SUTTONS BAY – The story begins at Martha Rothaug’s upright Yamaha.
It
was June 2016. Martha, a former concert pianist, was becoming
increasingly forgetful, struggling to play songs she once knew by heart.
A doctor told Martha’s daughter, Jen Rodgers, the misplayed keys could
be an early sign of dementia.
For Martha — “Marty” to family and friends — at stake was not only
her health and where she would live in the final years of her life, but
control of her $1.8 million estate.
The family’s accumulated
wealth was far above average, yet their problem will sound familiar to
many — an aging parent who wants to live independently; adult children
who disagree about their parent’s care.
Particularly alarming in
this case, however, is that Marty, 78, had planned for such an
eventuality, consulting with an attorney on a 40-page estate plan she
signed more than a decade before a doctor flagged the memory issues.
Jen
was the person Marty trusted to handle her end-of-life care and
decision-making. In 2007 and again in 2014, Marty put those wishes in
writing.
“I nominate Jennifer A. Rodgers to serve as Guardian over
my person and Conservator over my estate if a protective order over my
person or estate is commenced after the execution of this power of
attorney,” a document Marty signed and notarized Sept. 26, 2014 states.
But
in March 2017, a state worker cited unsubstantiated complaints about
Jen in a court petition. A Leelanau County Probate Court judge responded
by appointing Jill Case, a woman neither Jen nor Marty had ever met, to
be Marty’s guardian and conservator.
This decision by Judge Larry
Nelson gave Case control over where Marty lived, how her money was
spent and who could visit her. It also sparked a legal battle that would
fester for years, occupy two northern Michigan probate courts,
temporarily separate a mother from her daughter and rack up thousands in
attorneys fees.
Jen, who previously shared part of this story with the Northern Express, said she tries not to dwell on the past, but that’s not easy.
“I still don’t understand why we couldn’t have worked together as a family,” she said.
A family divided
Marty has a son, Simeon Rodgers, Jen’s older brother who lives in Ohio.
Court
documents show in the mid-2000s, Marty and Simeon became estranged
after the family’s once successful metal fabrication company fell on
hard times.
A resulting bankruptcy forced the sale of Marty’s Lake
Leelanau home and in 2007, she sued Simeon in the Common Pleas Court of
Montgomery County, Ohio, for breach of contract. Simeon counter-sued
for defamation and infliction of emotional distress, court records show,
and several months later, Marty wrote her son out of her will.
Simeon
says Jen manipulated their mother into changing her will, that his
lawsuit was a standard response and not intended to be punitive.
“My
sister engineered all that,” Simeon said, of being removed from his
mother’s will. “When you are sued, do you know the law well enough to
know you always file a countersuit? You always do.”
Jen disputes
Simeon’s characterization of her. In 2015, records show Simeon and Marty
did begin to try to repair their relationship.
By then Marty had moved to Suttons Bay and soon after loaned Jen money so she could purchase her own home nearby.
Jen
worked as a traveling surgical technician and she recalled that for the
next several years, the two women’s lives adhered to a predictable
schedule.
Jen would go to Florida in the winter for work, Martha
would visit for a few weeks and then Jen would return to Michigan every
spring. During the rest of the year, mother and daughter saw each other
several times a week, going out to dinner, sharing home decorating ideas
and visiting each other’s homes to watch HGTV.
This changed abruptly in March 2017.
While Jen was in Florida, Simeon’s adult son, Spencer Rodgers, paid Martha a visit.
The APS complaint
“No
one lives with Martha. No one has been assigned to care for her. She
has rotting food in her fridge. Jennifer has had no regular physical
contact for 4 years with Martha.”
These words anchor a March 3,
2017 investigation report by Adult Protective Services, filed after
staff at the state agency received a complaint from Spencer.
After that, things happened fast.
An
APS worker, Michelle Hagerman, interviewed Simeon about what Spencer
said he found in Marty’s refrigerator. In her investigative report,
Hagerman made broad conclusions about Marty and Jen’s relationship, many
of which court officials found later to be false or unsubstantiated.
The
report stated Marty wasn’t taking her medications, and suggested Jen
was not only neglecting Marty but was preying on her financially —
observations which Simeon continues to contend were true.
The APS
report stated Jen borrowed money from Marty and wasn’t paying it back,
and that Jen “might” have taken out a $150,000 loan against Marty’s
house in Marty’s name.
It’s unclear how Jen could have done this
while also not having any regular physical contact with her mother in
four years — a non sequitur in the report Hagerman didn’t explain.
