Oral Arguments Schedule

Case Details

Court

No. SCAP-22-0000482 (consolidated with SCAP-22-0000571 and SCAP-23-0000330), Tuesday, August 6, 2024, 9 a.m. 

BRYAN GERALD, Appellant-Appellant, vs. EMPLOYMENT SECURITY APPEALS REFEREES’ OFFICE; UNEMPLOYMENT INSURANCE DIVISION; and HEALTH GO MARKET, INC., Appellees-Appellees. (SCAP-22-000482)

ADAM GRAY, Appellant-Appellee, vs. UNEMPLOYMENT INSURANCE DIVISION, Appellee-Appellant.  (SCAP-22-0000571)

ADAM GRAY, Appellant-Appellant, vs. UNEMPLOYMENT INSURANCE DIVISION, Appellee-Appellee.  (SCAP-23-0000330)

The above-captioned consolidated cases have been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Appellant-Appellant BRYAN GERALD (SCAP-22-0000482):

     Douglas C. Smith and Ross Uehara-Tilton of Damon Key Leong Lupchak Hastert, Pro Bono Attorneys

Attorney for Appellant-Appellee (SCAP-22-0000571) and Appellant-Appellee (SCAP-23-0000330) ADAM GRAY:  

     Daniel M. Gluck, Hawaii Appellate Pro Bono Attorney, Volunteer Legal Services Hawaii

Attorneys for Appellee-Appelle (SCAP-22-0000482), Appellee-Appellant (SCAP-22-0000571) and Appellee-Appellee (SCAP-23-0000330) DIRECTOR OF LABOR AND INDUSTRIAL RELATIONS:

     Li-Ann Yamashiro and Jack W. Relf, Deputy Attorneys General

NOTE:     Order granting Applications for Transfer and consolidating SCAP-22-0000482 and SCAP-22-0000571 under SCAP-22-0000482, filed 05/15/23.

NOTE:     Order granting Application for Transfer in SCAP-23-330 and consolidating SCAP-23-0000330, SCAP-22-0000482 and SCAP-22-0000571 under SCAP-22-0000482, filed 07/07/23.

NOTE:     Amended Notice of Setting for Oral Argument due to rescheduling from 06/27/24 at 10:00 A.M. to 08/06/24 at 9:00 A.M., filed 07/08/24.

COURT:    Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

These consolidated appeals address whether the State of Hawaii Department of Labor and Industrial Relations (DLIR), Employment Security Appeals Referees’ Office (ESARO) properly dismissed appeals from initial determinations on unemployment insurance claims as untimely.  Bryan Gerald (Gerald) and Adam Gray (Gray) each made claims for unemployment benefits that were denied by the DLIR’s Unemployment Insurance Division (UID).  Gerald’s case involves one claim and Gray’s case involves two claims for different periods of asserted unemployment.  After their claims were denied, Gerald and Gray submitted appeals to the ESARO past the deadlines set out in Hawaii Revised Statutes (HRS) § 383-38(a) (2015).  HRS § 383-38(a) allows a party to appeal within ten days after notice of a claim determination is mailed, but also provides that for good cause the period of appeal may be extended to thirty days.  Gerald and Gray submitted their respective appeals to the ESARO more than thirty days after notices were mailed to them.  The ESARO dismissed each of the appeals.

     Gerald appealed the ESARO’s dismissal to the Circuit Court of the Fifth Circuit (Fifth Circuit Court) asserting that his untimely appeal to the ESARO was due to mental health challenges.  The Fifth Circuit Court held that it lacked jurisdiction because Gerald’s underlying appeal to the ESARO was untimely.

     Gray filed two appeals to the Circuit Court of the Second Circuit (Second Circuit Court) corresponding to his different claims, asserting that circumstances related to the COVID pandemic and difficulty contacting the unemployment office affected the timing of his appeal to the ESARO.  Two Second Circuit Court judges decided Gray’s appeals differently.  The Honorable Kelsey Kawano held that the court lacked jurisdiction because Gray’s appeal to the ESARO was untimely.  The Honorable Kirstin Hamman vacated the ESARO’s dismissal on grounds that, due to the circumstances in the case, denial of Gray’s appeal was a denial of access to justice and a violation of his due process rights.

     All three circuit court decisions were appealed to the Intermediate Court of Appeals.  This court granted transfer of each appeal and consolidated them.  Both Gerald and Gray raise multiple issues, including whether the appeal deadlines in

HRS § 383-38(a) are jurisdictional and whether the deadlines are subject to equitable tolling.

This oral argument has been continued to a later date.

