Michelle: Surviving in a Fixed World

On March 11, 2009, a social worker named Eliana Cotter, who was monitoring the state-mandated foster care of Michelle Malakova, had a delicate task to perform. She needed to tell the six-year-old child, in not so many words, that a jury had found her mother, Mazoltuv Borukhova, guilty of the murder of her father, and that she would not be released from jail. In her social worker’s “progress notes” Cotter wrote:

At the park CP [case planner, Cotter herself] asked if Michelle remembered who is waiting for court and why. Michelle replied, “Mommy! So she can come out.” Michelle understood that the court and the judge would decide if BM [birth mother] could come out, and she knew that the court didn’t have to let BM out. CP informed her that court happened. Michelle immediately asked “When did it happen?” and CP informed her that yesterday was the last day. Michelle immediately became distracted and started playing with some toys and snacks. CP had difficulty getting her to focus and listen. CP explained that the court decided BM had to stay. Michelle asked, “How long?” and CP said she had to stay for a long time. Michelle repeatedly asked how long it would be in an almost playful manner until CP explained that there is another court that will say how long. Michelle ensured CP would find out from that court, then immediately distracted herself again with her toys…. CP again refocused Michelle and brought out a book about feelings that she enjoys. Michelle eagerly looked through the book and pointed out the page about “Sad.” When asked to say what was making her sad Michelle looked away and said “I don’t know.”

Michelle was then living with her paternal uncle Gavriel Malakov and his wife Zlata and would continue to do so for another two years. That she was unhappy in this home was apparent to the two agencies in charge of Michelle’s state wardship—ACS (Administration for Child Services) and OHEL, the Orthodox Jewish foster care agency that acted as an arm of ACS, and for whom Eliana Cotter worked. But the state system—whose third and decisive component is the Family Court—was designed to “maintain the stability of the placement.” Accordingly, the child’s wishes—to live with her maternal relatives—were disregarded, and the problematic character of the placement was overlooked until, finally, it could be overlooked no longer when Michelle accused her uncle of hitting her. In February 2011 she was removed from the Gavriel Malakov household and sent to the “non-kinship” Broder family where she had once before found a happy haven. But once again the haven was temporary. In the winter of 2012 Michelle left the Broders and went to live with her other paternal uncle, Joseph Malakov, and his wife Natalie.

Four months earlier Borukhova had lost the appeal on which she and her family had been unrealistically counting. Alan Dershowitz, the famous defense lawyer and Harvard law professor—who, in 1984, had improbably succeeded in overturning the conviction of Claus von Bülow for murdering his ill wife—had taken the case with his brother Nathan, who had written a forceful 126-page brief. On February 9, 2011, Alan argued the brief before four judges at the historic Appellate Courthouse in Brooklyn Heights, an exquisite example of the nineteenth-century Greek Revival style, though, in fact, it was built between 1936 and 1938, when “Depression Doric” was the style of choice for new courthouses, and expense was evidently no object in their construction.

The burnished courtroom was filled with nicely dressed people who had come, as if to a music recital, to hear Dershowitz perform his aria of outrage against the errors of the trial judge. In the warm light of four bronze chandeliers suspended from the gilded coffered ceiling, a merciful outcome for Borukhova seemed almost possible. But there was no such outcome. Viewing the case under the fluorescent glare of appellate law, the court upheld the conviction. Yes, the judges conceded, there had been errors in the trial, but they were trifling (“harmless error”) in relation to the massive evidence against Borukhova. This deathblow to Borukhova’s hopes was delivered on October 25, 2011. Earlier in the month, never doubting that the appeal would fail, as almost all criminal appeals do, the Family Court judge Linda Tally stripped Borukhova of her parental rights and put an end to Michelle’s prison visits.

Her decision was the finale to a pair of hearings held in May 2011, called Dispositional Hearings on the Termination of Parental Rights. Borukhova watched and listened from Bedford, New York, where she was imprisoned, and was represented by her court-appointed lawyer, a sympathetic man named Robert Gruenspecht, who had replaced a grumpy attorney named John Casey. Casey had stepped down after what he felt to be a blow to his dignity. At Borukhova’s request, he had filed a motion asking for the removal of Michelle’s law guardian, David Schnall, on the ground that Schnall was prejudiced against her. Tally turned down the motion. Schnall had become a kind of pet of hers; she didn’t always like his behavior in court, she sometimes curbed his over-the-top spite, but more often than not she ruled in his favor. He was useful to her—what he said seemed to be essentially what she herself believed.

