                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1430
                              Filed May 11, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEPHANIE MARIE FATLAND,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, James M. Drew,

Judge.



      Defendant appeals her convictions for two counts of child endangerment

resulting in bodily injury. CONVICTIONS AFFIRMED; SENTENCE VACATED

AND CASE REMANDED FOR RESENTENCING.




      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.




      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

      Defendant Stephanie Fatland appeals her convictions for two counts of

child endangerment resulting in bodily injury. We determine the district court

abused its discretion by imposing conditions prohibiting Fatland from having

unsupervised contact with children under the age of five and becoming pregnant

while on probation. We vacate her sentences and remand to the district court for

resentencing as directed in this opinion.

      I.      Background Facts & Proceedings

      Fatland was charged with three counts of child endangerment resulting in

serious injury, in violation of Iowa Code section 726.6(5) (2013), class “C”

felonies. The State alleged Fatland had shaken her five-month-old baby on three

occasions, causing injury to the child. Fatland entered into a plea agreement in

which she pled guilty to two counts of child endangerment resulting in bodily

injury, in violation of section 726.6(6), class “D” felonies. The State agreed to

dismiss the third charge of child endangerment and to stand silent at sentencing.

      The district court accepted Fatland’s guilty pleas. The court sentenced

her to a term of imprisonment not to exceed five years on each count, to be

served consecutively.    The court then suspended the sentences and placed

Fatland on probation for a period of five years with the conditions, “Shall have no

unsupervised contact with children under the age of 5 years,” and “Shall not

become pregnant while on probation.”

      Fatland filed a Motion to Reconsider a Condition of Probation, stating the

court had improperly infringed upon her fundamental right to bear children by the

condition on her probation prohibiting her from becoming pregnant. The court
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denied the motion, finding “temporarily prohibiting the defendant from becoming

pregnant is directly related to the defendant’s criminal conduct and her

rehabilitative needs.” Fatland now appeals.

      II.    Standard of Review

      “When a defendant challenges the terms of probation, ‘[i]t has long been a

well-settled rule that trial courts have a broad discretion in probation matters

which will be interfered with only upon a finding of abuse of that discretion.’”

State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006) (citation omitted). “[O]ur task

on appeal is not to second guess the decision made by the district court, but to

determine if it was unreasonable or based on untenable grounds.” Id. at 445.

      III.   Conditions of Probation

      A.     Fatland first claims the district court abused its discretion by

prohibiting her from having “unsupervised contact with children under the age of

5 years.” She states the restriction is unnecessarily restrictive because it does

not provide an exception for unintended, incidental, or innocuous contact.

Fatland states the restriction would prohibit her from most everyday activities,

such as going to the store, because a child under the age of five might be

present.

      In State v. Lathrop, 781 N.W.2d 288, 291 (Iowa 2010), a probation

condition was imposed on a defendant ordering him to “have no contact with

anyone under the age of 18 without the permission of his supervising officer.”

The Iowa Supreme court noted, “[t]he legislature has given the courts broad, but

not unlimited, authority in establishing the conditions of probation.” Lathrop, 781

N.W.2d at 298–99. A condition of probation should be “reasonably related to the
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crime of which defendant was convicted or to future criminality,” and at the same

time not be unnecessarily harsh or excessive. Id. at 299. The court concluded

the probation condition was unreasonable and stated:

       We vacate the no-contact condition of the defendant’s probation,
       and remand this case to the district court for the opportunity to
       fashion a more realistic and precise condition on the defendant’s
       probation that would ensure he does not have contact with minors
       in situations that would jeopardize the safety of the community and
       the defendant’s rehabilitation.

Id. at 301.

