In re Gossett

• Decision Date: 20 February 2019
• Docket Number: No. 49525-2-II,49525-2-II
• Citation: 435 P.3d 314,7 Wash.App.2d 610
• Parties: In the MATTER OF the Personal Restraint of: Mark J. GOSSETT, Petitioner.
• Court: Washington Court of Appeals

7 Wash.App.2d 610

435 P.3d 314

In the MATTER OF the Personal Restraint of: Mark J. GOSSETT, Petitioner.

No. 49525-2-II

Court of Appeals of Washington, Division 2.

Filed February 20, 2019

Skylar Texas Brett, Law Office of Skylar Brett, PLLC, PO Box 18084, Seattle, WA, 98118-0084, for Petitioner.

Aaron Michael Williams, Office of the Attorney General, Corrections Division, 1125 Washington Street Se, Olympia, WA, 98504-4010, for Respondent.

PUBLISHED OPINION

Bjorgen, J.P.T.^* ¶1 A jury convicted Mark Jonathan Gossett of second degree rape of a child and second degree child molestation. Initially, the superior court's judgment and sentence prohibited Gossett from having contact with any minor, including his own children. Two months later, though, the superior court entered an agreed order amending and clarifying the judgment and sentence to allow Gossett supervised visitation with his children in the normal course of the visitation process followed by the Department of Corrections (DOC).

¶2 Gossett's wife subsequently submitted visitation applications to DOC on behalf of their children. DOC denied the minor children's applications, among other reasons, because the individual or class of individuals has or have been victimized by the offender. Gossett filed an administrative appeal, but DOC upheld the denial of visitation privileges between Gossett and minors, including his minor aged children.

¶3 In this personal restraint petition (PRP), Gossett asks us to review DOC's denial of his request for visitation with his minor children. The parties present the following issues on appeal: (1) whether Gossett has a protected liberty interest in visitation with his children under the United States Constitution or the Washington Constitution, (2) whether RAP 16.4(c)(6) precludes us from reviewing Gossett's PRP because DOC argues its policies are not "laws of the State of Washington," (3) whether the superior court's order amending and clarifying Gossett's judgment and sentence did not bind DOC as a matter of law, because the superior court did not have personal jurisdiction over DOC, (4) whether DOC policies addressing visitation and prohibited contact violated a protected liberty interest in Gossett to visit his children, (5) whether DOC's prohibition on visitation between Gossett and his children was arbitrary and capricious, (6) whether Gossett's argument regarding the freedom of speech and the freedom of association warrants consideration, and (7) whether Gossett's claims about visitation with his adult children are moot and, even if not moot, whether dismissal of these claims would be appropriate pursuant to RAP 16.4(d).

¶4 Holding against Gossett on the controlling issues, we deny his PRP.

FACTS

A. Gossett's Judgment and Sentence

¶5 A jury convicted Gossett of two counts of second degree rape of a child under RCW 9A.44.076 and two counts of second degree child molestation under RCW 9A.44.086. On June 10, 2010, the superior court sentenced him to a 245-month term of total confinement in the custody of DOC. The judgment and sentence specified that Gossett shall have no contact with his child, A.R.G.,¹ for life, not reside within a community protection zone, and participate in certified sexual deviancy treatment. The judgment and sentence incorporated by reference all conditions contained in its Appendix H. In addition, it specified that Gossett "shall have no contact with any minor, including his own adopted or biological children." Clerk's Papers (CP) at 7 (emphasis omitted).

¶6 Gossett's wife applied for visitation for their children, but DOC denied visitation because of the restrictions specified on Gossett's judgment and sentence. Gossett then requested an amendment and clarification of his judgment and sentence to allow visitation with his children. The superior court granted his request and, on August 4, 2010, entered an order amending and clarifying his judgment and sentence with the following provisions:

MARK GOSSETT is allowed to have visitation with his children, as supervised by the [DOC], during normal visitation in accordance with the rules and regulations of the [DOC]; that the Court having reviewed the files and records contained herein and being otherwise fully advised in the premises, now, therefore, it is hereby

ORDERED that the Judgment and Sentence entered by the above entitled Court on June 10, 2010 be and the same hereby is modified and clarified to allow for the Defendant to have visitation with his children at any [DOC] facility in which the Defendant is housed;

That the children will not have visitation alone with the Defendant and such visitation shall be supervised by [DOC]'s personnel in the normal course of the visitation process followed by the [DOC]'s facility the Defendant is in;

That the normal supervision of visitation by two or more correctional officers in an open room where numerous other inmates may be exercising visitation privileges, is sufficient supervision for the Defendant to have visitation with his children.

