                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        February 20, 2019




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
    In the Matter of the Personal Restraint of:                      No. 49525-2-II

                   MARK J. GOSSETT,                             PUBLISHED OPINION

                                  Petitioner.


          BJORGEN, J.P.T.* — 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).

          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.




*
 Judge Bjorgen is serving as a judge pro tempore for the Court of Appeals, pursuant to RCW
2.06.150.

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No. 49525-2-II


         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).

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

                                               FACTS

A.       Gossett’s Judgment and Sentence

         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


1
    See General Orders of Division II, 2011-1 In Re The Use Of Initials Or Pseudonyms For Child
Witnesses In Sex Crime Cases.
                                                  3
No. 49525-2-II


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).

         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.

         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



2
    The victim is now an adult.

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No. 49525-2-II


B.       DOC Policies and Directives3

         1. DOC Policy 450.3004

         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.

         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.

3
  Both parties cite the policies in place in 2010 when DOC initially denied visitation between
Gossett and his minor children. The policies at issue have been revised since 2010, but because
the parties argued from the former versions and the subsequent amendments do not affect the
resolution of the due process challenge, our analysis focuses mainly on the former versions.
4
  We refer to policies 450.300 and 450.050 as a whole as “policies.” We refer to specific
requirements they contain as “directives.”

5   Revised February 1, 2010.

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No. 49525-2-II



       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

       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.

       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.

       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.

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No. 49525-2-II


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

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

        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.

        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.

        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
        down to an Assault 4th DV [(Domestic Violence)]. PSI [(Presentence
        Investigation)] notes that the victim of this crime was Gossett’s 10 year old foster
        son.

        Offender has displayed a history of victimizing both sexually and physically minor
        aged children, both male and female. Original J/S [Judgment and Sentence] noted
        Defendant shall have no contact with any minor, including his own adopted or
        biological children. J/S modified months later to read that the offender may have
        contact with his children as supervised by the DOC personnel in the normal course
                                                   7
No. 49525-2-II


       of the visitation process followed by the DOC facility that the offender is located
       in and that the normal supervision of visitation by two or more C/O [(Corrections
       Officers)] in an open room is sufficient. However, DOC Policy 450.300 VII. Who
       May Not Visit: A. 3. Persons rest[ricted] per the Judgment and Se[n]tence. While
       supervised visits may be allowed per the J/S, supervision by facility visiting staff
       does not constitute supervised visitation.

Suppl. Br. of Resp’t, Att. D, Decl. of Rohrer, at 2.

       On October 26, 2011, Gossett appealed Rohrer’s decision prohibiting contact to the

assistant secretary of prisons. In this appeal, DOC staff recommended continuing the prohibition

of contact and stated in part:

       The case has been vetted with the SOTP [Sex Offender Treatment Program]
       Manager, Sally Neiland. She says: “I have reviewed the attachments as well as the
       J&S [Judgment and Sentence], Prohibitive Contact and PSI [Presentence
       Investigation]. This is a complicated case. I have a long list of concerns which
       include two items in the J&S. To date, Mr. Gossett has not fulfilled 1) Obtain a sex
       offender evaluation. . . . 12) Do not enter into a relationship with any person who
       has minors in their care or custody without approval of your assigned CCO
       [Community Corrections Officer] or SOTP (this includes his wife). This alone
       backs up the current Prohibitive Contact.[”]

       Of concern is that Mr. Gossett[’s] . . . file material I have had access to indicates
       that he continues to deny his sexual offending and refer to the victim as a “liar and
       a bad Christian.” In addition, even though his ERD [estimated release date] is very
       far out, he has not acknowledged his behavior nor has he made attempt to apply for
       SOTP.

       In addition to that Mr. Gossett not only has 2 ROC [rape of a child] 2 convictions
       and 2 Child Moles 2 convictions as well as a DV [domestic violence] 4 conviction.
       In addition file material indicates that his wife “beat the victim with a belt and
       spoon.” I do not believe that DOC visitation staff should hold the responsibility for
       supervision of these minor children given the circumstances, and the attention they
       must pay to a full visiting room. The liability for the children, the visiting staff and
       the DOC seems to outweigh the visit request.

