The Supreme Court of Virginia, in a 4-3 decision, reversed the Court of Appeals and reinstated a 2020 final adoption order that granted Joshua and Stephanie Mast the right to adopt a child orphaned in Afghanistan. The majority held that Virginia’s adoption finality statute, Code § 63.2-1216, barred all challenges to the adoption order—including by the couple who claimed to be the child’s legal guardians under Afghan law—regardless of the severity of the alleged defects in the proceedings.
MAJORITY OPINION
Background
In September 2019, U.S. Special Forces discovered a severely injured infant girl on a battlefield in Afghanistan following a military operation against Al Qaeda terrorists. The child had sustained multiple fractures, burns, and other serious injuries. Her parents died in the firefight, apparently from suicide bomber detonation. Afghan partner forces assisting U.S. troops reportedly wanted to kill the child, possibly because they believed her parents were foreign fighters rather than Afghan nationals.
Given the infant’s grave medical condition and doubts about whether adequate care could be provided in Afghanistan, the child was transferred first to a U.S. military field hospital in Kandahar and then to Bagram Airfield for treatment. Major Joshua Mast, then serving as a Judge Advocate General in the U.S. Marine Corps and stationed in Afghanistan, learned of the child’s condition. He and his wife decided the child would benefit from medical care in the United States.
In November 2019, the Masts filed a petition for emergency custody in a Virginia juvenile and domestic relations district court, asserting that the child was a stateless, orphaned minor with severe medical needs. The district court granted custody, finding the child to be stateless with no other home jurisdiction. The Masts then filed an adoption petition in circuit court, emphasizing the emergency nature of the situation and their belief that the child was stateless with no known living relatives. The circuit court exercised jurisdiction and entered an interlocutory adoption order in November 2019.
Meanwhile, the U.S. military planned to transfer the child from U.S. custody to the International Committee of the Red Cross (ICRC), which would deliver her to an unknown person at an unknown location. The day before the expected transfer, the Masts sought a temporary restraining order in federal district court to prevent the transfer until evidentiary hearings could be conducted. The federal judge denied the motion the same day, and the child was transferred to the ICRC and later to a man believed to be her uncle. The Masts voluntarily dismissed their federal lawsuit.
Learning of the difficulties in bringing the child to the United States and believing it was in her best interest to receive medical care there, the circuit court entered a final adoption order in December 2020. Both the Department of Social Services and the child’s court-appointed guardian ad litem recommended approval.
In March 2022, A.A. and F.A. filed a petition to vacate the order, claiming they were effectively the child’s adoptive parents as legal guardians under Afghan law and that the Masts obtained the adoption through fraud. The circuit court conducted extensive evidentiary hearings over eleven days with ten witnesses testifying.
The circuit court made numerous factual findings. Most significantly, it found the Masts more credible overall than the A.s, noting that the A.s admitted lying on at least three occasions. The court was not convinced that the A.s were actually related to the child, finding they had not proven their claimed familial relationship by a preponderance of the evidence. The court noted that the Masts had requested DNA testing from the beginning, which the A.s resisted. The court also found no proof that the A.s had legal custody under Afghan law or any court order giving them guardianship rights.
Nevertheless, the circuit court concluded that even though the A.s were not natural parents, adoptive parents, legal custodians, or even proven biological relatives, they had served as “physical custodians and caretakers” and “parent figures” for a period of time. On this basis, the court held that the A.s had a “fundamental liberty interest” in their relationship with the child that entitled them to constitutional protection. The court therefore ruled that Code § 63.2-1216 was unconstitutional as applied to the A.s, despite acknowledging that “no case explicitly says this.”
A second circuit court judge later took over the case after the first judge retired. The second judge entered an order granting summary judgment to the A.s, finding some evidence of “extrinsic fraud” (though not involving intentional hiding of information) and concluding that the final adoption order was void.
The Court of Appeals affirmed the circuit court’s decision to vacate the adoption order, but on different grounds. It held that the circuit court lacked the “power to render” the adoption orders because the proceedings did not comply with statutory requirements—specifically, that the child had not been “properly committed or entrusted” to a child-placing agency as required for agency adoptions, and that neither the Department of Social Services nor the guardian ad litem had met the child before issuing their recommendations since she remained in Afghanistan.
