Berryman v. Niceta

Appellate Case: 23-1263 Document: 56-1 Date Filed: 07/08/2025 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 8, 2025

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

PAUL BERRYMAN and YI LU,

individually and as next of friends and

parents of minor child M.B.; KATELYNN

BERRYMAN, individually,

Plaintiffs - Appellees,

v. No. 23-1263

ROBIN NICETA, in her individual

capacity,

Defendant - Appellant.

_________________________________

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:23-CV-00285-CNS-NRN)

_________________________________

Peter H. Doherty, Lasater & Martin, P.C., Greenwood Village, Colorado, for Defendant-

Appellant.

Elliot A. Singer, Conduit Law, LLC, Denver, Colorado, for the Plaintiffs-Appellees.

_________________________________

Before TYMKOVICH, SEYMOUR, and EID, Circuit Judges.

_________________________________

EID, Circuit Judge.

_________________________________

Appellant Robin Niceta, a former caseworker with the Arapahoe County

Department of Human Services, was assigned to investigate allegations of child

Appellate Case: 23-1263 Document: 56-1 Date Filed: 07/08/2025 Page: 2

abuse against Paul Berryman, a father to two girls. During her investigation, Niceta

allegedly made false statements regarding Berryman’s purported abuse in order to

remove Berryman’s daughters from his custody. Niceta’s alleged false statements

came at various stages of the investigation and custody proceedings, and they

ultimately resulted in the removal of Berryman’s daughters for a year and a half.

When Berryman and his wife eventually regained custody, they and their

daughters collectively sued Niceta under 42 U.S.C. § 1983, alleging, among other

things, that Niceta’s conduct violated the family’s procedural and substantive due

process rights under the Fourteenth Amendment. Niceta moved to dismiss the claim,

asserting (as relevant here) (1) qualified immunity and (2) absolute testimonial

immunity for statements she made at a custody hearing. The district court denied

Niceta’s motion on all grounds, and this interlocutory appeal followed.

Reviewing de novo, we agree with the district court that Niceta is not entitled

to qualified immunity because she failed to adequately raise the defense. But we part

ways with the district court as to Niceta’s claim of absolute testimonial immunity.

On that issue, we hold that Niceta is entitled to absolute immunity for statements she

made during her testimony at the custody hearing (but not for statements made

outside of that hearing). We accordingly vacate the district court’s judgment and

remand for the district court to determine whether any of the Berrymans’ claims can

survive without considering Niceta’s testimonial statements made at the custody

hearing.

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I.

Robin Niceta was a caseworker with the Arapahoe County Department of

Human Services (“ACDHS”). In January 2021, Niceta was assigned to investigate

allegations that Paul Berryman sexually abused his daughter, Katelyn.1 The

investigation began after ACDHS received a referral from the Aurora Police

Department regarding “credible concerns” that an older male from North Carolina

had groomed and sexually assaulted Katelyn. App’x Vol. I at 7. The concerns cited

in the referral were reported by Discord, an online chat platform on which Katelyn

and the older male had communicated. Discord provided transcripts of conversations

between Katelyn and the older male, in which Katelyn described being sexually and

physically abused by her father and expressed fear that her father might begin

abusing her younger sister, M.B.

Before the investigation formally commenced, Niceta twice called the

Berrymans and left voicemails, which were not returned. Eventually, Niceta reached

Berryman and his wife (Katelyn and M.B.’s mother), Yi Lu, on the phone. During

that call, Berryman told Niceta that he had retained an attorney and would only

permit Niceta to interview Katelyn and M.B. if his attorney was present.

After the phone call, ACDHS formally petitioned the Arapahoe County

District Court to authorize a dependency-and-neglect investigation. The petition was

1

Although Katelyn’s name is spelled “Katelynn” in our caption, the correct

spelling appears to be “Katelyn” based on the district court’s caption and the spelling

used throughout the record and briefing on appeal. We therefore use the latter

spelling in the body of our decision.

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based both on the allegations in the referral to ACDHS as well as Niceta’s assertions

that the Berrymans had not returned her voicemails and “would not allow the

children to be interviewed.” Id. at 8. The state court granted the ACDHS petition,

authorizing Niceta to interview the children outside of their parents’ presence and to

separately interview both parents.

Once they had been served with the order granting the petition, Berryman and

Lu informed Niceta that they would make their daughters available for an interview

outside of their presence. The parties then agreed to schedule the interview for

February 1, 2021. On January 29, however, the attorney for the two children asked to

reschedule the interview. ACDHS and Niceta did not agree to reschedule the

interview and instead “threatened to set a hearing” for February 2 regarding

Berryman and Lu’s compliance with the state-court order. Id. at 10.

