Tally was fit to be tied when she learned of these developments. In Family Court on March 14, 2011, she lashed out at Abramson:
Mr. Abramson, maybe you can explain to the Court what has been going on, that a child that is before this Court for several years now, the child apparently was removed from an uncle’s home, no one saw it fit to notify this Court. No applications were made, the child was simply just removed, what is going on?
As Abramson began to tell the story of the removal, Tally tore into him further: “Did anyone think to go to Family Court and file something, people come for all different reasons to Family Court. We’re now freelance artists that we do whatever we wish to do?”
Abramson defended himself as best he could. He had brought a report to court, signed by Tsipi Gottesman and Chaya Surie Malek, in which OHEL finally and fully acknowledged that its efforts “to maintain the stability of the foster care placement” were misguided and that Michelle should under no circumstances be put back into Gavriel and Zlata’s keeping. The tone of the OHEL report is one of ill-concealed hostility toward the once-favored foster parents. “It is important to note,” Gottesman and Malek write after retelling the story of the removal, “that the Malakovs returned from vacation on Sunday, February 27th, 2011. Sup left Mr. Malakov a message on Monday, 28th. He did not return the Supervisors call. Supervisor had to call again on Tuesday. Mr. Malakov did not ask how Michelle was doing.”
After citing various instances of “concerns” with the Malakov family—among them the missed therapy sessions; the extraction of a tooth that could have been saved if the foster parents had not waited five months before taking the child to the dentist after a cavity had been discovered; Gavriel’s habit of pinching Michelle’s cheeks so hard that he left marks (the child told of this daily practice when Borukhova noticed the marks during a prison visit); a previous accusation by Michelle that “Mr. Malakov hits her with his hand”; and Gavriel and Zlata’s inability to make up their minds about whether to adopt Michelle or not—the report recommends an “immediate transfer” of Michelle to her aunt Sofya, who is “attentive, nurturing and interactive,” has a “strong connection” to her niece, and has no reservations about adopting her.
In addition to the OHEL report, Abramson submitted a report from Jacob Adler, the therapist who had replaced Maisel, and had been treating Michelle for over a year. (Maisel quit after Gavriel threatened to sue him.) Adler, too, recommended that Michelle go live with Sofya, “a much warmer and sensitive individual than Zlata and Gavriel.” Adler’s view of Zlata and Gavriel was much like his predecessor’s:
I feel that although they were concerned about Michelle, they did not express a strong sense of warmth toward her. They were consistently concerned about her academic performance, but in my opinion there was a limited understanding of her emotional life in spite of my attempts to address these issues.
Adler had seen Michelle four days after her move to the Broders and observed that she was “happy, cheerful and better kempt and put together” and evidently living “in a much more relaxed and emotionally healthy environment.” Michelle confirmed to Adler that Gavriel regularly hit her on her back and added a new detail about her life with him and Zlata. “When questioned about her aunt she reported that Zlata would pull her hair when she did not behave.” Adler went on:
It is of utmost importance to note that Michelle is an excellent and highly credible reporter. I have never had any experience of her not being truthful. She is an intelligent young lady who may have been understandably guarded talking about Zlata and Gavriel while living in their home.
Tally had a different view of Michelle. Throughout the hearing of March 14 she made it clear that she did not believe the child. Gavriel had not availed himself of the chance to deny the charge at an Independent Review Fair Hearing. But as far as Tally was concerned, he didn’t have to. There seemed to be no doubt in her mind that Gavriel was innocent and that Michelle had made the story up at the instigation of her mother. “There has been nothing to substantiate these allegations, they haven’t been founded,” she said. “The Court hasn’t seen anything of substance other than the statements that Michelle has made to some, not to others, laughed about it to some, no indication that the child’s been injured, no injuries seen on the child’s back….”
Tally’s skepticism was not unreasonable. Michelle’s story—for all of Adler’s faith in her reporting—was wobbly. Her refusal to let Gottesman look at her back speaks against her. Worse yet is her initial little misstep—her original answer to Borukhova’s question that it was the grandparents who hit her “when they want me to go upstairs to go to sleep.” Borukhova’s “Who?” reads like a signal to the child that she had given the wrong answer. “Dear one, if you want to escape from your odious uncle, you need to say it was him,” the unspoken message seems to say. The child corrected course. From then on it was always Gavriel who hit her. The grandparents disappeared from the narrative. In their court report Gottesman and Malek omitted all mention of them, nor did they mention Michelle’s refusal to have her back examined. They wanted what Michelle wanted. She had given OHEL the chance to correct its mistake in placing her with Gavriel and Zlata, and OHEL leaped at it. Tally, for all her mutterings about Michelle’s untruthfulness and OHEL’s overreaching, had to concede defeat. She did not send Michelle back to Gavriel and Zlata; she allowed her to stay with the Broders, where she once again thrived.
But any sense of victory felt by Borukhova and her family was short-lived. Tally had no intention of giving the “killer family” any further quarter. When Michelle’s stay with the Broders ended (this time it was clear from the start that the placement was temporary), Tally was determined that she not go to Sofya, who “reeks of complicity in the murder,” as Schnall put it during one of his dire speeches in court. In spite of OHEL’s and Adler’s strong endorsement, the “attentive, nurturing” aunt was once again rejected, and the child was once again sent to the Malakovs, this time to her other uncle, Joseph. Sofya’s motions asking for custody of her niece were swatted away by Tally like annoying insects. You have no standing, she told Sofya’s lawyer, Cheryl Solomon. After one of these rebuffs, I asked Solomon what having no standing meant. “It means the judge hates you,” Solomon replied.
—This is the second of three articles.
The Case of Michelle February 7, 2013