       A suggestion would be to allow for written correspondence to be reviewed both
       outgoing and incoming so he can maintain safe and observable contact with the
       children.




                                                  8
No. 49525-2-II


Suppl. Br. of Resp’t, App. 2, Regular Visiting Appeal Tracking Sheet, at 11. The deputy director

concurred with Rohrer’s decision to prohibit contact between Gossett and minors, including his

minor aged children.

       On October 28, DOC sent a letter to Gossett informing him of its decision to continue the

prohibited contact between him and his children. Dan Pacholke, the director of the Prisons

Division, explained in the letter:

       Thank you for your letter requesting visiting privileges being authorized for your
       children.

       In your letter, you point out that there was a modification to the original Judgment
       and Sentence that allows you to participate in visiting with your children. The
       modification does not mandate visitation. Due to your conviction history and
       nature of the crime, I am upholding the denial of visiting privileges with your
       children. If you choose to submit to a sexual deviancy evaluation and participate
       in Sex Offender Treatment Program during your incarceration, this issue may be
       reconsidered. Unless this provision is met, all of your appeal opportunities have
       been exhausted.

Suppl. Br. of Resp’t, App. 2, Pacholke Letter.

       Gossett then filed this PRP.

                                             ANALYSIS

                                     DOC POLICIES AND DIRECTIVES

A.     Standard of Review and Legal Principles

       For Gossett to prevail in his PRP alleging constitutional error, he must first show that he

is under restraint and the restraint is unlawful under the provisions of RAP 16.4(c). In re Pers.

Restraint of Dyer, 143 Wn.2d 384, 391, 20 P.3d 907 (2001).

              A petitioner is under a “restraint” if the petitioner has limited freedom
       because of a court decision in a civil or criminal proceeding, the petitioner is
       confined, the petitioner is subject to imminent confinement, or the petitioner is
       under some other disability resulting from a judgment or sentence in a criminal
       case.

RAP 16.4(b). Gossett has been confined through incarceration. Therefore, he is under restraint.
                                                 9
No. 49525-2-II


Kozol v. Dep’t of Corr., 185 Wn.2d 405, 409, 379 P.3d 72 (2016), as corrected (Aug. 1, 2016);

see Dyer, 143 Wn.2d at 391.

       In his petition, Gossett claims that DOC violated his constitutional right to due process

when it prohibited him from visitation with his minor children. Generally, a petitioner seeking

collateral review of a claimed constitutional error must establish that the error resulted in actual

and substantial prejudice. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390

(2004). However, where a petitioner has not had the opportunity to seek direct judicial review of

a claimed error, we do not apply the usual heightened threshold requirements that ordinarily

applies to our review of a PRP. Id. at 299. Rather, the petitioner must show only that he or she

is under unlawful restraint under RAP 16.4(b) and RAP 16.4(c). Id.

       Because Gossett challenges “[t]he conditions or manner of the restraint,” he must show

that DOC’s denial of visitation with his minor children violates “the Constitution of the United

States or the Constitution or laws of the State of Washington.” RAP 16.4(c)(6); see also Dyer,

143 Wn.2d at 391-92. We review questions of law, including constitutional ones, de novo. State

v. Murray, 190 Wn.2d 727, 732, 416 P.3d 1225 (2018); State v. Morales, 173 Wn.2d 560, 567,

269 P.3d 263 (2012).

B.     RAP 16.4(c)(6) Does Not Preclude Review of Gossett’s PRP

       As a threshold matter, the State argues that the policies DOC relied on to prohibit Gossett

from visitation with his minor children are not “laws of the State of Washington” and, therefore,

we cannot grant Gossett his requested relief under RAP 16.4(c)(6).6 Br. of Resp’t at 19-21. We

disagree.




6The State also maintains DOC has not violated the federal or state constitution for the purposes
of RAP 16.4(c)(6), thus precluding Gossett’s PRP.

