Virginia Supreme Court rules US Marine’s adoption of an Afghan war orphan will stand

A U.S. Marine and his wife will keep an Afghan orphan they brought home in defiance of a U.S. government decision to reunite him with his Afghan family, the Virginia Supreme Court ruled Thursday. The verdict will likely end a bitter legal battle that has been going on for years over the girl’s fate.

In 2020, a judge in Fluvanna County, Virginia, granted Joshua and Stephanie Mast permission to adopt the boy, who was then 7,000 miles away in Afghanistan and living with a family the Afghan government determined were relatives.

Four justices on the Virginia Supreme Court signed off on the reversal on Thursday. decision of two lower courts HE found that adoption was deeply flawed was invalid from the moment of its publication.

the judges wrote The Virginia law, which strengthens adoption orders after six months, prohibits the child’s Afghan relatives from appealing in court no matter how flawed the decisions are and even if the adoption was obtained fraudulently.

Three justices delivered a scathing dissent, calling what happened in that courtroom “wrong,” “cancerous” and “like a house built on a rotten foundation.”

An attorney for Masts declined to comment, citing the circuit court’s order that details of the case not be discussed publicly. Lawyers representing the Afghan family said they were not yet ready to comment.

Child wounded on the battlefield When US soldiers raided a rural compound in Afghanistan in September 2019. The boy’s parents and siblings were killed. The soldiers took him to a hospital on an American military base.

The raid targeted terrorists who had come to Afghanistan from a neighboring country; Some believed he was not Afghan and tried to sue to bring him 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 his or her next of kin.

The Afghan government identified him as Afghan and investigated a man claiming to be his uncle. The US government agreed and brought him back to the family. His uncle chose to give him to his son and his new wife, who raised him in Afghanistan for 18 months.

Mast and his wife, meanwhile, persuaded courts in rural Fluvanna County, Virginia, to grant custody and then issue a series of adoption orders, continuing to claim she was the “stateless” daughter of foreign fighters.

Judge Richard Moore granted them final adoption permission In December 2020. When the six-month statute of limitations expired, the child was still living with relatives in Afghanistan. The families stated that they were not aware that the judge gave 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 did not allow her to go alone.

When the U.S. 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 later took the baby from them at a refugee resettlement center in Virginia, and they have not seen him since.

The Afghans objected to the adoption, claiming that the court had no jurisdiction over a foreign child and that the adoption decisions were based on Mast repeatedly misleading the judge.

The Virginia Supreme Court on Thursday wrote that the law banning objections to an adoption after six months was designed to ensure permanence so that a child would not be tossed from one home to another. The only way to mitigate this is to claim that the parent’s constitutional rights have been violated.

Lower courts had ruled that the Afghan couple had the right to object to the adoption because they became the girl’s “de facto” parents when they arrived in the United States.

Four of the Supreme Court justices – D. Arthur Kelsey, Stephen R. McCullough, Teresa M. Chafin, Wesley G. Russell Jr. – disagreed.

“We see no legal merit” in the claim that “they are the child’s ‘de facto’ parents and no American court can constitutionally sever that relationship,” they wrote. They noted Fluvanna County Circuit Judge Richard Moore’s findings that the Afghan couple “is not and never could be” the child’s parents because they had not received an order from an Afghan court and had not proven any biological relationship to him.

Afghans had rejected DNA testing, saying it could not reliably prove a familial connection between opposite-sex half-cousins. They insisted it didn’t matter because Afghanistan recognized the girl as its citizen and needed to determine her next of kin.

The Supreme Court relied heavily on the 38-page document written by Judge Moore, who agreed to the adoption and presided over a dozen hearings after the Afghans objected to it. He wrote that he trusted the Masts more than the Afghans, and that he believed the Masts’ motivations were noble while the Afghans misrepresented their relationship with the child.

The Supreme Court also rejected the federal government’s long-standing insistence that Trump’s first administration made a foreign policy decision to unite him with his Afghan relatives and that a court in Virginia had no authority to reverse it. The government filed petitions with the court that predicted dire consequences if the baby was allowed to remain with the Marine Corps: It could be seen as “endorsing international child abduction,” could threaten international security agreements and be used as propaganda by Islamic extremists, and could potentially endanger U.S. troops abroad.

But in Trump’s second administration, the Justice Department abruptly changed course.

In its opinion, the Supreme Court said the Department of Justice had been given permission to comment in the case, but withdrew its request on the morning of oral arguments last year, stating that it “now has the opportunity to reconsider its position in this case.”

The Supreme Court repeatedly returned to Moore’s finding that the return of the girl to the family “was not a decision initiated by the United States, but rather consented to or acquiesced.”

The three dissenting judges were unsparing in their criticism of both Masts and the circuit court that allowed her adoption.

Written by Judge Thomas P. Mann and edited by Chief Justice Cleo E. Powell and LeRoy F. Millette, Jr. “An impartial review of this case reveals a scenario rife with arrogance and privilege. Worse, it appears to have worked,” begins the dissent signed by .

The dissent stated that the Virginia court never had the right to release the child to the Masts.

They condemned the Masts for “brazenly” misleading the courts in their quest to adopt the girl.

“We must recognize adoption for what it really is: the severance and termination of the rights that come naturally to a legitimate claimant to parental authority. Of course, the process must be foolproof. An advanced society cannot sanction anything less. And here it was less,” Mann wrote. “If this process was represented by a straight line, (Posts) would pass over it, under it, around it, and then directly through it until there was no line left—only pieces collapsing into a void.”