No. SCWC-18-0000941, Tuesday, August 6, 2024, 10:30 a.m.

WILLIAM FORESMAN, a single man, Respondent/Plaintiff-Counterclaim Defendant-Appellee, vs. JOHN FORESMAN, a single man, Petitioner/Defendant-Counterclaim Plaintiff-Appellant.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioner JOHN FORESMAN:
     Scot Stuart Brower

Attorney for Respondent WILLIAM FORESMAN:  
     Brandee J.K. Faria

NOTE:     Order accepting Application for Writ of Certiorari, filed 06/28/24.

COURT:    Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

This appeal arises out of a 2016 civil lawsuit in the Circuit Court of the First Circuit (Circuit Court), by Respondent/Plaintiff-Appellee (Respondent) against his uncle, Petitioner/Defendant-Appellant (Petitioner) for civil damages alleging that Petitioner sexually abused Respondent in 1975 and 1976 when Respondent was approximately 7 to 8 years old and Petitioner was approximately 15 to 16 years old.   Respondent filed suit pursuant to Hawai‘i Revised Statutes (HRS) § 657-1.8 (2016), which established certain limitation periods for “[a] civil cause of action for the sexual abuse of a minor . . . based upon sexual acts that constituted or would have constituted a criminal offense under part V or VI of [HRS] chapter 707.”

     At trial, the Circuit Court instructed the jury on the elements of four different criminal offenses based on how those offenses appeared in the HRS at the time the lawsuit was brought.  Petitioner objected to the instructions, asserting they should be based on the law when the alleged offenses occurred.  The jury awarded Respondent general damages in the amount of $50,000 and punitive damages in the amount of $200,000, and the Circuit Court entered judgment accordingly.

     Petitioner appealed to the Intermediate Court of Appeals (ICA) asserting three central points of error: (1) the Circuit Court erred by improperly interpreting and applying HRS § 657-1.8 and instructing the jury on criminal laws in existence at the time the lawsuit was brought; (2) HRS § 657-1.8 is unconstitutional under the ex post facto clause of the United States Constitution, and under the Hawai‘i Constitution; and (3) HRS § 657-1.8 is unconstitutional under the due process clauses of the United States and the Hawai‘i Constitutions.  The ICA affirmed the Circuit Court’s judgment.

     This court granted Petitioner’s application for writ of certiorari, which raises the same issues raised at the ICA.

No. SCWC-19-0000107, Thursday, August 22, 2024, 9 a.m., MĀLAMA KAKANILUA vs. DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS

MĀLAMA KAKANILUA, an unincorporated association; CLARE H. APANA; and KANILOA LANI KAMAUNU, Petitioners/Plaintiffs-Appellants, vs. DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS, COUNTY OF MAUI; and MAUI LANI PARTNERS, a domestic partnership, Respondents/Defendants-Appellees.  

The above-captioned consolidated cases have been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioners/Plaintiffs-Appellants MĀLAMA KAKANILUA, an unincorporated association; CLARE H. APANA; and KANILOA LANI KAMAUNU

     Lance D. Collins of the Law Office of Lance D Collins

Attorneys for Respondent/Defendant-Appellee MAUI LANI PARTNERS:

     Gregory W. Kugle, Veronica A. Nordyke, and David H. Abitbol of Damon Key Leong Kupchak Hastert

Attorneys for Respondent DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS, COUNTY OF MAUI:

     Victoria J. Takayesu, Corporation Counsel; Kristin K. Tarnstrom, Caleb Rowe, and Kenton S. Werk, Deputies Corporation Counsel    

NOTE:     Order accepting Application for Writ of Certiorari, filed 06/12/24.

COURT:    Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens,

Brief Description:

This appeal arises out of a dispute over the renewal of a grading permit by Respondent/Defendant-Appellee Director of the Department of Public Works, County of Maui (Director) issued to Respondent/Defendant-Appellee Maui Lani Partners (MLP) for a residential development project on Maui.

Petitioners/Plaintiffs-Appellants Mālama Kakanilua, and its members Clare H. Apana and Kaniloa Lani Kamaunu (Petitioners), filed a Complaint against MLP and the Director in the Circuit Court of the Second Circuit (Circuit Court).  The Complaint asserts three causes of action, including for declaratory relief (Count III).  The Director and MLP filed motions to dismiss the Complaint, which were granted by the Circuit Court.  On October 2, 2018, the Circuit Court entered a judgment of dismissal without prejudice (Judgment) in favor of the Director and MLP, and against Petitioners.