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No. 49525-2-II


        Even if the DOC policies at issue would not constitute the “laws of the State of

Washington” for the purposes of RAP 16.4(c)(6), Gossett also contends that he has a

constitutionally protected liberty interest in visitation with his children. Relief could be granted

under RAP 16.4(c)(6) on that basis. Thus, we reject DOC’s argument that we cannot grant

Gossett his requested relief generally under RAP 16.4(c)(6).

C.      The Due Process Clause Itself Does Not Create a Protected Liberty Interest in Visitation
        with Minor Children

        The State argues that the due process clause itself does not create a protected liberty

interest in prison visitation between Gossett and his children. We agree.

        Due process protects against the deprivation of life, liberty, or property without due

process of law. U.S. CONST. amend. XIV, § 1. “Protected liberty interests ‘may arise from two

sources-the Due Process Clause itself and the laws of the States.’” Dyer, 143 Wn.2d at 392

(quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506

(1989)). “The due process clause of the federal constitution does not, of its own force, create a

liberty interest . . . for it is well settled that an inmate does not have a liberty interest in the denial

of contact visits by a spouse, relatives, children, and friends.” Dyer, 143 Wn.2d at 392. “The

denial of a prisoner’s access to a particular visitor ‘is well within the terms of confinement

ordinarily contemplated by a prison sentence.’” Id. (quoting Thompson, 490 U.S. at 461).

        Neither party addressed whether Washington’s Constitution provides greater protection

than its federal counterpart. In Dyer, our Supreme Court stated, “Absent such an argument, ‘this

Court will interpret the Washington constitution coextensively with its parallel federal

counterpart.’” 143 Wn.2d at 394 (quoting State v. Lee, 135 Wn.2d 369, 387, 957 P.2d 741

(1998)). We thus presume a coextensive provision. See Dyer, 143 Wn.2d at 393-94.




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No. 49525-2-II


         For these reasons, we hold that the due process clause of the federal constitution itself

does not create a protected liberty interest in visitation between Gossett and his children. See

Dyer, 143 Wn.2d at 392. Because we presume a coextensive provision, we hold the due process

clause of the Washington Constitution, article I, section 3, also does not create a protected liberty

interest in visitation between Gossett and his children.

D.       The Superior Court’s Order Amending and Clarifying Gossett’s Judgment and Sentence
         is not Binding on DOC

         The State argues that DOC did not violate the superior court’s order because the superior

court did not have personal jurisdiction to order DOC to provide supervised visitation. We

agree.

         The State cites Department of Social & Health Services v. Zamora, 198 Wn. App. 44, 72-

73, 392 P.3d 1124, review denied, 189 Wn.2d 1004 (2017), which provides, in pertinent part, as

follows:

         Where, as here, the facts relevant to jurisdiction are undisputed, we review a trial
         court’s assertion of personal jurisdiction de novo. We review a challenge to the
         authority of the court de novo.

         A court does not have personal jurisdiction over a party if the individual or entity
         is not designated as a party and has not been made a party by service of process. If
         a court lacks personal jurisdiction over a party, any order entered against that party
         is void. Because the undisputed record establishes DOC was not designated as a
         party and was not made a party by service of process, the court did not have
         jurisdiction to impose conditions on DOC.

(Internal citations omitted.)

         In this case, the superior court’s order amending and clarifying judgment identifies the

parties that appeared and agreed to the clarification to impose supervised visitation duties on

DOC. Those parties were Gossett, appearing through his attorney, and the State, appearing

through the Thurston County prosecuting attorney. The order does not indicate that DOC was

represented at the hearing. Because the record does not show that DOC was designated a party
                                                  12
No. 49525-2-II


or made a party by service of process, we conclude that the superior court did not have personal

jurisdiction to impose conditions related to supervised visitation on DOC. See Zamora, 198 Wn.

App. at 73.

       Of course, directions to DOC to accept and hold a prisoner are an inherent part of any

sentence of imprisonment, and DOC need not for that reason be made a party for all such

sentencings. In this case, however, the sentencing had already occurred, Gossett had already

been remanded to the custody of DOC, and the order amending and clarifying his sentence

pertained to the routine management of one of its prisoners. This distinguishes this situation

from a typical sentencing after conviction.

