Opposition Brief — A. A., et al., Petitioners v. Joshua Mast, et al.

No. 26-164

IN THE

Supreme Court of the United States

A.A. AND F.A.,

Petitioners,

v.

JOSHUA MAST AND STEPHANIE MAST,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Virginia

BRIEF IN OPPOSITION

Thomas C. Watson

Colin F. Brady

MCGUIREWOODS LLP

800 E. Canal St.

Richmond, VA 23219

(646) 262-0500

John S. Moran

Counsel of Record

Grace Greene Simmons

MCGUIREWOODS LLP

888 16th Street N.W.,

Suite 500

Washington, DC 20006

(202) 828-2817

jmoran@mcguirewoods.com

Counsel for Respondents

September 16, 2026

i

QUESTIONS PRESENTED

Petitioners frame the Question Presented as:

Whether, or under what circumstances, a

child’s nonparent caretakers have a cognizable

liberty interest under the Due Process Clause

entitling them to procedural due process before

a court enters an adoption order permanently

removing the child from their care.

If the Court were to grant review, it would also need

to decide, among other things, whether it has jurisdiction in light of the holding by the Supreme Court of

Virginia that petitioners waived their due-process

claim “[g]iven the paucity of the A.s’ argument on this

point,” App.48a n.27 (citing Coward v. Wellmont

Health Sys., 295 Va. 351, 367 (2018)), since a procedural default bars consideration of a federal claim

where “the last state court rendering a judgment in

the case clearly and expressly states that its judgment

rests on a state procedural bar,” Harris v. Reed, 489

U.S. 255, 263 (1989) (quotations omitted).

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ........................................ ii

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 5

A.

The Masts Act to Save a Child Rescued

by U.S. Special Forces from a Battlefield

in Afghanistan ..................................................... 5

B.

The Masts Help A.A. and F.A. Escape

Afghanistan as It Falls to the Taliban ............... 8

C.

Upon Arrival to the United States, the

Parties’ Relationship Changes; the A.s

Filed an Out-of-Time Challenge to the

Final Order of Adoption .................................... 10

D.

The Proceedings Below...................................... 11

REASONS FOR DENYING THE PETITION .......... 16

I.

Petitioners Waived the Due-Process

Argument They Now Press in This Court ........ 16

II.

The Judgment Below Does Not Implicate

Any Disagreement in the Lower Courts ........... 21

III. The Case Is a Poor Vehicle ................................ 25

IV. There Was No Error in the Judgment

Below .................................................................. 29

V.

Further Review Would Be Inequitable ............. 33

CONCLUSION .......................................................... 35

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

591 U.S. 430 (2020) ................................................ 32

Amgen Inc. v. Sanofi,

598 U.S. 594 (2023) ................................................ 21

Andrews v. Commonwealth,

280 Va. 231 (2010) ................................................. 31

Armstrong v. Manzo,

380 U.S. 545 (1965) ................................................ 18

Berhow v. Crow,

423 So. 2d 371 (Fla. Dist. Ct. App. 1982) ........ 19, 23

Boumediene v. Bush,

553 U.S. 723 (2008) ................................................ 32

Box v. Planned Parenthood of Indiana & Kentucky,

Inc.,

587 U.S. 490 (2019) ................................................ 21

Button v. Day,

208 Va. 494 (1968) ................................................. 18

Caldwell v. Mississippi,

472 U.S. 320 (1985) ................................................ 20

Cameron v. EMW Women’s Surgical Ctr., P.S.C.,

595 U.S. 267 (2022) ................................................ 21

Cone v. Bell,

556 U.S. 449 (2009) ................................................ 32

Coward v. Wellmont Health Sys.,

295 Va. 351 (2018) ............................. ii, 2, 16, 20, 31

iv

Cruz v. Arizona,

598 U.S. 17 (2023) .................................................. 30

Elwell v. Byers,

699 F.3d 1208 (CA10 2012) ............................. 22–23

F.E. v. G.F.M.,

35 Va. App. 648 (2001) ............................... 11–12, 18

Granfinanciera, S.A. v. Nordberg,

492 U.S. 33 (1989) .................................................. 21

Greene v. Lindsey,

456 U.S. 444 (1982) ................................................ 17

Harris v. Reed,

489 U.S. 255 (1989) ........................................ ii, 3, 20

Jennings v. Stephens,

574 U.S. 271 (2015) ................................................ 21

Johnson v. Eisentrager,

339 U.S. 763 (1950) ................................................ 32

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) ................................................ 21

Koontz v. St. Johns River Water Mgmt. Dist.,

570 U.S. 595 (2013) ................................................ 32

Lehr v. Robertson,

463 U.S. 248 (1983) ................................................ 30

M.S. v. People,

303 P.3d 102 (Colo. 2013) ...................................... 22

McCallum v. Salazar,

49 Va. App. 51 (2006) ....................................... 11–12

Michigan v. Long,

463 U.S. 1032 (1983) .............................................. 20

v

Mullaney v. Wilbur,

421 U.S. 684 (1975) ................................................ 30

Murdock v. Memphis,

87 U.S. (20 Wall.) 590 (1875) ................................. 30

Rivera v. Marcus,

696 F.2d 1016 (CA2 1982) ..................................... 22

Santosky v. Kramer,

455 U.S. 745 (1982) ................................................ 30

Smith v. Org. of Foster Fams. for Equal. & Reform,

431 U.S. 816 (1977) ................................................ 31

Troxel v. Granville,

530 U.S. 57 (2000) .......................... 15–16, 29–30, 33

Trump v. Cook,

146 S. Ct. 2234 (2026) ............................................ 22

Trump v. United States,

603 U.S. 593 (2024) ................................................ 20

United States v. Tillman,

404 F. App’x 949 (6th Cir. 2010) ........................... 32

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) ................................................ 32

Wilson v. Fam. Servs. Div., Region Two,

554 P.2d 227 (Utah 1976) ................................ 20, 22

Yee v. City of Escondido, Cal.,

503 U.S. 519 (1992) ................................................ 25

Zivotofsky v. Clinton,

566 U.S. 189 (2012) ................................................ 20

Statutes

Alaska Stat. § 25.23.140 ............................................ 24

vi

Ark. Code Ann. § 9-9-216 .......................................... 24

Fla. Stat. § 63.182...................................................... 34

Ga. Code Ann. § 19-8-18 ............................................ 34

Idaho Code § 16-1512 ................................................ 24

Miss. Code Ann. § 93-17-15 ....................................... 34

N.D. Cent. Code § 14-15-15 ....................................... 24

N.H. Rev. Stat. Ann. § 170-B:21 ......................... 24, 34

Ohio Rev. Code § 3107.16 .......................................... 24

Okla. Stat. tit. 10, § 7505-7.2 .................................... 35

Tenn. Code Ann. § 36-1-122 ...................................... 35

Tex. Fam. Code § 162.012 ......................................... 35

Va. Code § 63.2-1202 ................................................. 34

Va. Code § 63.2-1216 ........... 2, 4, 10–15, 18, 24, 30, 33

W. Va. Code § 48-22-704 ........................................... 35

Rules

This Court’s Rule 10 ........................................ 3, 21, 25

1

INTRODUCTION

This is a state adoption case. The Child was left

stateless after her non-Afghan parents were killed in

a firefight with U.S. and Afghan forces. The Masts

“stepped up and stepped in early on when literally no

one else did or would, to help a child in severe need

who had no one, to save her life and procure her safety

* * * .” App.264a. The Masts adopted the Child, and as

Afghanistan fell to the Taliban, helped her and petitioners escape to the United States.

