Virginia appeals court voids Marine's adoption of Afghan child

RICHMOND, Va. (CN) —The Court of Appeals of Virginia on Tuesday voided a Marine’s adoption of an Afghan war orphan that caused international concern.

“Well-meaning intentions and emergency circumstances are not enough to grant a court the authority or power to complete an adoption,” Judge Daniel Ortiz wrote in the 23-page opinion. “This is especially true when a child is physically present in a foreign country — here, Afghanistan — that has not waived jurisdiction.”

The dispute over the child put the federal government in the peculiar position of imposing itself on a local custody proceeding. According to the Biden administration in filings now sealed but observed by The Associated Press, the narrative of a U.S. service member stealing an Afghan child doesn’t read well on the national stage.

Ortiz found the Marine was granted custody after misrepresenting facts to a local custody court, which also lacked subject-matter jurisdiction to issue the order.

The AP broke news in 2022 of an Afghan couple accusing U.S. Marine Corps attorney Joshua Mast of abducting the husband’s baby cousin. According to the couple, the child, referred to as Baby Doe in court proceedings, was orphaned at two months old after her parents and five siblings were killed during a U.S. military operation in rural Afghanistan in September 2019.

U.S. forces found Baby Doe in the rubble with a fractured skull and femur and severe burns, and transferred her to a nearby military hospital. Mast learned of Baby Doe when serving a short stint as an attorney in October and became concerned with the child’s well-being. By then, the U.S. Forces-Afghanistan had begun coordinating the child’s return to her uncle with help from the International Committee for the Red Cross and officials from the Afghan Ministry of Labor and Social Affairs.

Despite being privy to family reunification efforts, Mast petitioned for custody of Baby Doe in the Fluvanna County Juvenile and Domestic Relations District Court. Mast testified that the child was stateless, the search for relatives was unsuccessful and the child was in urgent need of medical treatment, according to Ortiz’s opinion.

The court granted an emergency adoption order relying on Mast’s misrepresentations that the Afghan government did not want custody of the child or jurisdiction over the matter. The court believed Afghanistan would provide a waiver of the jurisdiction in a matter of days, but in reality, the Afghan government never planned on waiving its jurisdiction. Baby Doe stayed in the military hospital during this time, but the court granted Mast and his wife physical care and custody.

At the Afghan government’s request, the U.S. planned to move the child to her uncle’s custody in early 2020. Mast moved for a restraining order to prevent the transfer but was found unlikely to succeed on the merits. Baby Doe was put under the care of her uncle, who transferred guardianship to his son and his wife.

Mast didn’t give up and employed a fellow attorney practicing in Afghanistan to convince the family to send the child to the United States for medical treatment. After the Afghan government collapsed on Aug. 15, 2021, and following more than a year of communication, the couple agreed to come with the child to the United States.

The U.S. claims that during the chaos of evacuating the country, Mast falsely informed U.S. personnel that the child was his daughter per both Afghan and U.S. court orders and provided them with a fraudulent document that he described as an Afghan court order. The child was taken from the couple when they arrived at Fort Pickett in Virginia in compliance with the Fluvanna court’s final adoption order. Baby Doe has lived with the Mast family since.

On appeal, a lower court found the final adoption order was void because the couple are de facto parents with parental due process rights in Virginia. However, the court allowed Baby Doe to remain in the Masts’ custody by keeping the interlocutory adoption order and the custody order, both granted before the custody court granted a final adoption order, in place.

Ortiz and the appellate panel found that was in error. They found that while the lower court had subject-matter jurisdiction over the adoption in general terms, it lacked the power to render the final adoption order because the adoption bore no resemblance to those authorized by the adoption code, and the child was not present in the United States. The lower court further lacked the power to issue the interlocutory adoption order for the same reasons.

The five adoption categories are agency, parental placement, stepparent, close relative and adult adoption. The lower court cited the Department of Social Services’ recommendation that the Masts take custody as an agency adoption. Ortiz concluded the department wouldn’t have made that determination if not for Mast’s misrepresentations.

“All this occurred before the child was living with the Masts or present in the United States and neither the Department of Social Services nor the guardian ad litem ever met with the child prior to the issuance of the orders,” Ortiz wrote. “Thus, the statutory requirements of an agency adoption were not met.”

Ortiz orders the circuit court to dismiss the adoption proceedings and conduct a hearing on the existing custody petition filed by the couple, which remains pending before the circuit court. Attorneys representing the couple and Mast did not respond to requests for comment.

Senior Attorney Becky Wolozin of the National Center For Youth Law, who submitted support briefs for the couple, said reuniting Baby Doe with her culture is key to her well-being.

“The court definitively found what has been evident all along — the Masts have no legal rights over Baby Doe,” Wolozin said in an email. “What this child has endured is unimaginable and unconscionable. We are hopeful that she will finally be able to return to her rightful family, after years of being denied the basic right to live with her family and be embedded within her loving community. It is indisputable that her connection to her family, culture and identity is fundamental to her well-being.”