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

CHARLOTTESVILLE, Virginia — A Virginia appeals court ruled Tuesday that a U.S. Marine should never have been granted the adoption of an orphaned Afghan war child, overturning the custody order he had relied on for nearly three years to raise the girl. The decision marked a major turning point in a bitter custody battle that has international implications far broader than the fate of one child.

The decision of the court of appeal a major blow in Marine Major Joshua Mast’s years-long legal battle to keep the child, who be on the battlefield in Afghanistan in 2019.

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

She turns five this month. The Masts have insisted they are her legal parents and have “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 almost three years.

The child’s fate remains uncertain: The appeals court’s decision Tuesday did not make clear who would ultimately raise the girl, and she will remain with the Mast family for now. No government agency involved would clarify Tuesday what the next steps might entail, or what their role might be in determining where the child should live while the remaining legal battle unfolds.

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

All parties involved have been banned by the court from speaking to the press about the case. Attorneys for the Masts and the Afghan couple did not respond to phone calls. A lawyer appointed by the court to represent 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.

Becky Wolozin, senior attorney at the National Center for Youth Law, said that by “clearly stating that the Masts have no legal rights over Baby Doe, the court refused to legitimize their wrongful actions — actions that have caused profound and unnecessary suffering.”

Charlottesville District Court Judge Claude Worrell evacuated last May Mast’s adoption order, granted by a different judge in 2020, left in place a guardianship order that allowed the child to remain with the Masts. A three-judge appeals panel heard arguments in the fall and issued a 23-page order Tuesday terminating Mast’s legal guardianship of the girl.

Judge Daniel E. Ortiz wrote in Tuesday’s order that Mast’s adoption “did not fit” 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 court lacked the authority” to sign off on the adoption. He also acknowledged that Mast had failed to inform the court of key developments, including that the Afghan government never relinquished its claim to the girl, that she had been given to Afghan relatives and that a federal court had already rejected his efforts to stop that reunification.

Exactly how the court initially justified granting the Marine the adoption remains shrouded in secrecy. The Associated Press filed a lawsuit seeking to make the case public. In January 2023, Worrell granted that request and ordered the case to be made public. But more than 18 months later, the court is still keeping the entire case secret, despite numerous letters from attorneys for The Associated Press.

The appeals panel ordered the court to dismiss all adoption proceedings and hold a hearing on the Afghan couple’s adoption petition, which is currently pending before the court. The Masts can also file their own petition, Ortiz wrote.

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

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

But the federal government, outside of the lawsuit, has taken no action to return the girl to the Afghans.

The State and Defense departments referred the AP to the Justice Department, which declined to comment. The Virginia attorney general’s office, the Virginia attorney general’s office and the FBI also declined to comment Tuesday. U.S. Citizenship and Immigration Services said the situation does not fall under its jurisdiction.

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

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