“From Investigation to Adjudication” – 10th Circuit Holds Temporary-Custody Hearings Are Judicial Proceedings Conferring Absolute Testimonial Immunity on Caseworkers
Commentary on Berryman v. Niceta, 85 F.4th ___ (10th Cir. 2025)

I. Introduction

Berryman v. Niceta presented the Tenth Circuit with a thorny intersection of child-protection practice, constitutional tort litigation under 42 U.S.C. § 1983, and the competing doctrines of qualified immunity and absolute immunity.

The opinion establishes two key rules:

1. A Colorado temporary-custody (or “72-hour”) hearing is a judicial proceeding; therefore a caseworker’s sworn testimony at that hearing enjoys absolute testimonial immunity even if the testimony is allegedly perjurious.
2. A defendant who wishes to invoke qualified immunity must do more than recite the doctrine; the defense is forfeited on a motion to dismiss if presented only in “perfunctory” fashion.

The appeal arose from disturbing allegations that Robin Niceta, an Arapahoe County child-welfare caseworker, fabricated abuse evidence to obtain emergency removal of two minors and later repeated similar statements in court. When the parents and both children sued Niceta under § 1983 for violating their substantive and procedural due-process rights, the district court denied Niceta dismissal on both immunity grounds. The Tenth Circuit split the issues, affirming the district court on qualified immunity but reversing on absolute testimonial immunity for the hearing testimony, and remanded for further proceedings that exclude the protected testimony.

II. Summary of the Judgment

• Qualified Immunity: The panel (Judges Tymkovich, Seymour, and Eid; opinion by Judge Eid) held that Niceta failed to adequately raise qualified immunity at the Rule 12 stage. Her briefing merely parroted general principles and conflated Rule 12(b)(6) arguments with the immunity standard.
• Absolute Testimonial Immunity: Applying the “functional” approach, the court deemed the state-court temporary-custody hearing a genuine judicial proceeding where witnesses testify under oath and are subject to cross-examination and contempt power. Because Niceta testified as a witness, she is absolutely immune for those in-court statements only. She remains potentially liable for alleged false statements in her ex parte Verbal Removal Order (VRO) application and in the dependency-and-neglect petition.
• Disposition: Affirmed as to the denial of qualified immunity; vacated the refusal to apply absolute immunity; remanded for the district court to reconsider whether the due-process claims survive without the protected testimony.

III. Analysis

A. Precedents Cited and Their Influence

1. Harlow v. Fitzgerald, 457 U.S. 800 (1982) – Articulates modern qualified-immunity doctrine.
2. Mitchell v. Forsyth, 472 U.S. 511 (1985) – Collateral-order appealability of immunity denials.
3. Briscoe v. LaHue, 460 U.S. 325 (1983) – Absolute testimonial immunity for witnesses.
4. Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990) – Social workers not absolutely immune for pre-adjudicatory investigatory acts.
5. English v. LeBaron, 3 F. App’x 872 (10th Cir. 2001) – Social worker enjoys absolute immunity for sworn testimony.
6. Forrester v. White, 484 U.S. 219 (1988) – “Functional” rather than status-based immunity analysis.
7. Tillmon v. Douglas Cty., 817 F. App’x 586 (10th Cir. 2020) and Montoya v. Vigil, 898 F.3d 1056 (10th Cir. 2018) – Pleading standards for qualified immunity.

The panel contrasts Snell (false statements in an application for an initial removal) with English (sworn trial testimony). It also leverages Forrester’s functional test, emphasizing that the indicia of a judicial proceeding—oath, compulsory process, cross-examination, contempt power—are present during Colorado 72-hour custody hearings. On the pleading side, Tillmon and Montoya furnish the rule that a “bare assertion” of qualified immunity is insufficient to shift the burden to plaintiffs.

B. The Court’s Legal Reasoning

1. Qualified Immunity Not Adequately Invoked
   • Niceta’s motion included a single paragraph reciting immunity boiler-plate and cryptic references to “difficulties of protecting minor children,” without applying the law to the alleged facts.
   • Because she failed to carry her initial burden, plaintiffs had no reciprocal duty to show a clearly established right. The court declined to reach the merits of the constitutional claims at this juncture.
2. Absolute Testimonial Immunity Applies to Temporary-Custody Hearing
   • Functional analysis: Witnesses at custody hearings testify under oath, face cross-examination, and can be prosecuted for perjury.
   • Colorado statutory scheme (§ 19-3-402 to 403 C.R.S.) establishes the hearing as a judicial event that can alter legal custody and includes contempt powers.
   • Therefore, Niceta’s in-court statements—no matter how egregious if proven—are shielded.
   • Her out-of-court statements in the VRO and investigative petition remain unprotected because they were investigatory and ex parte, paralleling Snell.

C. Impact of the Judgment

• Child-Welfare Litigation: Clarifies that once a Colorado caseworker crosses the threshold into sworn testimony at a 72-hour hearing, § 1983 liability for that testimony is barred. Plaintiffs must instead target pre- or post-hearing conduct.
• Pleading Practice: Defendants must substantively brief qualified immunity or risk forfeiture at the pleading stage. “Copy-and-paste” immunity sections will no longer suffice in the Tenth Circuit.
• Separation of Functions: Reinforces the bright line between investigatory functions (analogy to police officers) and advocacy/witness functions (analogy to prosecutors and witnesses).
• State-Law Reforms: Statutory text governing temporary-custody hearings now carries federal immunity consequences. Legislatures or state courts may revisit procedures or provide alternative remedies (e.g., sanctions or expedited perjury referrals) because civil damages will be unavailable.
• Litigant Strategy: Parents alleging fabrication in child-removal cases must gather evidence of falsity in affidavits, safety-assessment notes, or other pre-hearing materials. Counsel must plead those facts distinctly from protected testimony.

IV. Complex Concepts Simplified

• Qualified Immunity – A shield for public officials from damages unless they violate a clearly established constitutional right. Think of it as a “good-faith rulebook”: if the rule was unclear, officials are off the hook.
• Absolute Immunity – A stronger armor that bars suit altogether, even for malicious conduct, when the official performs certain functions integral to the judicial process (e.g., judges, prosecutors in court, witnesses on the stand). Analogous to referees in a game—once the whistle blows, you cannot sue them for a bad call.
• Functional Test – Courts ask “What was the actor doing?” rather than “Who is the actor?” If the act is quintessentially judicial (testifying under oath), absolute immunity attaches; if it is investigative or administrative (gathering facts, filing ex parte affidavits), it does not.
• Temporary (“72-Hour”) Custody Hearing – Under Colorado law, a hearing held within three days of a child’s emergency removal to decide whether the child should stay out of the home pending the abuse-neglect case. Parents can call witnesses, cross-examine, and are warned about the legal consequences—hence it functions like a miniature trial.

V. Conclusion

Berryman v. Niceta delineates a new frontier for immunity jurisprudence in the child-welfare context. By branding Colorado temporary-custody hearings as bona fide judicial proceedings, the Tenth Circuit extends the protective cloak of absolute testimonial immunity to caseworkers’ in-court statements while simultaneously tightening the pleading obligation for qualified immunity.

Practitioners must therefore draw a sharp line between pre-hearing investigative misconduct (actionable) and sworn testimony at the hearing (non-actionable), and defendants must carefully articulate qualified-immunity arguments or risk losing a potent defense. The decision underscores the judiciary’s commitment to safeguarding candid testimony—tempered by the possibility of perjury prosecution—while preserving § 1983 as a remedy for fabricated evidence used to seize children in the shadows of ex parte proceedings.