[Cite as In re Jane Doe, 2023-Ohio-614.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

IN RE JANE DOE :

: No. 111822

A Minor Child :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: March 2, 2023 

Civil Appeal from the Cuyahoga County Court of Common Pleas

Juvenile Division

Case No. FA22100458

Appearances:

Kubyn & Ghaster and R. Russell Kubyn, for appellant.

MARY EILEEN KILBANE, J.:

Appellant Brad Francis (“Francis”) appeals from the juvenile court’s 

journal entry dismissing his complaint for allocation of parental rights and 

responsibilities. For the following reasons, we reverse.

Factual and Procedural History

The entirety of the facts contained in our record are as follows. 

Francis is a resident of the U.S. Virgin Islands and M.D. is a resident of Cuyahoga 

County. Francis’s complaint alleged that while M.D. was visiting the U.S. Virgin 

Islands at an unspecified date, M.D. and Francis engaged in sexual relations. 
Francis further alleged that subsequently, M.D. informed Francis via cellphone 

communication that she was pregnant with his child. Francis communicated to 

M.D. that he wanted to be involved in the child’s life. Francis further alleged that 

around Thanksgiving 2021, M.D. gave birth to a female child and sent a photo of the 

child to Francis, along with a message that the child would be put up for adoption. 

The record does not contain a birth certificate or any other documentation related 

to the child, nor does it contain any reference to the child’s date or place of birth. 

Francis attached to his complaint photos of messages purportedly exchanged 

between himself and M.D. 

On January 12, 2022, Francis filed a complaint for allocation of 

parental rights and responsibilities against M.D., along with a motion for temporary 

allocation of parental rights and responsibilities. Francis filed the complaint and 

motion for temporary allocation of parental rights and responsibilities in order to 

“see his child” and also to “thwart any potential adoption.”

On March 9, 2022, the juvenile court held a hearing on Francis’s 

complaint and motion. Francis, Francis’s counsel, and M.D. were present for this 

hearing. In a journal entry following this hearing, the court stated:

The Court finds that there is no clear evidence of parentage for Jane 

Doe, such that following the discussion with the parties, leave is 

granted to the complainant to conduct further investigation.
The court held a hearing on July 6, 2022. Francis and his counsel were present for 

the hearing; M.D. did not appear at the hearing. In a journal entry following this 

hearing, the court stated:

Whereupon, this matter came on for Preliminary hearing. The Court 

finds that no alleged child of the complainant and the respondent was 

found.

The Court finds and concludes that [Francis] has failed to state a claim 

upon which relief may be granted.

It is therefore ordered that the Complaint and motion filed by [Francis] 

through counsel are dismissed without prejudice.

Francis appeals, presenting a single assignment of error for our 

review:

Based upon a de novo review, the trial court erred to the prejudice of 

the appellant and abused its discretion by sua sponte dismissing the 

appellant’s complaint for allocation of parental rights and 

responsibilities and motion for temporary allocation of parental rights 

and responsibilities for failure to state a claim upon which relief may 

be granted.

Law and Analysis

The Ohio Supreme Court “has stated that ‘[t]he Rules of Civil 

Procedure neither expressly permit nor forbid courts to sua sponte dismiss 

complaints.’” Carlson v. Baker & Hostetler, L.L.P., 8th Dist. Cuyahoga No. 98722, 

2013-Ohio-273, ¶ 11, quoting State ex rel. Edwards v. Toledo City School Dist. Bd. 

Of Edn., 72 Ohio St.3d 106, 647 N.E.2d 799 (1995). Generally, a court may dismiss 

a complaint on its own motion pursuant to Civ.R. 12(B)(6), failure to state a claim 

upon which relief may be granted, only after the parties are given notice of the 

court’s intention to dismiss and an opportunity to respond. Id. Some courts have 
recognized an exception to this general rule by allowing sua sponte dismissal 

without notice “where the complaint is frivolous or the claimant obviously cannot 

possibly prevail on the facts alleged in the complaint.” Id., citing Sheridan v. Metro.

Life Ins. Co., 182 Ohio App.3d 107, 2009-Ohio-1808, 911 N.E.2d 950 (10th Dist.).

We review rulings on Civ.R. 12(B)(6) dismissals under a de novo 

standard. Woods v. Sharkin, 2022-Ohio-1949, 192 N.E.3d 1174, ¶ 28 (8th Dist.), 

citing Hersh v. Grumer, 2021-Ohio-2582, 176 N.E.3d 1135, ¶ 5 (8th Dist.). In order 

for a court to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim 

upon which relief may be granted, it must appear beyond doubt that the plaintiff can 

prove no set of facts in support of his or her claim that would entitle the plaintiff to 

relief. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 493, 2006-Ohio-2625, 

849 N.E.2d 268. Further, reviewing courts accept as true all material allegations of 

the complaint and make all reasonable inferences in favor of the plaintiff. Carlson

at ¶ 12, citing Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 

N.E.2d 1061. A sua sponte dismissal without notice or an opportunity to respond is 

fundamentally unfair to litigants. Moore v. Houses on the Move, Inc., 177 Ohio 

App.3d 585, 2008-Ohio-3552, 895 N.E.2d 579, ¶ 13 (8th Dist.), citing Mayrides v. 

Franklin Cty. Prosecutor’s Office, 71 Ohio App.3d 381, 384, 594 N.E.2d 48 (10th 

Dist.1991). A sua sponte dismissal “places the court in the role of a proponent rather 

than an independent entity” and further, sua sponte dismissals “prejudice 
appellants as they deny any opportunity to respond to the alleged insufficiencies.” 

Id., citing Mayrides.

As an initial matter, we note that the record in this case is limited 

primarily to Francis’s complaint and motion and the aforementioned journal 

entries. Our review of the record reveals neither an indication that the court 

provided Francis with notice of its intent to dismiss the complaint pursuant to Civ.R. 

12(B)(6) and an opportunity to respond, nor any rationale for its sua sponte 

dismissal, let alone a finding that the complaint was frivolous or Francis obviously 

could not prevail on the facts alleged in the complaint. 

Ultimately, appellate review is frustrated when a trial court offers no 

explanation or reasoning for a sua sponte dismissal. Moore at ¶ 13. Had the trial 

court given Francis an opportunity to respond to its intent to sua sponte dismiss his 

complaint, the record would be more developed so as to facilitate meaningful 

appellate review. Reviewing the scant record in this case, it does not appear beyond 

doubt, after construing the material factual allegations in Francis’s complaint most 

strongly in his favor, that his complaint is either frivolous or obviously without 

merit. Therefore, we conclude that the trial court erred in sua sponte dismissing 
Francis’s complaint without notifying the parties of its intent to dismiss the 

complaint and providing Francis an opportunity to respond.

Therefore, we sustain Francis’s assignment of error.

Judgment reversed and case remanded for proceedings consistent 

with this opinion.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court, juvenile division, to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

ANITA LASTER MAYS, A.J., and

FRANK DANIEL CELEBREZZE, III, J., CONCUR