       In State v. Hall, 740 N.W.2d 200, 201 (Iowa Ct. App. 2007), a probation

condition was imposed prohibiting the defendant from being “in the immediate

vicinity of locations where children are normally found,” and he was ordered to

“have no contact with minors [with the] exception [of] incidental contact in public

places where other responsible adults are present.” We found:

             We disagree with Hall’s assertion that the restriction on
       contact with minors would prevent him from going to public places
       where children are present because the restriction contains an
       exception for “incidental contact in public places where other
       responsible adults are present.” We find the prohibition against
       being “in the immediate vicinity of locations where children are
       normally found,” with an exception for incidental contact, is neither
       an overbroad nor unreasonable condition of Hall’s probation.

Hall, 740 N.W.2d at 204.      We found, however, the probation condition was

ambiguous concerning communication with minors, and possibly excessively

broad, because there was no exception for incidental communication with

minors. Id. at 205. We remanded to the district court for “clarification of the

restriction on communication with minors to allow an exception for incidental

communication with minors where other responsible adults are present.” Id.
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      We vacate the condition on Fatland’s probation prohibiting her from having

unsupervised contact with children under the age of five years. We remand to

the district court for resentencing in order to create a more realistic and precise

condition on her probation regarding contact with young children. The condition

should not jeopardize the safety of the community and her rehabilitation, but at

the same time, it should not be overbroad and unduly restrictive of her freedom

and autonomy. See Lathrop, 781 N.W.2d at 301. The condition should contain

an exception for “incidental contact in public places where other responsible

adults are present.” See Hall, 740 N.W.2d at 204.

      B.     Fatland claims the condition on her probation prohibiting her from

becoming pregnant while she is on probation violates a constitutionally protected

fundamental right. The State agrees this probation condition is unreasonable.

See People v. Zaring, 10 Cal. Rptr. 2d 263, 270 (Cal. Ct. App. 1992) (holding a

condition prohibiting a defendant from getting pregnant during the term of her

probation was unlawful and must be stricken); Rodriguez v. State, 378 So. 2d 7,

10 (Fla. Dist. Ct. App. 1979) (holding a condition of probation prohibiting

defendant from becoming pregnant was invalid because the condition was not

reasonably related to future criminality); Trammell v. State, 751 N.E.2d 283, 290–

91 (Ind. Ct. App. 2001) (vacating a condition of probation prohibiting defendant

from becoming pregnant, finding the condition “excessively impinges upon her

privacy right of procreation and serves no discernible rehabilitative purpose”);

State v. Mosburg, 768 P.2d 313, 315 (Kan. Ct. App. 1989) (finding the probation

condition ordering the defendant to refrain from becoming pregnant should be

stricken because it unduly intruded upon her right to privacy); State v. Livingston,
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372 N.E.2d 1335, 1337 (Ohio Ct. App. 1976) (finding a condition prohibiting

defendant from having another child during the five-year probationary period was

void because it was unconstitutional and an unreasonable burden); but see State

v. Kline, 963 P.2d 697, 699 (Or. Ct. App. 1998) (finding a condition of probation

requiring a defendant to complete drug counseling and anger management

treatment before fathering any children should be upheld because it did not

impose a total ban on his reproductive rights); State v. Oakley, 629 N.W.2d 200,

212–13 (Wis. 2001) (upholding a condition prohibiting a defendant from fathering

any more children until he demonstrated he had the ability to support them and

was supporting the children he already had, finding the condition was reasonable

and not overly broad as it was less restrictive than incarceration).

          We determine the condition prohibiting Fatland from becoming pregnant

while on probation should be eliminated from the sentencing order.             The

condition impinges upon her fundamental right to procreation.          See Catholic

Charities v. Zalesky, 232 N.W.2d 539, 552 (Iowa 1975) (Reynoldson, J.,

concurring specially) (“Marriage and procreation are fundamental to the very

existence and survival of the race.” (quoting Skinner v. Oklahoma, 316 U.S. 535,

541 (1942))).

          We affirm Fatland’s convictions for child endangerment causing bodily

injury.    We vacate the sentencing order and remand to the district court for

resentencing as directed in this opinion.

          CONVICTIONS     AFFIRMED;         SENTENCE    VACATED        AND   CASE

REMANDED FOR RESENTENCING.