On February 1—the date the interview was originally scheduled to take

place—Niceta contacted the state-court judge to obtain a Verbal Removal Order

(“VRO”).2 In support of the VRO, Niceta submitted a written statement that

described prior allegations regarding Berryman, including separate allegations that

Katelyn had made against him four years earlier, as well as other allegations that

ACDHS had previously investigated and determined to be unfounded. Niceta’s

statement did not reference any allegations regarding Berryman’s conduct within the

2

A VRO is an ex parte order authorizing the removal of a child or children

from their parents’ custody, on an emergency basis, based on the caseworker’s

allegations and without notice to the parents. See Colo. Rev. Stat. § 19-3-403.

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immediately preceding year, nor did it include any allegations concerning Lu, other

than an allegation that Katelyn felt “disappointed” because Lu did not believe

Katelyn’s allegations. Id.

As to M.B.—Katelyn’s younger sister—Niceta sought the VRO only on the

grounds that M.B. was then “the same age that Katelyn was when she was first

assaulted” by Berryman. Id. at 11. Niceta asserted that there was “grave concern

that [M.B.] [was] in danger of being sexually assaulted” by Berryman at the time. Id.

at 12.

Niceta’s statement in support of the VRO also described Berryman and Lu’s

purported non-cooperation with the investigation and non-compliance with the state-

court order. Specifically, Niceta asserted that Berryman had made “numerous

attempts to keep Katelyn from talking to the police and DHS.” Id. at 11. Although

Niceta mentioned that Berryman had hired an attorney “both for the girls and

himself,” Niceta’s statement did not disclose the efforts made by the children’s

attorney to reschedule the February 1 interview that had been cancelled. Id. at 12.

Niceta also claimed she was “concerned that Katelyn [was] continuing to withhold

the truth in order to protect her sister and her family life,” and she stated that Katelyn

wanted “to express what has happened” and to “ensure [M.B.]’s safety but she will

not and cannot do this until she feels safe from her father.” Id. In their complaint,

the Berrymans alleged that these statements were false.

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Based on Niceta’s written statement, the state-court judge entered the VRO on

February 1, 2021. That same day, Katelyn and M.B. were removed from their

parents’ custody and placed in foster care.

On February 2, ACDHS filed a petition to launch a formal investigation (the

“ACDHS petition”), which included the same allegations as Niceta’s VRO statement.

The ACDHS petition also contained statements regarding Katelyn and M.B. that had

been “‘cop[ied] and pasted’ from previously used petitions” and that were not

accurate, including that the girls “(a) were homeless; (b) had run away; and (c) tested

positive at birth for a controlled substance.” Id. at 14.

A week later, the state court held a custody hearing in which Niceta,

Berryman, and Lu all participated. During the custody hearing, Niceta testified,

under oath, that although the Berrymans had two prior “interactions” with ACDHS,

the first one terminated after the family agreed to “partner” with ACDHS, and the

second one terminated after Katelyn recanted her allegations of sexual abuse

(although Niceta also testified that Katelyn’s recantation “was not believable”). Id.

at 15. Niceta also testified regarding Berryman and Lu’s cooperation with her

investigation, stating that Berryman’s decision to retain legal counsel was “creat[ing]

barriers,” but also acknowledging that the parents had arranged for both daughters to

be interviewed in the presence of their attorney. Id. at 16.

Additionally, Niceta testified that Katelyn—in the time since her removal—

had stated that she “misse[d]” Berryman’s touch, massages, and voice, missed

sleeping with him in his bed, and “fantasizes about him all day long.” Id. Similarly,

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Niceta testified that Katelyn had previously told Niceta that Katelyn gave Berryman

baths, although––according to Berryman and Lu––Katelyn’s statement was actually

referring to giving the family dog a bath. Id. at 17.

Niceta also testified that M.B. had previously stated that Berryman sleeps with

her as well, and that she was “not allowed to tell anybody their business because if

she does, bad things will happen.” Id. The Berrymans allege in their complaint that

this testimony was false, too. Finally, Niceta testified that Paul Berryman had been

investigated not only for sexual abuse but also for sex trafficking—although, like

Niceta’s other assertions, the Berrymans allege that Paul “had never even been

investigated” for sex trafficking. Id.

At some point in August 2021, a forensic interview was conducted of Katelyn,

during which she recanted the allegations she had made about Berryman’s sexual

abuse. Sometime shortly after Katelyn’s recantation, Niceta told Katelyn that she

“deserved this.” Id. at 21. Eventually, Niceta was removed from the child-abuse

investigation and proceedings. In the months following, Berryman and Lu completed

treatment plans, and the child-abuse case was eventually dismissed.

