dissenting.
Although the principal opinion opens by announcing its scope is limited to consideration of the single issue of ineffectiveness of appellate counsel and adopts as the standard for evaluation of appellate counsel’s actions the same standard as used for gauging trial counsel’s conduct, the principal opinion then proceeds to deal with both claims made — i. e., the claim that the juvenile court improperly relinquished jurisdiction and the claim that Rone’s in-custody confession was taken without his parents having been notified as soon as possible that he was in custody as required by section 211.131.2 — on their merits, examining each no differently than would be done on an original appeal. The principal opinion decides that there is no merit to the first claim for various reasons set forth in pages 579-582, concluding that the trial court reasonably exercised its discretion, considering Rone’s previous difficulties, the lack of success in rehabilitation attempts, his dangerous proclivities; that the trial court’s findings were adequate; that the court was correct in determining that the juvenile system was not a proper forum for Rone. Therefore, holds the principal opinion, the juvenile court acted properly in terminating its jurisdiction and “[t]hus no prejudice flowed” from counsel’s failure to preserve this issue, thereby effectively mooting the ineffectiveness assistance of counsel issue. No matter how astute on one hand or inept on the other counsel was, it made no difference because the juvenile court was correct all along in terminating jurisdiction and this would be the outcome even had counsel preserved the point. I have no objection to the result reached, but call attention to the fact that this decision is based on a consideration of the merits of the underlying claim. Nowhere does the principal opinion gauge the quality of counsel’s work. Ineffective assistance of counsel has nothing to do with the decision reached. Instead the principal opinion decides there is no validity to the point even had it been raised by counsel.
The same is true of the disposition of the underlying claim that the confession was inadmissible because of violation of section 211.131.2 in not notifying Rone’s parents as soon as possible that he was in custody and obtaining his confession in the meantime. This claim, too, is examined on the merits, page 584, just as would have been done on original appeal, and it is decided that the confession is admissible, under “the totality of circumstances”, with the violation of the statute, if it occurred, being merely one of the circumstances to be weighed against voluntariness, Miranda warnings, the experience of the juvenile, etc. The decision is reached on an admissibility of evidence ground. Again, the ineffective assistance of counsel aspect is effectively mooted. Failure to raise this “specious” section 211.131.2 argument, under the principal opinion, is meaningless, because whether counsel was effective or ineffective, the objection, had it been made, would not have prevailed.
It is the disposition of this second issue— the effect of violation of section 211.131.2 and the adoption of a new rule for determining the admissibility of a juvenile’s confession — “the totality of the circumstances”, which makes violations of the juvenile code just another circumstance to be considered, to which I respectfully dissent with whatever full vigor I possess. In doing so I must necessarily deal with the subject not in terms of ineffective assistance of counsel, or whether the point is raised sua sponte or was properly preserved or is a matter of plain error, but on the merits as does the *586principal opinion. Rather than this dissent missing the point as the principal opinion would have it, far from it — the dissent is responding directly to the disposition which the principal opinion makes of the section 211.131.2 issue — that the evidentiary issue of admissibility of juvenile confessions is henceforth to be determined on the totality of the circumstances, regardless of violations of the juvenile code, contrary to all prior Missouri law on the subject.
In the original Rone decision, reported in In re A.D.R., 515 S.W.2d 438 (Mo. banc 1974), the court divided on whether or not the authorities, in obtaining defendant’s confession, had abided by the provisions of the juvenile code. Among the violations of the juvenile code, as pointed out in the dissent, 515 S.W.2d at 444, was the failure of either police or juvenile authorities to get in touch with defendant’s parents or relatives or to have them present at the questioning, despite the provisions of § 211.-131.2 “[that] when a child is taken into custody, the parent[s], legal custodian or guardian of the child [are to] be notified as soon as possible.” This subject was not addressed in the majority opinion.
It is now, for the first time, addressed in the principal opinion herein and held to be without merit on the ground that even if the statute were violated Rone was not prejudiced thereby, because the confession was voluntary and in the totality of the circumstances the trial court did not err in admitting it into evidence. This, however, does not necessarily follow.