Analysis
Statutory Bar. The majority opinion began by emphasizing the clear language of Code § 63.2-1216, which states that after six months from entry of a final adoption order, “the validity thereof shall not be subject to attack in any proceedings, collateral or direct, for any reason, including but not limited to fraud, duress, failure to give any required notice, failure of any procedural requirement, or lack of jurisdiction over any person.”
The Court traced the legislative history of this statute, noting that the General Assembly in 1995 unanimously amended it to “strengthen” the existing provision by adding the expansive phrase “for any reason” followed by specific examples. The purpose, the Court explained, was to favor finality, recognizing that repeatedly subjecting children to challenges about who their legal parents are has the potential to cause significant harm.
The Court rejected the A.s’ argument that the statute applies only to valid orders and not to orders that should be declared void ab initio. This circular reasoning, the majority held, would render the statute meaningless—it would only bar attacks that were already futile. The Court emphasized the unambiguous text: the statute bars attacks on “any” final adoption order for “any reason” including “fraud” and “failure of any procedural requirement.”
The Power to Render Doctrine. The majority then addressed the Court of Appeals’ application of the “power to render” doctrine—a judicial principle that allows courts to vacate orders even when subject matter jurisdiction existed if the court exceeded its statutory authority or adopted an unlawful procedure. The Court of Appeals had found that the circuit court’s procedural errors in the adoption process rendered the order void ab initio under this doctrine.
The Supreme Court distinguished between judicial rules and legislative statutes. While the power to render doctrine may excuse noncompliance with Rule 1:1 (a judicially created procedural deadline for challenging final judgments), it cannot override Code § 63.2-1216, which is a legislatively enacted statute of repose. Statutes of repose, the Court explained, “reflect a legislative decision to extinguish all causes of action after passage of an arbitrary period of time” and are designed “to override customary tolling rules arising from the equitable powers of courts.”
The Court noted that Code § 63.2-1216 explicitly bars challenges based on “failure of any procedural requirement”—precisely what the Court of Appeals cited as justifying its power-to-render analysis. To allow a judicially created exception to swallow this clear statutory language would improperly subordinate legislative text to judicial doctrine. The Court emphasized its role is to interpret “what the statute says” not what it or the litigants “think it should have said.”
Fraud Claims. The majority held that Code § 63.2-1216’s six-month deadline applies equally to fraud claims, including claims of extrinsic fraud. The statute explicitly lists “fraud” among the grounds that cannot support a challenge after the deadline expires. While the A.s suggested that extrinsic fraud claims should never be subject to time limitations, the Court rejected this argument, citing historical Virginia cases applying the doctrine of laches to bar untimely fraud claims seeking to annul prior decrees. Code § 63.2-1216 simply replaced the indefinite doctrine of laches with a definite statutory deadline.
Constitutional Claims: De Facto Parents. The A.s argued that they were “de facto parents” entitled to the same constitutional protections as biological or adoptive parents under the Fourteenth Amendment’s Due Process Clause, as recognized in Troxel v. Granville. If true, they contended, Code § 63.2-1216 would be unconstitutional as applied to them because it deprived them of their fundamental liberty interest without due process.
The Supreme Court rejected this theory on multiple grounds. First, the circuit court’s factual findings undermined the A.s’ claimed status. The court repeatedly found that the A.s were “not natural parents, adoptive parents, grandparents, or anyone with court-ordered custody or guardianship” and had not proven they were even biological relatives. The court found no evidence the A.s ever had legal custody and was not convinced of their claimed familial relationship to the child.
Second, and more fundamentally, the Court held that no Virginia or federal case recognizes “de facto parents” as having the same constitutional rights as actual parents. The plurality opinion in Troxel protected the rights of a biological mother—a “fit custodial parent”—not non-parents. Every Virginia Supreme Court case applying Troxel has limited its protections to actual parents.
Supremacy Clause and Federal Preemption. Finally, the Court addressed the argument that the adoption order violated the Supremacy Clause by interfering with federal foreign policy. The Court noted several significant contextual factors undermining this claim.
