NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRYSTAL ESQUIVEL, No. 22-16975

Plaintiff-Appellant, D.C. No. 1:22-cv-00001-EPG

v.

MEMORANDUM*

FRESNO COUNTY DEPARTMENT OF

SOCIAL SERVICES,

Defendant-Appellee,

and

STATE OF CALIFORNIA DEPARTMENT

OF SOCIAL SERVICES,

Defendant.

Appeal from the United States District Court for the Eastern District of California Erica P. Grosjean, Magistrate Judge, Presiding

Submitted November 16, 2023** San Jose, California

Before: MURGUIA, Chief Judge, and PAEZ and FRIEDLAND, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Crystal Esquivel appeals the district court’s order dismissing her suit against

the Fresno County Department of Social Services (“the Department”) alleging

violations of the Indian Child Welfare Act (“ICWA”). Esquivel sued the

Department under 25 U.S.C. § 1914, alleging that the Department failed to comply

with the ICWA’s requirements during a California dependency court proceeding

that led to the termination of her parental rights to her three children. The district

court dismissed for lack of subject matter jurisdiction, concluding that Esquivel

lacked standing to bring the claim because she failed to allege that she was the

parent of an “Indian child” as defined in the ICWA. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

We review a dismissal for lack of subject matter jurisdiction de novo.

United Aeronautical Corp. v. U.S. Air Force, 80 F.4th 1017, 1022 (9th Cir. 2023).

We may affirm “on any ground raised below and fairly supported by the record.”

Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1030 (9th Cir. 2013)

(quotation marks omitted).

The district court correctly concluded that Esquivel lacked statutory standing

under 25 U.S.C. § 1914. Esquivel alleged the Department violated § 1912(d) by

failing to adequately investigate her Native American ancestry. But her complaint

did not allege that she was the parent of an “Indian child” within the meaning of

the ICWA. The Act defines an “Indian child” as “any unmarried person who is

2 under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible

for membership in an Indian tribe and is the biological child of a member of an

Indian tribe.” 25 U.S.C. § 1903(4). In response to the Department’s notices of

involuntary child custody proceedings potentially involving an “Indian child,” the

Eastern Band of Cherokee Indians, the Cherokee Nation, and the Pascua Yaqui

Tribes stated that neither Esquivel, nor her children, nor their fathers were Tribe

members. And Esquivel conceded this lack of Tribe membership before the

district court. “[T]he plain meaning of a statute controls where that meaning is

unambiguous,” Khatib v. County of Orange, 639 F.3d 898, 902 (9th Cir. 2011) (en

banc), and the ICWA’s definition is clear.

The district court next concluded that because Esquivel lacked statutory

standing, the court lacked subject matter jurisdiction over her suit. But “[s]tatutory

standing, unlike constitutional standing, is not jurisdictional.” Jewel v. Nat’l Sec.

Agency, 673 F.3d 902, 907 n.4 (9th Cir. 2011) (quotation marks omitted). A lack

of constitutional standing “requires dismissal for lack of subject matter

jurisdiction,” whereas a “lack of statutory standing requires dismissal for failure to

state a claim.” Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011)

(emphasis omitted). The Department argues we should affirm under the Rooker-

Feldman doctrine, which generally bars federal district courts from exercising

subject matter jurisdiction over suits that substantively appeal a state court

3 judgment. See Doe v. Mann, 415 F.3d 1038, 1041–42 (9th Cir. 2005). But in the

Ninth Circuit, § 1914 claims are an exception to Rooker-Feldman. See id. at 1047.

The district court therefore erred in concluding it lacked jurisdiction to hear

Esquivel’s claim.

We nevertheless affirm the dismissal of Esquivel’s claim under Federal Rule

of Civil Procedure 12(b)(6). The Department moved to dismiss for both lack of

subject matter jurisdiction under Rule 12(b)(1) and failure to state a claim under

Rule 12(b)(6). Because Esquivel conceded that she was not the parent of an

“Indian child” as that term is clearly defined under the ICWA, she failed to

establish statutory standing under 25 U.S.C. § 1914. And as discussed, a “lack of

statutory standing requires dismissal for failure to state a claim.” Maya, 658 F.3d

at 1067.

Finally, the district court did not err in dismissing without leave to amend

because amendment would be futile. See Lund v. Cowan, 5 F.4th 964, 973 (9th

Cir. 2021). Section 1914 permits a parent “from whose custody [an Indian] child

was removed” to seek relief from termination of parental rights, but the record

establishes that Esquivel’s children were not “Indian children” within the meaning

of the ICWA at the time of removal.

AFFIRMED. 1

1 We deny the Department’s motion for judicial notice (Doc. 18) as MOOT.

4