Berryman, Lu, Katelyn, and M.B. then collectively filed an action for

monetary relief against Niceta under 42 U.S.C. § 1983, alleging that Niceta violated

the family’s procedural and substantive due process rights under the Fourteenth

Amendment by making false statements in support of the VRO, in support of the

petition to investigate, and at the custody hearing.

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Niceta moved to dismiss the complaint, on the bases that (among other things)

(1) the plaintiffs failed to state a claim for a violation of procedural or substantive

due process, (2) Niceta is entitled to absolute testimonial immunity, and (3) Niceta is

entitled to qualified immunity.

The district court denied Niceta’s motion on all grounds. As relevant to this

appeal, the district court reasoned that (1) Niceta was not entitled to qualified

immunity because the defense was not “adequately presented,” and (2) Niceta was

not entitled to absolute testimonial immunity because she “allegedly falsified

information” and “was testifying more as an investigative officer . . . than as an

advocate.” App’x Vol. I at 82–93. Niceta timely appealed, challenging only the

district court’s conclusions regarding qualified immunity and absolute testimonial

immunity.

II.

A.

We begin with Niceta’s qualified-immunity claim, the denial of which we

review de novo. See Tonkovich v. Kans. Bd. of Regents, 159 F.3d 504, 516 (10th Cir.

1998).

Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). When a defendant raises the defense of qualified immunity, “the

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plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a

federal constitutional or statutory right, and, if so, (2) that the right was clearly

established at the time of the defendant’s unlawful conduct.” T.D. v. Patton, 868

F.3d 1209, 1220 (10th Cir. 2017) (quotation omitted). Thus, to survive a motion to

dismiss based on qualified immunity, a plaintiff “must allege facts sufficient to show

(assuming they are true) that the defendants plausibly violated their constitutional

rights, and that those rights were clearly established at the time.” Robbins v.

Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008).

But to trigger the plaintiff’s two-part burden, a defendant must first

“adequately present” the qualified-immunity defense. Tillmon v. Douglas County,

817 F. App’x 586, 589 (10th Cir. 2020) (unpublished);3 see Gomez v. Toledo, 446

U.S. 635, 640–41 (1980) (holding that “the burden of pleading” a qualified-immunity

defense “rests with the defendant”). And to adequately present the defense, the

defendant must not only explicitly raise it, see Montoya v. Vigil, 898 F.3d 1056,

1063–64 (10th Cir. 2018), but must also plead the defense beyond a “perfunctory

assertion,” Tillmon, 817 F. App’x at 590. Accordingly, where a defendant makes

only a bare assertion of qualified immunity, the plaintiff bears no burden to satisfy

the ordinary two-prong test. See id.; A Brighter Day, Inc. v. Barnes, 860 F. App’x

569, 575 (10th Cir. 2021) (unpublished) (holding that a defendant’s “qualified-

3

Unpublished cases cited in this decision are not binding precedent, but we

consider them for their persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R.

32.1(A).

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immunity argument was underdeveloped” where it “contain[ed] mostly general legal

statements and empty platitudes”).

Finally, in raising a qualified-immunity defense, a defendant may not merely

rely on substantive legal arguments based on the Rule 12(b)(6) failure-to-state-a-

claim standard. Tillmon, 817 F. App’x at 590; Montoya, 898 F.3d at 1064–65

(holding that a “failure-to-state-a-claim argument, without more, is insufficient to

raise qualified immunity” because “a claim of immunity is conceptually distinct from

the merits of the plaintiff’s claim” (quoting Mitchell v. Forsyth, 472 U.S. 511, 527–

28 (1985))).

B.

As an initial matter, we have jurisdiction to consider the denial of Niceta’s

qualified-immunity defense because the denial falls within the collateral-order

doctrine and is therefore an appealable interlocutory decision. See Mitchell, 472 U.S.

at 530; Montoya, 898 F.3d at 1063 (“[T]he true jurisdictional inquiry is whether or

not the district court decided the qualified immunity question at issue, not whether

the defendants adequately raised the defense.”). Nevertheless, we decline to reach

the merits of Niceta’s qualified-immunity argument for the same reason as the district

court: Niceta did not adequately raise it.