After Casey’s motion was turned down, Nathan Dershowitz took the extraordinary step of writing a letter to Tally complaining of Casey’s inadequacy. He said Casey had not cited Schnall’s admission at Borukhova’s criminal trial that he had never spoken to Michelle, and even more significantly, in Dershowitz’s view, he had made no mention of the question of the law guardian’s sanity raised by Borukhova’s lawyer, Stephen Scaring, when he submitted my notes of Schnall’s conspiracy theories to the criminal trial judge. Nothing came of Dershowitz’s intervention (except a rap on his knuckles from Tally’s court attorney for not minding his own business), but Casey was so offended that he wanted nothing more to do with Borukhova and asked to be relieved. The appointment of Gruenspecht in his place was a rare break for Borukhova. Gruenspecht vigorously advocated for her.

At the dispositional hearings Gruenspecht offered a legal expedient called “suspended judgment” as an alternative to termination of parental rights. It would put off the evil day for a year. Gruenspecht called two witnesses to support his position. One was Mitchell Frank, a forensic psychologist who worked for the Queens Family Court Mental Health Services, and was familiar with Michelle’s history. In anticipation of the probable result of the termination of parental rights hearings, Frank had been asked to make an evaluation for the court on the question of where the child should go after her tie to her mother was severed and she would face adoption. He had interviewed Michelle, as well as her aunt Sofya, Borukhova’s sister, and both Gavriel and Joseph Malakov. But at the start of the first hearing on May 11, 2011, Tally announced that Michelle’s placement would be the subject of a future “permanency hearing,” and the present hearings would deal only with one question: Should Borukhova’s parental rights be terminated or should she be granted the reprieve of suspended judgment?

Tally’s reason for doing so, she said, was to move things along, “otherwise this hearing will go on from now until 2013 and 14 with the way this case has gone on.” However, the case went on as it usually did in Tally’s courtroom, and as it does in many others, with perpetual squabbling not about the matter at stake but about what is legal and what isn’t. On almost every page of the transcript the words “objection” and “sustained” or “overruled” appear. When one of the participants protested the appearance of Gruenspecht’s second witness, a therapist named Jacob Adler, saying his testimony belonged to the permanency hearing rather than to the dispositional hearing, Tally overruled the objection by saying to Gruenspecht, “Obviously you are permitted to call that witness…the court isn’t going to preclude you from that, that would make the dispositional hearing then a farce.”

But the hearing was a farce. It was a foregone conclusion that Tally would rule against the suspended judgment Gruenspecht recommended. She wanted to be done with the case and she knew how she wanted it to end. Yet Borukhova had to be given her day in court, and her lawyer had to be allowed his charade of questioning witnesses in such a way as to establish his argument—until cross-examination established the argument of the other side.

As if recognizing and covertly commenting on the absurdism of her role—absolute power masquerading as helpless obeisance to statutory law—Tally would cite rules only to allow them to be broken. She kept repeating her stricture that the hearings were to be limited to the narrow question of Borukhova’s parental rights, and that nothing else was to be discussed, and kept allowing her ruling to be flouted, as Gruenspecht flouted it in this colloquy with Mitchell Frank:

Gruenspecht: Now you had an opportunity to speak with Michelle about her wishes in this matter?

Frank: Yes.

Q: And you say she was able to express them?

A: Yes.

Q: What were her wishes—what are her wishes?

A: Her wishes are that she live with her Aunt Sofya.

Q: Did you discuss with Michelle what her wishes are in terms of her ongoing relationship with her mother?

A: Yes.

Q: And what were they—what are they?

A: To continue seeing her.

Q: Could you be more specific about the attachment that she conveyed to you?

A: Not really. She said that she—it was, from everything she said she enjoys seeing her mother, wants to see her mother, looks forward to visits, her face lights up when she talks about the time that she spends with her mother.

Under Gruenspecht’s questioning, Frank predicted that if the frequency of the prison visits was reduced, the child would accept the deprivation after an initial period of depression and “temporary reduction in functioning.” But if she could not see her mother at all, if the visits were entirely eliminated, “I think it would be hard for her to overcome that. It’s hard to predict what effect it will have, it will certainly make her depressed, angry, and it will almost surely affect her functioning.”

