Minor waived right to be present at adjudication and sentencing hearings in truancy: COM. V. B.J., A CHILD UNDER 18 (SC 12/20/2007)

FAMILY LAW:  Habitual truancy and minor’s waiver of right to be present

DATE RENDERED: 12/20/2007

Child was adjudicated a habitual truant by TC. CA vacated the order and remanded the matter, determining that TC had violated Child’s constitutional rights by conducting both the adjudication and sentencing hearings in his absence. Discretionary review sought and granted. SC reversed CA opinion and reinstated TC’s order.

At an initial appearance on JCPS’ Petition against Child for habitual truancy, Child appeared and entered a plea of not guilty. However, neither Child nor his custodial parent appeared at the subsequent adjudication hearing. Child’s attorney explained to the court that Child’s mother had informed her that he simply refused to attend the hearing. Child’s counsel objected to any further action in the proceeding. Relying on RCr 8 .28(1) and (4), counsel argued that the rule did not explicitly except juvenile proceedings from the requirement that the defendant be present at trial. TC overruled the objection and proceeded with the adjudication hearing, concluding that Child had notice of the hearing and that the criminal rules did not apply to a status offense proceeding. TC then heard testimony and ultimately adjudicated Child a habitual truant, ordering him to attend school. A disposition hearing was held approximately two months later. Again, Child was not present, though his mother and counsel appeared. Child’s attorney renewed her objection to any further action in the case in Child’s absence. That motion was again overruled, and Child was then probated to the Cabinet for Health and Family Services. Child sought review by CA, which vacated and remanded TC’s adjudication and disposition orders.

On appeal to SC, Child argued that his due process rights were violated when TC conducted his adjudication and disposition hearings in his absence and that TC’s action was in violation of RCr 8.28. SC noted that both the Kentucky and U.S. Constitutions and RCr 8.28 provide that a criminal defendant has the right to be present at every critical stage of the proceedings against him, but the defendant’s presence at every stage of the proceedings is not required. Further, SC has recognized that a defendant may validly waive his right to be present at the proceedings against him. Thus, there was no violation of RCr 8.28.

Regarding Child’s claim of due process violation, SC noted that, as status offenses can result in severe consequences to a child, due process must be afforded to the child, and “fundamental fairness” is the applicable due process standard in juvenile proceedings. In order to determine whether it was fundamentally unfair to conduct Child’s adjudication and disposition hearings in his absence, SC considered whether a juvenile may validly waive his right to attend the hearings. SC noted that the U.S. Supreme Court has recognized a juvenile’s capacity to waive other important constitutional protections and rights and that CA has recognized the capacity of a juvenile to waive his or her right to be present at a critical stage of the proceedings. In light of the other constitutional rights that a juvenile may waive, SC found that a juvenile should be permitted to waive his right to be present at a critical stage of the proceedings, and that where a juvenile makes such a waiver knowingly, voluntarily and intelligently, the basic requirements of due process and fairness required of juvenile proceedings are satisfied. Here, though the Commonwealth had the burden of proving that Child’s absence from trial was intentional, knowing, and voluntary, TC was permitted to infer that Child’s absence met this standard as it was shown that Child had knowledge of the trial date and failed to appear. CA opinion reversed and TC’s order hereby reinstated.

DISSENTING OPINION BY JUSTICE MINTON: 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 a defendant’s mere lack of attendance should not inevitably constitute a waiver of the defendant’s right to be present for the proceeding. Furthermore, waiver was never properly established in this case as there was no information presented to TC showing that Child was aware of the proceedings and was physically and mentally able to attend the proceedings, yet, chose to stay away. 

Michelle Eisenmenger Mapes
Diana L. Skaggs + Associates

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