The district court reasoned that Niceta failed to adequately raise the defense

because her motion to dismiss merely “recite[d] the qualified immunity legal

standard, state[d] that the Tenth Circuit has recognized the difficulties of protecting

minor children, briefly describe[d] her role in the underlying proceedings, then—in a

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single sentence, without citation to any legal authority––state[d] that no clearly

established law demonstrates these facts give rise to personal liability.” App’x Vol. I

at 91. We agree. Consisting of less than a page, Niceta’s cursory argument makes no

attempt to analyze any facts within the applicable legal framework, and so it provides

no clear factual or legal basis for asserting the defense. And, lacking that substance,

Niceta’s argument likewise provides no meaningful way for the Berrymans to

respond and satisfy their burden under the two-prong test for qualified immunity.

On appeal, Niceta argues that she “present[ed] extensive argument on the first

prong of qualified immunity on the merits of whether Plaintiffs had alleged

constitutional violations.” Aplt. Br. at 32. But this argument fails for a simple

reason: it conflates her 12(b)(6) arguments (regarding the merits of the Berrymans’

substantive and procedural due process claims) with the first prong of the qualified

immunity analysis (which requires that the defendant’s actions violated a federal

constitutional or statutory right).

A defendant cannot simply point to 12(b)(6) arguments, without more, in

support of a qualified-immunity defense. See Tillmon, 817 F. App’x at 590;

Montoya, 898 F.3d at 1064–65. Niceta’s arguments on the first prong, both in her

motion to dismiss and in her briefing on appeal, do nothing more than make passing

references to her separate arguments that the Berrymans’ complaint failed to state a

claim for relief. Indeed, in arguing that she adequately raised the first prong of the

defense, Niceta’s brief cites only to the portions of her motion to dismiss that discuss

her 12(b)(6) arguments, rather than her qualified-immunity argument. See Aplt. Br.

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at 32–33 (citing App’x Vol. I at 43–47).4 Those arguments cannot substantiate her

defense.

Niceta also argues that she “included case law and case specific arguments” in

her discussion of the second prong of qualified immunity, including by discussing

“the difficulties posed to those tasked with minor children” and by citing “two

separate cases regarding qualified immunity.” Id. But, as the district court pointed

out, Niceta’s only statement regarding the second prong was that “[n]o clearly

established law clearly shows this pattern of facts as supporting personal liability” of

Niceta. App’x Vol. I at 49. What’s more, the two cases Niceta did cite in the

sentences preceding that statement do not discuss the second qualified-immunity

prong at all (save for one unrelated––and uncited––portion discussing a parent’s right

to direct his or her child’s medical care). See PJ ex rel. Jensen v. Wagner, 603 F.3d

1182, 1201 (10th Cir. 2010); Everhart v. N.M. Child. Youth & Fam. Servs., No. 20-

2078, 2022 WL 110835, at *9 (10th Cir. Jan. 12, 2022).

4

The portions of Niceta’s motion to dismiss to which she cites in her brief are

under headings specifically labeled for her 12(b)(6) arguments––that is, her

arguments regarding the merits of the Berrymans’ substantive and procedural due

process claims. See App’x Vol. I at 43–45 (under the heading “Plaintiffs’ Claim of a

Substantive Due Process Violation of Familial Association Fails as a Matter of

Law”); id. at 45–47 (under the heading “Plaintiffs’ Procedural Due Process Claim

Fails as Plaintiffs Participated in the State Court Proceedings and Waived Further

Process by Entering into Deferred Adjudications”). Meanwhile, Niceta’s argument

regarding the first prong does not cite at all to the portion of her motion to dismiss

that actually discusses qualified immunity. This underscores the fact that Niceta’s

qualified-immunity argument rests entirely on her 12(b)(6) arguments, which is

insufficient to raise the defense.

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Again, without citation to any legal authority or other reasoning, Niceta’s

perfunctory assertion of qualified immunity in this way is insufficient. Thus, we hold

that Niceta has failed to adequately raise the defense, and so we affirm the district

court’s denial of qualified immunity.

III.

A.

We turn next to the district court’s denial of absolute immunity based on the

allegedly false statements that Niceta made at the temporary custody hearing. On

this issue, we disagree with the district court. Reviewing de novo, see Malik v.

Arapahoe Cnty. Dept. of Soc. Servs., 191 F.3d 1306, 1313 (10th Cir. 1999), we hold

that Niceta is entitled to absolute immunity for statements she made during her

testimony at the custody hearing (but not for statements made outside of that

hearing).

The defense of absolute immunity “offers certain government officials total

protection from a suit for damages under 42 U.S.C. § 1983.” Thomas v. Kaven, 765

F.3d 1183, 1191 (10th Cir. 2014). The Supreme Court has applied the defense “in

several well-established contexts involving the judicial process.” Snell v. Tunnell,

920 F.2d 673, 686 (10th Cir. 1990). One such context involves government officials

“who initiate and prosecute enforcement proceedings subject to agency adjudication.”

