Baby orphaned in military raid now at center of custody battle with her relatives and Marine

The U.S. government says the child was rightly returned to Afghan relatives.

January 14, 2023, 5:15 AM

In September 2019, a weeks-old baby girl was found badly hurt but -- miraculously -- alive in the rubble of a raid by U.S. special operations forces. The military had targeted a home in central Afghanistan, looking to capture or kill suspected foreign fighters associated with al-Qaida.

The baby was left orphaned. Both of her parents were killed in the operation and she was placed under the temporary medical care of the U.S. military to recover from burns and physical trauma.

Today, the 3-and-a-half year old, known as Baby Doe, is an orphan no longer. She is claimed by two families who are fighting a complex legal battle over the right to raise her.

On one side are her paternal uncle and cousins in Afghanistan, with whom she was placed by the Afghan government in early 2020. Her uncle's son and his wife, referred to in court as John and Jane Doe, cared for her for 18 months.

On the other side is a U.S. Marine lawyer who was in Afghanistan at the time of the raid and who successfully petitioned a local Virginia court to grant him an adoption order. An attorney for the Marine, Maj. Joshua Mast, has contended in court filings that the girl had no surviving biological relatives, which the U.S. government says isn't true.

Mast's attorney described her as an "orphan of war and a victim of terrorism" and Mast used the adoption order in Virginia to take custody of Baby Doe in September 2021, after she and her Afghan family fled the Taliban and came to the U.S. -- at Mast's behest, the Does claim in a federal lawsuit.

Baby Doe currently lives in North Carolina with Mast, his wife and their children.

John and Jane Done have resettled in Texas. In September, they filed their federal suit against the Masts, claiming that the Masts unlawfully took Baby Doe.

Her story first came to light in high-profile pieces by the Associated Press and The New York Times.

"She's living with a person who kidnapped her," Jane Doe told the Times in an interview published in November -- an allegation the Masts adamantly deny.

PHOTO: Families evacuated from Kabul, Afghanistan, wait to board a bus after they arrived at Washington Dulles International Airport, in Chantilly, Va., Aug. 27, 2021.
Families evacuated from Kabul, Afghanistan, wait to board a bus after they arrived at Washington Dulles International Airport, in Chantilly, Va., Aug. 27, 2021.
Jose Luis Magana/AP, FILE

In their response to the Does' suit, the Masts labeled the Afghan couple's claims as "outrageous, unmerited attacks" and called into question whether Jane and John Doe are even related to the child. An attorney for Mast wrote in one filing that it "was apparent [to Mast] that Baby Doe had no living relatives." The Masts insist their adoption of the girl is legal.

The case is being reviewed in both Virginia and federal courts.

Also involved are the Pentagon, the State Department and the Justice Department, who say the child should be returned to her Afghan relatives.

This article is based on court filings and statements from U.S. officials and others involved. Attorneys for both sides, contacted by ABC News, said they could not comment because of a recently issued gag order from the Virginia circuit court judge.

'The right thing to do'

Baby Doe was the only survivor of the U.S. military raid in September 2019 that targeted the compound where her parents had been living. Court documents describe her "life threatening injuries": a fractured skull, a broken femur and second-degree burns. She was transferred to a U.S. military hospital for urgent care.

Following Afghan cultural traditions, Baby Doe should have then been taken to her next closest relatives. But who was she? Who were those relatives? Was she even Afghan?

The U.S. worked with the Afghan government -- the administration of then-President Ashraf Ghani -- and the International Committee of the Red Cross (ICRC) to locate Afghan relatives who could raise her as their own, in line with local customs.

Mast was serving in Afghanistan at the time, as an attorney for the government's Center for Law and Military Operations.

In that role, he was involved in discussions about what to do with Baby Doe and took a keen interest in her welfare. He advocated for her transfer to the United States so she could be placed for adoption far away from the dangers of "a country known for child abuse, neglect and sexual trafficking of children," as an attorney for Mast once wrote, according to the Times.

Mast's court filings have also stated that Baby Doe's parents were likely combatants, not collateral damage from the 2019 military raid.