Section 211.131.2 is forthright and unequivocal. It provides: “When a child is taken into custody, the parent, legal custodian or guardian of the child shall be notified as soon as possible.” The requirement of prompt notice does not depend on whether it is convenient for the police to comply, or whether the juvenile would prefer that his parents not know he is in jail. The statute requires that the parents be notified; whether they do anything about it is up to them, but the law envisions that they are to be informed, promptly, that their child is in custody. As we will see, this is an important protection which the juvenile code provides for the child.
Although the principal opinion asserts it is unclear whether section 211.131.2 was in fact violated, there is a complete absence of any direct or positive evidence in the record of compliance (a fact which the state could have proven without difficulty had the authorities in fact notified the parents promptly). On the other hand, there is persuasive evidence that the parents were not given prompt notice. It is noteworthy that the state makes no contention that the parents were notified promptly. It would have been easy for prompt notification to have been given defendant’s parents that he was in custody. Upon arrest, defendant was taken to the Kansas City, 27th Street police station. His parents, who had been married 31 years, lived at 3223 Agnes, Kansas City, in a large house with four of their eight children still at home. Mr. Rone was a long time employee of the post office. As the principal opinion indicates, and as the record sets forth in considerable detail, both the police and the juvenile officers had had several prior contacts with Rone and his parents. It is safe to say the authorities knew how to get in touch with Rone’s parents.
The principal opinion intimates that since Rone had said he would like to have his coat back (which remark the principal opinion characterizes as an exhibition of special interest in the coat on Rone’s part) and since one of the police officers testified Rone’s parents came to police headquarters to pick up Rone’s black coat,1 it follows the parents were notified, as picking up the coat was “a thing they could not have done without notice of his detention.”
The difficulty with this argument is that the statute requires notice to the parents *587“as soon as possible.” The fact, if so, that the parents picked up the coat at some unspecified time,2 is no proof that the parents were notified promptly that their son was in custody, as required by the statute, nor does it shed any light on whether the parents, if they were notified, were given notice before or after the police already had obtained Rone’s incriminating statement.
The authorities would be in the best position to prove that they gave prompt notice to the parents, if so, by producing the person who claimed to have given notice. This they did not do. The best the state could do was the testimony of the police officer, who testified that he was present when the coat was turned over to defendant’s parents at a date and time not stated. We do not know how long this was after the arrest or the confession or whether it was even on the same day.
While the statute does not require the presence of the parents during police interrogation of the juvenile, by the requirement that the parents be notified as soon as possible that their child is in custody, the statute does give the parents an opportunity to be present in person. Here, however, it is undisputed that the juvenile’s parents were not with him during the interrogation, an unlikely state of affairs with parents as deeply involved in juvenile court efforts with their son as the record shows these parents were, had they been given prompt notice that their son was in custody. Officer Merle Hoffman started interrogating defendant at 1:35 a. m., some four hours after defendant was taken into custody. The robbery occurred around 9:00 p. m. and defendant was apprehended by the police within a few minutes thereafter. Officer Hoffman is the one who obtained defendant’s confession. As to who was present, Hoffman testified it was deputy juvenile officer Charles Gardner:
“Q. On that day did you have occasion to speak with Arthur Daniel Rone, Jr.?
“A. Yes, I did.
“Q. Where did you first speak to him?
“A. In the Crimes Against Persons Unit at police headquarters.
“Q. And who else was present at the time you talked to him?
“A. Deputy Juvenile Officer Charles Gardner.
“Q. What was your purpose in talking to him?
“A. In regards to the robbery . . . ”
The principal opinion, in dismissing violation of the juvenile code by the police, if it did occur, as of no consequence in the totality of the circumstances with respect to admission of the confession, overlooks our long established rule that the police must observe the juvenile code requirements before they can use a confession obtained from a juvenile.