On October 29, 2018, Petitioners filed a Motion for Reconsideration and Relief From Judgment, pursuant to Hawai‘i Rules of Civil Procedure (HRCP) Rule 60(b)(6), alleging the Circuit Court improperly dismissed Count III.  On January 25, 2019, the Circuit Court entered an order denying the Rule 60(b)(6) motion.

On February 23, 2019, Petitioners appealed to the Intermediate Court of Appeals (ICA).  The ICA noted that, because the Rule 60(b)(6) motion was not filed within ten days of the Judgment, it was not a tolling motion under Hawai‘i Rules of Appellate Procedure (HRAP) Rule 4(a)(3).  The ICA thus held the appeal was untimely as to the Judgment and the ICA lacked appellate jurisdiction to review the Judgment.  With regard to the order denying the Rule 60(b)(6) motion, the ICA determined it had appellate jurisdiction and held the Circuit Court applied the correct notice pleading standard in dismissing Count III and Petitioners had failed to establish extraordinary circumstances warranting HRCP Rule 60(b)(6) relief.

This court granted Petitioners’ application for writ of certiorari, which presents two questions:

• Whether the ICA gravely erred by holding [HRCP] Rule 60(b) motions are not post-judgment tolling motions under [HRAP] Rule 4(a)(3) for purposes of extending the time to file a notice of appeal; and, by so holding, further gravely erred by failing to review and correct the errors of the circuit court as to Question Presented No. 2.
• Whether the ICA gravely erred by affirming the circuit court’s dismissal of Count III by applying the wrong standard of review to a circuit court decision informed by an erroneous view of the law.

No. SCWC-22-0000349, Thursday, August 22, 2024, 10:30 a.m.

In the Matter of the Tax Appeal of HAWAIIAN AIRLINES, INC., Petitioner/Plaintiff-Appellant, vs. DEPARTMENT OF TAXATION, Respondent/Defendant-Appellee.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioner/Plaintiff-Appellant HAWAIIAN AIRLINES, INC.:

     Thomas Yamachika of Aloha State Tax

Attorneys for Respondent/Defendant-Appellee DEPARTMENT OF TAXATION:

     Nathan S.C. Chee and Mary Bahng Yokota, Deputy Attorneys General

NOTE:     Order accepting Application for Writ of Certiorari, filed 07/08/24.

COURT:    Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens,

Brief Description:

This is an appeal from a complaint filed in the Tax Appeal Court for the State of Hawaiʻi (“tax court”).  The case stems from a contract between Hawaiian Airlines (“Hawaiian”) and Boeing.  Hawaiian agreed to indemnify Boeing for any taxes Boeing might incur for maintenance supply parts it sold to Hawaiian.  Boeing apparently did not remit Hawaiʻi use or general excise taxes on sales of maintenance parts to Hawaiian and other entities.  The Department of Taxation (“the Department”) conducted an audit of Boeing for the years 2013-2018.  Boeing claimed the general excise tax (“GET”) Aircraft Maintenance Exemption (“exemption”) of Hawaiʻi Revised Statutes (“HRS”) § 237-24.9 (2017) applied to these sales of maintenance parts.

A January 2020 inter-office memorandum of the Department’s auditor recommended against application of the exemption.  Boeing then shared with the Department a letter it received from Hawaiian explaining why it thought the exemption applied.  In a September 24, 2020 email, the auditor indicated disagreement but welcomed further questions.  On May 21, 2021, the Department sent Boeing a letter indicating the audit had been closed and also sent Boeing a notice of proposed assessment, which included an October 2019 Taxpayer Bill of Rights form.

Boeing then asked to pay GET corresponding to parts it sold to Hawaiian.  On June 9, 2021, Hawaiian remitted payment of $1,624,482.75, along with a letter of protest under HRS § 40-35 (2009).  Hawaiian then filed this lawsuit on June 10, 2021, alleging jurisdiction under HRS § 40-35, and seeking a declaration that GET was not owed due to the exemption and seeking a refund.  The Department issued its final assessment on July 26, 2021.

The Department then filed a motion to dismiss this lawsuit.  The tax court granted dismissal based on this court’s opinion in Grace Business Development Corp. v. Kamikawa, 92 Hawaiʻi 608, 994 P.2d 540 (2000).  In Grace, a company made a payment under protest, citing HRS § 40-35, after receiving notice from the Department that it was commencing an audit.  We ruled HRS § 40-35 requires an “actual dispute” before a taxpayer can make a payment under protest and bring an action for recovery of payments made; we held “that, in the absence of a formal administrative decision by the Director, Grace’s payment under protest did not represent an actual dispute within the meaning of HRS §40-35.”  The Intermediate Court of Appeals affirmed.

