Dissenting Opinion by
Justice MINTON.Although I agree with much of the reasoning of the majority, I respectfully disagree with the majority’s ultimate conclusion that because the adults present agreed among themselves that B.J. had notice, B.J. necessarily had waived his right to be present. The plain language of RCr 8.28 requires that the defendant be present for critical stages in all cases, except those specifically enumerated exceptions. So I could not accept the argument that a defendant’s lack of attendance inevitably constitutes a waiver of the defendant’s right to be present for the proceeding.
In any case, waiver was never properly established in this case. Apparently, BJ.’s mother told the attorneys that B.J. knew about the hearing but refused to come. But the mother was not even present at the hearing. Even so, BJ.’s mother could not waive his rights for him. KRS 600.010(2)(g). And B.J.’s counsel stated that “we” (meaning, presumably, the defense team) had not spoken with him. In other words, there was no information presented to the family court showing that B.J. was aware of the proceedings and was physically and mentally able to attend the proceedings, yet, chose to stay away. In fact, the trial court did not explicitly find that B.J. had waived his right to be present but, rather, stated that B.J. had notice and that the hearing could proceed in his absence. Rather than finding a waiver, the family court really moved forward against the absent B.J. simply because it believed, erroneously, that the Rules of Criminal Procedure were inapplicable to all status offense proceedings.
Because trial was not to commence without BJ.’s presence after his invocation of RCr 8.28 and because there was no showing of waiver, the family court erred in conducting the adjudication and disposition hearings in B.J.’s absence. I would affirm the Court of Appeals decision vacating the adjudication and disposition orders and remand this case to the family court for further proceedings that conform to RCr 8.28.