First, the United States was not a party to the case, having been denied intervention twice, though it appeared as amicus curiae. More importantly, shortly before oral argument before the Supreme Court, the U.S. Department of Justice withdrew its amicus brief supporting the A.s, stating that “the United States has now had an opportunity to reevaluate its position” and had “determined, in light of current U.S. foreign-policy interests and intervening foreign-policy developments, including developments in Afghanistan, to respectfully withdraw” its brief.
Second, the factual predicate for the claim had dissolved. The bilateral security agreement between the United States and the Islamic Republic of Afghanistan, which the A.s argued required deference to Afghan custody decisions, was with a government that no longer exists. The Taliban violently overthrew the Islamic Republic in 2021 and established the Islamic Emirate of Afghanistan, which the United States does not recognize as a sovereign state and designates as a terrorist entity.
The Court found the A.s’ argument essentially asked it to vacate a state adoption order based on interference with a “past, not present, federal interest arising out of a past, not present, bilateral agreement, with a past, not present, foreign government.” The Court saw no legal principle requiring this result.
Moreover, the circuit court’s factual findings cast doubt on whether U.S. officials had made definitive determinations about the child’s status. The court found that the decision to turn the child over to Afghan authorities was one the United States “consented to or acquiesced in” rather than initiated, and that the ICRC was the “main or principal determinant” in the decision. No evidence showed the U.S. Embassy conducted independent investigation of the child’s identity or family relationships.
The Court emphasized its full agreement that the President has unique constitutional responsibility for foreign and military affairs, but it did not believe the adoption order jeopardized or undermined presidential foreign-policy prerogatives—particularly given that the United States itself had abandoned the theory on appeal based on current foreign policy interests.
The Court also noted it knew of no authority for an implied constitutional right of action to collaterally attack final judicial decrees alleging federal constitutional violations. The distinction between defensive use of constitutional principles and offensive collateral attacks is significant, and exceptions to the general prohibition on collateral constitutional challenges are rare. Because the A.s failed to provide sufficient legal reasoning or authority supporting such a right of action, the Court declined to rule on whether one exists.
DISSENTING OPINION
Justice Mann pens a vigorous dissent, in which Justice Powell and Senior Justice Millette join in part. It begins with the recognition that adoptions involve “the severance and termination of the rights naturally flowing to an otherwise legitimate claimant to parental authority” and therefore the process “must be impeccable.” But, “if this process was represented by a straight line, Appellants went above it, under it, around it, and then blasted right through it until there was no line at all—just fragments collapsing into a cavity.” And the result was that a “little girl was taken: by force on a military base and through duplicity in two courts.”
Evidentiary Record
Before reaching the legal analysis, Justice Mann devotes substantial attention to establishing which factual findings should govern the appeal. This is a matter of significant dispute given that two different circuit court judges presided over successive stages of the litigation. The dissent takes issue with the majority’s treatment of a general timeline prepared by the second circuit court judge. The majority characterized this timeline as having “little, if any, weight on appeal” because it was not incorporated into the final written order. Justice Mann strongly disagrees.
The second judge distributed the timeline to all parties at the close of argument on the A.s’ summary judgment motion, stating it showed his effort to “come to some understanding about what happened and when it happened and the order in which it happened” and that “the general timeline is applicable.” The judge then immediately ruled in favor of the A.s. When the A.s submitted a proposed order incorporating the timeline and making findings that would “supersede the earlier, preliminary findings” of the first judge, and the Masts objected, the second judge ultimately adopted the Masts’ proposed order verbatim—but this order was simply a transcription of the judge’s own oral ruling and did not expressly disavow the timeline.
Justice Mann—a former trial judge—argues this makes “intuitive sense” because “what could be less objectionable than an order that simply restates the judge’s own words?” He does not view the adoption of the Masts’ order or the omission of the timeline from the written order as a disavowal of the second judge’s factual findings. Rather, trial judges are not required to memorialize findings in writing unless statutorily mandated, and the appellate standard of review requires presuming the trial court relied on all evidence presented and any reasonable inferences from it.
Moreover, Justice Mann notes that the first judge explicitly intended his findings to be “revisited and modified” by his successor, stating in his order that findings “may be considered or not considered as they deem appropriate, and any pre-trial finding or ruling may be revisited and modified by the [new presiding] trial judge at a later time.” The power to revise or modify interlocutory orders is fundamental, and where the second judge made different factual findings, those should control on appeal.