CP at 25-26.

¶7 At the present time, four of Gossett's five children are legally adults. Gossett has one minor son, C., who was not the victim.²

B. DOC Policies and Directives³

1. DOC Policy 450.300⁴

¶8 Former DOC Policy 450.300⁵ governs visits for prison offenders. It outlines three policies as follows:

I. The Department will support offenders in maintaining ties with family, friends, and the community by allowing and setting reasonable criteria for personal visits.

II. The Department recognizes the need to engage community stakeholders, partners, and offender families in the re-entry initiative.

III. For the purposes of this policy, immediate family will be defined as spouse/state registered domestic partner, parent, stepparent, sibling, stepbrother, stepsister, half brother, half sister, child stepchild, grandparent, grandchild, and as documented in the offender's central file, person(s) acting in place of a parent and/or foster children.

Suppl. Br. of Resp't, Att. A, Policy, at 2.

¶9 Former DOC directive 450.300(VII)(A)(1)-(4) specifies that the following individuals may not visit prison offenders:

1. Minor aged victims of the offender, unless they have written approval from the Children's Administration and/or sentencing court, the Superintendent, and the Deputy Director/designee.

....3. Persons restricted per the Judgment and Sentence. While supervised visits may be allowed per the Judgment and Sentence, supervision by facility visiting staff does not constitute supervised visitation.

4. Persons prohibited from visiting per DOC 450.050 Prohibited Contact, who will be informed of denial/termination of visiting privileges on DOC 21-760 Prohibited Contact Notice.

Suppl. Br. of Resp't, Att. A, Policy, at 8.

2. DOC Policy 450.050

¶10 Former DOC Policy 450.050 governs prohibited contact. It provides that "[c]onsistent with legitimate penological objectives and public safety, the Department will restrict incarcerated offender contact in any form (i.e., visits, correspondence, telephone) with specific individuals or classes of individuals." Suppl. Br. of Resp't, Att. E, Policy, at 2.

¶11 More specifically, former directive 450.050(I)(A)(1), provides:

An offender's contact with specific individuals or classes of individuals will be restricted or prohibited when:

His/her Judgment and Sentence prohibits contact with the individual or class of individuals during incarceration or upon release.

Suppl. Br. of Resp't, Att. E, Policy, at 2. In addition, former directive 450.050(I)(B)(4) provides:

An offender's contact with specific individuals or classes of individuals may be denied or restricted for reasons including, but not limited to:

.... The individual or class of individuals has been victimized by the offender.

Supp. Br. of Resp't, Att. E, Policy, at 2.

¶12 Former directive 450.050(I)(C) provides:

An offender may be prohibited from contact with his/her own children only if the offender's Judgment and Sentence and/or a No Contact Order prohibits such contact, or if necessary to protect the children from any specific and documented threat of harm. Documentation includes, but is not limited to:

1. The written opinions of mental health professionals or Child Protective Services, and

2. Specific verified incidents of harm to the children resulting from contact with the offender while s/he was incarcerated in a Department facility.

Suppl. Br. of Resp't, Att. E, Policy, at 3.

C. DOC's Denial of Gossett's Visitation with His Minor Children

¶13 The superintendent at Stafford Creek Correctional Center received an e-mail from Linda Gossett, Gossett's wife, concerning the denial of visitation between Gossett and his minor children. The matter was referred for review to the Facility Risk Management Team (FRMT) assigned to Gossett.

¶14 The FRMT recommended that Gossett be prohibited contact with his "adopted/biological children." Suppl. Br. of Resp't, App. 2, Decl. of Rohrer, at 5. The FRMT stated that allowing contact would be counter to sound correctional practices or legitimate penological objectives. The FRMT commented that

[p]er the Presentence Report, Offender Gossett blames the victim (which is also one of his children) and that he is not amenable to treatment. He has a 245 month to LIFE CCB [Community Custody Board] sentence. His first CCB hearing will not [be] heard until 9/8/27.

Suppl. Br. of Resp't, Att. D, Decl. of Rohrer, at 5. In another comment FRMT noted, "His Judgment and Sentence has been amended to allow supervised visits, however supervision by the facility visiting staff does not constitute as supervised visitation." Id .

¶15 Rohrer upheld the FRMT's recommendation and prohibited contact between Gossett and minors, including his minor aged children. Rohrer stated that the

[v]ictim of Offender Gossett's current conviction is the minor aged adopted daughter of the offender. Previous criminal history also shows that offender Gossett was original[ly] charged with an Assault 3rd of a child which was later pled

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