Virginia’s Supreme Court ruled Thursday that an Afghan orphan brought home by a U.S. Marine and his wife in defiance of the U.S. government’s decision to reunite them with their Afghan family. The decision could end years of bitter and protracted legal battles over the girl’s fate.
In 2020, a judge in Fluvanna County, Virginia granted permission to adopt the child to Joshua and Stephanie Mast, who at the time were living 7,000 miles away in Afghanistan with a family with relatives in Afghanistan.
Four Virginia Supreme Court justices signed an opinion Thursday overturning two lower court decisions that found an adoption so flawed it was void from the moment it was issued.
The justices wrote that a Virginia law that cements an adoption order after six months bars a child’s Afghan relatives from challenging the order in court, regardless of how flawed the order is and whether the adoption was obtained through fraud.
Three judges issued a scathing dissent calling what had happened in this court “wrong”, “cancerous” and “like a house built on a rotten foundation”.
An attorney for Mast 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 ready to comment yet.
In September 2019, the child was injured when US soldiers attacked a rural compound on the battlefield in Afghanistan. The child’s parents and siblings were killed. Soldiers brought him to a hospital on a US military base.
The attack was targeting terrorists who had come to Afghanistan from neighboring countries. Some believed he was not Afghan and tried to bring him to the U.S., but the State Department, under President Donald Trump’s first administration, said the U.S. was forced to work with the Afghan government and the International Committee of the Red Cross under international law.
The Afghan government investigated a man who claimed she was Afghan and was her uncle. The US government agreed and brought him into the family. The uncle chose to give him to his son and new wife, who raised him for 18 months in Afghanistan.
Meanwhile, Mast and his wife continued to petition the courts in rural Fluvanna County, Virginia, to grant them custody and then a series of adoption orders, claiming that she was the “stateless” daughter of foreign fighters.
Judge Richard Moore accepted their final adoption in December 2020. When the six-month statute of limitations expired, the child was still living with her relatives in Afghanistan, who testified that they were not aware of any judge giving the girl to another family. Mast tried to send the girls to America for treatment through intermediaries, but they refused to go alone.
When US forces withdrew from Afghanistan and the Taliban took over, the family agreed to leave and Mast worked his military contacts to get them on an evacuation flight. Mast then took the child to a refugee resettlement center in Virginia and has not been seen since.
The AP agreed not to name the Afghan couple because they fear retaliation from the Taliban by their families in Afghanistan. The circuit court issued a protective order protecting their identities.
The Afghans challenged the adoption, claiming that the court had no jurisdiction over the foreign child and that the adoption orders were based on a mast that often misled the judge.
Virginia’s Supreme Court wrote Thursday that a law barring challenges to adoptions after six months is designed to create permanency, so a child shouldn’t be bounced from one home to another. The only way to mitigate this is to argue that the parents’ constitutional rights have been violated.
A lower court ruled that the Afghan couple had the right to challenge the adoption because they were the girl’s “real” parents after she came to the United States.
Four judges of the Supreme Court – D. Arthur Kelsey, Stephen R. McCullough, Teresa M. Chaffin, Wesley G. Russell Jr. – disagreed.
“We find no legal merit” in the argument that “they were the child’s ‘real’ parents and no US court could constitutionally sever that relationship,” they wrote. They pointed to Fluvanna County Circuit Court Judge Richard Moore’s finding that the Afghan couple “are not and never were” the child’s parents, because they had no order from an Afghan court and no biological relationship had been proven.
Afghans reject DNA testing, saying it cannot reliably prove family ties between opposite-sex half-siblings. They insisted that it didn’t matter, because Afghanistan claimed the girl as its citizen and was forced to determine her kinship.
Supreme Court Justice Moore leaned heavily on the written 38-page document, which accepted the adoption, then presided over dozens of hearings after Afghans challenged it. He wrote that he trusted Mast more than the Afghans, and believed that Mast’s motivations were noble as the Afghans were misrepresenting their relationship with the child.
The Supreme Court also rejected the federal government’s long-standing insistence that Trump’s first administration had made a foreign policy decision to unite him with Afghan relatives, and that the Virginia court did not have the authority to overturn it. The government filed court filings predicting dire consequences if the child were allowed to remain in the Marines: It could “support the act of international child abduction,” threaten international security agreements and be used as propaganda by Islamic extremists — potentially endangering U.S. troops overseas.
But the Justice Department of Trump’s second administration abruptly changed course.
The Supreme Court said in its opinion that the Justice Department was allowed to argue the case, but withdrew its request to do so on the morning of oral arguments last year, saying it “now has an opportunity to reevaluate its position on this issue.”
The Supreme Court repeatedly returned to Moore’s finding that giving the girl to the family “was not a decision initiated by the United States, but rather was consented to or accepted.”
The three dissenting judges were unsparing in their criticism of both Mast and the circuit court that granted her adoption.
“A cursory review of this case reveals a landscape rife with arrogance and privilege. At worst, it appears to have worked,” Justice Thomas P. Mann, and Chief Justice Cleo E. Dissent signed by Powell and Leroy F. Millett, Jr. begins.
The Virginia court never had authority to give the child to Mast, the dissent said.
They condemned the masts for “brazenly” misleading the court in seeking to adopt the girl.
“We must recognize adoption for what it really is: the severance and termination of rights that flow naturally to an otherwise legitimate claimant to parental rights. Of course, the process must be flawless. A developed society cannot accept anything less than that. And here, it was less,” Mann wrote. “If this process were represented by a straight line, (the masts) went over it, under it, around it, and then blasted through it until there was no line—just fragments falling into the cave.”
