A Portsmouth judge was publicly reprimanded by the Supreme Court of Ohio today for independently investigating a juvenile court matter, failing to recuse himself from the case, and failing to perform the duties of judicial office fairly and impartially.
On Jan. 12, 2017, D.M., a father of five children, was arrested on a charge of corrupting a juvenile with drugs and held in the Scioto County Jail. At the time, D.M. had legal custody of his three oldest children. A grandfather also lived with them. Another relative had custody of the two youngest children. The children’s mother was incarcerated.
Childrens Services Agency Says Children Should Remain at Home
When D.M. was arrested, a caseworker for Scioto County Children
Services Board (SCCSB) visited the home where D.M. lived and, as an
alternative to removing the children from the home, made an in-home
safety plan for the children.
The following day, a school resource officer contacted a staff member of Scioto County Probate and Juvenile Court Judge Richard Lemons. The resource officer expressed concern for the well-being of the children. The member of the judge’s staff and a probation officer went to the home. The staff member reported the water was turned off, the toilet was overflowing with human waste, the floor was littered with dog feces, the refrigerator was not working, and the children had no beds. He reported his concerns to the judge and SCCSB, which sent a caseworker to the home. SCCSB did not remove the children from the home.
Judge Visits Children’s Home
The next day, Judge Lemons, accompanied by law enforcement
officers, conducted his own investigation of D.M.’s residence. In
addition to confirming what his staff member saw, the judge observed
the grandfather had a wall heater with an open flame within a few feet
of his oxygen tanks and a child was using the oven to warm himself,
among other concerning conditions.
Judge Lemons returned to his chambers and issued an entry, “[u]pon the court’s own motion” and without a case number, finding that two of the children in D.M.’s home were in imminent danger and ordering SCCSB to place the children in its temporary custody and to investigate the matter. Court staff notified SCCSB of the emergency order but did not notify D.M. or the children’s mother, whose notification is required by statute.
Within the week, SCCSB filed a new complaint alleging all five of D.M.’s children were dependent because their parents were incarcerated, and no other relatives could care for them. SCCSB’s filing said the relative who had legal custody of the two youngest could no longer care for them. The agency asked for an ex parte order giving it custody of the children until the cases were resolved.
Judge Fails to Disclose Actions
Judge Lemons granted the order and presided over the probable cause hearing , where no evidence
was presented about the conditions of the home. Both parents, though
incarcerated, appeared for the hearing. Judge Lemons mentioned the
conditions of the home but did not inform the parents he had been
there.
Judge Lemons continued to preside over the hearings involving custody of the children in 2017 and 2019 and never informed the parties or their counsel he had personally visited their home, triggering the entire custody action.
During his disciplinary hearing, Judge Lemons said he investigated because he did not trust SCCSB’s judgment. He was upset with SCCSB for refusing to remove the children and wanted to “force [SCCSB] to do their job.” He explained that as the opioid epidemic worsened in Scioto County, he felt the agency was not investigating or filing enough cases and its inaction had the court flooded with calls from grandparents, schools, and hospitals asking the court to act. Judge Lemons said his frustration got the better of him.
Judge Violated Conduct Rules
The Board of Professional Conduct found Judge Lemons violated
three rules of the Code of Judicial Conduct, including prohibiting a
judge from independently investigating facts in a matter, rather than
considering only the evidence presented, and requiring a judge to
disqualify himself from any proceeding in which his impartiality might
be reasonably questioned. And the board found Judge Lemons usurped
SCCSB’s legal authority by disregarding its decision and conducting his
own investigation, violating the rule against failing to apply the law
and perform his duties fairly and impartially. The board concluded that
no matter how well intentioned the judge was, he “could not be both
the source of a private referral based on his knowledge and an
impartial arbiter of the issues as a judge.”
The board found Judge Lemons engaged in multiple disciplinary offenses, which was an aggravating factor. However, Judge Lemons had a clean disciplinary record, lacked a dishonest or selfish motive, and cooperated with the board’s investigation, which were all mitigating factors.
In a 7-0 decision, the Supreme Court concluded that the judge’s good intentions do not excuse him from complying with the Code of Judicial Conduct.
Chief Justice Maureen O’Connor, in a concurring opinion, wrote that she agreed with the public reprimand, which will remain a part of the judge’s disciplinary record. She wished to “go a step further and observe that his actions ultimately benefited D.M.’s children by removing them from a dangerous environment devoid of capable caregivers that left the children at risk of a tragedy occurring at any minute.” And the chief justice emphasized that, standing alone, Judge Lemons’s disciplinary record will not inform the public that Judge Lemons was not acting in self-interest but in the best interests of D.M.’s children.
The chief justice noted that the judge felt compelled to act only when others neglected their duty to the children, which was the responsibility of the children services board.
The SCCSB has since disbanded, and there is a new children’s services agency in Scioto County. Judge Lemons agreed to recuse himself from any remaining dependency cases involving D.M.’s children.
The Court ordered Judge Lemons to pay the costs of the disciplinary proceedings.
2022-0713.Disciplinary Counsel v. Lemons, Slip Opinion No. 2022-Ohio-3625.
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Judge Disciplined for Conducting Investigation
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