A few minutes later, the painful question that had been vaguely hovering over the case since Borukhova’s conviction came into clear view: How was the child to reconcile her love of her mother with the knowledge that her mother had killed her father? I have come to the heart of my story. The fight between the Malakovs and the Borukhovas over Michelle’s custody was a fight over the child’s indoctrination. If Sofya was given custody of Michelle, she would relieve the child of her burden of “cognitive dissonance” as Frank, invoking the famous, and useless, psychological theory, called it. She would tell the child that her mother was unjustly accused and in prison for a crime she did not commit. Michelle’s cognitive struggle would be at an end. But the social system, of which Tally was the legal arm, could not countenance this. The mother’s punishment would not be complete if her child were allowed to go on obliviously idealizing her. The chance of Sofya or any other member of the Borukhova family getting custody of Michelle was therefore nil.

When Schnall cross-examined Frank, he got Frank to agree that Borukhova’s parental rights should be terminated, “notwithstanding that Michelle would not prefer that.” Then he elicited a remarkable statement from him in answer to the question “Why have you determined that…the mother’s rights should be terminated, notwithstanding Michelle’s preference?” “Because,” Frank replied, “her mother has been convicted of murdering her father, and of ruining her life.” A few moments later, Frank qualified his statement—“I’m being a little dramatic in saying ruining”—but the harm (to Gruenspecht’s case) was done. In her decision terminating Borukhova’s rights, Tally blandly quoted Frank: “[He] concluded without reservation that the respondent’s parental rights should be terminated despite Michelle’s wishes because her mother has been convicted of killing her father and ruining her life.”

Gruenspecht did better with Jacob Adler, who identified himself as an ordained rabbi as well as a licensed social worker, and who said he was “what they call a non-directive therapist.” “I’m not giving a course, I’m not giving a lecture, I’m not telling Michelle you have to do this or that. I want to understand Michelle.” He went on to give a vivid portrait of the child:

Michelle is an extremely talented and multifaceted young lady. I think her artwork is amazing. I think her ability, her math ability is very good. She’s extremely creative. Recently she’s been into a lot of making skits…the most recent thing I guess before the Passover holiday, she says I’m Moses and I’m gonna save the people, you know, and I’m gonna fight Pharaoh, you know, which of course talks a lot about her empowerment, you know, and wanting to have control over her life.

When Gruenspecht asked Adler why he was “strongly in favor of Michelle continuing having visits with her mother,” Adler replied:

Michelle loves her mother. She’s very strongly attached to her mother. That’s all she speaks about most directly when she comes back from a visit. In play therapy, you know what she loves to play most? A game called Operation. It’s a doctor game. Why? Because my mother’s a doctor…. In my opinion, it would be criminal to take Michelle away from her mother or take her mother away from her.

When the OHEL lawyer James M. Abramson cross-examined Adler, he asked: “Would you agree to at the present time inform Michelle that her mother has been convicted of killing her father?” “Absolutely not,” Adler replied.

Q: Why not?

A: I think it would be very detrimental. You know, I help kids. I don’t torture them.

Q: And if you were directed to do that, what would your reaction be?

A: I would say that she should probably see a different therapist because I feel that would be totally compromising my ethical and my professional standing and I would think it’s probably something close to malpractice.

Q: Would you agree to inform Michelle that her mother has been convicted of killing her father at some time in the future if it were appropriate?

A: If it were appropriate, absolutely.

Q: And what—when would it be appropriate?

A: I’m not a prophet. I have no idea.

In the end, the peppery Adler’s testimony cut no ice with the judge. “The Court does not give significant weight to the testimony of Mr. Adler,” Tally disdainfully wrote in the decision whose final words were:

ORDERED that respondent’s parental rights are terminated.

ORDERED that respondent’s request for post termination contact with Michelle is denied.