Once here, the petitioners decided to challenge the

adoption. But they missed Virginia’s six-month statute of repose, which bars challenges to final adoptions.

Petitioners sought to avoid that procedural bar primarily on state-law grounds. As a backup, they

claimed that the statute of repose violates federal due

process because they, as foreign nationals living in Afghanistan at the time, did not receive adequate notice

of the Virginia adoption. The Supreme Court of Virginia rejected these arguments, ending petitioners’

untimely challenge. That ruling—in a procedurally,

factually, and emotionally complicated case that implicates no division among the lower courts—is correct

and does not warrant this Court’s review.

For years, petitioners have pressed a slanted and

self-serving narrative, citing news stories they planted,

see Petn.35, to impugn the Masts and attack their

adoption. But the circuit court below, after eleven days

of testimony, “reject[ed] that interpretation and narrative.” App.265a. The Supreme Court of Virginia

2

rightly focused on the record and circuit court’s findings rather than on petitioners’ allegations and rhetoric. See App.7–8a. This Court should do the same.

On the merits, the Supreme Court of Virginia vindicated the best interests of the Child by enforcing Virginia’s six-month statute of repose. See Va. Code

§ 63.2-1216. Petitioners now seek a bespoke federal

constitutional exemption from that statute of repose

based on an alleged liberty interest as “nonparent

caretakers.” Petn.4. But petitioners had not even met

the Child when the adoption proceedings began. They

have no legal relationship with her. They are not biologically related. And they initiated this proceeding

more than six months after they had actual notice of

the adoption.

For many reasons, the Court should decline review.

First, petitioners waived below the argument they

now press before this Court. Petitioners now claim

that they had a protected liberty interest as “nonparent caretakers” under a totality-of-the-circumstances test. But below, petitioners argued that they

held substantive and procedural due process rights as

“de facto” parents. The Supreme Court of Virginia rejected the latter on the merits, and held that petitioners waived any claim based on the former “[g]iven the

paucity of the A.s’ argument on this point.” App.48a

n.27 (citing Coward v. Wellmont Health Sys., 295 Va.

351, 367 (2018)). Petitioners also never cited below

any of the procedural due process cases on which they

now rely; they simply asserted a right to notice as “de

facto” parents. Before reaching the Question Presented, the Court would therefore need to determine

3

whether petitioners’ waiver is an adequate and independent state law ground that deprives it of jurisdiction. See, e.g., Harris v. Reed, 489 U.S. 255, 263 (1989).

Even setting jurisdiction aside, however, the waiver

weighs strongly against discretionary review.

Second, this case implicates no disagreement

among lower courts that might warrant this Court’s

intervention. Cf. Rule 10(b). Petitioners cite a smattering of stale cases and argue they fall into two camps:

one that imposes a bright-line rule requiring a legal

relationship to trigger due process, and one that applies a looser totality-of-the-circumstances test.

Petn.30. But the differences in these cases are largely

semantic, and the outcomes are largely fact-driven.

None involves a foreign challenger or other closely

analogous facts. Petitioners simply have not identified

any decision or rule under which a lower court would

have relied on procedural due process to overcome a

statute of repose under similar circumstances.

Third, this case presents a poor vehicle, even if the

Court were inclined to address the federal constitutional dimensions of state adoption procedures. Petitioners did not fully air their procedural due process

argument below, so the Court lacks a well-developed

record on which to base review. The Question Presented is not outcome-determinative because, as the

Supreme Court of Virginia recognized, petitioners

would need to make several additional showings to

prevail, and there are strong reasons to doubt that

they could. The facts of this case are also sui generis,

diminishing the utility of any ruling for guiding lower

courts in future cases. And the labyrinthine procedural history and live factual disputes would make it

4

difficult for a majority of the Court to coalesce around

a consensus resolution to the Question Presented. If

the legal rules governing procedural due process

claims in state adoption proceedings are as important

and recurring as petitioners claim, then surely further

percolation will bring the Court a better vehicle.

Fourth, the Supreme Court of Virginia got it right.

At bottom, petitioners seek error correction for what

they claim is “an egregious miscarriage of justice.”

Petn.2. But there is no error to correct. The Supreme

Court of Virginia correctly held, as a matter of state

law, that Code § 63.2-1216 bars petitioners’ challenge;

as a matter of constitutional law, that petitioners

could not overcome the statute of repose by asserting

they were “de facto” parents; and as a matter of state

procedure, that they had waived any further due process claim based on “nonparent caretaker” status. Petitioners do not challenge those holdings, and they are

adequate to support the judgment below. Petitioners

instead argue that the Supreme Court of Virginia

should have applied a legal standard they never cited

to a procedural due process claim they barely briefed.

The court below did not err in its judgment.

Fifth and finally, it would be inequitable to grant

certiorari, both for this family and for adoptive families across the United States. The Child turned seven

this summer, is making new friends at school this Fall,

and has lived happily at home for over five years with

her parents and four siblings, who have given her the

love and care that she needs and deserves. The Virginia General Assembly enacted Code § 63.2-1216

based on a legislative judgment that, at some point, an

5

adopted child’s interest in finality and stability outweighs competing interests in allowing challenges to

an adoption order. To grant review would be unsettling not only for this family but for many who would

face the prospect of federal constitutional challenges

to settled adoptions from a wide range of alleged “nonparent caretakers.” Even if those challenges fail on the

merits, litigating them presents a substantial burden

and weighs strongly against opening the door at all.

STATEMENT OF THE CASE

A.

The Masts Act to Save a Child Rescued

by U.S. Special Forces from a Battlefield

in Afghanistan

Joshua Mast met his now adoptive daughter (“the

Child”) in Afghanistan while serving as a Judge Advocate General in the Marine Corps. R.9310–16. 1 She

was recovering at a U.S. military hospital after U.S.

Special Forces rescued her from the battlefield at approximately 6-8 weeks old. R.13965–72.

The Child was found with serious injuries during

an intense, prolonged battle involving sustained close

combat in a part of Afghanistan known for terrorist

activity. R.584–85, 6165–6373. Two platoons of U.S.

Army Rangers were deployed to capture or kill three

non-Afghan terrorist leaders who operated a foreign

fighter training camp. R.6167–68, 14239–40. The

1 Citations beginning with “R.” refer to the record in the Supreme

Court of Virginia below.

6

Child’s biological parents fought with Army Rangers

to the death. R.6165–75.

Major (then-Captain) Mast learned about the

Child’s plight and developed a “grave concern that

without proper medical care she may die or be severely

disabled, and [had] serious doubt that such needed

medical care * * * could be provided in Afghanistan.”

R.2517. It was apparent she had no living relatives:

her parents had died at the training camp, and they

were found dead with other individuals identified as

foreign fighter terrorists not native to Afghanistan.