       We hold that in this case the superior court lacked personal jurisdiction over DOC related

to the issue of supervised visitation while in a DOC facility. Therefore, the provisions in the

order entered against DOC relating to visitation are not binding on DOC as a matter of law. See

id.

E.     Assuming Without Deciding That DOC Policies Addressing Visitation and Prohibited
       Contact Create a Protected Liberty Interest in Gossett’s Requested Visitation, DOC Did
       Not Violate Them

       Gossett argues that DOC Policies 450.300 and 450.050 created a due process liberty

interest in visitation with his minor children. He argues that DOC’s prohibition on visitation

between Gossett and his children was arbitrary and capricious, violated these policies, and

therefore deprived him of his due process interest in liberty. Even assuming that these policies

created a liberty interest, which we do not decide, DOC did not violate them or act arbitrarily and

capriciously in applying them. Therefore, we disagree with Gossett’s arguments.




                                                13
No. 49525-2-II


       1. DOC’s Prohibition on Visitation Between Gossett and His Children
          Did Not Violate DOC Policies

       As set out above, former DOC directive 450.300(VII)(A)(1)-(4) lists categories of

individuals who may not visit prison offenders. One of those categories, subsection (A)(4),

states, “Persons prohibited from visiting per DOC 450.050 Prohibited Contact.” Reply Br. of

Resp’t, Att. A, at 8. Therefore, we focus our examination on DOC Policy 450.050.

       Former DOC Policy 450.050 sets out specific instances in which contact with an inmate

is prohibited. First, former directive 450.050(I)(B)(4) provided, “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. DOC reasoned that because Gossett

victimized his children, they belong to a class of individuals that have been victimized by

Gossett, so this directive provides it the authority to prohibit contact.

       The Department is correct. Gossett’s victim was one of his minor children and DOC’s

ban on visitation extends only to minors, including his remaining minor aged child. DOC’s

action was consistent with former directive 450.050(I)(B)(4).

       Next, former DOC directive 450.050(I)(C) provided:

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

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

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

Br. of Resp’t, Att. E, Policy, at 3 (emphasis added).



                                                  14
No. 49525-2-II


       Gossett points out that neither his judgment and sentence nor any no-contact order

prohibits his contact with his children. He argues that there is no documentation indicating he

poses a threat of harm to his children and that DOC cannot point to any written opinion of a

mental health professional or any “verified incident of harm to the children resulting from

contact with [Mr. Gossett] while [he] was incarcerated.” Suppl. Br. of Pet’r at 9-10. Therefore,

Gossett argues, DOC has pointed to neither form of documentation required and has violated its

own policies.

       Pointing to the language “includes, but is not limited to,” the State argues that “while

specific verified incidents of harm to the children resulting from contact with the offender while

s/he was incarcerated in a Department facility is sufficient documentation, it is not necessary

documentation.” Suppl. Br. of Resp’t at 27.

       Relevant to former directive 450.050(I)(C) is the declaration of Belinda Stewart, the

correction’s program administrator for DOC, who declares,

       While a documented history of harm to the children resulting from contact with the
       offender while she or he was incarcerated in a Department facility is one form of
       documentation that supports prohibited contact, it is not the only form of
       documentation that can be used for that purpose. In this case, Mr. Gossett’s
       documented pre-incarceration abuse of both male and female minors and the
       provisions of his Judgment and Sentence support the Department’s decision to
       prohibit contact between Mr. Gossett and “C” while “C” is still a minor.
       Prohibiting Mr. Gossett from visiting “C” until “C” becomes an adult is, therefore,
       both appropriate and consistent with Department policy.

Suppl. Br. of Resp’t, App. 3, Decl. of Belinda Stewart, at 27.

       The State also points us to the declaration of Rohrer, who declares,

               It is common in prison for inmates with convictions for child rape, child
       molestation, or domestic violence against children to be restricted from visiting
       minor children, including their own children. This is particularly true where, as
       here, the inmate has victimized his own adopted children. This is not done for
       arbitrary reasons but rather because of the legitimate fear on the part of Department
       staff and society at large that permitting such visitation risks further victimization
       of children. Any individual committing these offenses in Washington can expect
                                                15
No. 49525-2-II


       that he or she will likely be restricted from visiting minor children, including his
       own children, as an ordinary incident of prison life.

