Dissenting Opinion by
Justice MOSELEY.I must respectfully dissent.
A parent’s right to “the companionship, care, custody, and management” of his children is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The United States Supreme Court has emphasized that “the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 580 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Likewise, the Texas Supreme Court has concluded that “[t]his natural parental right” is “essential,” “a basic civil right of man,” and “far more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985).
As a consequence of the gravity of this parental right, termination proceedings must be strictly scrutinized, and “involuntary termination statutes are strictly construed in favor of the parent.” Id. Because termination “is complete, final, irrevocable and divests for all time that natural right ... the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent’s rights.” Id. (citing Santosky, 455 U.S. at 747, 102 S.Ct. 1388; Richardson v. Green, 677 S.W.2d 497, 500 (Tex.1984) (superseded by statute on other grounds)). This standard of clear and convincing evidence to support termination is also required by statute. Tex. Fam.Code Ann. § 161.001 (Vernon Supp.2006). Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 264 (Tex.2002). The clear and convincing standard is intentionally placed on the party seeking termination because of the severity and permanence of the termination of the parent-child relationship. Harris v. Herbers, 838 S.W.2d 938, 941 (Tex.App.-Houston [1st Dist.] 1992, no writ) (only the heightened standard of review for the clear and convincing standard set forth in Harris was overruled by In re J.N.R., 982 S.W.2d 137, 142 (Tex.App.-Houston [1st Dist.] 1998, no writ)).
This Court has pointed out previously in In re R.M., that there are two considerations to take into account in the involuntary termination of the parent-child relationship: “A court may order involuntary termination only if the court finds that: (1) a parent has committed a predicate act or omission harmful to the child, and (2) termination is in the best interest of the child.” In re R.M., 180 S.W.3d 874, 877 (Tex.App.-Texarkana 2005, no pet.) (quoting Tex. Fam.Code Ann. § 161.001; In re B.L.D., 113 S.W.3d 340, 353-54 (Tex.2003)).
Best Interest of the Child
There is a strong presumption that the best interest of a child is usually served by keeping custody with the natural parents. McGowen v. State of Texas, 558 S.W.2d 561 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref d n.r.e.). However, once evidence is produced to support a finding of *371the nonexistence of that presumed fact, the case will proceed as if no presumption exists. McGuire v. Brown, 580 S.W.2d 425 (Tex.Civ.App.-Austin 1979, writ refd n.r.e.). I concur that the trial court’s finding that the best interest of N.S.G. would dictate that the termination occur, opening the door to an adoption by Patricia and Jerry Arnold, the applicants for the termination of William’s parental rights.
However, the finding of the child’s best interest only meets one of the two requirements which must be met in order to terminate the parent-child relationship; there must also be some bad action on the part of the parent as well to precipitate the termination.
While the Texas Family Code (Section 161.001) enumerates some twenty different actions or courses of conduct a parent might take which would generate bases for termination of his relationship with a child, it is silent in defining what should be considered by a court in determining the best interest of a child in that relationship.10 Therefore, one would assume that there is more discretion vested in the fact-finder in determining the best interest of the child than in determining whether the parent had committed a predicate act which justifies the termination.
Failure to Provide Adequate Support
In this case, the trial court set out four different grounds for the termination of William’s parent-child relationship with N.S.G. The first two grounds listed in the judgment of termination are those set out in Sections 161.001(1)(B) and (C). Those two grounds for termination share the common requirement that the parent has not seen to the provision of “adequate support for the child” while having “voluntarily left the child alone or in the possession of another” for a period of time.
In order to have met the burden of proof, it was necessary for the Arnolds to prove by clear and convincing evidence that William had not provided adequate support for N.S.G. A requisite of that proof that William had committed the act of leaving N.S.G. with another person “without providing for the adequate support of the child,” the Arnolds were also required to show that William possessed the ability to provide that support. See Brokenleg v. Butts, 559 S.W.2d 853, 856 (Tex.CivApp.-El Paso 1977, writ refd n.r.e.); see also In re E.M.E., 234 S.W.3d 71 (Tex.App.-El Paso 2007, no writ); In re Z.W.C., 856 S.W.2d 281, 283 (Tex.App.-Fort Worth 1993, no writ).11
*372The uncontradieted testimony of William was that for the six weeks immediately after he had left the child with the Arnolds (his sister and her husband), he was earning inadequately to provide support for N.S.G. and, from that time forward until the time of trial, he had been incarcerated with no source of funds with which to pay. There was no evidence adduced at the trial that William had the ability to provide adequate support for the child at any point since she was bom; contrarily, there was uncontradicted evidence that he had no such ability at any time since he left N.S.G. in the care of the Arnolds to provide support for her.
In an action for contempt of court for a failure to pay court-ordered child support, a nonpaying parent can interpose the inability to pay as an affirmative defense to a contempt action. See Tex FamlCode Ann. §§ 157.006, 157.008(c) (Vernon 2002). However, this is not an enforcement action but, rather, it is a termination action, governed by an entirely different part of the Code, Section 161.001, which (1) is devoid of any language regarding affirmative defenses, (2) includes as an element of termination the failure to pay in accordance with ability, and (3) demands that each finding required for termination of the pareni>child relationship be based on clear and convincing evidence. In re D.S.P., 210 S.W.3d 776, 781 (Tex.App.-Corpus Christi 2006, no pet.). The proponents of the termination failed in their proof of this vital element of those grounds to support their cause of action under either of the two “failure to support” bases.
