Appeals court voids Marine’s adoption of Afghan orphan; child’s fate remains in limbo

UNDATED (AP)- A Virginia appellate court ruled Tuesday (July 16, 2024) that a U.S. Marine should never have been granted an adoption of an Afghan war orphan and voided the custody order he’s relied on to raise the girl for nearly three years. The decision marked a major turning point in a bitter custody battle that has international ramifications far greater than the fate of one child.

The appeals court decision dealt a significant blow in Marine Maj. Joshua Mast’s yearslong legal quest to keep the child, who was orphaned on the battlefield in Afghanistan in 2019.

Mast and his wife, Stephanie, convinced the courts in his hometown, rural Fluvanna County, Virginia, to grant him an adoption of the child, even though she remained in Afghanistan as the government there tracked down her extended family and reunited her with them. The family fled Afghanistan with thousands of other evacuees when the Taliban took over in the summer of 2021. Once she arrived in the United States, Mast used the Fluvanna County documents to convince federal government officials to take the child from her Afghan relatives and give her to him.

She turns five years old this month. The Masts have insisted they are her legal parents and “acted admirably” to save a child in a desperate and dangerous situation. The Afghan family, who challenged Mast’s adoption, have not seen her for nearly three years.

The child’s fate is still in limbo: The decision by the appellate court Tuesday does not clarify who should ultimately get to raise the girl, and she remains with the Mast family for now. No government agencies involved would clarify Tuesday what the next steps might entail, or what their role might be in determining where the child should live as the remaining legal fight unfolds.

The Masts could appeal to the Virginia Supreme Court and ask that Tuesday’s decision not be enforced through that process.

All the parties involved have been forbidden by the court to speak to the press about this case. Attorneys for the Masts and the Afghan couple did not return phone calls. A lawyer appointed by the court to represent the interests of the child, who is referred to in court records as Baby Doe to protect her identity, also did not respond.

Several legal organizations supporting the Afghan couple said they were encouraged.

National Center for Youth Law senior attorney Becky Wolozin said that by “clearly stating that the Masts have no legal rights over Baby Doe, the Court refused to legitimize their unlawful actions – actions which have led to profound and unnecessary suffering.”

Charlottesville Circuit Court Judge Claude Worrell last May vacated Mast’s adoption order, which was granted by another judge in 2020, but left in place a custody order that allowed the child to stay with the Masts. A three-judge appellate panel heard arguments in the fall, and issued a 23-page order Tuesday that dissolved Mast’s legal guardianship over the girl.

Appellate Judge Daniel E. Ortiz wrote in Tuesday’s order that Mast’s adoption “did not fit into any” of the criteria required by state law. He said the “procedural errors” that led to it were “so outside the scope of the adoption code that the circuit court lacked the power” to sign the adoption. He also acknowledged that Mast failed to inform the court of key developments, including that the government of Afghanistan never gave up its claim to the girl, that she had been given to Afghan relatives and that a federal court had already rebuffed his efforts to stop that reunification.

How exactly the court justified granting the Marine the adoption in the first place remains shrouded in secrecy. The Associated Press filed in court to get the case unsealed. In January 2023, Worrell granted that request, ordering the case opened to the public. But more than 18 months later, the court continues to keep the entire file hidden despite numerous letters sent by lawyers representing The Associated Press.

The appellate panel directed the circuit court to dismiss all adoption proceedings and conduct a hearing on the Afghan couple’s adoption petition, which is currently pending before the court. The Masts may file their own petition as well, Ortiz wrote.

Retired Circuit Court Judge Richard Moore, who issued the original adoption order, declined to comment on the case.

The U.S. government has insisted in court that Mast never had any claim to this child, and that she be returned immediately to her Afghan family. Justice Department lawyers have written that allowing the child to remain with the Marine could have broad consequences for American foreign policy: from threatening international security pacts to endangering troops stationed abroad by feeding Islamic extremist propaganda.

But the federal government has not stepped in outside of court filings to steer a pathway for the girl to be returned to the Afghans.

The State and Defense departments referred AP to the Justice Department, which declined to comment. The U.S. Attorney’s Office in Virginia, the Virginia Attorney General and the FBI all also declined on Tuesday to comment. US Citizenship and Immigration Services said the situation is not under their purview.

A spokesperson for the Naval Criminal Investigative Service, which handles major criminal investigations for the Marines and the Navy, confirmed that the agency is “conducting a thorough investigation into this situation.”

Major Joshua Mast remains on active duty during the investigation, said Maj. Johnny Henderson at the Marine Forces Special Operations Command. “To protect the integrity of the investigative process, no other information is available at this time.”