Her Afghan relatives dispute this, and it has not been confirmed.

PHOTO: Smoke billows from the Green Village, home to several international organizations and guesthouses, in Kabul, Afghanistan, Sept. 3, 2019.
Smoke billows from the Green Village, home to several international organizations and guesthouses, in Kabul, Afghanistan, Sept. 3, 2019.
Rahmat Gul/AP, FILE

In late 2019, Mast and his wife, Stephanie, sought an adoption order from a family court judge in rural Fluvanna County, Virginia, where they lived at the time. Mast claimed to the judge there that Baby Doe was stateless and needed continuous medical care.

Around that same time, however, Baby Doe's Afghan relatives had been located by the ICRC.

By February 2020, the Afghan government determined that the girl was an Afghan citizen and, with the aid of the ICRC, eventually helped place Baby Doe with a young Afghan couple -- her paternal uncle's son and the son's wife -- who would raise her.

The ICRC confirmed to ABC News in a statement that they had determined the child's relationship to the family using their worldwide standards for family tracing requests.

"The ICRC helped in tracing and locating family members of the child in the country, following the death of the two parents," a spokesperson told ABC News. "In 2020, the ICRC facilitated a reunification of the child with family members in Afghanistan, according to its usual working modalities applied worldwide and in full transparency with the relevant authorities and legal guardians."

Back in the U.S., the Masts continued with their efforts to adopt Baby Doe -- even unsuccessfully requesting a federal court block the girl's transfer away from the U.S. military base in Afghanistan in February 2020, where she had been recovering after the raid.

In December 2020, 10 months after Baby Doe was relocated to her uncle's family, Judge Richard Moore in Fluvanna County, Virginia, granted the Masts a final adoption order though John and Jane Does' attorney later said in court papers that the U.S. government was not properly notified of those proceedings. Moore determined Baby Doe was stateless and the Masts would make good parents.

This adoption order appears to have become the basis for the Masts to build their custody claim on Baby Doe.

According to John and Jane Doe's lawsuit, filed last September, Joshua Mast then initiated contact with them in the summer of 2021, more than a year after Baby Doe had placed in the custody of her relatives in February 2020.

The couple alleged that Mast urged them to come to the U.S. to provide Baby Doe with medical care -- and that it was all part of a long-planned effort to take custody of the girl, which Mast denies.

John and Jane Doe claim that Mast abducted Baby Doe days after he had helped them arrive in the U.S. in August 2021, as part of the chaotic U.S. evacuation from Afghanistan.

PHOTO: A plane takes off Hamid Karzai International airport in Kabul, Afghanistan.
A plane takes off Hamid Karzai International airport in Kabul, Afghanistan.
Daniel Leal/AFP via Getty Images, FILE

After what they described as a grueling trip from Afghanistan to a refugee housing unit in the U.S., John and Jane Doe allege in court documents that they were then transported to another building on Sept. 3, 2021, where Baby Doe was taken by a female social worker. They say they were told the girl was not theirs and that the Masts had lawfully adopted her.

When Jane Doe realized what was happening, she collapsed to the floor, crying and begging for the Masts not to take Baby Doe, according to the Does' court documents in the suit. John Doe pleaded with Joshua Mast to act like the "brother" he claimed to be, but Joshua Mast stomped on John Doe's foot, shoved him and left the room, the Does' federal lawsuit states. That was the last time Jane and John Doe saw the baby.

In a filing last year, Mast's attorney wrote that Mast and his wife had acted "admirably" and reiterated their view that "the Masts are Baby Doe's adoptive parents."

"Joshua and Stephanie Mast have done nothing but ensure she receives the medical care she requires, at great personal expense and sacrifice, and provide her a loving home," their attorney wrote in October, seeking to have the federal lawsuit dismissed.

"Major Mast ... reasonably and justifiably believed that the Does were not related to Baby Doe. The Masts were further justified in believing that having Baby Doe in their custody would protect her from ongoing physical harm," their attorney wrote.