Based on this understanding of the record, Justice Mann recites factual findings more critical of the Masts than those emphasized by the majority:
After U.S. Special Forces found the severely injured infant, the ICRC began its search to reunite the child with her family—its traditional role under the Fourth Geneva Convention for children orphaned in military conflicts. The child’s maternal uncle requested ICRC assistance to return the child to her extended family in Afghanistan.
On October 26, 2019, Afghan officials from the Ministry of Labor and Social Affairs (MOLSA), ICRC representatives, and U.S. officials met to discuss the family reunification search. Joshua Mast attended this meeting. The United States expressed its intent to place the child in Afghan government custody for family reunification, consistent with U.S. obligations under its bilateral security agreement with Afghanistan.
Days after the meeting, a U.S. Colonel sent a memorandum to ICRC and MOLSA claiming the child was likely the daughter of Turkmen or Uighur foreign fighters, not Afghan nationals. However, the Afghan government disagreed with this conclusion and continued searching for the child’s next of kin in Afghanistan.
While the ordinary reunification process was unfolding in Afghanistan, the Masts petitioned a Virginia juvenile court for custody in November 2019. Critically, Justice Mann emphasizes that “the Masts failed to inform the JDR court of the ongoing familial search or the United States’ intent to deliver the child into Afghan custody.” Instead, the Masts assured the court that the Afghan government would issue a waiver within days to allow adoption in the United States. “This was the prevarication which formed the basis of everything else to follow,” Justice Mann writes.
The State Department later criticized the JDR custody order in a diplomatic cable, calling it “flawed in a number of respects” because it relied on assertions that the child was stateless and that Afghanistan was issuing a waiver—when in fact “MOLSA concluded that the child is Afghan, and no such waiver was issued by the Government of Afghanistan.” The cable noted it was “unclear on what basis the court had jurisdiction to adjudicate the custody claim” and that “the requirements for U.S. prospective adoptive parents seeking to adopt a child from Afghanistan have not been met.”
Mast emailed the custody order to Foreign Service Officers in Afghanistan, conceding it “doesn’t impact [the Afghan government’s] decision” but “does allow me to create a path to the U.S. as soon as we can secure a waiver.” He acknowledged “this path could only be used if the Government of Afghanistan gave formal consent and waived jurisdiction over the child.” The United States “became concerned” that Mast “had diverged from” its position because “he was attempting to interfere inappropriately in decision-making regarding the child.” As a result, the U.S. stopped including Mast in deliberations about the child.
When Mast attempted to medically evacuate the child from Bagram to the United States, the evacuation was cancelled after the Afghan government successfully identified and verified the child’s next of kin—her paternal uncle, H.I.—and notified the State Department. A State Department official requested MOLSA “expedite” its custody request “so that the infant can be reunited with her family members as soon as possible.”
After MOLSA transmitted its formal custody request in February 2020, the State Department concluded the child was an Afghan national (not “stateless”), that no waiver would issue from Afghanistan, and that transfer into Afghan custody was necessary.
When the Masts learned of plans to reunite the child with her Afghan family, they sought a temporary restraining order (TRO) in federal district court. Significantly, when the federal judge asked whether they were ultimately seeking to adopt the child, the Masts’ attorney stated “No, sir.” The attorney claimed they merely wanted to get the child medical treatment in the United States and disputed that the family members were actually related to her.
The federal court denied the TRO, finding the Masts failed to demonstrate likelihood of success on the merits due to “their failure to proceed through proper channels” and “lack of service and notice.” The court stated it “cannot overlook the international ramifications” of granting the request, noting the Masts “should have obtained the consent of the Afghan government” which “ultimately was not obtained.”
In March 2020, the Masts employed an American attorney in Afghanistan, Kimberly Motley, to contact the A.s under the pretext of helping with the child’s medical issues. Motley requested photographs of the child, telling the A.s she knew “someone who would like to help.” This “turned out to be entirely pretextual.”
“Though the child had never stepped foot in the United States,” the Masts obtained a final adoption order in December 2020. They used photographs acquired through Motley to obtain a Department of Defense beneficiary card for the child. In securing the final order, the Masts failed to inform the circuit court about their federal TRO filing or its denial, making only one oblique reference in a subsequent document “which was being looked at for other reasons.”