In State v. Wade, 531 S.W.2d 726 (Mo. banc 1976), this court held that it was reversible error for a trial court to admit a police officer’s testimony concerning a juvenile’s oral confession when the juvenile offender has not been taken directly to the juvenile authorities as required by § 211.-061.1, RSMo 1969. In that case, as in the case at bar, the juvenile offender was taken directly to a police station, where the incriminating statements were subsequently made. The Wade opinion spent no time in discussing the “totality of the circumstances” or whether the confession was “voluntary”. It went directly to the point of whether the police abided by the juvenile code and said:
“The Juvenile Code intends that no statement shall be made to police by a person under seventeen years of age before the child is taken to juvenile authorities. To hold the statement admissible here would permit the State to obtain and use what the Code refuses.”
531 S.W.2d at 729. Also in Wade, we stated that “the Juvenile Code recognizes the inca-pacities of persons under seventeen years of age.” Ibid, at 728 (emphasis in original). *588Just last year, the author of the principal opinion noted “ Wade holds that it is reversible error to admit testimony regarding a confession of a juvenile offender made prior to being taken to the juvenile authorities.” State v. Moore, 580 S.W.2d 747, 750 (Mo. banc 1979). To the same effect is State v. Arbeiter, 408 S.W.2d 26 (Mo.1966), where the court dealt with admissibility of statements obtained from a juvenile by police interrogation in disregard of the juvenile code. Wade and Arbeiter are still good law and their principles control the question of the admissibility of the confession in this case.
While this case presents the same violation of the juvenile code in the failure to take the child directly to the juvenile authorities as required by § 211.061.1 as in Wade and Arbeiter, there is present in addition a further serious violation in the failure, as I contend, of the police to notify the child’s parents that the child had been taken into custody as required by § 211.131.2, despite the fact, as pointed out earlier, that the arrest was made shortly after 9:00 p. m. and the interrogation did not start until 1:35 a. m.3 This is where the prejudice to the defendant occurs. As the result of the failure of the police to abide by the juvenile code, there was a police interrogation of a 16 year old boy, in the middle of the night, conducted by a veteran police officer (17 years on the force), where incriminating statements were obtained from the juvenile, without having first given his parents prompt notice that he was in custody and thereby, eliminating any possibility of the presence of a parent or adult friend who could have aided the child by protecting him from vulnerability to undue influences and impulsive waivers due to his immaturity. It was not an even match and it was decidedly to defendant’s prejudice.
As pointed out in People v. Maes, 571 P.2d 305, 306 (Colo.1977), involving a statute similar to our section 211.131.2, and relying on Missouri authority (which, incidentally, the principal opinion would expressly overrule):
“A parent, guardian, legal custodian, or an attorney is expected to act ‘on the side’ of the juvenile, and to have his best interest uppermost in mind when called upon to be with a juvenile who is in police custody for alleged criminal activity. If the person appearing with a juvenile in the situation involved here is neutral or hostile, the juvenile is deprived of the protection afforded by the statute. See In re K. W. B., 500 S.W.2d 275 (Mo.App.1973); State v. White, 494 S.W.2d 687 (Mo.App.1973).”
Likewise in State v. Tolliver, 561 S.W.2d 407, 409 (Mo.App.1978) where the court was considering the effect of the juvenile officers failing to take enough time with the juvenile to determine that he had not lived with his mother since he was six months old, but instead lived with his grandmother (the juvenile officers tried to call the mother to come to the police station, unsuccessfully, but of course made no effort to call the grandmother), the court pointed out the following with respect to police interrogation of juveniles: “[T]he law required special protection to a young teenager who is to be subjected to police interrogation, so as to place him so far as possible on a plane of equivalence with an adult. A key measure of such protection has been the creation of a procedure to provide the presence of an attorney, parent or similar adult friend
Section 211.131.2 provides the necessary procedure, if it is followed. We should not permit it to be ignored.
The principal opinion as revised cites State v. Wade, supra, for the proposition that the admissibility of a juvenile’s statement taken in the presence of the juvenile officer, is “determined from the totality of the circumstances on a case by case basis.” No such statement or inference appears in the Wade opinion and the holding and effect of the Wade case is the exact opposite. *589In Wade, even though the confession was voluntary, without coercion, and made after defendant was advised of his constitutional rights, the confession was, on appeal, held inadmissible, and the case was reversed and remanded. The reversal was on the express ground that in obtaining the confession, the police had failed to comply with the juvenile code provision that the juvenile be taken “immediately and directly” to the juvenile authorities as required by section 211.-061(1). The Wade opinion at no point addresses “the totality of the circumstances.”