Supp. Br. of Resp’t, App. 2, Decl. of Rohrer, at 11. Rohrer’s view is affirmed by the declaration

of Stewart, who declares,

                Prohibiting inmates convicted of crimes against children from visiting with
       minor children—even their own children—is not at all unusual in Department
       facilities. It is, in fact, a typical part of the incarcerated experience of inmates
       convicted of such crimes.

Suppl. Br. of Resp’t, App. 3, Decl. of Belinda Stewart, at 8.

       We agree with DOC. Former directive 450.050(I)(C) does not require documentation of

specific verified incidents of harm to the children resulting from contact with the offender while

incarcerated. Instead, it requires that the prohibition of contact be “necessary to protect the

child(ren) from any specific and documented threat of harm.” Id. (emphasis added). Further,

inclusion of the phrase “but is not limited to” makes clear that the specified types of

documentation are not intended as exclusive. The record supports that Gossett was convicted of

sex crimes against his own minor child, failed to obtain deviancy treatment as required by the

judgment and sentence, continues to deny sexual offending, and refers to the victim as a “liar and

a bad Christian.” Suppl. Br. of Resp’t, App. 2, Decl. of Rohrer, at 9. This evidence provides a

sound basis for DOC’s prohibition of visitation with his minor child, consistently with former

DOC Policy 450.050(I)(C).

       For these reasons, we hold that DOC acted consistently with former policies 450.300 and

450.050.

       2. DOC’s Prohibition on Visitation Between Gossett and His Children Was Not
          Arbitrary and Capricious

       Both parties argue the arbitrary and capricious standard of review applies. In support,

DOC cites Dyer, 143 Wn.2d at 391, for the rule that the arbitrary and capricious standard applies

                                                 16
No. 49525-2-II


to all administrative decision-making in prison. Dyer, however, did not announce such a broad

rule. Instead, it held that “[c]ourts review prison disciplinary proceedings to determine ‘whether

the action taken was so arbitrary and capricious as to deny the petitioner a fundamentally fair

proceeding.’” 143 Wn.2d at 391 (emphasis added) (quoting In re Pers. Restraint of Reismiller,

101 Wn.2d 291, 294, 678 P.2d 323 (1984)). The Dyer court proceeded to review the denial of

visitation under the arbitrary and capricious standard, apparently deeming that action in Dyer’s

case to be disciplinary in nature. 143 Wn.2d at 391-92. Gossett’s case does not involve a prison

disciplinary proceeding. However, because each party proposes use of the arbitrary and

capricious standard and because we would reach the same result under either de novo, abuse of

discretion, or arbitrary and capricious review, we assume without deciding that the arbitrary and

capricious standard applies.

       Gossett argues that DOC’s denial of visitation with his minor child is arbitrary and

capricious because DOC did not follow its own policies, directives, criteria, and/or guidelines.

We disagree.

       “‘A hearing is arbitrary and capricious only if no evidence supports the action taken.’”

Dyer, 143 Wn.2d at 392 (quoting In re Pers. Restraint of Anderson, 112 Wn.2d 546, 549, 772

P.2d 510 (1989)). “‘Thus, a hearing is not arbitrary if some evidence supports the conclusions of

the . . . [DOC decision-maker].’” Id. (quoting Anderson, 112 Wn.2d at 549).

       According to the declaration of Rohrer,

       the denial to allow Mr. Gossett visits from [m]inor aged children was made after
       review of a Pre-Sentence Investigation, Police Reports, and a review of both the
       original and amended Judgment and Sentence. The decision took into
       consideration Mr. Gossett’s Rape of a Child and Child Molestation convictions as
       well as a previous conviction for Assault IV, Domestic Violence against a minor
       aged child. Both the sexual offenses and the assault offense involved minor aged
       children who were in the care of Mr. and Ms. Gossett. Further, the police reports
       and the pre-sentencing investigation indicated that the victim of the Rape of Child
       offenses had indicated that Ms. Gossett had abused her physically. Staff who
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No. 49525-2-II


        supervise the visiting room do not have the ability to provide direct observation of
        the family during the entire visitation period which can place the minor children at
        risk for further victimization.