In its application for a writ of certiorari, Hawaiian argues that:  (1) the final assessment cannot be the only evidence of a formal administrative decision supporting tax court jurisdiction under HRS § 40-35; (2) Grace allowed lower courts to determine whether an official agency communication is such a decision; (3) the administrative exhaustion requirement cannot be a hard jurisdictional rule because this court’s precedent tolerates some error; and (4) where the Department’s own guidance of payments under protest fails to advise taxpayers of an administrative exhaustion requirement, the Department should not be allowed to argue that lack of exhaustion mandates lower court dismissal.

NO. SCWC-18-0000216, Thursday, August 22, 2024, 2 p.m., Department of Public Safety vs. Ruth Forbes

STATE OF HAWAI‘I, DEPARTMENT OF PUBLIC SAFETY, Respondent/Employer-Appellant-Appellee, vs. RUTH FORBES (MAB Case No. 354), Petitioner/Appellee-Appellant, and MERIT APPEALS BOARD, SEAN SANADA, VALERIE B. PACHECO, and NORA NOMURA, Respondents/Agency-Appellees-Appellees

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioner/Appellee-Appellant RUTH FORBES:

     Ted H.S. Hong

Attorneys for Respondent/Employer-Appellant-Appellee STATE OF HAWAI‘I, DEPARTMENT OF PUBLIC SAFETY:

     Kaliko‘onalani D. Fernandes, Solicitor General, and Sianha M. Gualano, Deputy Solicitor General

Attorney for Respondent/Agency-Appellees-Appellees MERIT APPEALS BOARD, SEAN SANADA, VALERIE B. PACHECO, and NORA NOMURA:

     Ernest Nomura and Sarah T. Casken, Deputies Corporation Counsel

NOTE:     Order accepting Application for Writ of Certiorari, filed 07/10/24.

COURT:    Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens,

Brief Description:

This appeal arises out of the discharge of Petitioner-Appellee-Appellant Ruth Forbes (Forbes) by her employer Respondent-Employer-Appellee State of Hawai‘i, Department of Public Safety (DPS) based on numerous charges of misconduct, including sexually harassing another DPS employee through unwanted physical contact (Charge No. 2).  Forbes is an excluded civil service employee subject to Hawai‘i Revised Statutes (HRS) Chapter 76.

     Forbes appealed her discharge to the Merit Appeals Board (MAB), which found that twenty-one charges against Forbes were substantiated, including Charge No. 2.  The MAB concluded, however, that discharging Forbes was not “just”, would not “promote the efficiency of government service” under HRS § 76-46 (2012), and was not justified based on the principle of progressive discipline. The MAB ordered, among other things, that Forbes be reinstated to her position after serving a sixty-day suspension.

     DPS appealed the MAB’s decision to the Circuit Court of the First Circuit (Circuit Court).  The Circuit Court held that, because Charge No. 2 was sustained by the MAB, Forbes should have been discharged pursuant to applicable DPS policies that the MAB was required to apply under HRS § 76-47(c) (2012).  That statute provides that MAB rules “shall recognize that the merit appeals board shall sit as an appellate body and that matters of policy, methodology, and administration are left for determination by the director.”  The Circuit Court thus held the MAB had exceeded its authority by not following the applicable policies.

     Forbes appealed to the Intermediate Court of Appeals (ICA) arguing the Circuit Court erred by, among other things, determining: (a) that the MAB acted in excess of its statutory authority, and (b) that DPS policies supersede state law regarding discharge.  The ICA affirmed the Circuit Court’s judgment.

     This court granted Forbes’s application for writ of certiorari, which raises the following questions: (1) did the ICA commit grave error by allowing the Circuit Courts to freely interfere with the MAB’s exclusive and original jurisdiction; and (2) did the ICA commit grave error by allowing employers to define “just cause”?   

No. SCWC-18-0000119, Thursday, August 29, 2024, 10:30 a.m.