R.2517, 3786, 10361–62, 10389, 13905. Joshua Mast

received permission to pursue, in his personal capacity,

bringing her to the U.S. R.3239, 4015, 5398–99, 5523–

24. Joshua and his wife, Stephanie, initiated custody

proceedings in the Fluvanna County Juvenile and Domestic Relations (“J&DR”) Court to establish a legal

identity that would allow the Child to obtain a visa

and receive medical care in the United States. R.5381,

5393, 5504. They subsequently pursued an adoption,

which they realized would be necessary to get her out

of Afghanistan. R. 5355, 5264–65, 5373–74.

The Masts believed (and still do) that the Child was

a stateless minor, not Afghan. They had strong reasons to believe she was the daughter of foreign terrorists and understood that children born to foreigners do

not receive birthright citizenship in Afghanistan. See,

e.g., R.2541–42, 3861–62, 10358–10567, 14390, 14439,

14482, 14529, 14848.2 Joshua Mast raised these concerns with appropriate authorities, many of whom

2 After a year of litigation, the circuit court agreed that the Masts’

belief was well-founded. R.2517 (“The Court finds that not only

(cont'd)

7

supported his efforts to bring the Child to safety.

R.3260–61, 3561–62, 9366–67, 9394–95, 12999–13000.

The Masts believed the Child would be medically evacuated to the United States near the end of 2019 and

were prepared to welcome her home. R.5999.

But in a turn of events, a State Department official

decided that the Child should be handed over to the

then extant Government of Afghanistan. R.3807–08,

3870, 5383, 5393–94, 5525, 14882–86. Joshua Mast remained concerned about the Child’s dangerous situation and her ability to receive adequate medical care,

as well as the prospect that the Child was being

turned over to a non-relative who wanted to remain

anonymous and may be terrorist-affiliated. R.2516–17,

2543–44, 3861–62, 3864–67. The Masts thus sought a

temporary restraining order in federal court to attempt to prevent the Child’s transfer out of U.S. protection. See R.2520, 3414. They were especially concerned with the lack of vetting. The court denied the

TRO, and the transfer out of U.S. protection went forward. R.3413–15; see also R.2525–26, 3795–96, 9320.

The Masts initially had no idea where the Child was

placed but later learned she had been handed to a purported uncle, A.A.’s father. R.5359, 5362, 5642, 5938.3

After receiving reports that the Child was experiencing medical complications and learning that no one

is this circumstantial evidence that the child was and is not Afghan, but more important, it contributes to the reasonable basis

for [the Masts’] belief.”).

3 A.A. claims to be the Child’s cousin, but to this day, neither A.A.,

F.A., nor any of their relatives has submitted to a DNA test notwithstanding a circuit court order.

8

had ever taken her back to a hospital, the Masts remained concerned she could not receive the care she

needed in Afghanistan. They were told that an unmarried teenage girl was caring for her at an elderly man’s

direction. R.5309, 5409, 5752–53, 5935–36. They proceeded to finalize their adoption to secure the Child a

path to the U.S. R.2521, 3415–16. The Circuit Court

entered a final Adoption Order on December 3, 2020.

R.6.

B.

The Masts Help A.A. and F.A. Escape Afghanistan as It Falls to the Taliban

As the Taliban campaign swept over Afghanistan

in late Summer 2021, Joshua Mast established contact

with A.A. for the first time and asked him to bring the

Child to Kabul so she could fly to the U.S. before Afghanistan collapsed. R.3417, 5639–43, 9690–91. As explained by Joshua’s interpreter and found by the Circuit Court, Joshua made clear to A.A. from the beginning that he intended to bring the Child to the U.S. to

live with him and his wife. R.10974, 10831, 11314–16.

In their communications, A.A. used the American

name that the Masts had given the child. R.2525–26.

A.A. told Joshua that his father (not A.A.) was responsible for the child to the Taliban, and had to ask the

Taliban’s permission for the Child to leave, R.5011-12,

5060, 5944, but later conveyed that the Taliban had

said “no,” R.13537–44. Joshua proposed that A.A. and

F.A. could also come to the United States by disobeying the Taliban, something A.A. had told Joshua he

desired. R.5423–24, 5648, 5668, 5746–47.

When the Afghan Government collapsed on August

15, 2021, Joshua worked around the clock to evacuate

9

as many American allies as possible, resulting in at

least 32 people escaping the Taliban. R.5652. Joshua

again contacted A.A. about bringing the Child to U.S.

forces, to which A.A.’s father reportedly agreed.

R.9430–33, 9713–15. Amid the chaos, A.A. and F.A.

were able to flee Afghanistan based on the Child’s status as Joshua Mast’s adopted dependent by presenting

her to U.S. Forces, who recovered them from behind

Taliban lines. R.9715–45.

The Masts flew to Ramstein Air Base in Germany

to meet A.A. and F.A. and ensure they made it to the

U.S., rather than get routed to some other part of the

world, as was happening with other refugees. R.4312,

5662, 5973. The Masts reiterated that they were the

Child’s legal parents and would have custody over her

in the United States. R.5971–75. Soon after they entered the United States, on September 3, 2021, the

Masts took custody of the Child pursuant to the final

order of adoption. R.3417–18. Once in the United

States, the Child received extensive treatment, including physical, speech, and occupational therapy, as well

as treatment for parasites and lice. R.5934.

C.

Upon Arrival to the United States, the

Parties’ Relationship Changes; the A.s

Filed an Out-of-Time Challenge to the

Final Order of Adoption

After evacuating to the U.S. based on the Child’s

status as the Masts’ adoptive child and a military dependent—with knowledge that the Masts had adopted

the Child and intended to raise her as part of their

family—A.A. and F.A. changed their tune and decided

to attack the adoption. R.6–9.

10

A.A. and F.A. sought to reopen and set aside the

final order of adoption but, at first, did not allege any

parental or guardian relationship. R.3398. To the contrary, they initially alleged that A.A. was a “first

cousin of the child” and that the Child’s unspecified

“Afghan family” (not A.A. or F.A.) had initiated unspecified “proceedings” to gain custody of her. Ibid.

The Masts objected to that petition as procedurally deficient, including that it was barred by Code § 63.21216, the six-month statute of repose. The petition

was dismissed.

A.A. and F.A. initiated this subsequent proceeding

on March 28, 2022. R.4729. That filing came more

than six months after the Masts took custody of the

Child pursuant to the final order of adoption, at which

point the A.s indisputably had actual notice of it. It

was also more than a year after the final order had

been entered. Petitioners alleged for the first time that

they were “in effect the child’s adoptive parents as legal and permanent guardians of the minor child under

Afghan law.” R.3410. Virginia precedents recognize a

due-process exception to the statute of repose for biological parents. See McCallum v. Salazar, 49 Va. App.

51 (2006); F.E. v. G.F.M., 35 Va. App. 648 (2001). Before the Masts invoked Code § 63.2-1216, neither A.A.

nor F.A. had ever referred to the Child as their

“daughter” or “child” or any other similar term; nor did

they have any court order or other document proving

parenthood or legal custody. R.4729–30.

During their attempt to reopen the adoption proceeding, petitioners tried to gain custody of the Child;

the state court rejected their efforts, and they did not

appeal. R.1693. They also filed a $20 million tort suit

11

against the Masts, their attorney, and two of their key

witnesses. See Doe v. Mast, No. 3:22-cv-49 (W.D. Va.).4

D. The Proceedings Below

In response to the instant petition, the Masts filed

demurrers arguing, among other things, that Code

§ 63.2-1216 barred A.A. and F.A.’s challenge. R.31–34.