The Masts “failed to make the circuit court aware of any actual court proceeding…or any ruling by a court that addressed the validity of the Juvenile Court’s custody order.” They also failed to disclose that the Afghan government had identified the child as Afghan, verified her next of kin, or placed her with family. Instead, Mast “lied to the circuit court, testifying that he did not recollect whom the child had been placed with” and had “no such specific identification information at that time,” even though he was actively communicating with the A.s through Motley.
Thus the final adoption order falsely described the child as an “undocumented, orphaned, stateless minor” and stated “no further consent to adoption or notice of these proceedings is required and that all requirements of law have been met or have been waived by this court”—when in fact the child had a nationality, had verified family, and legal requirements had not been met.
Three months after the final adoption order, the Masts asked the A.s to send the child to the United States for medical treatment. The A.s refused unless they could accompany her. When the Afghan government began collapsing in August 2021, the A.s and the child fled to the United States as refugees, arriving at Dulles International Airport on August 29, 2021. F.A. was approximately eight months pregnant.
Five days later, armed with their court orders, the Masts took physical custody of the child for the first time on the military base at Fort Pickett, Virginia. Justice Mann provides a detailed, emotionally powerful account: As F.A. was putting the child to sleep on September 3, 2021, two officers knocked on their door. With little explanation, they ordered the A.s to grab their belongings and brought them to a waiting vehicle. A woman emerged and took the child from F.A., placing her in a car seat. When F.A. asked to be with the child, the woman refused, saying they must go to an “interview.” At the “interview,” the woman held the child while another woman, claiming to be from the State Department, told the A.s they were not the legal parents under U.S. law and must be separated from the child. When A.A. asked how they had lost custody after raising the child for two years, Mast entered the room. A.A. asked what was happening; Mast said he was “working in my job” and “just got an e-mail and I came here.” Mast threatened he would either “take the baby” or “they will put her in the orphanage.” F.A. and the child began crying. F.A. begged, “Please give me my daughter.” A.A. protested: “I respect the rules and laws of the United States, but if you are saying that this child does not belong to us, she should be separated either in front of a court or in front of the police or even in front of, like, an office. But there is no one. It’s like you are kidnapping her.”
“The A.s have not seen the child since,” Justice Mann writes.
Analysis
Orders Void Ab Initio. The dissent begins by establishing the critical difference between void ab initio and voidable orders. An order is void ab initio if a court lacks subject matter jurisdiction, lacks power to render it, or uses unlawful procedure. Such orders are “a complete nullity” or “no order at all” and can be challenged collaterally regardless of time limits. Voidable orders contain reversible error but become final if not appealed.
The dissent finds that the JDR custody order was void for lack of subject matter jurisdiction. JDR courts are courts of limited jurisdiction with only statutorily conferred powers. Code § 20-146.12 provides “the exclusive jurisdictional basis” for custody determinations through four specific categories. The dissent demonstrates that the Masts’ petition fell outside all four categories. Virginia was not the child’s home state—”the child remained in Afghanistan throughout the custody proceedings and did not enter the United States until some 21 months later.” Afghanistan never waived jurisdiction, the Masts were not “acting as parents” having never met the child, and the child had no connection to Virginia. Afghanistan was “the more appropriate forum” as it was actively working to reunify the child with family. Because the custody proceeding fell outside the statute’s exclusive categories, the JDR court lacked jurisdiction, rendering the order void ab initio. This void order “taints all subsequent orders based upon it”—the circuit court’s adoption orders cannot stand.
But even independently, the circuit court exceeded its statutory authority. Virginia circuit court powers “are entirely prescribed by statute.” The circuit court exceeded its authority in three ways. First, no statute authorized this type of adoption. Virginia authorizes only five categories—agency, parental placement, stepparent, close relative, and adult adoption. This fit none of them and represented “a wholesale deviation from any species of adoption recognized by Virginia law.” Second, the circuit court had no power to issue the interlocutory adoption order. Code § 63.2-1209 allows such orders only in personal placement or agency adoptions. The court cited “emergency circumstances” to waive requirements, but “no statute grants the circuit court such power.” Third, finalization required a mandatory report with at least three visits with the child within six months. This was impossible—”the child did not enter the United States until after the entry of the final adoption order.” The court waived these requirements without statutory authority. “In effect, the circuit court simply made up the procedure as it went.”