Instead,
Hagerman filed an emergency petition in Leelanau County’s probate
court, seeking to have a judge appoint a temporary guardian for Marty.
Emergency
guardianship petitions are designed to protect vulnerable adults who
are in immediate danger. When a probate court register receives such a
petition, he or she often schedules a hearing within a few days.
Emergency petitions filed “ex parte,” as it was in Marty’s case, means
an opposing party — in this case, Jen — doesn’t have to be notified.
“At
this point, I’m a perpetrator,” Jen said, of how she believed the court
and the state viewed her. “I was panicking. I should have caught a
plane. But I didn’t know the magnitude of what was getting ready to
happen.”
If Jen had booked a flight home, she said she could have shown Nelson a folder of documents proving the APS complaint was false.
There
were notes from Marty’s doctor stating Jen should do what she could to
help her mother maintain her independence. Paperwork from a service Jen
arranged to assess Marty’s driving ability, as well as cost estimates
from a home health care agency — tasks Jen completed before leaving for
Florida.
Finally, Jen could have explained how the $60,000 real estate loan was so she could live near her mother.
Hagerman
spoke with Simeon and Spencer, but didn’t interview Jen. Consequently,
none of the above information was in Hagerman’s investigation report.
Four
days after the emergency petition was filed, Nelson signed it. And
appointed Case — who Hagerman suggested — as Marty’s temporary guardian.
Losing Control
In family disputes, it’s not unusual for a judge to see an unrelated third party as an objective solution.
It
is unusual, however, for a judge to override signed durable power of
attorney and patient advocate documents, which the law says must be
followed unless a judge decides there are extenuating circumstances.
“If
I have trust documents or a durable power of attorney before me, it’s
very, very rare that I will override them,” said Melanie Stanton, who
served as Grand Traverse County’s probate court judge from 2013 to 2021.
Judges
do have the power to override these documents when they suspect abuse
or neglect. A transcript of the emergency hearing shows Nelson appeared
to be under the impression that Jen was angling for her mother’s money.
That
suspicion was amplified by Hagerman, who testified — without evidence,
the transcript shows — that Marty’s dementia may have affected earlier
decision-making.
Judges often defer to recommendations from APS
investigators. They also rely heavily on a type of court-appointed
attorney called a “guardian ad litem,” assigned to meet with a
vulnerable person like Marty and report their findings to the court.
The
guardian ad litem in Marty’s case was Traverse City attorney Mattias
Johnson. The court asked Johnson to review documents, meet with Marty
and offer an opinion on whether the order granting temporary
guardianship should be made permanent.
Johnson in his April 4,
2017 report described Marty as charming and well-dressed, and her home
as beautiful and tidy. He acknowledged Simeon’s removal from Marty’s
will and the legal documents naming Jen as her mother’s choice of
decision-maker and beneficiary.
Johnson spoke with Marty’s
financial manager, John Schubert who confirmed Marty’s substantial
investments and stated Jen was helpful to Marty in financial matters and
nothing she did struck him as untoward.
Johnson then recommended continuation of the outside guardian.
“While
it is of yet unclear whether there has been any actual impropriety, GAL
believes that the appearance of impropriety lends itself to continuing
with a third party management of Martha’s finances and health
decisions,” Johnson wrote in his report to the court.
Nelson, who
declined comment for this story, entered an order May 17, 2017, making
Case’s role as Marty’s guardian and conservator a permanent appointment.
Background Checks
Case
appeared to have the right credentials to make decisions about the
health, housing and financial needs of an elderly person showing signs
of vulnerability.
She worked for Grand Traverse County’s
Commission on Aging and her county personnel records show she passed
FBI, Michigan State Police and state Department of Health and Human
Services criminal background checks.
Probate courts differ from one county to the next on whether to
conduct background checks on people they appoint. Emmet County, for
example, asks the sheriff’s office to do it, Oakland County requires a
background check and a credit check to be on its approved guardianship
list and Grand Traverse County doesn’t conduct any background checks at
all.
Judges and staff don’t have the time or the resources,
Stanton said, and even if they did, they can’t access LEIN, the
nationwide law enforcement intelligence network’s database that contains
records of criminal offenses.
There’s no record of a criminal
background check on Case by the Leelanau Probate Court, though if there
had been a check, it’s not likely it would have noted civil infractions —
records show Case’s paycheck years before was garnished by a debt
collector.
Case had also been cited at her Commission on Aging job
by COA Director Georgia Durga for unprofessional and inappropriate
conduct, bullying and violating the county’s violence in the workplace
policy.