On April 10, 2012, at seven in the evening, I rang the bell of Joseph Malakov’s handsome house on a shady street in Forest Hills. I had visited it twice before—the first time a few weeks after the criminal trial, and the second a few months later. Joseph had readily acceded to my request for these interviews and he and his wife spoke to me at length and without inhibition. The third interview—following the publication of my book about the case,^* in which he and his wife appeared—had not been so easy to arrange. Joseph was reluctant to meet with me. “Have you read my book?” I asked during one of my supplicant’s phone calls to him at his pharmacy. “Is that the problem?” “No, I haven’t read it, but I heard things about it.” “What things?” “Some people said one thing and some said another. I have to go. There is a man waiting in a car outside.” I kept calling him, more from reflexive journalistic shamelessness than any hope of success, but one day, astonishingly, he said OK, I could come to his house the following evening after eight. Michelle was now living with him. I would finally meet the child about whom I had read so much and for whom I felt such pity. I arrived an hour early, to make sure she wasn’t in bed.

Natalie answered the door and was surprised to see me; Joseph hadn’t told her I was coming. She led me into the house, most of whose rooms were dark. Passover had been celebrated two days earlier, and the place had a depleted and exhausted air. Natalie was eating her supper in the kitchen and eleven-year-old Sharona was having a singing lesson in the room with the piano. Natalie led me upstairs to the bedroom that Michelle was sharing with Sharona and her ten-year-old sister Julie. The younger girls were there. Julie recognized me from my previous visits, and greeted me with an embrace. Michelle looked at me warily.

She was a swarthy child—I later learned that she had recently been with the Broders at Disney World in Florida where her skin had darkened from the sun—and her voice was deep and husky. She had arrived at the Joseph Malakovs’ only a few weeks earlier and her restless, darting movements showed her unease, sharply contrasting with the placid address of the untroubled children of the house. The girls showed me drawings and school projects as Natalie lounged on one of the beds and looked on, though I didn’t have the feeling that she was “supervising” the visit. There was something about this family I always liked. The four children (there was also an eighteen-year-old girl and a nineteen-year-old boy) had open, lively natures that parental discipline had evidently nourished rather than crushed. Or so it appeared. What can a stranger know about a family after a few visits?

Sharona’s lesson ended and she appeared in the bedroom. She, too, greeted me warmly. I distributed the gifts of small stuffed animals I had brought. Michelle tore open her package eagerly. Natalie exclaimed, “Oh, a pony, Michelle loves ponies.” Michelle glared and said, “How did she know I love ponies?” I immediately realized my mistake. One of the child’s concerns—among all the other worries she had—was that her history would be known to the outside world. She once told Eliana Cotter of her fear that she would be expelled from school if the teachers found out that her mother was in prison. My gift had betrayed me to the bright, suspicious child. She knew that I knew. Michelle threw the horse on the floor and never looked at it again. When Sharona unwrapped her gift, a dog, Michelle grabbed it from her. Sharona good-naturedly let her have it, but then Michelle bethought herself, and gave it back. (The next day, in a gesture of futile remorse, I sent Michelle another dog.)

Joseph came home and the girls ran downstairs. Michelle exchanged a high five with him at the door. The entrance of the father brought a new atmosphere into the house, as if lights had been turned on. The family gathered in the large kitchen—the hearth of the house—and Natalie placed bowls of apples and oranges and grapefruits and dishes of nuts and dried fruit on the large table in the middle of the room. Joseph deftly peeled and cut apples into pieces and distributed them among the girls. Michelle, whose mood had lightened, hacked at a grapefruit and offered segments around. The older children wandered in, greeted me politely, and wandered out again.

After the younger children had gone to bed, I turned on my tape recorder, and asked blunt questions about Michelle’s accusation against Gavriel. “It’s very simple,” Joseph said. “He never hit her.”

I said that her therapist wrote in a court report that he believed the accusation.

“I didn’t read the report,” Natalie said.

“What Adler says is speculation,” Joseph said. “I know as fact that this is pure accusation. Period. Whoever says different just doesn’t know.”

“Do you have a theory about why she made the accusation?”

“Because her mother tells her. Her mother tells her to say something and she says it.”

“Have you talked to her about this?”

“No,” Natalie said.

“So you don’t blame her?”

“No.”

“Blame who?” Joseph said.

“The child.”

“The child,” Joseph said. “What do you expect from child? Adults make big mistakes. What about child?”

I mentioned Adler’s recommendation that Michelle go to Sofya after she was taken from Gavriel.

