MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jul 12 2018, 9:11 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                         July 12, 2018
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-CR-241
        v.                                                Appeal from the Carroll Circuit
                                                          Court
Cassey Gick,                                              The Honorable Benjamin A.
Appellee-Petitioner                                       Diener, Judge
                                                          Trial Court Cause No.
                                                          08C01-1608-F4-5



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-241 | July 12, 2018                     Page 1 of 6
[1]   The State appeals the trial court’s order requiring the Department of Correction

      (DOC) to permit Cassey Gick, a sex offender against a minor victim, to have

      visitation with her minor child while Gick is in the custody of the DOC.

      Finding that the trial court exceeded its authority, we reverse and remand with

      instructions.


                                                     Facts
[2]   On November 28, 2016, Gick pleaded guilty to Level 4 felony sexual

      misconduct with a minor. She was sentenced to six years, with four years

      executed and two years suspended.


[3]   The DOC’s general policy is that a sex offender who committed a crime against

      a minor must seek permission from the DOC to have visitation with a minor.

      The unit team at the facility where a particular inmate is housed, including the

      warden of the facility, makes the initial determination as to whether permission

      should be granted. If permission is denied, the inmate may request a case

      review by the Director of the Sex Offender Management and Monitoring

      Program (SOMM). The SOMM Director’s decision is final and binding on

      both the correctional facility and the inmate.


[4]   Gick has a three-year-old son and requested permission to visit with him during

      Gick’s incarceration. The facility denied the request, and Gick then requested a

      case review by the SOMM Director. The SOMM Director also denied Gick’s

      request.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-241 | July 12, 2018   Page 2 of 6
[5]   In certain situations, an offender may be granted visitation with a minor outside

      of the normal review process. A warden may, at his or her discretion, allow

      visitation with a minor in three circumstances:


              (1)      The offender is in the last stages of a terminal illness and it
                       appears that the offender’s death is imminent.


              (2)      The facility receives a court order instructing it to allow
                       the offender to visit with a specific minor. . . .


              (3)      A therapeutic visit is requested by the victim’s licensed
                       therapist. . . .


      Appellant’s App. Vol. II p. 66.


[6]   After the SOMM Director denied Gick’s request, she wrote a letter to the trial

      court in her criminal case asking for a court order permitting her to have

      visitation with her son. On September 11, 2017, the trial court issued an order

      providing as follows:


              Whether [the DOC] allows contact between Defendant and
              Defendant’s child is up to DOC. There is nothing in this Court’s
              probation terms or conditions that would preclude Defendant
              from contacting or communicating with her own child.


      Id. at 17. On September 12, 2017, Gick filed a motion to authorize the DOC to

      permit parent and child visitation, stating that “current facility rules permit

      parent and child visitation only by authorization of the sentencing Court.” Id.

      at 18. On October 10, 2017, the trial court went a step farther than


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-241 | July 12, 2018       Page 3 of 6
      authorization, ordering the DOC to permit visitation and personal contact

      between Gick and her son. Id. at 20. The DOC intervened and filed a motion

      to correct error, which the trial court denied. The State now appeals.


                                   Discussion and Decision
[7]   The State argues that the trial court did not have the legal authority to order

      DOC to allow Gick to visit with her son. A challenge to the trial court’s legal

      authority to act is a question of law that is reviewed de novo. Howard v. Am.

      Family Mut. Ins. Co., 928 N.E.2d 281, 283 (Ind. Ct. App. 2010).


[8]   Generally speaking, a trial court “‘has no jurisdiction over a prisoner after [s]he

      has been convicted, sentenced and delivered to prison pursuant to a

      commitment . . . .’” Hill v. Duckworth, 679 N.E.2d 938, 939 (Ind. Ct. App.

      1997) (quoting Rogers v. Youngblood, 226 Ind. 165, 170, 78 N.E.2d 663, 665

      (1948)). To that end, it is a “long-standing principle that the judiciary is

      constrained from interfering with the internal procedures and policies of the

      [DOC].” Kimrey v. Donahue, 861 N.E.2d 379, 383 (Ind. Ct. App. 2007). The

      rationale for this hands-off approach has been explained as follows:


              Courts are ill equipped to deal with the increasingly urgent
              problems of prison administration and reform. The operation of
              a prison is an inordinately difficult undertaking that requires
              expertise, planning, and the commitment of resources, all of
              which are peculiarly within the province of the legislative and
              executive branches of government. The complex and intractable
              problems in prisons are not readily susceptible of resolution by
              judicial decree. Thus, courts will afford substantial deference to
              the professional expertise of correction officials with respect to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-241 | July 12, 2018   Page 4 of 6
               the day-to-day operation of prisons and the adoption and
               execution of prison policies.


       Cohn v. Strawhorn, 721 N.E.2d 342, 346 (Ind. Ct. App. 1999) (internal citations

       omitted).


[9]    It is undeniable that the DOC is empowered by statute to control visitation

       within prisons. Ind. Dep’t of Corr. v. Stagg, 556 N.E.2d 1338, 1342 (Ind. Ct. App.

       1990). Relevant here is Indiana Code section 11-11-3-9, which explicitly

       authorizes the DOC to prevent inmates convicted of a sex offense with a minor

       from having minor visitors. When visitation is denied for this reason, the DOC

       must provide the inmate with written notice, and the inmate has the right to

       challenge the denial through DOC’s grievance procedures. I.C. § 11-11-3-9(c).

       This Court has squarely held that Indiana Code section 11-11-3-9 does not

       create a private cause of action. Medley v. Lemmon, 994 N.E.2d 1177, 1184-85

       (Ind. Ct. App. 2013). Likewise, the Administrative Orders and Procedures Act

       (AOPA) does not afford DOC inmates with a right to judicial review of DOC

       actions. Ind. Code § 4-21.5-2-5(6). Finally, this Court has found that the

       DOC’s denial of minor visitation to a sex offender who committed an offense

       against a minor is not a constitutional violation. Doe v. Donahue, 829 N.E.2d

       99, 108-11 (Ind. Ct. App. 2005).


[10]   Gick, therefore, has no statutory or administrative right to judicial review of the

       DOC’s denial of her visitation request, nor can she claim that the denial was a

       violation of her constitutional rights. It appears that she was merely seeking the

       trial court to authorize visitation under the DOC’s policy that permits wardens
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-241 | July 12, 2018   Page 5 of 6
       to grant a visitation request if authorized by a trial court. 1 We agree with the

       State that if the trial court believed visitation was appropriate, it should have

       issued an order recommending and authorizing such visitation. Instead, the

       trial court ordered the DOC to allow visitation, which is outside the trial court’s

       legal authority. Therefore, we reverse and remand with instructions to amend

       the order to provide that visitation between Gick and her son is authorized and

       recommended, but not ordered.


[11]   The judgment of the trial court is reversed and remanded with instructions.


       Kirsch, J., and Bradford, J., concur.




       1
         Even if a trial court orders visitation to occur, the DOC policy provides that the warden “may approve a
       visit with minors who are immediate family members[.]” Appellant’s App. Vol. II p. 66. Under any
       circumstances, therefore, the DOC retains discretion and is the ultimate decision-maker with regard to
       visitation.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-241 | July 12, 2018                       Page 6 of 6
