cars, the nine space parking lot satisfies the requirements of § 14-227a (a). Our review of the language, legislative history and purpose of § 14-227a (a) leads us to agree with the state.

Our appellate courts have not previously addressed the meaning of the phrase “any parking area for ten or more cars . . . .” “Statutory construction . . . presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory [interpretation], our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Hackett, 72 Conn. App. 127, 132, 804 A.2d 225, cert. denied, 262 Conn. 904, 810 A.2d 270 (2002); see also State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 562 (2003) (en banc).

With that legal framework in mind, we begin our analysis with the relevant provision of § 14-227a (a), which provides in relevant part that “[n]o person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle . . . in any parking area for ten or more cars . . . .” (Emphasis added.) General Statutes § 14-212 (6) defines parking area as “lots, areas or other accommodations for the parking of motor vehicles off the street or highway and open to public use with or without charge . . . .” It does not define the phrase as narrowly as does the defendant. In conducting our analysis, we are mindful that “[w]ords in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended.” (Internal quotation marks omitted.) State v. Vickers, 260 Conn. 219, 224, 796 A.2d 502 (2002); see also General Statutes § 1-1 (a); but see State v. Courchesne, supra, 262 Conn. 577-78. We conclude that the plain language of the two pertinent statutory provisions, read together, does not resolve the issue presented here.

As stated previously, our analysis does not end with the words of the statute. See State v. Courchesne, supra, 262 Conn. 537; Schiano v. Bliss Exterminating Co., 260 Conn. 21, 36, 792 A.2d 835 (2002). We also must examine the legislative history and the purpose of § 14-227a (a) to ascertain what the legislature meant by the phrase “parking area for ten or more cars . . . .” We agree with the court that much of the legislative history is not helpful in resolving the issue. Nevertheless, an examination of the brief legislative commentary surrounding a 1971 amendment contains the following remark by Representative John A. Carrozzella: “In addition to lowering the blood alcohol content from .15 to .10, the bill does two other things that beef up our drunken driving statute: one, under present law, the only place you can be convicted of driving under the influence is on a public highway. The bill would extend that to parking lots where there is room to park more than ten cars. Now you know and I know that on such a parking lot in the shopping centers certainly a drunken driver is as big a menace if not more in that area than on the public highway.” (Emphasis added.) 14 H.R. Proc., Pt. 5, 1971 Sess., pp. 2364-65. We interpret those comments to mean that the legislature intended the size of the lot, and not the number of approved parking spaces contained in a site plan authorized by the local zoning and planning commission, would be the appropriate test to determine whether a parking lot comes within the bounds of § 14-227a. Because the court appropriately credited a state police trooper’s testimony that Humphrey’s parking lot accommodates ten or more cars, we conclude that it is the type of parking area that the legislature contemplated when it introduced the amendment to the bill.

It also is a rule of statutory construction that “ [i]dentifying the societal problems which the legislature sought to address may be particularly helpful in determining the true meaning of the statute. State v. Campbell, 180 Conn. 557, 562, 429 A.2d 960 (1980). It is clear that the societal problem the legislature sought to address in General Statutes § 14-227a was public safety in light of the dangers presented by drunken drivers.” State v. Boucher, 11 Conn. App. 644, 652, 528 A.2d 1165 (1987) (Daly, J., dissenting), rev’d on other grounds, 207 Conn. 612, 541 A.2d 865 (1988). The intent of the legislature is to protect the general public from drunk drivers, so it would be absurd and against that legislative intent to argue that the statute would make it a crime to operate a motor vehicle while under the influence only in a parking lot that happened to have a site plan or have been approved by the zoning commission for ten or more spaces. “We are required to construe a statute in a manner that will not thwart [the legislature’s] intended purpose or lead to absurd results. . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Internal quotation marks omitted.) State v. Coscuna, 59 Conn. App. 434, 440, 757 A.2d 659 (2000).

