Appeals court declares Navy’s adoption of Afghan war orphan invalid

CHARLOTTESVILLE, Va. — A Virginia appeals court ruled Tuesday that a U.S. Marine should never have been allowed to adopt an Afghan war orphan and overturned the custody order the Marine had relied on to raise the girl for nearly three years. The decision marks a major turning point in a bitter custody battle whose international implications extend far beyond the fate of one child.

The appeals court’s decision was a major setback in the years-long legal battle between Marines and Marines over keeping the child who was orphaned on the battlefield in Afghanistan in 2019.

RELATED

Mast and his wife, Stephanie, convinced the courts in his hometown in rural Fluvanna County, Virginia, to grant him an adoption of the child, even though she remained in Afghanistan while 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 seized power in the summer of 2021. When she arrived in the United States, Mast used the Fluvanna County documents to convince federal officials to take the child away from her Afghan relatives and give her to him.

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

The child’s fate is still uncertain: Tuesday’s appeals court decision does not say who will ultimately raise the girl, and she will remain with the Mast family for now. None of the government agencies involved would clarify Tuesday what the next steps might entail or what role they might play in deciding where the child should live as the legal battle continues.

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

All parties have been barred by the court from speaking to the press about the case. Attorneys for the Masts and the Afghan couple did not return calls. A court-appointed attorney representing the interests of the child, referred to in court documents as Baby Doe to protect his identity, also did not return calls.

Several legal organizations supporting the Afghan couple expressed encouragement.

Becky Wolozin, senior staff attorney for the National Center for Youth Law, said the court “by clearly stating that the Masts had no legal claim to Baby Doe, refused to legitimize their unlawful actions – actions that have caused profound and unnecessary suffering.”

Charlottesville District Court Judge Claude Worrell last May overturned Mast’s adoption order, which had been issued by another judge in 2020, but left in place a custody order allowing the child to stay with the Masts. A three-judge appeals panel heard arguments this fall and issued a 23-page order Tuesday terminating Mast’s legal guardianship of the girl.

Appellate Judge Daniel E. Ortiz wrote in his order Tuesday that Mast’s adoption “did not meet any criteria” of state law. He said the “procedural errors” that led to it were “so far outside the scope of adoption law that the district court did not have the authority” to sign off on the adoption. He also acknowledged that Mast failed to inform the court of key developments, including that the Afghan government never gave up its claim to the girl, that she had been turned over to Afghan relatives and that a federal court had already rejected his efforts to prevent that reunification.

How exactly the court justified the adoption of the Marine in the first place remains secret. The Associated Press petitioned the court to release the file. In January 2023, Worrell granted this request and ordered the case to be made public. But more than 18 months later, the court continues to keep the entire file secret, despite numerous letters from Associated Press lawyers.

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

Retired District Judge Richard Moore, who made 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 the child and that he must be returned immediately to his Afghan family. Justice Department lawyers have written that allowing the child to remain with the Marines could have far-reaching consequences for American foreign policy: from jeopardizing international security agreements to endangering troops stationed abroad by spreading Islamist propaganda.

However, apart from the court applications, the federal government has not intervened to find a way to return the girl 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 Attorney General of Virginia and the FBI also declined to comment Tuesday. U.S. Citizenship and Immigration Services said the situation was outside its jurisdiction.

A spokesman for the Naval Criminal Investigative Service, which conducts key criminal investigations for the Marine Corps and U.S. Navy, confirmed that the agency is “thoroughly investigating this situation.”

Major Joshua Mast remains on active duty while the investigation continues, said Maj. Johnny Henderson of Marine Forces Special Operations Command.

“To protect the integrity of the investigation, no further information is available at this time.”