In November, just before his retirement from the bench, Fluvanna County Judge Moore denied a Justice Department motion that argued the case should be moved to a federal court.

The motion also stated that the Masts' adoption should not have been granted, citing a U.S. government decision that Baby Doe should be returned to her Afghan family. The State Department likewise said in a recent statement to ABC News that the baby should have been brought back to her relatives.

"Reuniting the child with the family members in Afghanistan was the right thing to do," a department spokesperson said.

Amid the complicated legal fighting, "Our position at that time, as well as our position now, is straightforward," the spokesperson said. "The United States recognized that the Government of Afghanistan had authority to determine that the child should be reunited with family members in Afghanistan."

Putting Baby Doe under the authority of Afghanistan's government, to be ultimately returned to her remaining family, "was consistent with international law and U.S. policy to take appropriate steps to facilitate the reunion of families separated during armed conflict," the spokesperson continued. "As a result, we share many of the concerns that have been expressed about the current situation."

Legal expert weighs in

Adoptions of Afghan children in the U.S. are exceedingly rare, government data shows, and the adoption order granted in Virginia was unusual given the details of Baby Doe's case, ABC News legal analyst Channa Lloyd said.

"Technically, an adoption shouldn't have been granted until the status of the child was determined to be an orphan," Lloyd said.

She said the federal government siding with the Afghan relatives, by disputing the Masts' argument that she has no family, could be influential.

"It's very significant and it's powerful that the ICRC and the State Department have sent statements to say that these are the relatives of Baby Doe," Lloyd said.

"The fact that the family are, in fact, relatives of Baby Doe is damaging for the Masts in this custody case," she added. "He made assertions that they didn't have relatives to get the adoption papers, and clearly Baby Doe does have relatives."

PHOTO: U.S. Military Police walk past Afghan refugees at the Village at the Ft. McCoy U.S. Army base on Sept. 30, 2021 in Ft. McCoy, Wis.
U.S. Military Police walk past Afghan refugees at the Village at the Ft. McCoy U.S. Army base on Sept. 30, 2021 in Ft. McCoy, Wis. Military bases that housed tens of thousands of Afghan refugees after the U.S. airlifted them out of Kabul last year incurred almost $260 million in damages that in some cases rendered buildings unusable for troops until they get significant repairs.
Barbara Davidson/AP, FILE

Because of the ongoing court cases, the Pentagon is restricted in what it can say about a dispute involving one of its own service members, a spokeswoman said.

"The United States has taken steps to protect important U.S. interests at issue in this matter, including by filing a Statement of Interest to explain those interests and the background of this situation," Lisa Lawrence, a Defense Department spokesperson, said in a statement provided to ABC News. The filing Lawrence referred to is under seal.

But the statement from the Department of Defense also contains a narrative of how Baby Doe ended up in the legal tug of war and confirms that the U.S. government believes it was fulfilling its obligations by turning her over to Afghan authorities.

"After the child's surviving relatives were located, the Government of Afghanistan requested that the child be transferred into its custody so that it could reunite the child with family members in Afghanistan," Lawrence said.

She said Baby Doe's transfer to Afghan authorities in February 2020 "was consistent with the Government of Afghanistan's request and with the United States' international obligations under the 2014 Bilateral Security Agreement between the United States and Afghanistan, the law of war and other international law principles."

Nonetheless, Lawrence acknowledged Baby Doe "and her relatives traveled from Afghanistan to the United States in August 2021 and that a U.S. service member, Major Joshua Mast, took custody of her soon thereafter at Fort Pickett, Virginia."

Lawrence declined to say more about Mast other than that he is "an active duty Marine Corps attorney who is serving with the U.S. Marine Forces Special Operations Command in Camp Lejeune, North Carolina since July 2020."

The dispute, Lloyd said, raises troubling concerns.

"We need a full investigation on this case and how this child could have been adopted away from her relatives," she said. "The investigation could lead to loopholes that need to be closed within our system. There shouldn't be anyone from any rank of military that can push something as significant as an adoption through without following proper protocol and procedures."

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