The principal opinion would treat State v. Wade as though it adopts a per se rule that the presence of a juvenile officer at police interrogation suffices to cure any juvenile code violation, so long as the confession is “voluntary.” No doubt Rone’s statements were “voluntary” for purposes of the Fifth Amendment. But our juvenile code serves interests and policies distinct from those against compulsory self-incrimination. As said in Wade.
“The idea that an attempt should be made to rehabilitate offenders under seventeen years of age, rather than merely punish them, is settled public policy, declared by statute and case law in Missouri. ‘The purpose of the Juvenile Law is not to convict minors of criminal acts, but to safeguard and reform children that may have erred * * State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37, 38 (1933). The idea of rehabilitation was conceived, rightly or wrongly, as a procedure for dealing with juvenile offenders which would be of maximum benefit to society.”
A similar argument about “voluntariness” and “totality of the circumstances” curing previous violations by the police in obtaining a confession was made in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). There defendant was convicted in the New York courts of felony murder and attempted robbery. He had been arrested without probable cause, taken to the police station, and there detained for interrogation, during which he made statements and drew a sketch which incriminated him.
It was conceded by defendant that the proper Miranda warnings were given and that his statements were “voluntary” for purposes of the Fifth Amendment. Nevertheless, the Supreme Court held the statements and sketch were inadmissible, because satisfying voluntariness for the Fifth Amendment did not mean that the confession should not be excluded under the Fourth Amendment by reason of the admitted lack of probable cause for the arrest. The court spoke of the “lingering confusion” between “voluntariness” for Fifth Amendment purposes and the “causal connection” between the illegal arrest and the confession established in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In the present case, the principal opinion mixes “voluntariness” so far as satisfying Fifth and Fourteenth Amendment constitutional rights is concerned with what it takes to satisfy the requirements of the juvenile code, where these requirements have been ignored, as I contend was done here. To borrow the thought from the language of the Supreme Court in Dunaway, to admit Rone’s confession would allow the police to violate the juvenile code with impunity, “safe in the knowledge that they could wash their hands in the ‘procedural safeguards’ of the Fifth” [Amendment]. Id. at 219, 99 S.Ct. at 2260.
The case of In re K. W. B., 500 S.W.2d 275 (Mo.App.1973) presents a markedly similar set of facts and issues to the case at bar. There, as here, the juvenile was arrested for armed robbery, taken directly to police headquarters, and subjected to custodial interrogation in the absence of a parent or friendly adult. The court of appeals held that, under the legislature’s framework in the juvenile code, “in the absence of an attorney, a confession of a child shall not be used against him in a juvenile court proceeding unless both he and his parent, guardian or adult friend were informed of the juvenile’s rights to an attorney and to remain silent.” 500 S.W.2d at 283.
Likewise, in State v. White, 494 S.W.2d 687 (Mo.App.1973), a video taped statement *590taken by the police from a 15 year old child was held inadmissible. The questioning was done by an experienced police officer, without the knowledge or presence of either the juvenile’s mother, attorney or any other supportive adult. The court declared that even under “the totality of circumstance” rule, “. . . where a lawyer or his mother or friend could have given the defendant the protection which his own immaturity could not, we hold that without some adult protection against this inequality, even when advised he cannot make the kind of judgment to intelligently, knowingly, and understandingly waive his constitutional rights.”
In re K. W. B. and White are proper applications of the juvenile code, wholly consistent with our recognition of the incapacity of juveniles under the code in Wade and Arbeiter.