Finally, our conclusion is supported by our Supreme Court’s decision in State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1988). In Boucher, as in this case, the defendant was arrested in a shopping center parking lot and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a). The defendant thereafter successfully sought to dismiss that charge, claiming that the parking lot did not come within the purview of § 14-227a (a). Id., 614. Our Supreme Court reversed this court’s holding that the parking lot was not “open to public use,” as defined in § 14-212 [6], reasoning that “[a] place is ‘public’ to which the public is invited either expressly or by implication to come for the purpose of trading or transacting business.” Id., 616. The Supreme Court reviewed the legislative history and intent of the statute and further explained that “[t]he legislature enacted the statutes governing the operation of motor vehicles for the protection of all of the citizens of this state . . . not just those who patronize large shopping centers.” Id., 618. The Supreme Court concluded “that the legislature, in enacting §§ 14-227a and 14-212 [6], intended to extend the prohibition against operating a motor vehicle while under the influence of intoxicating liquor to any parking area for ten or more cars to which that indefinite group labeled ‘the public’ is invited or permitted to use.” Id., 618-19. Although the circumstances at issue in Boucher were somewhat different from those now before us, we find the foregoing analysis to be instructive. In holding that the shopping center parking lot came within the statute’s definition of “open to public use,” the Supreme Court observed that “the legislatures and the courts have emphasized the need to protect the public from drunk drivers whether on streets or highways or other public or private property.” Id., 618. Therefore, to decide in the defendant’s favor on that issue would require that we ignore protections previously recognized by our courts. It is inconceivable that the legislature’s broad umbrella of protection would insulate intoxicated persons from the drunk driving laws pursuant to § 14-227a (a) because the parking area did not have zoning approval for ten or more spaces. Moreover, if we were to circumscribe and to accept the defendant’s interpretation, we would effectively eviscerate the legislature’s long history of successes in establishing safeguards against drunk driving.

On the basis of our review of the language of § 14-227a (a), and having considered the purpose of the statute and the reason and necessity for its enactment, we reject the argument propounded by the defendant and conclude that the court properly denied his motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plea of nolo contendere was entered conditional on the right to appeal pursuant to General Statutes § 54-94a and Practice Book § 61-6.

       In a memorandum of decision dated August 13, 2001, the court determined, apparently based in part on the testimony of Trooper Conrad Winalski of the state police, that Winalski often saw fifteen to twenty cars parked in the lot of Humphrey’s Restaurant. In response to the defendant’s argument that Humphrey’s parking lot did not come within the reach of General Statutes § 14r227a because it was “approved” for only nine spaces, the court rejected that argument because the words “approved” and “spaces” were not included in the text of the statute. The court then noted that the legislative history surrounding the passage of the statute was not helpful to its interpretation. On the basis of all of those considerations and the legislative purpose behind the statute, the court concluded that the parking lot at issue came within the requirements of § 14-227a (a) because it accommodated and was used by more than ten cars. The court explained that “to hold that . . . § 14-227a limits arrests to only those parking areas ‘approved’ for ten or more spaces would undermine the legislature’s intent to protect individuals in parking areas from the dangers of drivers operating under the influence.”


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. RICHARD R. MUSUMANO
    (AC 22870)
    Schaller, Flynn and McDonald, Js.
    Argued February 14
    officially released May 20, 2003

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were James E. Thomas, state’s attorney, Mark Brodsky, senior assistant state’s attorney, and, on the brief, Melissa L. Streeto, former deputy assistant state’s attorney, and Richard Morelli, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Richard R. Musumano, appeals from the judgment of conviction, rendered after a jury trial, of recklessly engaging in disorderly conduct in violation of General Statutes § 53a-182 (a) (2). On appeal, the defendant claims that (1) the trial court’s jury instructions improperly failed to provide the necessary judicial gloss to § 53a-182 (a) (2) as required by State v. Indrisano, 228 Conn. 795, 640 A.2d 986 (1994), (2) the prosecutor engaged in a course of misconduct throughout the trial and (3) the court improperly instructed the jury regarding reasonable doubt. We agree with the defendant’s first claim and reverse his conviction.

The jury reasonably could have found the following facts. On March 21, 2001, the defendant called the department of labor’s telephone benefits center in Hartford to inquire into why he had not received his unemployment benefits check. The defendant was told by Mark MacNeil that his file indicated that there was a hold on the check and that he would have to go to the department’s Bristol office to have the issue resolved. The defendant became upset, told MacNeil, “Go f_k yourself’ and hung up the telephone.