Id.; see Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976) (holding that prosecutors

are absolutely immune for conduct that occurs “in initiating a prosecution and in

presenting the State’s case”). The principal rationale for applying absolute immunity

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in this context is “to allow functionaries in the judicial system the latitude to perform

their tasks absent the threat of retaliatory § 1983 litigation.” Snell, 920 F.2d at 686–

87.

Another context involves the function of witnesses who testify in judicial

proceedings. Witnesses, “including public officials and private citizens,” are entitled

to absolute testimonial immunity from civil suits for damages based upon their

testimony. Id. at 686; Briscoe v. LaHue, 460 U.S. 325, 334–35 (1983). And when

absolute testimonial immunity attaches, it bars all claims based on the witness’s

testimony––even if it is perjurious. See Briscoe, 460 U.S. at 342–43.

But absolute immunity, though total in its protection, is not without limits.

There are some circumstances in which absolute immunity will not attach.

Specifically, when determining whether a defendant is entitled to absolute immunity,

the Supreme Court has consistently applied “a ‘functional’ approach,” looking at “the

nature of the functions with which a particular official or class of officials has been

lawfully entrusted.” Forrester v. White, 484 U.S. 219, 224 (1988); see Snell, 920

F.2d at 687 (noting that, consistent with Forrester, lower courts “have taken a

functional approach rather than one based purely on the status of the defendant

involved”). And “[t]he more distant a [defendant’s] function is from the judicial

process, the less likely absolute immunity will attach.” Snell, 920 F.2d at 687.

In applying absolute testimonial immunity for witnesses, “[t]he central

focus . . . has been the nature of the judicial proceeding itself” and the function of the

testifying witness, rather than the witness’s identity or status. Briscoe, 460 U.S. at

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334. Generally, the types of judicial proceedings protected by absolute immunity are

those in which a witness is “subject to compulsory process, takes an oath, responds to

questions on direct examination and cross-examination, and may be prosecuted

subsequently for perjury.” Id. at 342–43.

In the specific context of government actors “involved in child protection and

advocacy,” including caseworkers investigating child-abuse allegations, this Court

has continued to apply that functional approach. Snell, 920 F.2d at 687. In doing so,

we have held that caseworkers are not entitled to absolute immunity when their

challenged conduct was undertaken “in an investigative, rather than a prosecutorial

capacity,” drawing analogies to cases involving prosecutorial immunity. Id. at 675.

Thus, where a social worker’s challenged conduct occurs in the process of

initiating an investigation or securing an initial, pre-adjudicatory removal, absolute

immunity does not attach. For example, in Snell v. Tunnell, this Court rejected an

absolute-immunity defense for social workers whose challenged conduct occurred

while investigating the plaintiffs for child abuse. See id. at 688. During the child-

abuse investigation, the defendant social workers made false allegations regarding

the plaintiffs in support of an order to remove several children from the plaintiffs’

custody prior to a formal petition or hearing. See id. at 690 (noting that the

defendants’ challenged conduct involved filing an “application” for a “pick-up

order,” or a removal order, which was “pre-adjudicatory and sought information

. . . prior to the filing of a petition”).

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The Court in Snell held that the defendants were not entitled to absolute

immunity because their allegations about the plaintiffs were made in an investigatory

capacity (that is, as part of the defendants’ efforts to justify further investigation). Id.

at 689–92; see Spielman v. Hildebrand, 873 F.2d 1377, 1382–83 (10th Cir. 1989)

(denying absolute immunity to a social worker for her decision to remove two

children from their home without a hearing because the defendant’s conduct “in no

way related to advocacy before a judicial body”); Austin v. Borel, 830 F.2d 1356,

1361–63 (5th Cir. 1987) (denying absolute immunity to a social worker for “the

filing of an allegedly false verified complaint, which under Louisiana [l]aw initiated

temporary custody of a child, but did not initiate the judicial process concerning need

of care proceedings”).

