I concur in result.
The facts are fairly stated in Justice Birns’ comprehensive opinion.
In my view the evidence is sufficient for a finding that the children involved in both cases are “permanently neglected” by reason of their parents’ failure to plan for the children’s future (Social Services Law, § 384-b, subd 4, par [d]; § 384-b, subd 7, par [a]; Matter of Orlando F., 40 NY2d 103; Matter of Ikem B., 73 AD2d 359). In the absence of such proof of permanent neglect I would vote to reverse and remand because I do not agree that there was clear and convincing proof that the parent or parents “are presently and for the foreseeable future unable, by reason of mental illness * * * to provide proper and adequate care” (Social Services Law, § 384-b, subd 4, par [c]). Accordingly, I find it unnecessary to reach the constitutional issue as to section 384-b (subd 4, par [c]) of the Social Services Law.
The evidence in both cases is largely indistinguishable from the evidence found to be insufficient in Matter of Hime Y. (52 NY2d 242). As in Matter of Hime Y., there can be no doubt as to the sufficiency of the evidence to support a finding of present inability of the parents, by reason of mental illness, to care for their children. However, with respect to the prospect “for the foreseeable future”, the evidence is insufficient. As noted in Matter of Hime Y., the language of the statute is not specific with respect to the scope of the requisite psychiatric testimony. Obviously, to the extent that the expert’s testimony relates only to the present existence of mental illness it stands on a firmer footing. However, even in this respect we cannot be unmindful of disputes among psychiatrists and in the psychiatric literature concerning the appropriateness of diagnosing schizophrenia in particular cases. Moreover, the difficulty with the statute and with the testimony here, as in Matter *242of Hime Y., is in the extent to which the psychiatric testimony addresses the consequences of the mental illness, i.e., the inability at the time of the hearing and for the foreseeable future to provide adequate care for the child.
As stated in Matter of Hime Y. (52 NY2d, at p 248): “It may be argued that whether the mental illness is such as to render the mother unable presently and for the foreseeable future to care for her child is a proper subject for expert testimony. In any event an expression of opinion with respect thereto by the court-appointed, examining psychiatrist would augment the evidence on which the court ultimately must reach its conclusion whether the issuance of an order pursuant to section 384-b is warranted.” In my view the testimony in both cases is as equivocal as it was in Matter of Hime Y. This deficiency is particularly true with respect to the psychiatric testimony as to Samuel L., the father of Nereida S. and Cecelia L. Although it is patent that his history, particularly with respect to the death of his infant child Gloria, noted in footnote 2 of Justice Birns’ opinion, demonstrates the dangers militating against restoring custody to him, that is not now the issue before us. As to him there was a dispute among the psychiatrists as to whether in the foreseeable future he would be able to provide adequate supervision and guidance to the children. Both with respect to him and with respect to Manuela M., the mother of Sylvia M. and Alicia M., the majority rests on a dubious evidentiary foundation, part of which inheres in the very nature of psychiatric testimony involving predictions, as noted in Matter of Hime Y.
I am not unmindful of the fact that Judge Fogarty found, with respect to Manuela M., that she would be unable to provide adequate supervision and guidance to the children in the foreseeable future. But as I read his opinion, this conclusion appears to rest upon the finding that she was unable presently to provide proper and adequate care because she is mentally ill and will be for the foreseeable future (Matter of Sylvia M., 104 Misc 2d 357, 361). It appears that he so concluded because he felt such result was mandated by the statute which he proceeded to find unconstitutional upon this very ground. As noted in Judge Fogarty’s opinion (p 358), the statute may be read or applied as equating inability “to *243provide proper and adequate care” with the mere existence of the mental illness found to be present at the time of the hearing, thus visiting the consequences of loss of parental rights upon a parent suffering from a mental illness merely by reason of status. To the extent that the' statute may be so read or applied, I concur with Judge Fogarty that it is unconstitutional.
Justice Birns’ careful and thoughtful opinion makes a strong case for the majority that the statute need not be so read and in these cases was not so applied. Although the facts in these cases are strong, I cannot subscribe to that conclusion.
The problem of dealing with and assessing psychiatric testimony under the statute is demonstrated in Matter of Daniel A. D. (49 NY2d 788, 790) where the Court of Appeals, noting that the constitutionality of the statute was not there challenged, remanded the case on the ground that the conflict in psychiatric testimony rendered it improper to conclude that the parent there involved was “ ‘presently and for the foreseeable future unable to provide proper and adequate care’ ” for the child there involved, “ ‘by reason of mental illness’ ”.
In my view, we need not and should not reach the constitutional issue on the familiar principle that if a case can be decided without reaching the constitutional issue, the court should do so. On this basis I prefer to rest my concurrence on what I find to be the clear conclusion from the evidence that these children are “permanently neglected” by reason of their parents’ failure to plan for the children’s future.
I am not unaware of the fact that with respect to Samuel L. there is a difficulty in finding a failure to plan because of the several years he has been hospitalized (Social Services Law, § 384-b, subd 7, par [d], els [ii], [iii]). However, I believe there was sufficient time, exclusive of hospitalization, to support a finding of failure to plan. Moreover, as noted in Matter of Hime Y. (supra) the statutory definition of a permanently neglected child does not refer to “mental illness” of the parent. The statutory qualifications are that the parent be “physically and financially” able to plan. This *244does not encompass mental condition or status.
As stated in Matter of Hime Y. (52 NY2d, at p 251): “ [M] ental illness does not, ipso facto, establish physical disability exonerating a parent from the obligation to plan for her child.”
It is equally true that mental illness should not ipso facto require a conclusion that the parents are presently and for the foreseeable future unable to provide proper and adequate care for the child. The statute so read or applied amounts to a no-fault and automatic termination of parental rights by reason of status. In my view such a statute is unconstitutional.
We balance here our obligation to apply the least restrictive alternative with respect to interfering with the rights of parents who suffer from a mental illness with our obligation to insure that our determination gives proper consideration to the “best interests of the child”, which is his or her right (Matter of Bennett v Jeffreys, 40 NY2d 543).
In this light I believe a finding of permanent neglect is warranted.
Murphy, P. J., Sandler and Bloom, JJ., concur with BlRNS, J.; Fein, J., concurs in an opinion.
Orders, Family Court of the State of New York, New York County, entered on May 15, 1980, unanimously modified, on the law, to the extent of reversing that part of the orders which found certain sections of the Social Services Law unconstitutional and substituting therefore a finding that those sections are constitutional, and the orders are otherwise affirmed, without costs and without disbursements. The parental rights of Manuela M. are terminated.
Orders,. Family Court of the State of New York, Bronx County, entered on November 15, 1979, unanimously modified, on the law and the facts, to the extent of reversing that part of the orders which found there was insufficient proof of respondent’s mental illness and substituting therefore a finding that there is clear and convincing proof of mental illness and terminating parental rights, and the orders are otherwise affirmed, without costs and without disbursements.