The principal opinion misinterprets the case of State v. Sinderson, 455 S.W.2d 486 (Mo.1970), as holding that the “totality of circumstances” is the sole standard for determining admissibility of a juvenile’s confession, when, in fact, the “totality of circumstances” discussion in Sinderson cited at 455 S.W.2d 493-94 goes to defendant’s constitutional claims under the Fifth, Sixth and Fourteenth Amendments. This came after the court had determined that there had been no violations of the juvenile code, 455 S.W.2d 491-93. Sinderson does not remove the safeguards afforded by the legislature to Missouri juveniles under the juvenile code. In Sinderson, the child was taken to the authorities by his mother and uncle and was questioned with his mother and uncle present, a situation far different from the present case. The child, his mother, and his uncle were read his rights and asked if they had any questions. The child and his mother indicated that they understood his rights and did not want an attorney. The child then signed a form listing and waiving his rights to remain silent, to consult an attorney, to have an attorney appointed for him, to have a lawyer present at the questioning, and to stop answering questions at any time. His mother and uncle signed the waiver form as witnesses. After questioning, the child’s statement was reduced to writing and the statement was corrected by the child, his mother and uncle. The child signed the corrected statement, which his mother signed as a witness. The Sinderson case only proceeds to evaluate the voluntariness of the confession under the “totality of circumstances” standard after establishing that the juvenile code provisions were followed. His mother had notice of and participated in the questioning of the child. The questioning in Sinder-son was not done in the early morning hours with no relative or supporting friend present. With the juvenile code’s statutory requirements having been followed, the court could then reach the issue of admissibility of the confession under the federal constitutional standards.
The Sinderson case did not hold that a juvenile’s confession is to be judged only under the “totality of circumstances” and without reference to the juvenile code. Sinderson does not require nor imply that we overlook the violations of the juvenile code and judge the child’s confession under the “totality of circumstances.” The Sin-derson decision is inapplicable to this case.
In Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), which the principal opinion cites for the “totality” approach, the question before the court was whether the juvenile’s asking to have his probation officer present during police questioning was equivalent, with respect to involving the Miranda rule, to a request for the assistance of an attorney. The California Supreme Court ruled that it was and excluded the subsequent confession. The United States Supreme Court held it was not and reversed the California court. The case does not deal in any way with what is required by a particular juvenile code before the police can interrogate. The quotation at 442 U.S. 725, 99 S.Ct. 2572, set forth in the principal opinion herein relates to what is required to determine whether there has been a waiver by the juvenile of his Fifth Amendment rights. There is nothing in the opinion which holds or intimates that such a waiver also operates to *591override specific requirements made by a particular juvenile code. That question was not before the court and would have been a matter of state, not federal, jurisprudence in any event.
State v. Higgins, 592 S.W.2d 151 (Mo. banc 1979), also cited by the principal opinion, while discussing the basis for “volun-tariness” of a confession, does not involve a juvenile confession or the requirements of the juvenile code in any way.
In State v. Wright, 515 S.W.2d 421 (Mo. banc 1974), also relied on by the principal opinion, the court addressed the question of whether defendant’s confession should have been excluded on the basis that its use other than in juvenile court proceedings was prohibited under § 211.271(3), as amended in 1969. The court held that the statute did not establish an absolute prohibition against use of every statement obtained from the juvenile while subject to juvenile court jurisdiction, that the confession was not made to the juvenile officer within the contemplation of the statute, that it was instead made to the police in the presence of the juvenile officer after the juvenile had been warned as to his rights, and was admissible. The decision does not hold that the totality of the circumstances test or voluntariness test makes a juvenile confession admissible regardless of whether the juvenile code has been observed. On the contrary, it recognized that had the confession been made to the juvenile officer it would not have been admissible. Id. at 429-30.
Our opinions have, without articulating it in so many words, developed a two-step process for determining the admissibility of confessions obtained by the police from juveniles: First, did the police or the juvenile authorities respect the rights of the juvenile under the juvenile code? Second, if they did, then were the juvenile’s constitutional rights observed? If the answer to the first question is in the negative the second is not reached.4 But the principal opinion deals with the second question without answering the first. In so doing, the opinion strips away the safeguards provided by the legislature to supplement the minimum federal constitutional protections. The opinion overlooks “the need for protection and special treatment foreseen and mandated by the General Assembly” which we noted and applied in Wade. 531 S.W.2d at 729. It requires no more protection for a juvenile than that afforded an adult. It ignores the legislative determination that juveniles are to be treated differently than adults. Whether we agree or not, the legislature has required that suspected juveniles be treated differently than adults accused of crime.