The circuit court denied the demurrers, and with the

parties’ acquiescence, construed them as pleas in bar.

See R.2523, 4063–65, 4081–84, 7855–57, 7860–61. The

court took evidence over 11 days,5 and received written closing arguments on the preliminary issues.

R.2278–2311, 2337–43.

Circuit Court’s Original Findings & Rulings.

On November 11, 2022, the circuit court announced

findings and rulings, later memorialized in writing on

November 30. See App.214a. The court found A.A. and

F.A. presented no evidence of being biologically related to the Child or knowing who she was before she

was rescued, treated by DoD, and given to A.A.’s father. 6 The Supreme Court of Virginia later summarized the circuit court’s key findings, including that

4 Respondents have sought certiorari on unrelated First Amend-

ment issues arising from a gag order imposed in that case. See

Petition, Mast v. Doe, No. 26-226.

5 See

R.7912–8203; 8274–8457; 8508–8800; 8866–9145; 9214–

9447; 9535–9848; 9965–10181; 10261–10590; 10702–11053;

11168–11518; 11641–12083 (hearing transcripts).

6 The Supreme Court of Virginia specifically held that these fac-

tual findings were controlling for purposes of the appeal, rejecting Petitioners’ contrary arguments. See App.4a & n.3.

12

A.A. and F.A. “‘are not natural parents, adoptive parents, * * * or anyone with court-ordered custody or

guardianship, and have not proved they are even biological relatives,’” App.41a (citing circuit court findings); that there “was no ‘court-ordered custody to the

[A.s],’ and “they * * * do not have legal custody,’” ibid.;

that the “circuit court was ‘not convinced or persuaded’

that the ‘[A.s] are who they say they are regarding

their asserted familial relationship to the child,’” ibid.;

and that they “‘have not proved to the Court’s satisfaction that they are in fact kin,’” ibid.

The circuit court proceeded to address the “ultimate issue and disposition in this case,” which was

“application of Code § 63.2-1216,” holding that Code

§ 63.2-1216’s plain language covers A.A. and F.A.’s

claims. App.238–43a. The court nevertheless concluded that A.A. and F.A. could invoke an expanded

version of a due-process exception to Code § 63.2-1216

that the Virginia Courts of Appeals had recognized in

F.E. v. G.F.M., 35 Va. App. 648 (2001), and McCallum

v. Salazar, 49 Va. App. 51 (2006). App.243–50a. The

court acknowledged that A.A. and F.A. did not satisfy

this exception because they are not the Child’s biological or adoptive parents, or even legal guardians under

Afghan or U.S. law, but the court held that it would

not apply the statute of repose because A.A. and F.A.

had acted as “de facto parents” and applying the bar

would be “unconstitutional as applied in this case, despite there being no case that explicitly says that.”

App.250a. The court candidly acknowledged it was

13

“making a decision that is contrary to my actual analysis of the case.” App.212a.7

The circuit court certified the order for interlocutory appeal, App.274a, and the Masts perfected that

appeal, R.2676, which became Record No. 1855-22-2 in

the Virginia Court of Appeals.

Circuit Court’s Summary Judgment Ruling.

The initial judge hearing the case at the Circuit Court

retired, and the case was reassigned. After further

proceedings but no additional testimony, the new

judge essentially replicated the decision of the prior

judge. On May 3, 2023, the circuit court granted partial summary judgment to A.A. and F.A. App.289a.

The court (i) repeated the conclusion that Code § 63.21216 should not apply as a matter of due process,

App.293a; (ii) held that the final order of adoption

should be vacated, App.294a; but (iii) left the interim

order of adoption and custody order in place, ibid. The

court certified this order too for interlocutory appeal,

R.3715; J.M. and S.M. perfected that appeal, R.3725,

which became Record No. 0940-23-2 in the Virginia

Court of Appeals.

7 The circuit court rejected additional arguments raised by the As,

including that Code § 63.2-1216 does not apply to adoption orders

that are void ab initio, App.250–54a, or to alleged defects in subject-matter jurisdiction, App.254–56a. The court also rejected arguments that the court was bound as a matter of U.S. foreign

policy to treat A.A. and F.A. as the Child’s legal guardians.

App.269–71a. The United States has since withdrawn its Statement of Interest, App.305a, and Petitioners do not press that theory.

14

Virginia Court of Appeals. The court of appeals

heard argument on the consolidated appeals on November 15, 2023. On July 16, 2024, the court issued

an opinion affirming in part, reversing in part, and remanding with directions to dismiss the adoption proceedings. See App.107a. The court held that the sixmonth bar of Code § 63.2-1216 did not apply as a matter of state law because the final adoption order was

entered without the circuit court’s having the “power

to render” and was therefore void ab initio. See

App.121–35a. The court declined to reach the circuit

court’s holding that A.A. and F.A. should be treated as

de facto parents, acknowledging that it would extend

beyond existing precedent. App.119a, 134–35a.

Supreme Court of Virginia. The Masts sought

further review in the Supreme Court of Virginia,

which granted permission to appeal, held argument,

and issued its decision on February 12, 2026, reversing the Court of Appeals and “enter[ing] final judgment dismissing with prejudice the A.s’ petition to vacate the final adoption order.” App.59a.

On the merits of petitioners’ state-law arguments,

which were the core of their challenge, the court held

(a) that Code § 63.2-1216 applies to challenges claiming that an adoption order is void ab initio; (b) that

there is no “power to render” exception; and (c) that

petitioners’ fraud allegations did not take the case outside the statute of repose. The court then turned to petitioners’ fallback constitutional arguments.

As relevant here, the court rejected “the circuit

court’s ‘de facto parents’ thesis,” which the A.s had

raised “as an alternative basis for affirmance.”

15

App.40a. The court emphasized the circuit court’s

“multiple factual findings concerning the A.s’ relationship with the child while in Afghanistan,” ibid., which

cut against their due-process claim. But the court ultimately “reject[ed] their de facto parent thesis as a

matter of law,” noting that “[n]o Virginia state or federal court has endorsed this constitutional theory,”

“[n]or has any American court applied it extraterritorially to foreign citizens living in a foreign country at

the time of the alleged violation of their claimed rights

under the U.S. Constitution.” App.43–44a. The court

reviewed this Court’s plurality opinion in Troxel v.

Granville, 530 U.S. 57 (2000), and numerous cases

since, noting that, “[i]n every one of our opinions applying Troxel, we have applied its constitutional protections only to actual parents.” App.44a. The court

agreed with the Virginia Court of Appeals that “[o]nly

a venturesome expansion of Troxel could justify the judicial recognition of the de facto parent theory.”

App.47a. Petitioners do not press that theory here.

In a footnote, the Supreme Court of Virginia then

addressed the notion that petitioners might alternatively have due process rights based on “nonparent

caretaker” status, as they now argue. App.48a n.27.

The court concluded that petitioners have waived the

argument by failing to brief it adequately:

Given the paucity of the A.s’ argument on this

point, see Appellee Br. at 43–44 (a single paragraph); Coward v. Wellmont Health Sys., 295

Va. 351,367, 812 S.E.2d 766 (2018) (“Lack of an

adequate argument on brief in support of an assignment of error constitutes a waiver of that

16

issue.” (citation omitted)), the absence of persuasive precedent, and the circuit court’s findings of fact, we reject the A.s’ assertion that

Troxel supports their constitutional claim in

this case.