The critical question, then, is whether Code § 63.2-1216 bars challenges to void orders. The statute bars attacks “for any reason, including but not limited to fraud, duress, failure to give any required notice, failure of any procedural requirement.” But the dissent emphasizes the statute does not “retroactively confer, nor retroactively waive, what is at all other times an unwaivable requirement for court action: lawful authority.” The defects listed in the statute concern how a court exercised power. Lack of subject matter jurisdiction and lack of power to render concern whether the court had any power to exercise.
The decisive difference is waivability: “Unlike the defects listed in Code § 63.2-1216—neither a lack of subject-matter jurisdiction nor a lack of the power to render is waivable.” Subject matter jurisdiction “cannot be waived or conferred on the court by agreement of the parties.” No passage of time can create authority that never existed.
“We believe the General Assembly did not intend to impliedly forgive such fundamental defects in a court’s authority through its enactment of Code § 63.2-1216.” Reading the statute to validate orders entered without authority “requires an impermissible judicial rewriting of the statute.”
The dissent concludes: “Void is void. Wrong is wrong.”
Federal Preemption. Justice Mann argues that the custody and adoption orders are preempted by federal law under the foreign affairs preemption doctrine established in Zschernig v. Miller. The Constitution commits foreign policy and military affairs to exclusive federal control, and under the Supremacy Clause, state laws that interfere with federal foreign policy are “without effect.” Justice Mann argues that the orders intruded into foreign policy and military operations in Afghanistan, an area where states have “no serious claim” of authority. The custody and adoption of a non-citizen child on a U.S. military base in a foreign war zone fell squarely within federal authority, particularly against the backdrop of the bilateral security agreement between the United States and Afghanistan requiring U.S. forces to operate “with due respect for applicable Afghan laws and regulations.” The Virginia orders had “more than some incidental or indirect effect” on Afghanistan by attempting to override the Afghan government’s jurisdiction and the A.s’ rights as guardians, directly affecting the legal rights of individuals and a foreign government. The Masts even used the Virginia custody orders to unsuccessfully seek a federal TRO to stop the United States from transferring custody to the Afghan government.
Justice Mann argues that legitimizing these orders creates “great potential for disruption or embarrassment” in U.S. foreign relations, a concern the State Department expressed in its diplomatic cable noting “significant foreign policy concerns” about holding “an Afghan child against the will of her extended family and the Afghan government.” The dissent rejects the argument that the U.S. government’s withdrawal of its amicus brief supporting the A.s eliminates the preemption concern, explaining that “a change in the government’s position between administrations does not cure the overstep into the Executive branch function at issue here” and that foreign affairs preemption broadly addresses state intrusion into federal foreign relations power “even in the absence of any express federal policy.” The reversal implies that any American state court can override a foreign government’s custody decisions simply because a U.S. citizen obtained a domestic order without input from the foreign government, fundamentally interfering with the Executive’s constitutional authority over international relations and military operations.
Due Process. Justice Mann argues that the custody and adoption orders violated the A.s’ federal constitutional due process rights because they were entered without the A.s’ knowledge or notice. The “relationship between a parent and child is a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment,” and this interest extends to legal custodians who stand in the place of biological parents, giving them “precisely the same child-rearing autonomy as that enjoyed by a parent.” Since the circuit court found that the A.s had effectively adopted the child under Afghan law and were her legal guardians, they were entitled to the same constitutional protections as biological parents, which at minimum requires notice and an opportunity to object before custody or adoption can be awarded to others. The A.s “received neither.”
Justice Mann emphasizes that Code § 63.2-1216’s time bar “simply cannot apply when a parent or legal guardian has not received due process with respect to an adoption proceeding,” and even practically speaking, “it cannot stand that no relevant party—the child or their custodians—receives notice of an ex parte adoption proceeding. Yet that is precisely what happened here.” Because the A.s were legal guardians entitled to constitutional protection and received no notice or opportunity to be heard, “the application of Code § 63.2-1216’s time bar is unconstitutional here and must yield to the guarantees of the Fourteenth Amendment.”
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