Endangerment of the Child by Conditions or Surroundings
The third ground for termination which the trial court found is that which is set out in Section 161.001(1)(D) of the Texas Family Code (“knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child”). As with the evidence that William had no means to provide adequate support for the child, the evidence is likewise un-controverted that the Arnolds provide an idyllic home for N.S.G. When William and Isis went “on the lam” to avoid arrest for burglary, they left N.S.G. in excellent surroundings under the care and custody of people who apparently have continued to constantly provide her with physical and psychological sustenance, ideal for her care and upbringing. There is simply no evidence that the conditions or surroundings in which they placed N.S.G. endangers either her physical or emotional well-being; contrarily, the evidence is that her well-being is and has been quite good. Therefore, there is no evidence upon which a fact-finder could reasonably have formed a firm conviction or belief that William endangered N.S.G.’s physical or emotional well-being.
Knowingly Engaged in Conduct or Knowingly Placed the Child With Persons Who Engage in Conduct Which Endangers the Child
Finally, we reach the fourth ground for termination as found by the trial court and the sole ground upon which a judgment of termination could possibly vest, that being the ground set out in Section 161.001(1)(E) of the Texas Family Code (“engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child”).
It is true that the evidence shows that William committed a burglary, engaged in the taking of illicit drugs, took unlawful flight to avoid prosecution, and “roughed up” Isis after the birth of N.S.G. It is for these reasons that William found himself being ejected from the Arnold home, leaving N.S.G. with the Arnolds while he and *373Isis went to Tennessee, and was finally incarcerated.
There is no need to reiterate that the surroundings in which William left N.S.G. were favorable to the child. There is no evidence that he knowingly placed the child with persons who engaged in conduct which endangered her. Therefore, we must look at the conduct of William himself.
The proponents of termination of William’s parental rights did not allege the grounds for termination set out in Section 161.001(1)(Q) (“knowingly engaged in criminal conduct that has resulted in the parent’s: (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition”), nor did the trial court find that ground as the basis for the termination. Because that ground was not mentioned in either the pleadings or in the trial court’s finding as a basis for termination of William’s parental rights, we cannot consider it. Ruiz v. Tex. Dep’t of Family & Protective Servs., 212 S.W.3d 804, 812 (Tex.App.Houston [1st Dist.] 2006, no pet.).
It is true that imprisonment is a factor to consider along with the other evidence. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 581, 584 (Tex.1987). However, “the supreme court did not say that endangerment may be inferred from any and all criminal conduct just because that conduct results in imprisonment.” In re D.T., 34 S.W.3d 625, 635 (Tex.App.-Fort Worth 2000, pet. denied).
William only had a few weeks of freedom between the time of N.S.G.’s birth and the commencement of his incarceration, which has lasted through the day of trial. One could speculate, given William’s lengthy criminal history, that the only reason he did not eventually follow a course of conduct which would ultimately cause him to knowingly engage in conduct which would endanger N.S.G. has been the fact that his incarceration has prevented him from it. However, we cannot engage in speculation (particularly when the burden to be met is that of “clear and convincing” evidence) and must deal with the facts before us; therefore, we must look solely to the approximate six-week period between the time of the birth of N.S.G. and the commencement of William’s incarceration.
It would seem that a finding that the conduct of William during the short period of time after the birth of N.S.G., which resulted in his incarceration, is simply too thin a thread to sustain this finding under the clear and convincing standard imposed by the statute. None of his crimes were so heinous so as to shock the conscience nor of such an extended period of time as to show a pattern of behavior which endangers the child. Such a finding seems tantamount to a finding that William’s incarceration is per se evidence of the endangerment of the child.12 As stated above, that is prohibited; this termination sets a lower standard than we should require.
Finally, even though there was evidence at trial of certain crimes and conduct on the part of William, no one ventured testimony that this conduct had the effect of endangering the child; one must infer that. When the burden of proof has been raised by statute and caselaw to the “clear and convincing” standard, I consider it an act of legal limbo to bend backward far *374enough to go under the bar and say that the burden has been met.
I would reverse the judgment of the trial court.
. Among the factors which the Texas Supreme Court has suggested that a court can consider in a termination suit in determining the best interest of the child are those set out in Section 263.307 of the Texas Family Code, which deals with actions other than termination. See Tex. Fam.Code Ann. § 263.307 (Vernon 2002); In re R.R., 209 S.W.3d 112, 116 (Tex.2006).
. CAVEAT: It should be noted that each of these cited cases involve, at least in part, findings under Section 161.001(1)(F) of the Texas Family Code, a subsection which provides a ground for termination when the parent has "failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition.” (Emphasis added.) Subsections (B) and (C) of Section 161.001(1) of the Texas Family Code (which are under discussion here) make no mention of the ability of the parent to provide support; it could, therefore, be said that the cited cases can be distinguished from the circumstance at hand because of the inclusion of the requirement of the ability to provide support in one subsection while it is silent as to the existence of that ability in the others. It does not seem rational or just, however, to place a burden on parents to pay money or provide support which those parents — due simply to poverty— do not have the ability to pay or provide lest they lose their children through termination.
. "[A] rose by any other name would smell as sweet.” William Shakespeare, Romeo and Juliet act 2, sc. 2.