Ibid. Aside from this footnote, the Supreme Court of

Virginia did not further discuss petitioners’ procedural due-process claim. Petitioners had devoted only

a single paragraph to it in their appellate brief, and

they neither cited any of the procedural due-process

cases on which they now rely nor argued that the court

should apply a different standard.

REASONS FOR DENYING THE PETITION

I.

Petitioners Waived the Due-Process Argument They Now Press in This Court

Petitioners now argue that “[t]he Virginia

Supreme Court should have addressed [their]

procedural-due-process claim separately from [their]

substantive-due-process claim,” Petn.26, and should

have applied a laxer standard to assess whether they

had a cognizable due process interest, Petn.32. But

petitioners waived this theory before the Supreme

Court of Virginia due to their “paucity of * * *

argument” on this issue. App.48a n.27. That is ground

enough to deny the Petition.

Petitioners put separate headings for substantive

and procedural due process in their brief to the

Supreme Court of Virginia, but they addressed both

issues cursorily, each in a single paragraph. See VSC

17

Appellee Br. 43–45. 8 Moreover, as relevant here,

petitioners drew no distinction (as they do now)

between the category of parents to whom substantive

due process rights adhere and the category of parents,

custodians, or caregivers to whom procedural due

process is owed. See VSC Appellee Br. 44–45 & n.31.

To the contrary, they relied on the same “‘de facto’

parent” theory as the premise for their procedural due

process claim. See VSC Appellee Br. 45 n.31 (“As Baby

Doe’s ‘de facto’ parents, the A.s were plainly entitled

to due process of the Virginia adoption proceedings

before entry of the final order.”).

Petitioners never argued before the Supreme Court

of Virginia that procedural due process is owed in

adoption proceedings to a broader set of relatives or to

custodians. Indeed, their briefing below did not cite a

single one of the totality-of-the-circumstances cases

they now invoke. Cf. Petn.44–45. Here is the entirety

of their argument on the issue before the Virginia

Supreme Court:

“The fundamental requisite of due process”

“is the opportunity to be heard.” Greene v.

Lindsey, 456 U.S. 444, 449 (1982). Thus, due

process “requires notice reasonably calculated

* * * to apprise interested parties of the * * *

action.” F.E., 35 Va. App. at 665. It is

undisputed that neither the U.S. government,

the A.s, H.I., nor Baby Doe received legal notice

of the adoption proceedings. That “failure to

give * * * notice * * * violated the most

8 For clarity, respondents use the same citation conventions for

the briefing below as petitioners.

18

rudimentary demands of due process of law.”

Armstrong v. Manzo, 380 U.S. 545, 550

(1965).31 And though Section 1216 purports to

shield an order attacked for failures of notice, it

cannot be constitutionally applied here because

no relevant person received notice. See, e.g., id.

(“due process requires notice when ‘the judicial

proceeding was permanently to deprive a

legitimate parent of * * * parenthood”). Holding

otherwise would impermissibly permit Section

1216 to preempt federal law. See Button v. Day,

208 Va. 494, 503 (1968).

________

31 The M.s have claimed the A.s had no right

to notice. That is incorrect and disingenuous.

See R.13316 (J.M. April 2020 text: “[W]e

obviously have to have the consent and

cooperation of the family to get [Baby Doe]

medical care * * * .”). As Baby Doe’s “de facto”

parents, the A.s were plainly entitled to due

process of the Virginia adoption proceedings

before entry of the final order.

VSC Appellee Br. 44–45 & n.31. Petitioners raised a

procedural due process claim that rested on the same

“de facto” parent argument they had pressed in

support of their substantive due process argument.

They therefore waived the alternative “nonparent

caretaker” theory they now attempt to raise here.

Petitioners also completely failed to address other

key issues that would have been essential to making

out their procedural due-process claims—such as

whether they have standing to assert this claim when

19

the Child was in the custody of the United States at

the time the adoption proceedings began (and they

had not yet met her),9 or how their purported right to

notice was violated when their challenge is untimely

even counted from the date they indisputably received

actual notice of the final order of adoption. They

cannot now fault the Virginia Supreme Court for

holding that they waived any procedural due process

claim premised on an unarticulated theory that they

were constitutionally entitled to notice as “nonparent

caretakers.”

There is no reason why petitioners could not have

pressed below the theories they press now: that they

had procedural due process rights as mere custodians

under a totality-of-the-circumstances test like the one

articulated by the intermediate Florida appellate

court in Berhow v. Crow, 423 So. 2d 371 (Fla. Dist. Ct.

App. 1982), or that the court was required to resolve

the factual dispute over their alleged familial

relationship in order to assess their due process rights

under a standard akin to what the Utah Supreme

Court applied in Wilson v. Family Services Division,

Region Two, 554 P.2d 227 (Utah 1976). Cf. Petn.31–34.

But they did not. And they cannot now raise these

waived theories for the first time.

Given petitioners’ waiver, this Court likely lacks

jurisdiction to review the Question Presented, which

9 As the quoted passage illustrates, Petitioners attempted to elide

this problem by arguing that notice was owed to “the U.S. government, the A.s, H.I., [or] Baby Doe.” VSC Appellee Br. 45 n.31.

But A.A. and F.A. do not have standing to assert claims based on

notice allegedly owed to third parties, and none of those other

parties is before the Court.

20

raises a procedural due process claim barred by an

adequate and independent state law ground. The

Virginia Supreme Court held that petitioners waived

any due process claim premised on “nonparent

caretaker” status “[g]iven the paucity of [their]

argument on this point.” App.48a n.27 (citing VSC

Appellee Br. at 43–44; Coward, 295 Va. at 367). That

waiver holding is an adequate and independent state

law ground and therefore deprives this Court of

jurisdiction. Harris v. Reed, 489 U.S. 255, 263 (1989)

(explaining that a procedural default bars

consideration of a federal claim where “the last state

court rendering a judgment in the case ‘“clearly and

expressly”’ states that its judgment rests on a state

procedural bar.”) (quoting Caldwell v. Mississippi, 472

U.S. 320, 327 (1985), in turn quoting Michigan v. Long,

463 U.S. 1032, 1041 (1983)).

Even if the Court did have jurisdiction, moreover,

petitioners’ waiver and the paucity of argument below

would still counsel strongly against discretionary

review. This Court “‘is a court of final review and not

first view.’” Trump v. United States, 603 U.S. 593, 617

(2024) (quoting Zivotofsky v. Clinton, 566 U.S. 189,

201 (2012)). Thus, even when the Court’s jurisdiction

is not at issue, the Court consistently declines to

consider arguments not raised below. See, e.g.,

Cameron v. EMW Women’s Surgical Ctr., P.S.C., 595

U.S. 267, 275 (2022); Kingdomware Techs., Inc. v.

United States, 579 U.S. 162, 173 (2016);

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 38

(1989) (“We decline to address this argument because

respondent failed to raise it below and because the

question it poses has not been adequately briefed and

argued.”).

21

II.

