The Virginia Supreme Court ruled Thursday that a U.S. Marine and his wife will keep an Afghan orphan they brought home, defying the U.S. government’s decision to reunite her with her Afghan family. The decision likely ends a years-long legal battle over the girl’s fate.
In 2020, a judge in Fluvanna County, Virginia, granted Joshua and Stephanie Mast adoption of the child, who was then 7,000 miles away in Afghanistan, living with a family the Afghan government decided were her relatives.
Four Virginia Supreme Court justices signed an opinion Thursday that overturns rulings by two lower courts that found the adoption was so flawed it was void from the time it was issued.
The justices wrote that a Virginia law that cements adoption orders after six months bars the child’s Afghan relatives from challenging the court, no matter how flawed the orders are and even if the adoption was obtained through fraud.
Three judges issued a scathing dissent, calling what happened in this court “wrong,” “cancerous” and “like a house built on a rotten foundation.”
An attorney for the Masts declined to comment, citing a circuit court order not to publicly discuss details of the case. Lawyers representing the Afghan family said they were not yet ready to comment.
The child was injured on the battlefield in Afghanistan in September 2019 when US soldiers attacked a rural compound. The child’s parents and siblings were killed. The soldiers brought her to a hospital on a US military base.
The raid targeted terrorists who had come to Afghanistan from a neighboring country; some believed she was not Afghan and tried to justify bringing her to the US. But the State Department, under President Donald Trump’s first administration, has insisted that the US is bound by international law to work with the Afghan government and the International Committee of the Red Cross to reunite the child with her closest surviving relatives.
The Afghan government determined she was Afghan and verified a man claiming to be her uncle. The US government agreed and brought her to the family. The uncle chose to give her to his son and his new wife, who raised her for 18 months in Afghanistan.
Meanwhile, Mast and his wife persuaded the courts in rural Fluvanna County, Va., to grant them custody and then a series of adoption orders, continuing to claim that she is the “stateless” daughter of foreign fighters.
Judge Richard Moore granted them a permanent adoption in December 2020. When the six-month statute of limitations expired, the child was still in Afghanistan and living with her relatives, who testified they had no idea a judge was giving the girl to another family. Mast contacted them through intermediaries and tried to get them to send the girl to the US for medical treatment, but they refused to let her go on her own.
When the US military withdrew from Afghanistan and the Taliban took over, the family agreed to leave, and Mast worked with his military contacts to get them on an evacuation flight. Mast then took the child from them to a refugee resettlement center in Virginia and they have not seen her since.
The AP agreed not to name the Afghan couple because they fear their families in Afghanistan could suffer retaliation from the Taliban. The circuit court issued a protective order that protected their identities.
The Afghans contested the adoption, arguing that the court had no authority over a foreign child and the adoption orders were based on Mast repeatedly misleading the judge.
The Virginia Supreme Court wrote Thursday that the law barring appeals to an adoption after six months is meant to create permanency so a child is not transferred from one home to another. The only way to undermine it is to claim that a parent’s constitutional rights have been violated.
The lower courts found that the Afghan couple had standing to challenge the adoption because they were the girl’s “de facto” parents when they came to the United States.
Four of the Supreme Court justices – D. Arthur Kelsey, Stephen R. McCullough, Teresa M. Chafin, Wesley G. Russell Jr. – dissented.
“We find no legal merit” in the argument that “they were the child’s ‘de facto’ parents and that no US court could constitutionally sever that relationship,” they wrote. They pointed to Fluvanna County Circuit Court Judge Richard Moore’s findings that the Afghan couple “are not and have never been the parents” of the child because they had no order from an Afghan court and had not proven any biological relationship to her.
The Afghans have refused DNA testing, saying it cannot reliably prove a family connection between half-cousins of the opposite sex. They insisted it didn’t matter, because Afghanistan had claimed the girl as its own citizen and ended up determining her next of kin.
The Supreme Court relied heavily on a 38-page document written by Judge Moore, who granted the adoption, then presided over a dozen hearings after the Afghans challenged it. He wrote that he trusted the Masts more than the Afghans and believed that the Masts’ motivations were noble, while the Afghans were misrepresenting their relationship with the child.
The Supreme Court also rejected the federal government’s long-standing insistence that the first Trump administration made a foreign policy decision to unite her with her Afghan relatives, and a Virginia court has no authority to overturn it. The government has filed court filings predicting dire outcomes if the baby is allowed to remain with the Navy: It could be seen as “supporting an international act of child abduction,” threaten international security pacts and be used as propaganda by Islamic extremists — endangering American soldiers overseas.
But the Justice Department in Trump’s second administration abruptly reversed course.
The Supreme Court noted in its opinion that the Justice Department had been granted permission to present arguments in the case, but withdrew its request to do so on the morning of last year’s oral arguments, saying it “has now had an opportunity to reevaluate its position in this case.”
The Supreme Court has repeatedly returned to Moore’s conclusion that giving the girl to the family “was not a decision initiated by the United States, but rather consented to or acquiesced in.”
The three dissenting judges were relentless in their criticism of both Masts and the circuit court that granted her adoption.
“A dispassionate analysis of this case reveals a scenario filled with arrogance and privilege. Worse, it appears to have worked,” begins the dissent, written by Justice Thomas P. Mann and signed by Chief Justices Cleo E. Powell and LeRoy F. Millette, Jr.
A Virginia court never had the right to give the child to the Masts, the dissenters said.
They chastised the Masts for “vaguely” misleading the courts during their attempt to adopt the girl.
“We must recognize what an adoption really is: the severance and termination of rights that flow naturally to an otherwise legitimate claimant to parental authority. Of course, the process must be flawless. An evolved society could not sanction anything less than that. And here, it was less,” Mann wrote. “If this process was represented by a straight line, (the Masts) went over it, under it, around it, and then exploded right through it until there was no line left—just fragments collapsing into a cavity.”