By contrast, this Court has distinguished between statements made in support

of an initial application for a removal order and statements made “[w]hen testifying

as a witness under oath,” holding that social workers and caseworkers are entitled to

absolute testimonial immunity for the latter. English v. LeBaron, 3 F. App’x 872,

873 (10th Cir. 2001) (unpublished); see Miller v. Glanz, 948 F.2d 1562, 1570 (10th

Cir. 1991). Thus, in English, we upheld a grant of absolute immunity to a social

worker in a suit based upon his testimony in a judicial proceeding. 3 F. App’x at

873. The Court reasoned that the absolute-immunity inquiry “analogize[s] the

activities of those who investigate child abuse claims to those of law enforcement

officers.” Id. And because “all witnesses are absolutely immune from damages

liability based on their testimony,” social workers, too, are absolutely immune for

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testimony made as a witness under oath. Id.; see Gomez v. Nickerson, No. 1:22-cv-

01546, 2023 WL 11877648, at *3 (D. Colo. Mar. 28, 2023) (concluding that two

social workers were absolutely immune from suit for claims based on their testimony

at a dependency and neglect trial).

B.

The absolute-immunity issue in this case requires us to parse out two

categories of allegations from the Berrymans’ complaint: (1) allegations related to

statements Niceta made outside of the custody hearing, including those in support of

the VRO and the initial ACDHS petition to begin the child-abuse investigation; and

(2) allegations related to statements Niceta made during the custody hearing, where

she provided sworn testimony (and where she allegedly made additional false

statements). At bottom, the parties’ absolute-immunity arguments revolve around the

second category of statements––that is, the parties dispute whether Niceta’s

statements during the custody hearing were made in an investigatory capacity (with

no absolute-immunity protection) or as a testifying witness (entitling her to absolute

immunity).

As Niceta points out, the Berrymans’ complaint is largely comprised of

allegations regarding Niceta’s testimony at the custody hearing. Niceta focuses on

these allegations, contending that she is entitled to absolute immunity specifically as

to her testimony. Moreover, Niceta insists that if she is entitled to absolute

immunity––even solely for her testimonial statements––then the defense altogether

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bars the Berrymans’ substantive and procedural due process claims, because those

claims each relied extensively on Niceta’s testimony.

But that is only half the story. The Berrymans’ complaint also consists of

several allegations regarding false statements Niceta made prior to the custody

hearing, including the statements Niceta made in support of the VRO and the

ACDHS petition. According to the Berrymans, Niceta is not entitled to absolute

immunity for these statements, because the statements were investigatory in nature

and were made solely for the purpose of justifying both the ACDHS petition to

investigate and the ex parte order for the children’s removal. Likewise, the

Berrymans contend that Niceta is not entitled to absolute immunity even as to her

custody hearing testimony, because this testimony—“although [made] in a formal

courtroom setting”––was “no different than [the statements] she made” in support of

the VRO. Aple. Br. at 26.

As an initial matter, it is clear that––as the Berrymans argue, and as Niceta

appears to concede––Niceta is not entitled to absolute immunity for any statements

she made outside of the custody hearing, including the statements she made in

support of the VRO. Those statements, like the statements at issue in Snell, were

made purely in an investigatory capacity because they were made at a pre-

adjudicatory stage, before ACDHS had even filed its petition to launch a formal

investigation. See 920 F.2d at 688–90.

But the nature of Niceta’s testimony during the custody hearing is less clear.

The custody hearing, although a proceeding before a judge, occurred early on in the

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investigation––only one week after ACDHS filed its formal-investigation petition––

and resulted only in a temporary loss of custody. With that in mind, the custody

hearing does not fit neatly into the functional absolute-immunity test, as we have

applied that test in the past. We must therefore decide whether, as a functional

matter, the custody hearing was an investigatory, pre-adjudicatory proceeding, or

whether it was a true judicial proceeding.

We take the latter view: the temporary custody hearing was a judicial

proceeding for purposes of absolute immunity. We therefore hold that Niceta is

entitled to absolute immunity for the statements she made at that hearing. As the

Berrymans’ complaint acknowledges, Niceta’s statements during the custody hearing

were made as part of her “sworn testimony” given “under oath.” App’x Vol. I at 15.

That concession is important: because Niceta’s statements were made while she was

“testifying as a witness under oath,” her testimonial statements are entitled to

absolute immunity, regardless of her status as a caseworker for ACDHS. English, 3

F. App’x at 873. Likewise, the Berrymans’ complaint states that Niceta was subject

to cross-examination during the custody hearing. See App’x Vol. I at 18–20.

Because Niceta not only took an oath but also “respond[ed] to questions on direct and

cross-examination” during the hearing, she was “perform[ing] the same functions as

any other witness.” Briscoe, 460 U.S. at 342.

Moreover, at the time of the custody hearing, the VRO had already been

granted, and ACDHS had already filed its formal petition to investigate, making the

circumstances unlike those in Snell (where the challenged statements were made

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prior to the filing of a petition to investigate). See 920 F.2d at 673.5 In other words,

Niceta’s statements in support of the VRO and the ACDHS petition were “pre-

adjudicatory” or investigatory. See id. Her testimony at the hearing was not.

