(dissenting).
I join with Justice Wollman fully in his dissent and for a more compelling reason I would reverse.
Quite properly, as was done by this court in Application of Crawford, 1965, 81 S.D. 331, 135 N.W.2d 140, the majority opinion has volunteered to deal with the propriety of the district county court’s assumption of jurisdiction when the circuit court had previously adjudicated the custody of the children and retained continuing and exclusive jurisdiction■ under SDCL 25-4-45 (emphasis supplied). Application of Crawford, 81 S.D. at p. 335, 135 N.W.2d 140; 24 Am.Jur.2d, Divorce and Separation, § 776. Unlike the statement found in Application of Crawford, supra, to the effect that the proposed resolution of the issue of conflict of jurisdiction between district county and circuit court would only be “advisory” the majority opinion does not so label its action.
Whether the majority opinion, in its treatment of the jurisdictional question, constitutes an advisory opinion or mere dicta, I would not retreat from the sound reasoning announced in the opinion, special concurrence and dissent found in Application of Crawford, supra. There the entire court at least agreed that another circuit court, under a habeas corpus proceeding, could not interfere with that continuing jurisdiction:
*296“* * * As a general proposition when two or more courts in a state have concurrent jurisdiction, the court first assuming jurisdiction retains it to the exclusion of all other courts in which the action might have been initiated. To hold otherwise would tend to encourage an unseemly conflict between courts of concurrent jurisdiction.” 81 S.D. at p. 335 (See also pp. 336, 337, 338), 135 N.W.2d at p. 142.
The legislature recognized the plain import of that language and in response to Application of Crawford,. supra, enacted the second paragraph of SDCL 26-7-11 in 1968 making it clear that it felt it was necessary to allow the juvenile court some jurisdiction notwithstanding the continuing jurisdiction of the circuit court when the child becomes a ward of the state. This act was consistent with prior pronouncement of this court:
“By nature and under the common law and by virtue of statutory provisions, * * * a parent has a preferred legal right to custody of his or her own children. But under the common law and modern statutes as well, * * * the state through the courts has a right under proper circumstances to terminate the parental right and deprive the parent of custody.” (citations omitted) Blow v. Lottman, 1953, 75 S.D. 127, 59 N.W.2d 825.
The legislature has thus far permitted juvenile court termination of parental rights only after an adjudication under SDCL 26-8-36.2 There is no compelling need for this court to further *297legislate when we generally consider that a court has only such jurisdiction as is granted by the constitution or necessarily implied from that grant, Newton v. Erickson, 1950, 73 S.D. 228, 41 N.W.2d 545, or, as previously provided by Art. V, § 20 of the pre-1972 provisions of our constitution, (now Art. V, § 5) “such other civil and criminal jurisdiction as may be conferred by law”, is granted by statute.
Clearly under SDCL §§ 25-4-45, 26-7-1 and 26-8-36, as they now stand and as- heretofore construed by this court, the trial court had no jurisdiction under the facts of this case as the circuit court had not terminated the parental rights of the father in the divorce decree so as to render his consent unnecessary under SDCL 25-6-4(4). SDCL 25-6-4(2) is not applicable to this situation.
The North Dakota Supreme Court, construing statutes of the same origin as our own, has adopted this position and has clearly stated the underlying policy justifying the rule.3 On the jurisdictional issue, I would reverse.
. SDCL 26-7-1.
“The district county court shall have original jurisdiction in all proceedings coming within the terms of this chapter and chapter 26-8. Nothing contained in this chapter and chapter 26-8 shall deprive the circuit court of its jurisdiction.
“Where a custody award has been made in a circuit court in a divorce action or other proceeding and the jurisdiction of the circuit court in the case is continuing, the juvenile court may nevertheless acquire jurisdiction in a case involving the same child, if he is dependent or neglected or otherwise comes within the jurisdiction set forth in this section.” (emphasis supplied)
. The last paragraph of SDCL 26-8-36 reads:
“When a child has been adjudicated neglected because he has been willfully abandoned by his parent or parents, the court may enter *297a decree terminating parental rights in the child, if it finds that the parent or parents having legal custody have surrendered physical custody for a period of at least six months -and during this period have not manifested to the child or the person having -physical custody a firm intention to resume physical custody or to make arrangements for the care of the «Rila ”
. “We have repeatedly held that the district court in which the divorce decree was obtained has continuing jurisdiction insofar as the rights of the children are concerned * * *, and that such award of the custody, care, and education of the children of the parties may be modified at any time by a proper showing of changed conditions * * *.
“Thus, -if conditions change (as, for example, the person having custody of children under a decree becomes an unfit parent), a divorce decree may be amended to award custody to the parent that originally lost custody or was deprived of custody in the initial divorce decree.
“To change or curtail rights of visitation as given under a divorce decree is one thing, but to terminate permanently all parental rights, as is the result of the issuance of an adoption decree, is quite another.
“As previously pointed out, the court in which the divorce decree was issued has continuing jurisdiction over questions of custody and also visitation rights. If the appellants feel the visitation rights should be changed or modified in the best interests of the children, they have the right to seek the modification of the visitation rights in the jurisdiction wherein the divorce decree was issued.” Bond v. Carlson, 1971, N.D., 188 N.W.2d 728.