The Judgment Below Does Not Implicate

Any Disagreement in the Lower Courts

Petitioners claim the lower courts have split on the

standard for assessing whether nonparent caretakers

enjoy procedural due process protection in adoption

proceedings. That characterization is misleading.

Petitioners themselves seem to accept that there is no

square split. See Petn.30 (citing “entrenched

disarray”). Even a generous reading of the cases they

cite reveals only that lower courts have reached

different outcomes on different facts, not that there is

a clear division among the lower courts warranting

this Court’s review. Cf. Rule 10(b).

This Court “review[s] judgments of the lower

courts, not statements in their opinions.” Amgen Inc.

v. Sanofi, 598 U.S. 594, 615 (2023); see also Box v.

Planned Parenthood of Indiana & Kentucky, Inc., 587

U.S. 490, 513 n.2 (2019); Jennings v. Stephens, 574

U.S. 271, 277 (2015). Absent extraordinary

circumstances, the Court limits its review to whether

the lower court got the judgment right, not whether

the lower court explained its decision as this Court

would have. Cf. Trump v. Cook, 146 S. Ct. 2234, 2251

n.3 (2026) (“[T]he question before us is whether we

would likely reverse the judgment below, not whether

we would likely disagree with some of the reasons

given by the lower courts.”) (quotation omitted).

Petitioners’ claimed split founders on this principle.

They do not identify any case that reaches a judgment

inconsistent with that of the Supreme Court of

Virginia below.

22

1. Petitioners instead cite a smattering of stale

cases, which they characterize as falling into two

camps: one that imposes a bright-line rule requiring a

legal relationship to trigger due process, and another

that applies a more flexible “totality of the

circumstances” test. Petn.30. But the differences are

largely semantic and turn on the unique facts at hand,

rather than on the application of competing legal

frameworks. Some cases involved foster parents who

had taken concrete steps toward adoption, see, e.g.,

Elwell v. Byers, 699 F.3d 1208, 1217 (CA10 2012); M.S.

v. People, 303 P.3d 102, 106–07 (Colo. 2013), while

others involved grandparents or biological relatives

with demonstrated custodial relationships, see, e.g.,

Rivera v. Marcus, 696 F.2d 1016, 1024–25 (CA2 1982);

Wilson v. Fam. Servs. Div., Region Two, 554 P.2d 227,

230 (Utah 1976). Each turns on its facts, and none

bears any meaningful resemblance to this one. In

particular, none involved (i) foreign citizens residing

in a foreign country at the time of a domestic adoption

proceeding, (ii) who had not met the child when

adoption proceedings began, (iii) who lacked any

demonstrable legal relationship to the child, (iv) who

refused to substantiate their purported biological

connection with DNA, and (v) whose challenge would

have been untimely under the applicable statute of

repose even if measured from the date they

indisputably had actual notice of the adoption.

The best petitioners can do is to argue that some

lower courts have looked at the “totality of the

circumstances” and that they “would have easily

prevailed under a totality-of-the-circumstances test.”

Petn.31. Never mind, again, that they failed to argue

this below. But the cases on which petitioners now rely

23

do not establish such a loosey-goosey standard, and

the ipse dixit assertion that they would easily prevail

fails to grapple with the factual particulars of those

cases, which differ substantially.

Also fatal is petitioners’ failure to define what a

court must determine under the “totality of the

circumstances.” They suggest that the test may be

whether the challengers “have ‘raised’ the child,

developed a ‘close family relationship,’ and intended to

provide ‘more than mere temporary care,’” Petn.30

(quoting Berhow v. Crow, 423 So. 2d 371, 372–73 (Fla.

Dist. Ct. App. 1982)), or whether they “‘fall closer to

the status of adoptive parents than in the ordinary,

temporary foster arrangement,’” Petn.31 (quoting

Elwell v. Byers, 699 F.3d 1208, 1217 (CA10 2012)). But

those are just fact-bound quotations from particular

cases. They establish no clear totality-of-thecircumstances standard for “nonparent caretakers”

that can apply in future cases. And they establish no

limiting principle for the new class of constitutionally

protected “nonparent caretakers” that petitioners ask

this Court to recognize.

2. Petitioners fare no better in claiming division

among the lower courts on the relevance of

nonparental family relationships. See Petn.33–34. As

they are forced to concede, the circuit court ruled

against them and “declined to find that A.A. and [the

Child] are ‘biologically related.’” Petn.25 n.5 (quoting

App.235a n.19). It is therefore wholly irrelevant how

some lower courts would have addressed a case in

which a biological relationship had been established.

24

3. Moreover, even if there were some disagreement

over when “nonparent caretakers” enjoy procedural

due process protection, none of these courts set aside

a statute of repose based on procedural due process in

like circumstances, which is what a genuine conflict

would entail. Virginia, like most States, enacted its

adoption statute of repose to protect the finality and

stability of adoptive placements. Va. Code § 63.2-1216.

Every State imposes time limits on challenges to final

adoption orders, ranging from as short as 90 days to

two years, and many, like Virginia, explicitly bar

challenges based on fraud, failure to give notice, or

other alleged procedural defects. See, e.g., Alaska Stat.

§ 25.23.140(b) (one-year statute of repose covering

“any ground, including fraud, misrepresentation,

failure to give any required notice, or lack of

jurisdiction of the parties or of the subject matter”);

Ark. Code Ann. § 9-9-216(b) (same); N.H. Rev. Stat.

Ann. § 170-B:21 (same); N.D. Cent. Code § 14-15-15(2)

(same); Ohio Rev. Code § 3107.16(B) (same); see also

Idaho Code § 16-1512(2) (six-month statute of repose

covering “any defect or irregularity * * * , jurisdiction

or otherwise,” but excepting “fraud on the part of the

party adopting a child”). None of the cases petitioners

now invoke applied procedural due process to

overcome one of these statutes of repose, or any other

like it, much less with comparable facts.

*

*

*

There is simply no need for this Court to step in to

resolve the sort of lower-court conflict that Rule 10

establishes as the primary criterion for this Court’s

discretionary review.

25

III.

The Case Is a Poor Vehicle

Even if the Court were inclined to address the

federal constitutional dimensions of state adoptions,

this case would be a remarkably poor vehicle.

1. Petitioners did not fully air their procedural due

process theory below, see Part I supra, leaving no welldeveloped record to review. Yee v. City of Escondido,

Cal., 503 U.S. 519, 538 (1992) (“Prudence * * * dictates

awaiting a case in which the issue was fully litigated

below, so that we will have the benefit of developed

arguments on both sides and lower court opinions

squarely addressing the question.”). This case is

fundamentally about state law: the validity of a state

adoption order and application of Virginia’s statute of

repose. Petitioners focused their federal arguments

below on a preemption theory they have since

abandoned; by the time the case got to the Supreme

Court of Virginia, their procedural due process claim

was an afterthought.

To the extent they pressed it, petitioners relied on

a “de facto” parent theory at each stage. They never

argued they had a liberty interest under the “totality

of the circumstances” as “nonparent caretakers,”

never cited the cases on which they now rely, and as

noted, devoted only a single paragraph to procedural

due process in their brief. The circuit court ruled for

them but candidly stated that no case supported its

decision and that the ruling was contrary to the court’s

analysis of the case. App.212a, 250a. The court of

appeals avoided the issue altogether. And at the

Supreme Court of Virginia, only one Justice would

have held that petitioners’ due-process rights were

26

violated, relying on decisions from the Virginia Courts

of Appeals. See App.103–05a (Mann, J., dissenting).