“It is my expectation you will cease using bullying
tactics as detailed above,” Durga wrote to Case in a 2010 corrective
action form. “From this day forward I do not expect to receive any
additional complaints from other employees/departments regarding your
behavior. When you meet with me, I want you to bring solutions on how to
coach employees to make them successful, not ways to remove them from
their positions.”
Five years later, in 2015, Durga suspended Case
for behavior which she said made another employee feel threatened; the
five-day suspension was later vacated by a county administrator who
labeled it a she-said, she-said accusation.
Following her
appointment as Marty’s guardian and conservator, court records show Case
communicated frequently with Simeon’s family, and positioned herself as
a gatekeeper between Jen and Marty.
Records show Case told
Spencer to unplug Marty’s home phone, then allowed Jen 15-minute phone
calls with her mother and short, twice-weekly supervised visits. Jen
could come to Marty’s home as long as she didn’t go anywhere but the
kitchen, living room or dining room.
When Jen took her mother outside in July and to a nearby orchard, Case reported it to the judge.
“(H)er
visits were to be supervised and that an aide needed to be with her mom
at all times,” Case wrote, in a July 13, 2017 report to Judge Nelson.
“She was not to take her mom outside without an aide.”
Case soon
paid thousands for Marty’s care, hiring two women — Monica Bradford and
Kathy Bower — to stay with Marty around the clock, either in her home or
theirs. Canceled checks show, in April and May of 2017, Case paid
Bradford and another woman, Anne Cole, $22,780 from Martha’s estate.
Case
also moved Marty’s investment portfolio away from Schubert, Marty’s
longtime financial adviser, to someone new, locking Jen out of
monitoring transactions on her mother’s accounts.
This concerned
Schubert enough, a guardian ad litem report shows, for a colleague of
Schubert to file a suspicious activity report. Schubert did not return
calls seeking comment, regarding the result of that SAR.
“Ms. Case
was withdrawing large (in the mid-five-digit range) sums of money,
something Marty had never done,” a GAL report filed with the court
states. “When the advisor and his business partner questioned the
Conservator about this, she moved the account to another investment
firm.”
Near the end of summer in 2017, Case moved Marty out of her
home and into an assisted living facility, the Highlands, in Northport.
Court documents show Case didn’t tell Jen about the move. When Jen
learned of it, these same records show Case refused to tell Jen where
her mother was.
The move infuriated Jen, but according to court records, it also upset Marty.
“Martha
asked why I was doing this to her,” Case wrote, in her report to Judge
Nelson. “I reminded her that she has a disease and that the doctor said
she needed 24/7 care. I told her that it was my job to make these
decisions to look out for what is her best interest in where she lives.”
Case
appeared to view a Mother’s Day gift to Marty from Jen — fleece-lined
Crocs the color of Pepto Bismol that Jen mailed to her mother — as
something nefarious.
Shortly after Mother’s Day in May 2017, Case
filled out the paperwork for a personal protective order against Jen,
stating in the application that recent mail and other communication from
Jen was upsetting Marty.
PPOs are court documents mandating
separation between alleged victims and their suspected abusers. They are
signed by a judge and violators can be arrested.
“It cemented her control,” Jen said. “If I didn’t contest it, I would have never seen my mother again.”
Fighting Back
Jen
said she tried to fight back against the court actions involving her
mother, from the emergency guardianship petition by APS, to Johnson’s
guardian ad litem report, to the PPO, but was unable to stop what she
later referred to as a runaway guardianship train.
Jen said she
remembers feeling angry and powerless until she hired her own lawyer,
Andrew Shotwell of Smith & Johnson Attorneys P.C., a Traverse City
firm. Records show Martha’s sister-in-law Lynne Hackenberger also had
concerns about Marty’s guardianship and hired Traverse City attorney,
Adam Lett, to contest Case’s appointment.
In December 2017, Case
moved Marty from the Highlands in Northport to French Manor, an assisted
living facility in Grand Traverse County. By changing the county Marty
lived in, Case also changed probate court jurisdictions. Stanton, not
Nelson, presided over Grand Traverse County’s probate court.
Stanton
responded to petitions by Shotwell and Lett by revoking the PPO and
assigning a new guardian ad litem, Traverse City attorney Janet Mistele,
whose lengthy reports to the judge read like a spy novel.
“Despite
Marty’s extensive estate planning, when APS received a referral from
Simeon’s son alleging financial exploitation and physical neglect of
Marty, rather than doing a proper fact-based investigation and
attempting to confirm or dispel information from and about Marty’s
daughter, APS accepted as true hearsay and other unverified information
provided by members of Marty’s previously estranged family,” Mistele
said.
