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 Virginia Supreme Court ruled Thursday. The decision could end a years-long legal battle over the girl’s fate.
In 2020, a judge in Fluvanna County, Virginia, allowed Joshua and Stephanie Mast to adopt the child while she was living 7,000 miles away in Afghanistan with a family the Afghan government considered her relatives.
Four Virginia Supreme Court justices signed an opinion Thursday that overturned two lower court rulings that found the adoption plan was flawed and invalid from the date it was issued.
A Virginia law that solidifies adoption orders after six months bars a child’s Afghan relatives from challenging the court no matter how flawed the order is, even if the adoption was obtained fraudulently, the justices wrote.
Three justices issued scathing dissents, calling what happened in court “wrong,” “vicious” and “like a house built on a rotten foundation.”
An attorney for Masters declined to comment, citing a circuit court order not to publicly discuss details of the case. Lawyers representing the Afghan families said they were not yet ready to comment.
The child was wounded on the Afghan battlefield in September 2019 when U.S. soldiers raided a rural compound in Afghanistan. The child’s parents and siblings were killed. Soldiers took her to a hospital on a U.S. military base.
The raid targeted terrorists entering Afghanistan from neighboring countries; some believed she was not Afghan and sought to justify bringing her to the United States. But the State Department under President Donald Trump’s first administration insisted that the United States was obligated under 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 put a man who claimed to be her uncle under review. The U.S. government agreed and took her to her family. The uncle chose to leave her to his son and his new wife, who raised her for 18 months in Afghanistan.
Meanwhile, Mast and his wife convinced a court in rural Fluvanna County, Virginia, to grant them custody, then issued a series of adoption orders and continued to claim she was the “stateless” daughter of a foreign fighter.
Judge Richard Moore approved their final adoption in December 2020. After the six-month statute of limitations expired, the child was still living with her relatives in Afghanistan, who testified they had no idea the judge was giving the girl to another family. Mast contacted them through an intermediary and tried to get them to send the girl to the United States for treatment, but they refused to let her go alone.
When U.S. troops withdrew from Afghanistan and the Taliban took over, the family agreed to leave, and Mast used his military contacts to get them on an evacuation flight. Mast later picked up the baby from them at a refugee resettlement center in Virginia, and they have not seen her since.
The Afghans challenged the adoption, claiming the court had no authority over foreign children and that the adoption order was based on Mast’s repeated misleading of the judge.
The Virginia Supreme Court wrote Thursday that a law banning adoption challenges after six months is intended to create permanence so that children are not sent from one family to another. The only way to weaken it is to argue that the parents’ constitutional rights were violated.
A lower court held that the Afghan couple had the right to challenge the adoption because they were the girl’s “de facto” parents when they came to the United States.
Four Supreme Court justices — D. Arthur Kelsey, Stephen R. McCullough, Teresa M. Chafin, Wesley G. Russell Jr. — disagreed.
“We hold that there is no legal basis for our argument that they are the child’s ‘de facto’ parents and that no U.S. court can constitutionally sever that relationship,” they wrote. They pointed to findings by Fluvanna County Circuit Court Judge Richard Moore that the Afghan couple “are not and never have been the child’s parents” because they did not have an Afghan court order or prove any blood relationship with her.
Afghans have resisted DNA testing, saying it cannot reliably prove familial links between opposite-sex half-cousins. They insist it doesn’t matter because Afghanistan claims the girl is its citizen and can identify her next of kin.
The Supreme Court relied heavily on a 38-page document written by Judge Moore, who approved the adoption and presided over more than a dozen hearings after the Afghans challenged it. He wrote that he trusted Masters more than the Afghans and believed Masters’ motives were noble, while the Afghans misrepresented their relationship with the children.
The Supreme Court also rejected the federal government’s long-held assertion that Trump’s first administration made the foreign policy decision to unite her with relatives in Afghanistan and that the Virginia court did not have the authority to overturn that decision. The government’s court filing predicts dire consequences if the infant is allowed to remain in the Marine Corps: It could be viewed as “supporting international child abduction,” threaten international security treaties, and be used as propaganda by Islamic extremists — potentially endangering U.S. soldiers overseas.
But the Justice Department in Trump’s second administration suddenly changed course.
The Supreme Court noted in its opinion that the Justice Department had been allowed to argue in the case but withdrew its request to do so on the morning of oral arguments last year, saying it “now has an opportunity to reassess its position in this case.”
The Supreme Court repeatedly reiterated Moore’s ruling that releasing the girls to their families was “not a decision initiated by the United States but one of consent or acquiescence.”
The three dissenting justices were unsparing in their criticism of Masters and the circuit court that approved his adoption.
“A dispassionate review of this case reveals a scenario steeped in arrogance and privilege. Worse, it appears to have worked,” the dissent, written by Judge Thomas P. Mann and signed by Chief Justice Cleo E. Powell and Leroy F. Millett Jr., began.
Dissenters said Virginia courts never had the authority to release the children to Masters.
They accused the Masters of “blatantly” misleading the court in their quest to adopt the girl.
“We must recognize adoption for what it really is: to sever and terminate the natural flow of rights to the legitimate claimant of parental rights. Of course, the process must be flawless. An evolving society cannot sanction anything less than that. And here, it is even less,” Mann wrote. “If the process were represented by a straight line, then (the mast) would go over it, under it, around it, and just blast right through it until there was no straight line at all — just debris collapsing into the cavity.”