Several minutes later, the defendant called the benefits center again. His call was answered by Steven Holcomb, who informed the defendant that his check was on hold because his file indicated that he may have refused an employment opportunity during the week and that he would have to go to the Bristol office to have the issue resolved. The defendant again became upset and hung up the telephone.

The defendant called the benefits center a short time later and spoke with Holcomb again. Holcomb reiterated that the defendant would have to go to the Bristol office to have his matter resolved. The defendant told Holcomb that he was going to sue the state for all of its money, and that he was crazy and was going to get a gun and come and shoot Holcomb. Thereupon Holcomb immediately ended the telephone call and notified his supervisor, Jean Miner. Miner then informed the Hartford and Bristol offices, as well as the state and local police, of the defendant’s threat.

The defendant subsequently was arrested at his residence. Following a jury trial, the defendant was convicted of disorderly conduct in the second degree and sentenced to ninety days imprisonment, execution suspended, and one year of probation with special conditions. This appeal followed.

The defendant claims that the court improperly failed to provide the judicial gloss required by State v. Indrisano, supra, 228 Conn. 795, when it instructed the jury on the disorderly conduct count. We agree.

The following facts are relevant to our resolution of the defendant’s claim. The court held the charging conference on the record. After the parties reviewed the court’s proposed instructions, the prosecutor stated: “[T]he disorderly conduct, Your Honor, you do elaborate on a section [of] the first element. But it does seem that the instructions include my elaboration of the second element.” The court replied: “No, it doesn’t. That is pretty much a stock instruction.” The state then brought to the court’s attention State v. Indrisano, supra, 228 Conn. 819. The defendant did not comment on the proposed instructions or object to them in any way.

On appeal, the defendant claims that the court failed to provide the necessary judicial gloss to § 53a-182 (a) (2), as required by our Supreme Court in State v. Indrisano, supra, 228 Conn. 795. The defendant did not raise his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). He neither submitted a request to charge outlining the elements of the offense, nor excepted to the court’s charge. Because the record is adequate for our review and the defendant’s claim is of constitutional magnitude alleging the violation of a fundamental right, we will review his claim. See State v. Wolff, 237 Conn. 633, 668-69, 678 A.2d 1369 (1996). “It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . The due process clause of the fourteenth amendment [to the United States constitution] protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Citation omitted; internal quotation marks omitted.) Id., 669.

In Indrisano, our Supreme Court held that § 53a-182 (a) (2) was impermissibly vague on its face, but applied an interpretive gloss to preserve its constitutionality. State v. Indrisano, supra, 228 Conn. 801. Section 53a-182 (a) provides in relevant part that “[a] person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ... (2) by offensive or disorderly conduct, annoys or interferes with another person . . . .” (Emphasis added.)

The Indrisano court noted that subdivision (2) of § 53a-182 (a) has two components, “by offensive or disorderly conduct” and “annoys or interferes with another person.” (Internal quotation marks omitted.) Id., 817. In addressing the first component, “by offensive or disorderly conduct,” the Supreme Court interpreted the phrase to mean “conduct that is grossly offensive, under contemporary community standards, to a person who actually overhears it or sees it.” Id., 818. In addressing the second component, “annoys or interferes with another person,” the Indrisano court interpreted the phrase to mean “disturbs or impedes the lawful activity of another person.” (Internal quotation marks omitted.) Id., 819. Finding that § 53a-182 (a) (2) was unconstitutionally vague in the absence of that judicial gloss, our Supreme Court in Indrisano vacated the defendant’s conviction. Id., 820. To uphold the constitutionality of § 53a-182 (a) (2), the court also required that a judicial gloss apply to the statutory language, “by offensive or disorderly conduct, annoys or interferes with another person . . . .” (Internal quotation marks omitted.) Id., 819.

In this case, while the court’s charge to the jury included the required judicial gloss to the phrase “annoys or interferes with another person,” it failed to include the necessary judicial gloss to the phrase “by offensive and disorderly conduct.” The court did not charge that the phrase “by offensive and disorderly conduct” refers to “conduct that is grossly offensive, under contemporary community standards, to a person who actually overhears it or sees it.”