The Court therefore would not have adequate

percolation, a robust record, or a well-reasoned

opinion below on which to base review. If the Court

were inclined to take up these issues, it should wait

for a case where they have been fully argued and

squarely adjudicated.

2. The Question Presented is also not outcomedeterminative in overcoming the statute of repose,

much less in voiding the adoption and obtaining

custody of the Child. The Supreme Court of Virginia

identified three showings petitioners would need to

make to avoid this threshold procedural bar: (1) They

would need to prove that their “relationship with the

child justifies their claimed status” as nonparent

caretakers. App.40a. (2) They would need to show

“that de facto parents (however defined) have the

same constitutional rights under American (not

Afghan) law as biological or adoptive parents.” Ibid.

And (3) they would need to show that they, as

“Afghans living in Afghanistan at the time the final

adoption order was entered[,] can assert a claim

attacking that order in an American court.” Ibid.

Even if this Court were to lower the bar on the

second showing, there are strong reasons to doubt

petitioners could satisfy the first and third. The circuit

court made, and the Supreme Court of Virginia relied

on, numerous factual findings that undermine any

alleged liberty interest, including that petitioners “are

not natural parents, adoptive parents, * * * or anyone

with court-ordered custody or guardianship, and have

not proved they are even biological relatives.”

27

App.228a. Both courts emphasized that, despite their

claimed biological relationship to the Child,

petitioners refused DNA testing. App.233a n.16. The

circuit court was “not convinced or persuaded” that

petitioners “are who they say they are regarding their

asserted familial relationship.” App.258a. And the

court found “no confidence that Afghan law even gave”

A.A.’s father “the authority to give the child to [A.A.].”

App.232a n.15. Petitioners were also foreigners in a

foreign country at the time of the adoption and had not

even met the Child when the proceedings began. The

Child was instead in the custody of the United States

at a military hospital, and notice was owed—if at all—

to the United States, not A.A. or F.A. 10 Petitioners

lack standing to assert a due process claim on behalf

of the United States.

3. The circumstances here are also sui generis,

diminishing the utility of any ruling to guide lower

courts. E.g., App.289a (“There has never been a case

that the Court can find that is like this case.”).

Petitioners had not even met the Child when adoption

proceedings began. Their argument must be that, at

some later point, their relationship sufficiently

solidified to turn them into “nonparent caretakers”

entitled to notice, but that is a novel issue. And they

were foreign citizens living abroad at the time, which

is hardly a typical fact pattern. If the Court were to

The Masts have consistently maintained that the United

States had notice of the adoption proceedings, and the circuit

court agreed. App.291a (“[T]he United States was aware of what

was happening in Fluvanna County and chose to do nothing

about it.”). Any dispute about the adequacy of notice was not germane to the judgment below.

10

28

adopt a new test for procedural due process claims in

adoption challenges, it would be prudent to do so in a

case with typical facts so that the Court could apply

its standard and give lower courts practical guidance.

4. Petitioners’ reliance on disputed (if not refuted)

factual allegations also decreases the likelihood that a

majority of the Court could coalesce around a

consensus outcome that would provide the useful

guidance petitioners claim the lower courts need.

Petitioners from the beginning have “‘championed’” a

“‘narrative’ * * * that ‘the Masts, with bad motives

from the beginning, decided to steal a child’ away from

her extended family * * * in a brazen act of ‘child

trafficking.’” App.7–8a (quoting App.265a). Of course,

“[t]he circuit court rejected the ‘interpretation and

narrative’ advanced by the A.s,” ibid., so this Court

would have no reason to credit it. But petitioners

continue to cast the Masts’ conduct as “egregious,”

Petn.2, and “illicit,” Petn.3. Both the circuit court and

the Supreme Court of Virginia rejected any notion

that petitioners had a parental relationship with the

Child, see App.41a–42a, yet petitioners claim it is

“undisputed that petitioners were * * * ‘parent figures’

when the Virginia adoption order issued,” as opposed

to temporary caretakers. Petn.5. They also seem

poised to continue pressing rejected allegations A.A. is

related to the Child.11

11 Compare App.41a (“‘To reiterate, the Court finds that [the A.s]

have not proved to the Court’s satisfaction that they are in fact

kin to the child * * * .’”) (quoting App.271a); App.42a (“’[The

Masts] asked for DNA evidence from the very beginning, and [the

(cont'd)

29

Petitioners apparently cannot accept the factual

findings made against them below. If the Court were

to grant certiorari, therefore, the Court might find it

difficult to coalesce around an operative set of facts for

applying any standard the Court might adopt. Troxel

itself garnered no majority opinion, 530 U.S. at 57,

and this case would present far greater challenges in

light of petitioners’ litigation strategy.

*

*

*

If petitioners are right that there is a deep,

acknowledged, and recurring division among the

lower courts, then surely further percolation will bring

this Court a better vehicle.

IV.

There Was No Error in the Judgment Below

Petitioners really seek fact-bound error correction,

as they acknowledge from the opening lines of their

petition. See Petn.2 (asking the Court to correct what

they characterize as “an egregious miscarriage of

justice”). But there is no error to correct.

1. The Supreme Court of Virginia correctly held, as

a matter of state law, that Code § 63.2-1216 bars

petitioners’ challenge to the adoption. See App.30–39a.

This Court would not have jurisdiction to review that

state-law ruling, even if petitioners asked, see

A.s] resisted this from the very beginning. The Court cannot ignore this.’”) (quoting App.233a n.16), with Petn.25 n.5 (acknowledging the circuit court ruled against them but stating that “petitioners appealed that determination, and the Virginia Supreme

Court never resolved it”).

30

Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“[S]tate

courts are the ultimate expositors of state law.”); Cruz

v. Arizona, 598 U.S. 17, 32–33 (2023) (Barrett, J.,

dissenting) (“[T]his Court is powerless to revise a state

court’s interpretation of its own law.”) (citing Murdock

v. Memphis, 87 U.S. (20 Wall.) 590, 636 (1875)), which

they wisely do not.

2. The Supreme Court of Virginia also correctly

held, as a matter of federal constitutional law, that

petitioners cannot overcome the statute of repose

based on their claim to be “de facto” parents and that

the statute of repose is not unconstitutional as applied

to petitioners. See App.40–49a. This Court’s

precedents have consistently recognized that the

liberty interest in “the care, custody, and control” of

children protected under the Due Process Clause

belongs to parents. Troxel v. Granville, 530 U.S. 57, 65

(2000) (plurality). In every case in which this Court

has recognized due process protection in the parentchild context, the claimant has been an actual

parent—biological or adoptive. See, e.g., Santosky v.

Kramer, 455 U.S. 745 (1982); Lehr v. Robertson, 463

U.S. 248 (1983). This Court has never held that

informal caretakers, like petitioners, with no legal or

biological relationship to a child have a protected

liberty interest in state adoption proceedings. While

the Court in Smith v. Organization of Foster Families

for Equality & Reform, 431 U.S. 816 (1977), reserved

the question whether legally appointed foster parents

might have such an interest, the Court emphasized

that the “liberty interest in family privacy” has its

source in “intrinsic human rights” that are “related to

concepts of personal identity and autonomy” and may

not extend beyond the biological or legal parent-child

31

relationship. Id. at 845. The court below rightly

recognized that “[o]nly a venturesome expansion of

Troxel could justify the judicial recognition of the de

facto parent theory,” App.47a, and the court prudently

declined to undertake such an expansion. Petitioners

do not try to resurrect the “de facto” parent theory here.

