The Denver-based federal appeals court ruled on Tuesday that a child welfare worker’s testimony during a temporary custody hearing, even if it was false, cannot be the basis for a civil lawsuit under the longstanding principle shielding witness statements in judicial proceedings.

A trial judge previously believed the allegedly untruthful statements of former Arapahoe County caseworker Robin Niceta were made “more as an investigative officer” than as a court witness. Without differentiating between Niceta’s in-court and out-of-court statements, the judge refused to grant Niceta immunity for her alleged violations.

But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit disagreed, finding that temporary custody hearings at the outset of a child neglect case are “true judicial proceedings” that entitle witnesses to “absolute immunity” for even false testimony.

“Because a judge at a custody hearing can receive evidence, 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,” wrote Judge Allison H. Eid in the panel’s July 8 opinion.

She added that the purpose of absolute immunity is to permit participants in the judicial process to perform their roles without a fear they will be sued.

Niceta is the defendant in a civil lawsuit brought by Paul Berryman; his wife, Yi Lu; his now-adult daughter, Katelynn; and another daughter who is still a minor. They alleged Niceta violated their constitutional right to due process by submitting false statements to a state judge and testifying falsely in court about suspected child abuse within the family. Although the allegations originated from statements Katelynn had made online and that were reported to police, Berryman’s family claimed Niceta misrepresented the investigation and the abuse allegations.

Both parents admitted to the allegations in state court, proceeded into treatment plans and the child neglect case was dismissed. During that time, the county removed the two children from their home for a year and a half. 

The lawsuit contained several pages describing Niceta’s allegedly false testimony during a February 2021 temporary custody hearing, which took place days after Niceta obtained a verbal removal order from an Arapahoe County judge to place the children in foster care. Niceta also made false statements in connection with that proceeding, Berryman’s family alleged.

In seeking to dismiss the lawsuit, Niceta invoked absolute immunity as well as qualified immunity, which is a judicial doctrine shielding government employees from civil lawsuits unless they violate a person’s clearly established rights.

In a July 2023 order, U.S. District Court Judge Charlotte N. Sweeney refused to dismiss the lawsuit. She believed Niceta had not properly made an argument about qualified immunity, and decided Niceta was not entitled to immunity on the grounds that she was a court witness.

“Ms. Niceta did more than simply testify. She also allegedly falsified information in various documents,” Sweeney wrote. “Furthermore, Ms. Niceta was testifying more as an investigative officer providing false testimony than as an advocate.”

Niceta appealed to the 10th Circuit. During oral arguments, Judge Timothy M. Tymkovich wondered if, notwithstanding the alleged falsehoods, the plaintiffs nonetheless received due process.

“There’s a neutral adjudicator and these orders are temporary. And didn’t your client, after the removal, have an opportunity to contest the removal and engage in some type of opportunity to get the children back? And they stipulated to neglect, the parents did,” he said. “It seems like there was a lot of process.”

Ultimately, the 10th Circuit panel agreed Sweeney correctly rejected the argument that Niceta was entitled to qualified immunity. It also agreed Niceta was not entitled to absolute immunity for false statements she made outside of the custody hearing.

But in addressing the temporary custody hearing itself, Eid wrote that Niceta’s testimony could not form the basis of a lawsuit.

“As the Berrymans’ complaint acknowledges, Niceta’s statements during the custody hearing were made as part of her ‘sworn testimony’ given ‘under oath,'” Eid wrote. “All told, these facts show that Niceta’s testimony at the custody hearing was given in her functional capacity as a witness.”

Eid cautioned that the lawsuit may still be viable. Because Sweeney did not distinguish between the in-court and out-of-court statements, the panel ordered her to review the plaintiffs’ non-testimony-related allegations and determine if they state a constitutional violation.

Niceta is serving a four-year prison sentence for prompting an investigation into an Aurora councilwoman through an untrue child abuse tip.

The case is Berryman et al. v. Niceta.