DELBERT P. COSTA,JR., Petitioner/Claimant-Appellee-Appellant, vs. COUNTY OF HAWAIʿI, Respondent/Employer-Appellant-Self-Insured-Appellee, and COUNTY OF HAWAIʿI, HEALTH AND SAFETY DIVISION, Respondent/Adjuster-Appellant-Appellee.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Petitioner/Claimant-Appellee-Appellant DELBERT P. COSTA, JR.:
     Herbert R. Takahashi and Rebecca L. Covert, of Takahashi and Covert

Attorneys for Respondent/Employer-Appellant-Self-Insured-Appellee COUNTY OF HAWAIʿI, DEPARTMENT OF WATER SUPPLY, and Respondent/Adjuster-Appellant-Appellee COUNTY OF HAWAIʿI, HEALTH AND SAFETY DIVISION:
     Gary N. Kunihiro, Shwan L. M. Benton and Christine J. Kim of Leong Kunihiro Benton & Brooke

NOTE:     Order accepting Application for Writ of Certiorari, filed 07/10/24 

COURT:    Recktenwald, C.J., McKenna, Eddins, Ginoza, Devens, JJ.

Brief Description:

This is a workers’ compensation case involving the imposition of a penalty under Hawai‘i Revised Statutes (HRS) § 386-92 for an employer’s alleged failure to pay temporary total disability (TTD) benefits. Delbert P. Costa Jr. suffered a work-related stress injury in May 2012 while employed as a waterworks helper for the County of Hawai‘i. In a June 2013 decision and order, the Director of the Department of Labor and Industrial Relations concluded that the County “shall pay for such medical care, services and supplies as the nature of the injury may require.” That same decision stated that “[t]he matters of average weekly wages, temporary disability, permanent disability and/or disfigurement, if any, shall be determined at a later date.”

In April 2014, the Director issued a supplemental decision, concluding that the County “shall pay to claimant weekly compensation . . . for total disability.” The Director also imposed a “20% penalty for late payment of temporary disability benefits” on the County under HRS § 386-92.

A majority of the Labor and Industrial Relations Appeals Board (LIRAB) reversed the Director’s decision to impose a penalty, over a dissenting Board member. The Intermediate Court of Appeals (ICA) affirmed the LIRAB majority’s decision.

In his certiorari application, Costa argues that the ICA erred because it did not properly apply the legislative intent of the penalty provision, which was to impose an enforcement remedy for late TTD payments. He also argues that this court’s decision in Panoke v. Reef Development of Hawai‘i, Inc., 136 Hawai‘i 448, 363 P.3d 296 (2015) mandates imposition of a penalty on the employer from the time of the first decision.

The County asserts that a plain reading of HRS § 386-92 shows that it should not be obligated to pay a penalty because it initially controverted its liability for Costa’s injury and because the Director’s June 2013 decision did not decide the issue of TTD.

No. SCWC-22-0000636, Thursday, August, 29, 2024, 2 p.m.

IN THE INTEREST OF THE P CHILDREN

The above-captioned case has been set for oral argument on the merits. 

The oral argument will be held remotely and will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Olelo at olelo.org/tv-schedule/.

Attorney for Petitioner/Respondent-Appellee NICOLE FORELLI in her capacity as guardian ad litem:  
     Eitan Arom, Appellate Pro Bono Program, Gibson, Dunn, Crutcher LLP

Attorneys for Respondent/Petitioner-Appellee THE DEPARTMENT OF HUMAN SERVICES:  
     Terence Y. Herndon, Julio C. Herrera, Patrick A. Pascual, and Abigail S. Dunn Apana, Deputy Attorneys General

Attorney for Respondent/Mother-Appellant:
     Matthew Mannisto of Law Office of Matthew Mannisto

NOTE:     Order accepting Application for Writ of Certiorari, filed 12/07/23.

NOTE:     Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 02/12/24.

NOTE:     Order assigning Circuit Judge Henry T. Nakamoto in place of Ginoza, J., recused, filed 03/05/24.

COURT:    Recktenwald, C.J., McKenna, Eddins, and Devens, JJ., and Circuit Judge Nakamoto in place of Ginoza, J., recused

Brief Description:

The issue in this Child Protective Act case is whether the failure to appoint an absent party counsel at the initial hearings constitutes structural error requiring vacatur.

The Department of Human Services filed a petition for family supervision with Mother’s two children upon reports of threatened abuse and neglect. Mother did not appear for the first 5.5 months of the case. No attorney was appointed for her. In her absence, the Family Court of the Second Circuit awarded DHS foster custody. Once Mother appeared, the court appointed her counsel who represented her for the years long duration of the case. Mother was awarded family supervision for a year before the court reinstated foster custody. Almost three years after DHS filed the initial petition, DHS filed a motion to terminate parental rights. Eventually, the family court terminated Mother’s parental rights. It found the permanent plan with the goal of adoption was in the best interests of the children.

On appeal, after supplemental briefing, the ICA held that the failure to appoint Mother counsel for the period of time between the first hearing and until she appeared and received counsel (a total of 144 days) was structural error requiring vacatur of orders affecting custody of the children.