“I don’t know why he recommended that, personally,” Natalie said.

“He also recommended that Michelle continue to visit her mother in prison and—”

“I don’t want to discuss it,” Joseph interrupted. Natalie started to say something and Joseph said, “I don’t want to discuss this, OK? It’s a very touchy subject, especially at this point.” I started to speak and Joseph cut in again, “Let’s not, please.”

Joseph’s cell phone rang and he picked it up and replied to the caller in Russian. He sat at the table unconcernedly conversing for several minutes.

When he hung up I asked if Michelle speaks to them about seeing her mother.

“No,” Natalie said. “We don’t talk about it.”

I reminded Natalie of a comment she had made during one of my previous visits about her mothers’ sympathy for Borukhova—feeling what Borukhova must have felt when her child was taken away by Judge Strauss. “If you had your preference, would you allow Michelle to continue seeing her mother? Or are you satisfied that she cannot do so?”

“It’s a big question,” Natalie said.

“It has a very simple answer,” Joseph said. “If you are allergic to something—when you touch something and it damages you—would you let it happen again? It’s a straightforward situation.”

“So you feel the visits are damaging to Michelle?”

“I want you to make your judgment on that. You know the history intimately.” Joseph went on, “I’ll tell you, at this moment the best thing is to put everything behind. It’s like a wound. The less you disturb it, the faster it is going to heal. The questions you ask about Gavriel, about Sofya, about her mother—what is the point?” He offered another metaphor. “You have a puddle. There is a big splash. The water moves and comes back. Then everything is the same as it was before. I want to keep it that way.”

During the criminal trial, Stephen Scaring, Borukhova’s defense attorney, told me about a documentary film called Exit Uzbekistan, in which the Borukhov family appeared. It was made in Samarkand in 1995 by a Dutch filmmaker named Michael Schaap, just before the family’s emigration to America, and it gave a vivid sense, Scaring said, of the family’s remarkable character and its high degree of cultivation. For the next three years I tried and failed to get hold of the film. The Jewish Museum had shown it but it was now in inaccessible storage. Michael Schaap promised to send it, but never did. Sofya said she had a copy of it, and would look for it, and then remembered she had loaned it to a friend who was away.

Then one day, long after I had given up on ever seeing the film, Sofya produced it. She gave me the film at the office where she works part-time for the New York Board of Rabbis in a heavily guarded building called America-Israel Friendship House on East 39th Street. This was a week before my visit to the Joseph Malakovs and Sofya tearfully told me of the changes she had seen in Michelle since she left the Broders. “Emotionally, she is different. She was flourishing like a flower with the Broders,” she said, echoing Adler’s observations. “She was out of her shell. Now she doesn’t look you in your eyes again. She doesn’t laugh her beautiful laugh. They cut her hair. She is there two weeks and the first thing they do, they cut her hair. She was so proud of her long hair. She has lost weight. They don’t feed her enough. They always thought she was a fat child.” She added bitterly, “They look at her as a prize.”

That evening I watched Exit Uzbekistan. It was not as Scaring had described it. Only Shlomo Borukhov, the son of the family, had a role in it. The rest of the Borukhov family appeared but glancingly, at a ceremonial dinner in their home in Samarkand. Shlomo, a handsome, articulate young man, answered the filmmaker’s questions about why the Bukharan Jews were leaving the region for Israel and the United States. He said that when Uzbekistan became an independent republic after the breakup of the Soviet Union, the Muslim majority drove the Jews out of the trades and professions they had practiced since settling in the area two thousand years earlier. Of the 100,000 Bukharan Jews who were living in Central Asia at the time of the breakup, now only a few thousand remained. Shlomo had been forced out of the Academy of Science just before his graduation and would emigrate to Queens with his family; they were only waiting for his sister Mazoltuv to graduate from medical school.

Another Jewish figure in the film, an eighteen-year-old girl named Sveta Abramova, was also leaving for America with her family. She had just graduated from nursing school, but couldn’t find work. “They said they don’t need Jews for that.”

“Do you have an idea of America?” the filmmaker asked her.

“Yes, to a certain extent. We have relatives there and receive letters from them about life there, so I have an idea.”

“What do your relatives write about America?”

“They say that life here was only existence. Here we vegetate. There they really live life.”

—This is the third article of a three-part series.