Absent some indication from our supreme court to the contrary, we decline to read either of these terms into the Rule. [¶27] Contrary to Mother's assertions, Abellv.ClarkCnty.Dep'tofPub.Welfare, 407 N.E.2d 1209 (Ind.Ct.App. 1980), and In re Marriage of Myers, 387 N.E.2d 1360 (1979), do not support her proposition that the evidence was closed after Father failed to file an opposing affidavit. Those cases simply held that, as a court of review, we must accept the allegations contained in an unopposed Rule 59(H)(1) affidavit as true when reviewing the propriety of the denial or grant of a Rule 59(H)(1) motion.
Yet Thomas fails to point to any evidence from the record indicating that the Plaintiffs should have known, or upon due diligence would have discovered, that the Grabowskis' connections to Lake County extended beyond their home address, where the Plaintiffs served a summons to no avail, or that publication of the summons in Lake County was likely to uncover their unnamed heirs or successors in interest. In support of his position, Thomas relies upon multiple cases, among them Munster, 829 N.E.2d at 61 (finding named defendant's due process rights violated where service regarding action against him was made via Secretary of State to known invalid address and record was devoid of information regarding attempts to locate his whereabouts); Smith v. Tisdal, 484 N.E.2d 42, 44 (Ind.Ct.App. 1985) (finding mere service by publication in Indiana and accompanying failure to serve Mother at her last known Alaska address violated Mother's due process rights in adoption case); Abell v. Clark County Dep't of Pub. Welfare, 407 N.E.2d 1209-11 (Ind.Ct.App. 1980) (reversing default judgment terminating Mother's parental rights, when service of process was by publication only, and undisputed facts indicated that Mother's address was known), and Milosavljevic v. Brooks, 55 F.R.D. 543, 550 (N.D.Ind. 1972) (endorsing service by publication in last-known county of residence of known defendant where record suggested defendant was attempting to conceal her location). Yet in each of these cases the analysis at issue involves the reasonableness of efforts to apprise known parties of an action against them. Here, Thomas was an unnamed, unknown defendant; the Grabowskis were deceased with no known executor or personal representative; and the in rem action at issue sought to quiet title to a piece of real property located in LaPorte County.
A proceeding to terminate parental rights is basically an in rem proceeding and is governed by the Indiana Rules of Procedure. Abell v. Clark County Dept. of Pub. Welfare, 407 N.E.2d 1209, 1210 (Ind.Ct.App. 1980). Trial Rule 4.9 allows service of summons to be made by publication pursuant to Trial Rule 4.13.
Ind. Code § 31-35-2-6.5 provides that the entity who files a petition to terminate the parent/child relationship shall, at least five days before the hearing, send notice of the hearing to the parents of the child. Moreover, this court has stated that a proceeding to terminate parental rights is basically an in rem proceeding and, as such, is governed by Ind. Trial Rule 4.9. Abell v. Clark County Dept. of Public Welfare, 407 N.E.2d 1209, 1210 (Ind.Ct.App. 1980). T.R. 4.9 allows service of summons to be made by publication pursuant to Ind. Trial Rule 4.13.
However, here, Harold did not appear at the January hearing. Because Harold failed to appear, the trial court did not inform him of his statutory rights and could have entered judgment against him. See Abell v. Clark Co. Dept. of Public Welfare, 407 N.E.2d 1209 (Ind.Ct.App. 1980). Therefore, the trial court did not err in failing to appoint counsel for Harold before DFC presented its case in chief.
Again, in following Kline, a trial court may properly ignore those parts of the affidavit that are not admissible when ruling on a motion to correct error. Laudig additionally asserts that, pursuant to Abell v. Clark County Department of Public Welfare (1980), Ind. App., 407 N.E.2d 1209, the court must accept the "facts" averred to in Mason's affidavits as true because the Board did not file opposing affidavits. We disagree with Laudig's contention that Abell applies to this issue.
(Citations omitted.)Abell v. Clark Cty. Dept. of Public Welfare (1980), Ind. App., 407 N.E.2d 1209, 1210. An ex parte declaration that the parents were able to pay is improper. In the Matter of the Honorable Jeffery v. Boles, Respondent, Judge of the Hendricks Circuit Court (1990), Ind., 555 N.E.2d 1284, 1287.
This relationship is so special and important that it alone of all familial connections has a special procedure whereby affected parties must be accorded certain proceedings before rights thereto can be terminated. See Ind. Code 31-6-5-1 et seq. ("Termination of the Parent-Child Relationship"). These termination of rights proceedings are best described as in rem proceedings, see Abell v. Clark County Department of Public Welfare, (1980) Ind. App., 407 N.E.2d 1209, with only parties with the most superior of interests — the parents — entitled to notice. Ind. Code 31-6-5-2 (as amended 1983 Ind. Acts, P.L. 16 § 19). No other relatives have such recognized interest in or rights to a child.
Mueller v. Mueller, (1972) 259 Ind. 366, 287 N.E.2d 886. What is reasonable under the circumstances should be determined on a case-by-case basis. Abell v. Clark City Department of Public Welfare, (1980) Ind. App., 407 N.E.2d 1209. Due process is perhaps one of the least frozen concepts of our law and must be applied so as to meet the demands of our ever changing society. Griffin v. Illinois, (1956) 351 U.S. 12, 20-21, 76 S.Ct. 585, 591, 100 L.Ed. 891. (Frankfurter, J., concurring).