Suppl. Br. of Resp’t, App. 2, Decl. of Rohrer, at 10-11. Gossett also had not complied with the

superior court’s condition requiring him to obtain a sex offender evaluation or enter a sex

offender treatment program.

        On appeal, DOC concluded,

        Due to your conviction history and nature of the crime, I am upholding the denial
        of visiting privileges with your children. If you choose to submit to a sexual
        deviancy evaluation and participate in Sex Offender Treatment Program during
        your incarceration, this issue may be reconsidered.

Br. of Resp’t, App. 2, Pacholke Letter.

        DOC’s actions were not arbitrary and capricious. They were supported by a documented

history of child abuse, criminal convictions showing a pattern of abuse toward minors, and

Gossett’s failure to enroll in sex offender evaluation and treatment programs. See Dyer, 143

Wn.2d at 392. Policy directive 450.050(I)(C) allowed DOC to prohibit Gossett from contact

with his own children if necessary to protect the children from any specific and documented

threat of harm. The discussion above shows that DOC acted consistently with that and other

relevant directives.

        In sum, we hold that DOC did not violate its policies or act arbitrarily and capriciously

when it denied Gossett visitation with his minor children. Therefore, assuming without deciding

that the DOC policies created a due process liberty interest in Gossett, DOC did not deprive him

of that interest.

F.      First Amendment

        Gossett makes a fleeting argument regarding the freedom of speech and the freedom of

association in his original pro se PRP.

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No. 49525-2-II


        Gossett argues,

        The prohibition preventing him from receiving visits from his children is one of the
        ‘conditions’ of his incarceration, which implicates his First Amendment rights to
        free speech and freedom of association, and his due process rights under the Fifth
        and Fourteenth Amendments. [In Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct.
        1208, 31 L. Ed. 2d 551 (1972), the United States Supreme Court recognized a
        parent’s fundamental right to the companionship and society of his or her children
        through the due process clause of the Fourteenth Amendment.]

Br. of Pet’r at 8.

        Conclusory allegations of constitutional violations are insufficient to support a PRP. In

re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990). Deprived of rational

argument in support of the issues presented for review, we decline to address Gossett’s First

Amendment claims. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,

809, 828 P.2d 549 (1992).

G.      Gossett Concedes DOC Resolved Issues Pertaining to Visitation with His Adult Children

        At oral argument, Gossett conceded DOC resolved any existing issues pertaining to

visitation with his adult children. Therefore, we do not address whether those issues raised in his

PRP were moot or if dismissal of these claims would be appropriate pursuant to RAP 16.4(d).

                                         CONCLUSION

        We hold as follows:

        1. RAP 16.4(c)(6) does not preclude us from reviewing Gossett’s PRP;

        2. The due process clause itself does not create a protected liberty interest in
        Gossett’s requested visitation;

        3. The superior court’s order entered against DOC relating to visitation was not
        binding on DOC as a matter of law, because the superior court did not have personal
        jurisdiction over DOC;

        4. In its prohibition of visitation between Gossett and his minor child, DOC did not
        violate policies 450.300 or 450.050 or act arbitrarily and capriciously in applying
        them. Therefore, assuming those policies created a due process liberty interest in
        visitation with Gossett’s children, DOC did not deprive Gossett of that interest;
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No. 49525-2-II



      5. We decline to address Gossett’s First Amendment claims; and

      6. Because Gossett conceded at oral argument that DOC resolved the issues
      related to visitation with his adult children, we do not address whether those
      issues raised in his PRP were moot or if dismissal of these claims would be
      appropriate pursuant to RAP 16.4(d).

      Therefore, we deny Gossett’s PRP.



                                                   Bjorgen, J.P.T.
 We concur:



Maxa, C.J.

________________________________________
Lee, J.




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