dissenting:
I dissent to syllabus point 2 of the majority opinion which, in effect, overrules not only State v. R. H., supra, and State v. C. J. S., supra, but an entire line of decisions which heretofore guaranteed fundamental constitutional protections for juveniles. The majority is apparently of the belief that the West Virginia and United States Constitutions do not apply to persons who are unfortunate enough to be less than eighteen years of age and accused of one of the crimes enumerated in W.Va.Code § 49-5-10(d)(l) [1978]. It occurs to me that all juveniles, regardless of the crime of which they are accused, are entitled to due process, and I therefore cannot agree with the majority’s position.
In Kent v. United States, 383 U.S. 451, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the United States Supreme Court held that due process requires that a juvenile be afforded a meaningful transfer hearing before the court can waive juvenile jurisdiction. We adopted and applied the holding of Kent in State v. McCardle, 156 W.Va. 409, 194 S.E.2d 174 (1973), where we stated:
Certainly, juveniles should not be immune from appropriate disciplinary action when they violate the law, but juvenile proceedings, ostensibly under the philosophy of parens patriae, do not permit procedural arbitrariness. Under the guise of parental protection the state has, on occasion, denied the juvenile the constitutional guarantees afforded to an adult. This has taken the form of the denial of counsel and, as in this case, the denial of proper notice and a meaningful hearing, none of which should be permitted. It was held in Kent, supra, and we agree, that the waiver of juvenile jurisdiction is subject to review by an appellant court and if that court finds that the waiver was inappropriate the conviction must be vacated.
156 W.Va. at 414-415, 914 S.E.2d at 178.
We next addressed the requirements of due process in the context of a juvenile transfer proceeding in State ex rel. Smith v. Scott, 160 W.Va. 730, 238 S.E.2d 223 (1977). In Smith we recognized that the transfer hearing is a critical stage in the proceeding against a juvenile, and held that “before a court can waive its juvenile jurisdiction it must under due process: (1) afford adequate notice to the juvenile of the hearing; (2) appoint counsel in case of indi-gency; (3) conduct a meaningful hearing; and (4) issue a statement of the reasons for relinquishing juvenile jurisdiction.” 160 W.Va. at 732-733, 238 S.E.2d at 225.
Furthermore, in Smith we also took note of the factors to be considered by a judge in reaching a determination on the issue of whether the court should relinquish its juvenile jurisdiction in favor of adult criminal jurisdiction,1 and expressed the view that *204while the Legislature may statutorily require juvenile courts to consider certain factors in deciding to grant a motion for transfer, such statutory requirements do not preclude consideration of other criteria.
In State v. R. H., 166 W.Va. 280, 273 S.E.2d 578 (1980), we addressed the constitutionality of W.Va.Code § 49-5-10 [1978], and held that the statute does not violate the due process provisions of the state and federal constitutions because the juvenile court must under the terms of the statute vindicate the standards set forth by the United States Supreme Court in Kent and adopted by this Court in Smith. This holding was based upon the language of W.Va. Code § 49-5-10(d) which permits transfer of the proceedings to the criminal jurisdiction of the circuit court only after the juvenile court has considered “the child’s mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors .... ”
More recently, in In Re E. H., 166 W.Va. 615, 276 S.E.2d 557 (1981), we indicated that “it is quite possible that juvenile status is in the nature of a statutory entitlement much the same as civil service standing was considered to be a property interest in Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977), and therefore, would require certain procedural due process protection before the right could be forfeited.” 166 W.Va. at 622, 276 S.E.2d at 563 (footnote omitted). Moreover, we indicated that under State v. McCardle, supra, and W.Va.Code § 49-5-10, substantial due process rights must be accorded a juvenile at a transfer hearing, including:
(1) an advance written notice of the grounds relied upon for transfer; (2) an opportunity to be heard in person and to present witnesses and evidence; (3) the right to confront and cross-examine adverse witnesses; (4) a neutral hearing officer; (5) the right to have counsel present including court-appointed counsel if indigent; (6) a record of the evidence of the hearing; (7) findings of fact and conclusions of law upon which the transfer decision is based; and (8) a right of direct appeal to this Court.
166 W.Va. at 623-624, 276 S.E.2d at 563.
These cases, as well as many others2, demonstrate the traditional concern this Court has shown toward the due process interests of a juvenile confronted with a criminal accusation. With little discussion, and no explanation of the constitutional basis for its decision, the majority has now abandoned these concerns for fundamental fairness. I am convinced the interpretation given W.Va.Code § 49-5-10 by the majority renders the statute unconstitutional under the standards of Kent v. United States, supra, and State ex rel. Smith v. Scott, supra. Under the majority’s holding, a meaningful transfer hearing is no longer required once probable cause is *205found to believe the juvenile has committed one of the enumerated crimes. Apparently, the circuit court need not even make its own inquiry into probable cause, but may simply rely on the juvenile referee’s finding, and automatically transfer the juvenile to its criminal jurisdiction. Thus under the majority opinion, a juvenile who is charged with one of the offenses enumerated in W.Va.Code § 49-5-10 has no due process rights at the transfer hearing regardless of the holdings in Kent and Smith.
I do not believe the Legislature intended by the enactment of the 1978 amendment to W.Va.Code § 49-5-10 to deprive juveniles of the fundamental guaranty of due process contained in the United States and West Virginia Constitutions. Indeed, the Legislature is powerless to do so by statutory enactment. I therefore dissent from syllabus point 2 of the majority opinion.
I am authorized to state that Justice HARSHBARGER joins me in this dissenting opinion.
. These factors, which were appended to Kent by the United States Supreme Court, are:
1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
*2042. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney).
5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime in the U. S. District Court for the District of Columbia.
6. The sophistication and maturity of the Juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.
. See, e.g., State ex rel. D. D. H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980); State v. C. J. S., 164 W.Va. 473, 263 S.E.2d 899 (1980); State v. D. W. C, 163 W.Va. 494, 256 S.E.2d 894 (1979); State v. M. M., 163 W.Va. 235, 256 S.E.2d 549 (1979); State ex rel. E. D. v. Aldredge, 162 W.Va. 20, 245 S.E.2d 849 (1978); State ex rel. Harris v. Calendine, 160 W.Va. 172, 233 S.E.2d 318 (1977).