Niceta’s testimony, unlike her prior statements, occurred once the adjudicatory

process had already begun. All told, these facts show that Niceta’s testimony at the

custody hearing was given in her functional capacity as a witness, rather than as an

investigatory officer seeking to secure an initial removal or to justify further

investigation.

In response, the Berrymans argue that Niceta’s testimony at the hearing was

given in an investigatory capacity, rather than as a witness, because “[t]he sole

purpose of the Hearing was [to determine] where to place Katelyn and M.B.” Aple.

Br. at 26. And so, their logic goes, that purpose makes the custody hearing similar in

nature to other pre-adjudicatory procedures, like the VRO. To be sure, the custody

hearing occurred at an early stage of the proceedings––only eight days after the VRO

was entered, and only a week after ACDHS filed its formal petition. And, as the

Berrymans point out, Niceta’s investigation apparently continued for over a year and

a half after the hearing, which might––at first blush––seem to indicate that the

hearing was intended to justify further investigation.

5

The statements at issue in Snell were made in support of an application for an

order to remove children from their parent’s custody, which also “sought

information” to be developed “prior to the filing of a petition.” 920 F.2d at 690.

That is more similar to Niceta’s statements made in support of the VRO than those

she made at the custody hearing.

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But that argument misunderstands the nature and purpose of the custody

hearing. Even construing the complaint’s allegations in the light most favorable to

the Berrymans, the purpose of the custody hearing was not to decide whether to

remove Katelyn and M.B. in the first place (as was the case in Snell), but rather to

determine whether their continued removal and placement in foster care was

justified.

Colorado law makes this apparent. The Colorado Children’s Code—which

supplied the basis for Niceta to remove the Berryman children—provides that a state

court “may issue verbal or written temporary custody orders or emergency protection

orders, or both.” Colo. Rev. Stat. § 19-3-405. When a child is taken into custody

following either a temporary custody order or emergency protection order, “all

parties have a right to a prompt hearing to determine whether the child is to remain

out of the child’s home for a further period of time.” Id. § 19-3-402(1). Specifically,

a temporary custody hearing must occur “within seventy-two hours after

placement . . . to determine further custody of the child or whether the emergency

protection order should continue.” Id. § 19-3-403(3.5). The temporary custody

hearing at issue in this appeal occurred pursuant to these provisions.

At the hearing, the court may receive evidence “in the form of written or oral

reports, affidavits, testimony, or other relevant information,” and “[a]ny information

having probative value may be received by the court, regardless of its admissibility

under the Colorado rules of evidence.” Id. § 19-3-403(3.6)(a). Moreover, in

connection with the temporary custody hearing, parents are entitled to receive a

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“form affidavit and advisement” that must, among other things, (1) “[a]dvise the

parent that he or she is required to provide the requested information fully and

completely under penalties of perjury and contempt of court,” (2) allow the parents to

list contact information for, “and any comments concerning the appropriateness of

the child’s potential placement with, other relatives and kin,” and (3) “[a]dvise the

parent that failure to identify these relatives . . . may result in the child being placed

permanently outside of the home of the child’s relatives.” Id. In essence, then, the

form affidavit informs parents that the temporary custody hearing is a judicial

proceeding that may affect their legal interests and custody rights.

These procedures suggest that temporary custody hearings are true judicial

proceedings, entitling witnesses at those hearings (like Niceta) to absolute immunity

for their testimony.6 Because a judge at a custody hearing can receive evidence,

6

There are very few state-court cases discussing the nature of these temporary

custody hearings. Of those cases, almost all were decided in 2006 or earlier (with

most being decided in the 1980s)––long before several relevant amendments to the

Colorado Children’s Code were adopted. And none of these cases discussed custody

hearings in the context of absolute immunity. That said, the relevant state court cases

do admittedly describe temporary custody orders as “pre-adjudicatory” proceedings.

W.H. v. Juv. Ct., 735 P.2d 191, 193 (Colo. 1987); see, e.g., People ex rel. M.W., 140

P.3d 231, 233 (Colo. App. 2006) (“[T]emporary protective custody orders . . . are

interim orders pending a final factual determination of the allegations set forth in the

petition in dependency or neglect.”).

But those cases––and their “pre-adjudicatory language”––were based on the

premise that temporary custody orders do not affect parents’ legal rights to custody.

