NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRYSTAL ESQUIVEL, 

Plaintiff-Appellant, 

 v. 

FRESNO COUNTY DEPARTMENT OF 

SOCIAL SERVICES, 

Defendant-Appellee, 

and 

STATE OF CALIFORNIA DEPARTMENT 

OF SOCIAL SERVICES, 

Defendant.

No. 22-16975 

D.C. No. 1:22-cv-00001-EPG 

MEMORANDUM*

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).

FILED

NOV 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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 
3 

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 RookerFeldman doctrine, which generally bars federal district courts from exercising 

subject matter jurisdiction over suits that substantively appeal a state court 
4 

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.