3. The Supreme Court of Virginia was also correct

in holding, as a matter of state procedural rules, that

petitioners had waived any due process claim based on

“nonparent caretaker” status. App.48a n.27 (citing

Coward v. Wellmont Health Sys., 295 Va. 351, 367

(2018)). Virginia law is clear that “‘[l]ack of an

adequate argument on brief in support of an

assignment of error constitutes a waiver of that issue.’”

Coward, 295 Va. at 367 (citing Andrews v.

Commonwealth, 280 Va. 231, 252 (2010)). As the

Supreme Court of Virginia has explained:

[T]he Rules of the Supreme Court are rules and

not suggestions; we expect litigants before this

Court to abide by them. If appellant believed

that the trial court erred, Rule 5A:20(e)

required her to present that error to us with

legal authority to support appellant’s

contention. * * * [W]here a party fails to

develop an argument in support of his or her

contention or merely constructs a skeletal

argument, the issue is waived.

Ibid. (cleaned up). Federal courts impose similar

requirements. See, e.g., United States v. Tillman, 404

F. App’x 949, 953 (6th Cir. 2010) (Sutton, J.)

(“[Appellant] never sought such a disclosure in the

district court, and at any rate he forfeited the

32

argument by raising it in a footnote in a perfunctory

manner unaccompanied by some effort at developed

argument.”) (quotation omitted). But in any event,

this Court has made clear that “questions of [state]

procedure * * * are not ours to decide,” Koontz v. St.

Johns River Water Mgmt. Dist., 570 U.S. 595, 609

(2013); accord Cone v. Bell, 556 U.S. 449, 483 n.5

(2009). Petitioners, for their part, do not acknowledge,

much less dispute, this procedural holding.

4. Those three holdings are correct and

unchallenged, and they adequately support the

judgment below. But even if there were any lingering

doubt, there are several additional grounds that

further support the judgment below—and which

respondents would press as alternative grounds for

affirmance if certiorari were granted. Most notably, “it

is long settled as a matter of American constitutional

law that foreign citizens outside U.S. territory do not

possess rights under the U.S. Constitution.” Agency

for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 591 U.S.

430, 433–34 (2020) (citing Boumediene v. Bush, 553

U.S. 723, 770–71 (2008); United States v. VerdugoUrquidez, 494 U.S. 259, 265–75 (1990); Johnson v.

Eisentrager, 339 U.S. 763, 784 (1950)). The Supreme

Court of Virginia noted this settled principle and

concluded that it did not need to “address the question

whether a Troxel claim can be asserted in an American

court by foreign nationals living in a foreign country

at the time that their alleged Troxel rights were

purportedly violated.” App.49a n.28. But petitioners

would need to prevail on that issue to obtain any relief.

At the time the adoption order was entered in

December 2020, and at the time the six-month statute

of repose expired in June 2021, petitioners were

33

Afghan citizens living in Afghanistan with no

constitutional rights under the Due Process Clause.12

V.

Further Review Would Be Inequitable

Finally, it would be inequitable to grant certiorari,

both for this adoptive family and for adoptive families

across the United States.

The Child currently enjoys the sort of stable and

loving home that the Virginia General Assembly

sought to protect in enacting Code § 63.2-1216. She

turned seven this Summer, is making new friends at

school this Fall, and has lived happily at home for over

five years with her parents and four adoptive siblings,

who have given her the love and care that she needs

and deserves. Despite her challenging start, she is

now developmentally on track and thriving. The whole

point of adopting a strict statute of repose for

adoptions, as Virginia and many other States have

done, is to provide finality and stability for adopted

children, even at the expense of adults’ ability to

litigate their interests.13

12 Petitioners’ claim also fails because they lack standing to chal-

lenge the adoption; because their allegations are factually unsubstantiated; because, even after actual notice, they waited more

than six months to file; and because they are equitably estopped

after relying on Joshua Mast’s status as the Child’s adoptive father to flee with U.S. forces from Afghanistan.

13 Petitioners argue that “any caretaker in [their] position de-

serves notice of adoption proceedings * * * and an opportunity to

be heard.” Petn.4. But Virginia law entitles “[a] legal custodian

of a child being placed for adoption * * * [t]o proper notice of any

adoption proceeding and an opportunity to be heard.” Va. Code

(cont'd)

34

The adoption order has been final since December

2020, and the Masts have had custody of the Child

since September 2021. The Virginia courts,

recognizing this, have repeatedly refused petitioners’

efforts to upset the adoption. While the statute of

repose is crystal clear, the Masts have been denied the

promised and needed repose. Granting certiorari

would undermine that purpose and thrust the Child

and her family back into years of additional litigation.

Even if the Court were ultimately to affirm—or the

Masts were to prevail on alternative grounds following

a remand—the prospect of further review would still

create instability and uncertainty in the meantime of

precisely the sort that a statute of repose is meant to

foreclose.

Petitioners’ requested holding would also be

immensely disruptive for adoptive families around the

country. States across the Nation have enacted similar

statutes of repose to protect the finality and stability

of adoptive placements. See, e.g., Fla. Stat. § 63.182(1)

(one year); Ga. Code Ann. § 19-8-18(h) (six months);

Miss. Code Ann. § 93-17-15 (six months); N.H. Rev.

Stat. Ann. § 170-B:21 (one year); Okla. Stat. tit. 10,

§ 7505-7.2(A)(2) (three months); Tenn. Code Ann.

§ 36-1-122(b)(2) (nine months); Tex. Fam. Code

§ 162.012(a) (six months); W. Va. Code § 48-22-704(b)

(six months). These limitations reflect a considered

policy judgment that, at some point, an adopted child’s

interest in stability outweighs competing interests in

allowing procedural challenges. If petitioners prevail,

§ 63.2-1202(l). That law just did not apply to petitioners for a

whole host of reasons. It does, however, undermine their parade

of horribles.

35

any prior caretaker, including a foreigner living in a

foreign country, could claim not to have received

adequate notice to reopen a finalized adoption at any

time, perhaps years after the child has settled in with

an adoptive family. Even if such challenges ultimately

fail, litigating them imposes a substantial burden on

adoptive families and children and undermines the

repose that state legislatures have sought to provide.

Denying certiorari will allow the Masts and the

Child to live without the threat of unwinding their

family and uprooting her from the life she has built. It

will allow all parties involved to turn the page and

start the next chapter of their lives.

CONCLUSION

For these reasons, the petition for a writ of certiorari should be denied.

36

Respectfully submitted,

Thomas C. Watson

Colin F. Brady

MCGUIREWOODS LLP

800 E. Canal St.

Richmond, VA 23219

(646) 262-0500

John S. Moran

Counsel of Record

Grace Greene Simmons

MCGUIREWOODS LLP

888 16th St. N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2817

jmoran@mcguirewoods.com

Counsel for Respondents

September 16, 2026