W.H., 735 P.2d at 193 (stating that the purpose of a temporary custody hearing “is

not to determine a parent’s legal interest in the child”); M.W., 140 P.3d at 231

(same). That premise no longer holds true: at least as of 2021, the statute expressly

states that a temporary custody hearing may furnish a basis for a court to issue orders

for either legal or physical custody. Colo. Rev. Stat.§ 19-3-403(7). Additionally,

after a custody hearing, if the court enters an order removing the child from the

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listen to testimony, and hold parties or witnesses in contempt, the custody hearing

itself is the typical sort of judicial proceeding to which courts have extended absolute

immunity. See Briscoe, 460 U.S. at 342–43. Similarly, because the custody hearing

can affect the legal interests and custody rights of parents––and because the judge

may enter specific findings along with any orders it issues––then the hearing has a

functionally different effect than the filing of an ex parte order or a petition to

investigate, which are decidedly investigatory (and therefore not entitled to absolute

immunity).

To sum up so far: a temporary custody hearing under Colorado law bears all

the hallmarks of a typical judicial proceeding, even though it occurs early on in a

child-abuse investigation. Temporary custody hearings thus function like true

judicial proceedings––and so, we conclude, they are. The temporary custody hearing

here was no different, and Niceta was acting as a witness at that hearing. We

therefore hold that Niceta is entitled to absolute immunity for the statements she

made during her witness testimony at the custody hearing.

parent’s custody, “the court shall make the findings required pursuant to section 19-

1-115(6) if such findings are warranted by the evidence.” Id. That provision, § 19-1-

115(6), applies “[a]ny time the court enters an order awarding legal custody of a

child . . . to the department of human services,” “even temporarily.”

Thus, although a few state-court cases describe temporary custody hearings as

“pre-adjudicatory,” that label is misleading. A custody hearing, although temporary

and not a final adjudication of whether children are legally deemed “neglected,”

nevertheless can affect a parent’s legal rights to custody. Thus, taking a functional

view, a custody hearing is effectively a judicial proceeding, such that witnesses at

those hearings are entitled to absolute immunity.

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Still, the issue remains whether, as Niceta argues, the grant of absolute

immunity for those statements also necessarily requires dismissal of the Berrymans’

complaint. At this stage, it does not. The district court held that the Berrymans’

complaint alleged facts sufficient to state a claim for violations of procedural due

process and substantive due process. That conclusion may well hold even without

Niceta’s statements from the custody hearing. Although the district court’s reasoning

with respect to the procedural due process claim relied on Niceta’s statements at the

custody hearing, the district court’s analysis also referred more broadly to Niceta’s

“evidentiary falsification[s]” and seemingly cited to allegations regarding the VRO.

App’x Vol. I at 89–90 (stating that Niceta “made several allegedly false—and

significant––statements in the underlying proceedings”). The same is true of the

substantive due process claim: the district court referred (and more explicitly, in

fact) to allegations regarding the VRO, rather than merely pointing to Niceta’s

testimony.7

7

Niceta argues in her brief that the Berrymans’ allegations fail to state a claim

in part because of admissions that they made in state court after the custody hearing.

Specifically, in her motion to dismiss, Niceta claims that, following the custody

hearing, and while the petition to investigate was still pending, the state court held a

second hearing, during which both parents waived the right to a jury trial and instead

entered “deferred adjudications.” App’x Vol. II at 12, 20. As part of the deferred

adjudications, the Berrymans agreed to a treatment plan that would “address the

safety concerns” that “led to the adjudication of [Katelyn and M.B.] as dependent or

neglected.” Id. at 13, 21.

Because our review of the denial of a motion to dismiss is limited to the

allegations in the complaint, we need not consider these facts, which were raised only

in Niceta’s motion to dismiss. See Alvarado v. KOB-TV, L.L.C., 494 F.3d 1210, 1215

(10th Cir. 2007) (noting that, in reviewing a motion to dismiss, we only “review the

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In any event, we need not pass on the sufficiency of the Berrymans’

allegations or merits of their claims at this interlocutory stage. Accordingly, we

remand to the district court to determine whether the Berrymans’ allegations––minus

those regarding the testimonial statements for which Niceta is entitled to absolute

immunity––are sufficient to state a claim for relief.

IV.

For the foregoing reasons, we AFFIRM the district court’s denial of Niceta’s

motion to dismiss based on qualified immunity, but we VACATE the district court’s

denial of Niceta’s motion to dismiss based on absolute immunity and REMAND for

further proceedings consistent with this opinion.

factual allegations that should have been considered by the district court” and

therefore do not consider facts raised outside of the complaint).

25