The admission of the juvenile’s incriminating statements made while in police custody and without his parents having been promptly notified would be reversible error under the provisions of the juvenile code and the rationale of the Dunaway, Wade, Arbeiter, Tolliver, In re K. W. B., and White decisions.
For these reasons, I would reverse and remand for a new trial.
One other matter must be mentioned: there is a difference of opinion between the principal opinion and this dissent as to whether, on the basis of the record before us, there was a violation of section 211.131.2 in failing to notify Rone’s parents as soon as possible that their son was in custody. As earlier stated, in my view there is persuasive evidence they were not. The principal opinion does not contradict this. The strongest claim it advances is that “whether section 211.131.2 was or was not followed is unclear from the record before us .
*592If the evidence on this critical point is at best unclear, then we should not decide the point until the record is clear one way or the other. Passing on points under an admittedly unclear record is a denial of fundamental due process and puts the court in the position of willingness to make a decision on an inadequate record. If the cause is not reversed and remanded for a new trial, then I would urge that we remand the cause to the trial court for a hearing, after due notice to the parties and with opportunity to present evidence, with the burden of proof being on the state to show compliance with the statute, with instructions to the trial court to make specific findings as to whether or not notice was given to Rone’s parents that their son was in custody, and if so, when. The trial court should then certify to us the transcript of the hearing together with its findings and conclusions. If the statute is found to have been violated, then we can consider the case accordingly. If not violated, then the matter drops out of the case. A procedure of this sort is one we have used on numerous occasions. See State v. Bridges, 491 S.W.2d 543 (Mo.1973); State v. Ussery, 452 S.W.2d 146 (Mo.1970); State v. Taggert, 443 S.W.2d 168 (Mo.1969); State v. Edwards, 435 S.W.2d 1 (Mo.1968); State v. Auger, 434 S.W.2d 1 (Mo.1968); State v. Devoe, 430 S.W.2d 164 (Mo.1968); State v. Glenn, 429 S.W.2d 225 (Mo. banc 1968); see also State v. Sales, 558 S.W.2d 302 (Mo.App.1977).
Another alternative would be to decide only the first question before us — the claim that the juvenile court improperly relinquished jurisdiction — and dismiss the second claim — the claim that the confession was taken without his parents having been notified as soon as possible that he was in custody — without prejudice to the right of defendant to file a Rule 27.26 proceeding on that issue. That would permit a factual hearing on whether the parents were notified as soon as possible and if not whether Rone was prejudiced thereby and, if so, whether the failure of his lawyer to raise the point constituted ineffective assistance of counsel. By doing this we would not be in the position of deciding the case against defendant without knowing what the facts are.
. The writer is unable to find where further questioning on this point was prevented by defendant’s objections. As shown by the excerpt of testimony in footnote 6 of the principal opinion, despite defendant’s objections the court permitted the officer to testify about turning over the coat to Rone’s parents and the state asked no further questions on the subject.
. Rone’s father denied that he had picked up any jacket. An effort by the defense to show that the same was true of the mother was cut off by the state’s objection.
. The statement or confession under examination, therefore, involves no question of a confession or incriminating statement made at the scene of the crime or within a few minutes of arrest, before there is any opportunity to notify the parents.
. Other state courts have developed a similar handling of the problem, holding that failure of the state to show compliance with the safeguards established by the juvenile code makes the confession inadmissible without reaching the constitutional question of admissibility. See: In Interest of D. S., 263 N.W.2d 114 (N.D.1978); People v. Maes, 571 P.2d 305 (Colo.1977); State v. Doe, 91 N.M. 92, 570 P.2d 923 (Ct.App.1977); J. T. P. v. State, 544 P.2d 1270 (Okl.Cr.App.1975); State v. Strickland, 532 S.W.2d 912 (Tenn.1975); Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975); In re F. G., 511 S.W.2d 370 (Tex.Civ.App.1974); In re D., 30 A.D.2d 183, 290 N.Y.S.2d 935 (1968).