Simeon maintains the accusations investigated by APS were
legitimate and only a change of venue kept Jen from being investigated
by law enforcement, a characterization Mistele in her report found no
evidence of and Jen vehemently denies.
“It should be noted,”
Mistele said, “that as to the allegation of financial exploitation, two
separate prosecutors (Leelanau and Grand Traverse) have apparently
reviewed the case and declined criminal charges based upon prior
informal business dealings between mother and daughter.”
Mistele
in her report also said she was “very disturbed” by photos posted on
social media of Case, Hagerman, Bradford and Bower socializing and
recommended Case be removed or allowed to resign as Marty’s guardian and
conservator.
Lett flagged concerns about improper communications
between Case, Matthias Johnson and Judge Nelson. Johnson on June 8, 2017
sent a private note to Nelson, copying Hagerman and Case, about Jen’s
efforts to terminate the PPO. Communications outside of court with the
judge that don’t include all parties are banned under the Judicial Code
of Conduct.
Lett also lambasted Case’s relocation of Marty.
“Hiding
the ward from family and friends is not among the powers of a
Guardian,” Lett wrote in a court filing. “This woman believes she does
not answer to anybody. That cannot be true.”
Case’s reputation
with the court began to fall apart. She missed multiple filing deadlines
and no-showed court hearings, not only in Marty’s case, but for seven
other guardianships to which she’d been appointed.
Case was not
criminally charged, though Judge Stanton took an unusual step and issued
bench warrants for Case’s arrest. No arrest was made and Case’s
accountings were later submitted and accepted by the court.
APS
filed petitions to remove Case from all eight guardianship cases, which
Stanton signed. Discipline came for Case at her COA job, when a
subsequent COA director, Cindy Kienlen, ordered her suspension, as well
as an apology to Judge Stanton.
Case refused, then filed retirement paperwork.
Case
declined repeated requests for comment, stating she felt previous media
accounts of Marty’s guardianship did not portray her fairly.
A note in her COA personnel file, from an interview Kienlen conducted with Case, provides some insight into Case’s actions.
“You
stated that after taking over the first guardianship you quickly became
overwhelmed by the amount of work required in the Guardianship and
Conservatorship process,” Kienlen wrote, in a Sept. 18, 2018 letter to
Case. “You denied receiving the mailings of bench warrants and subpoenas
for your appearance at court. This is highly suspect that all mail and
communication were not received by you, especially since Amanda (Probate
Court Register Amanda Flowers) reported that none of the letters mailed
to you were returned to the court.”
On Dec. 6, 2018, records show
Jen filed a complaint with Michigan’s Attorney Grievance Commission
against Johnson for his ex parte communications with the judge.
The
Grievance Commission investigated, records show, though did not take
further action. Johnson did not return a request for comment, though
records show he responded to the complaint with an explanation and an
apology.
Nearly everyone involved in the case sent ex parte
communications to Judge Nelson, Johnson said, and this was his
first-ever guardian ad litem assignment.
“I understand the
seriousness of this offense and the repercussions that it could have had
and that was not my intention,” Johnson’s Feb. 14, 2019 response
states. “I would like to apologize to Ms. Rodgers for this error, to the
Court for in any way placing them in a difficult situation, and to the
commission for this action.”
Michelle Hagerman, the APS worker who
triggered Marty’s guardianship and recommended Case, was “reassigned”
to another state department more “suitable” for her, a court filing
states.
Stanton appointed a different professional guardian to
take over Marty’s case. Jen said this new guardian was expensive — she
charged $70 an hour – but it was worth it.
Case, according to court documents, was providing her services at no cost.
Unanswered questions
Marty Rothaug died Oct. 14, 2020 and Jen says she believes stress from the guardianship proceedings hastened her death.
“It
killed my mother,” Jen said, adding she agreed to share her story
publicly, in hopes it might educate other families about guardianship
and conservatorship and prevent them from experiencing similar grief.
Unanswered questions still keep her up at night, she said, even today more than five years later.
How
did a key to Marty’s safety deposit box end up in the parking lot of
Huntington Bank, where it was found by a staff member? Jen said her
mother’s most valuable pieces of jewelry were later accounted for,
though she’d like to know what happened to her father’s watches.
How
could caregivers hired by Case burn through $125,000 of Marty’s life
savings in only eight months? Who is supposed to vet those expenses?
And finally, how is it that Case, with her garnishments and COA disciplinary record, was appointed at all?
“They felt Jill Case was a better person to take care of her than her own daughter,” Rodgers said. “That’s the courts.”
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