We also conclude that the state is unable to demonstrate the harmlessness of the court’s failure to provide the necessary judicial gloss when it charged the jury. Section 53a-182 (a) (2) is unconstitutionally vague on its face without the judicial gloss, and it cannot be said, beyond a reasonable doubt, that the court’s omission of the Indrisano gloss did not contribute to the verdict. Without the required judicial gloss in the jury instruction, we are unable to determine whether the jury found beyond a reasonable doubt that the defendant’s conduct was “conduct that is grossly offensive, under contemporary community standards, to a person who actually overhears it or sees it.” Id., 818.

The judgment is reversed and the case is remanded for a new trial on the disorderly conduct charge.

       The defendant was acquitted of threatening in violation of General Statutes § 53a-62 (a) (2), harassment in the second degree in violation of General Statutes § 53a-183 (a) (3) and intentionally engaging in disorderly conduct in violation of General Statutes § 53a-182.

       Because we reverse the defendant’s conviction on the basis of his first claim, we need not address his remaining claims, as they may not arise at the new trial.

       The court instructed the jury in relevant part as follows: “In count two, the defendant is charged with disorderly conduct in violation of § 53a-182 (a) of the Penal Code, which provides as follows: A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creates a risk thereof, he, by offensive or disorderly conduct, annoys or interferes with another person.
      “For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: One, that on or about March 21, 2001, in the city of Hartford, Connecticut, the defendant, Richard Musumano, acted with the intent to cause inconvenience, annoyance or alarm. And, two, that by engaging in an offensive and disorderly conduct, the defendant annoyed or interfered with another person ....
      “The predominant intent must be to cause what a reasonable person operating under contemporary circumstances would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation or feeling of anxiety prompted by threatened danger or harm. The definition of intent in this statute, as in this count, is the same as the intent definition that I read to you in count one. . . .
      “The words ‘inconvenience, annoyance or alarm’ refer to what a reasonable person operating under contemporary community standards would consider to be a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation or a feeling of anxiety prompted by threatened danger or harm.
      “If you find the state has proven beyond a reasonable doubt each of the elements of the crime of this disorderly conduct, then you should find this defendant guilty. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one of the elements, you should then find the defendant not guilty of this count.”

        The court, also instructed the jury on what it characterized as the “lesser included offense” of disorderly conduct by reckless behavior: “There is a lesser included offense you must consider if, and only if, you reach a verdict, of not guilty as to the charged offense in count two. Should you find the defendant, not guilty [of] the charged offense in count two, but you find that he nevertheless engaged in offensive and disorderly conduct that annoyed or interfered with another person, then there is a lesser included offense that you must consider under count two. On the other hand, if you find that he did not engage in an offensive and disorderly conduct that annoyed or interfered with another person, then you should not consider the lesser included offense under count two.
      “The lesser included offense to count two is disorderly conduct by recklessness. The elements of disorderly conduct by recklessness are that on or about March 21, 2001, in the city of Hartford, Connecticut, the defendant, Richard Musumano, recklessly created a risk of creating inconvenience, annoyance or alarm. And that by engaging in an offensive and disorderly conduct, the defendant annoyed or interfered with another person ....
      “Now, the lesser included offense of disorderly conduct by recklessness differs from disorderly conduct intentional in that it does not require the defendant to have the intent to cause inconvenience, annoyance and alarm, but rather to have acted in such a way as to recklessly create a risk of causing inconvenience, annoyance or alarm.
      “A person acts recklessly with respect to a result to a circumstance described by statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be [of] such [a] nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person in the same situation as the defendant is, the doing of something that a reasonably prudent person would do under the circumstances or omitting to do what a reasonably prudent person would not do under the circumstances.
      “A gross deviation is a great or substantial deviation, not just a slight or moderate deviation. There must be a great or substantial difference between, on the one hand, the defendant’s conduct or disregarding a substantial and unjustifiable risk, and, on the other hand, what a reasonable person would have done under the circumstances. Whether or not a risk is substantial and unjustifiable is a question of fact for you to determine under all of the circumstances.”

       Under Practice Book § 42-16, we are not bound to consider any error in the charge. Because this case, however, concerns the failure to charge on the elements of the offense, we consider the defendant’s claim. We suggest, in the future, that trial courts require requests to charge as to the elements of any offense to avoid the need for a new trial.