The Virginia Supreme Court ruled Thursday that a US Marine and his wife will keep an Afghan orphan they brought home in defiance of a US government decision to reunite her with her Afghan family. The decision is likely to end a bitter and 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 boy, who at the time was 7,000 miles away in Afghanistan living with a family the Afghan government decided were her relatives.
Four justices on the Virginia Supreme Court on Thursday signed an opinion reversing two lower court decisions that found the adoption so flawed it was void from the moment it was issued.
The justices wrote that a Virginia law that freezes adoption orders after six months bars the child’s Afghan relatives from challenging the order, no matter how flawed its orders are and even if the adoption was obtained fraudulently.
Three judges issued a strong dissent, calling what happened in this court “wrong,” “cancerous” and “like a house built on a rotten foundation.”
A lawyer for the Masts declined to comment, citing an order from the circuit court not to discuss the details of the case publicly. The lawyers representing the Afghan family said they were not yet ready to comment.
The boy was injured on the battlefield in Afghanistan in September 2019 when US soldiers raided a rural compound. The boy’s parents and siblings were killed. The soldiers brought her to a hospital at an American military base.
The raid was aimed at terrorists who were da[lu fl-Afganistan minn pajji]neighbor some believed she was not Afghan and tried to make a case to bring her to the United States But the State Department, under the first administration of President Donald Trump, 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 verified a man who claimed to be her uncle. The American government agreed and brought her with 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 convinced the courts in rural Fluvanna County, Virginia, to grant them custody and then a series of adoption orders, continuing to claim that she was the “stateless” daughter of foreign fighters.
Judge Richard Moore granted them the final adoption in December 2020. When the six-month statute of limitations ran out, the child was still in Afghanistan living with her relatives, who testified that they had no idea that 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 United States for medical treatment but they refused to let her go alone.
When the US military 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 baby from them to a refugee resettlement center in Virginia, and they haven’t seen her since.
The AP has agreed not to name the Afghan couple because they fear that their families in Afghanistan may face retaliation from the Taliban. The circuit court issued a protective order protecting their identities.
The Afghans contested the adoption, claiming that the court had no authority over a foreign child and the adoption orders were based on Mast repeatedly lying to the judge.
The Supreme Court of Virginia on Thursday wrote that the law that prohibits challenges to adoption after six months is designed to create permanence, so that the child is not recovered from one home to another. The only way to reduce it is to argue that a parent’s constitutional rights have been violated.
The lower courts had found that the Afghan couple had the right to contest the adoption because they were the “de facto” parents of the girl 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. – they did not agree.
“We find no legal merit” in the argument that “they were ‘de facto’ parents of the child and that no American court could constitutionally sever that relationship,” they wrote. They pointed to the findings of the Fluvanna County Court Judge, Richard Moore, that the Afghan couple “are not and never were parents” of the child, because they had no order from an Afghan court and had not proven any biological relationship with her.
The Afghans had refused DNA testing, saying it could not reliably prove a family connection between half-cousins of the opposite sex. They insisted that it was not important, because Afghanistan claimed the girl as its citizen and came to determine her family.
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 Poles more than the Afghans, believing that the Poles’ motivations were noble while the Afghans were misrepresenting their relationship with the boy.
The Supreme Court also rejected the federal government’s long-standing insistence that the first Trump administration had made a foreign policy decision to unite her with her Afghan relatives, and a court in Virginia has no authority to overturn it. The government filed court filings predicting dire results if the baby is allowed to remain at Sea: it could be seen as “endorsing an act of international child abduction,” threatening international security pacts and being used as propaganda by Islamic extremists – potentially endangering American soldiers overseas.
But the Justice Department in the second Trump administration changed course suddenly.
The Supreme Court noted in its opinion that the Department of Justice had been granted permission to make arguments in the case, but withdrew its request to do so on the morning of oral arguments last year, saying it “now had an opportunity to reevaluate its position in this case.”
The Supreme Court has repeatedly returned to Moore’s finding that giving the girl to the family “was not a decision that the United States initiated, but rather consented to or acquiesced in.”
The three judges who did not give up in their criticism both of Arbli and of the circuit court that granted him the adoption.
“A dispassionate review of this case reveals a scenario riddled with arrogance and privilege. Worse, it seems to have worked,” begins the dissent, written by Justice Thomas P. Mann, and signed by Chief Justice Cleo E. Powell and LeRoy F. Millette, Jr.
A Virginia court never had the right to give the child to the Poles, the dissent said.
They chastised the Poles for defrauding the courts “blatantly” during their quest to adopt the girl.
“We must recognize what adoption really is: the cutting and termination of rights that result naturally to another legitimate actor for parental authority. Of course, the process must be impeccable. 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 Poles) went over it, under it, around it, and then blasted through it until there was no line – only fragments that crashed into a cavity.”